Mason and Finton

[2011] FamCA 583

FAMILY COURT OF AUSTRALIA

MASON & FINTON [2011] FamCA 583

FAMILY LAW – CHILDREN – With whom a child lives

APPLICANT: Mr Mason

RESPONDENT: Ms Finton

FILE NUMBER: BRC 8497 of 2009

DATE DELIVERED: 26 July  2011

PLACE DELIVERED: Sydney

PLACE HEARD: Brisbane

JUDGMENT OF: Stevenson J

HEARING DATE: 18,19,20,25,26 January, 1 February, 18 March, 29 & 30 June & 1 July 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: G Burridge

SOLICITOR FOR THE APPLICANT: Blake Topping, Solicitors

COUNSEL FOR THE RESPONDENT: J Selfridge

SOLICITOR FOR THE RESPONDENT: Harrington Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: D Carlton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Berck & Associates

Orders

1. That the parties have equal shared parental responsibility for the children:

   C, born on … October 2002 and P, born on … June 2005

   (“the children”).

2. That the children live with the mother at all times other than the periods specified in orders 3 and 4, during which they will live or spend time with the father.

3. That the children live with the father:

   3.1each Saturday from 9:00am to 6:00pm and each Wednesday evening from 5:00pm to 7:00pm for a period of one month from the date of these orders, then

   3.2from 8:00am on Saturday until 6:00pm on Sunday each alternate weekend for 6 weeks, then

   3.3from after school on Friday or 3.00pm on a non school day  until 6:00pm on Sunday, every alternate weekend for 6 weeks, then

   3.4from after school on Friday or 3.00pm on a non school day  until before school on Monday or 9.00am on a non school day, every alternate weekend for 6 weeks, then

   3.5from after school on Thursday or 3.00pm on a non school day  to before school on Monday or 9.00am on a non school day, every alternate weekend for 6 weeks, then

   3.6from after school on Wednesday or 3.00pm on a non school day until before school on Monday 9.00am on a non school day every alternate weekend.

4. If the children are not otherwise in the care of the father pursuant to these orders they will spend time with him:

   4.1On Fathers day from 8:00am to 7:00pm.

   4.2On each child’s birthday between 3:00pm until 7:00pm on a school day and on a non-school day between 8:00am and 1:00pm.

   4.3On the father’s birthday from 3:00pm until 7:00pm.

   4.4In even numbered years on RNA Show Day from after school on the previous day until before school on the next day.

5. If the children are in the care of the father pursuant to these orders, he will return them to the mother:

   5.1from 8:00am until 7:00pm on Mothers Day and

   5.2from 3:00pm until 7:00pm on her birthday and

   5.3on each child’s birthday from 3:00pm until 7:00pm on a school day and from 8:00am until 1:00pm on a non-school day.

6. During periods when the children are living with the mother, the father shall have reasonable telephone contact.

7. During periods when the children are living with or spending time with the father, the mother shall have reasonable telephone contact.

8. Commencing at the conclusion of Term 1 2012, order 3 is suspended during school holidays and the children will then live with the father:

   8.1Subject to paragraph 8.2 for one half of all school holidays, being the second half in odd numbered years and the first half in even numbered years.

   8.2In each even numbered year from 3:00pm on Christmas Eve until 3:00pm on Christmas Day and in each odd numbered year from 3:00pm on Christmas Day until on 7:00pm Boxing Day, provided that in each even numbered year the mother shall spend time with the children from 3:00pm on Christmas Day until 7:00pm on Boxing Day and in each odd numbered year from 3:00pm on Christmas Eve until 3:00pm on Christmas Day.

   8.3School holiday periods shall commence after school on the last day of the school term and shall end at the beginning of the first day of school for the next term.

   8.4Any public holidays and pupil free days which fall between the end of the school holidays and first day of school of the next term shall be considered as part of the school holidays.

9. The venue for changeovers will be the children’s school, after school care, preschool or child care whenever they are attending these centres but otherwise at the mother’s residence at the beginning of each occasion and at the father’s residence at the end of each occasion.

10. Each party will give all necessary authorities to enable the other to access information from the children’s school, preschool, day care, medical practitioners, hospitals and therapists and to obtain copies of any reports or photographs.

11. The father and the mother are to keep each other informed about the children’s health and medical conditions and notify the other in case of any emergency relating to the children and the parties are to keep each other informed in writing of the names and addresses of the children’s schools, preschool, day care, treating medical practitioners and therapists.

12. Both the father and the mother may attend any school activities which would ordinarily attract parent participation.

13. Both the father and the mother will notify the other of any change of address and contact telephone numbers within 48 hours of same.

14. The parties are at liberty to vary the provisions of these orders by agreement between them at any time

15. That pursuant to s.65DA(2) and s.62B, 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 Fact Sheet attached hereto and these particulars are included in these orders.

16. That all material produced on subpoena be returned.

It is noted that publication of this judgment under the pseudonym Mason & Finton is approved pursuant to s 121 (9) (g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC 8497  of 2009

Mr Mason

Applicant

And

Ms Finton

Respondent

REASONS FOR JUDGMENT

the proceedings

1. Mr Mason and Ms Finton are the parents of two children, C born in October 2002, who is eight, and P born in June 2005 who is six years old.  They hold very divergent views as to what arrangements should be put in place for the care of their children.

2. The Independent Children’s Lawyer (“the ICL”) proposed a graduated regime of unsupervised time with the father for six months, leading to a week-about equal time arrangement.  The applicant father largely adopted this proposal.  The ICL and the father both sought orders that the parties have equal shared parental responsibility for the children. 

3. The respondent mother’s primary proposal was that she have sole parental responsibility and that the children to live with her.  She sought orders that the children spend time with the father only under the supervision of the maternal grandfather or at a contact centre.

4. In the alternative, the mother proposed that the children spend unsupervised time with the father “only if and when…[he] has sought and engaged in a meaningful way with an appropriate professional…and obtained assistance in relation to those issues surrounding appropriate boundary setting…and received counselling on a one-on-one basis until advised otherwise by the counsellor”.  At most, the children would spend time with the father from 9:00am on Sunday until before school on Tuesday in three out of four weeks and from 9:00am on Saturday until before school on Tuesday in the fourth week, together with one week in each school holiday.  Presumably, the father’s counsellor would determine the commencement date for this overnight time.

5. The mother’s allegations that the father sexually abused C loomed large in the proceedings.  She claimed that unsupervised time with the father would expose C to an unacceptable risk of sexual abuse.  She alleged further that the father’s “behavioural issues surrounding boundary acknowledgement” would expose both children, in particular C, to an unacceptable risk of harm if they spend unsupervised time with him.

6. The evidence in the trial concluded on 20 January 2011.  Counsel then requested that they provide written submissions, which I received on 25 January 2011, 26 January 2011 and 1 February 2011.

7. As I prepared my judgment I became very concerned about the effect on P of the arrangements proposed by the ICL and the father.  He suffers from Asperger’s syndrome and the proposals would subject him to a number of changes to his routine.  Various medical and psychological reports annexed to the affidavit of the father sworn on 3 December 2010, and to which no objection was taken, referred to his insistence on rigid routines and rituals.  The mother’s unchallenged evidence was that P has temper tantrums if his routine and rituals are disturbed.

8. It thus seemed to me that there was a significant gap in the evidence, so I caused the proceedings to be relisted on 18 March 2011.  Counsel agreed to obtain an updated report from Dr S, a paediatrician who assessed P on 1 February 2010.  Dr S was provided with a copy of the orders sought by the ICL and asked to comment on this proposal.  She provided a report dated 19 May 2011, which was annexed to her affidavit sworn on 1 June 2011.

9. The proceedings were relisted on 29 June 2011, when all counsel indicated that Dr S was not required for cross-examination.  Counsel for the father made his final submissions orally on that day.  Counsel for the mother and the ICL provided further written submissions, dated 30 June 2011 and 1 July 2011 respectively.

Background

1. The father was born in 1974 and is now 36 years old.  He is in full time employment as a manager with Company 1.  He lives in rented accommodation close to the home of the mother and children.

2. The mother was born in 1983 and is now 27 years old.  She is a full time student at University 1.  In 2010 she was completing a masters degree and expected to articulate to a PhD program in 2011.  She and the children live in a home owned by her parents in Brisbane.

3. The parties met in an internet chat room in 1998, when the mother was 15 and the father 24 years old.  They engaged in online conversations of a sexual nature, with the mother asserting a far greater life experience than was the reality.  At one stage, she falsely claimed in the chat room that she was pregnant and that she lost the baby. 

4. In 1999 the parties began to communicate by telephone as well as internet and email.  They first met face to face in 1999, when the father travelled from Brisbane to Sydney.  The father pinpointed this date as 12 September 1999 by reference to his “flight log”.  He has a hobby of watching aeroplanes and recording flight details. 

5. On 9 November 1999 the mother emailed the father:

   “I decided it was better if we didn’t talk anymore.  I realised it wasn’t suitable for us to be talking about what we were talking about with the age difference and everything.  I just wanted to write a final message to let you know that my phone numbers have changed and I will be cancelling my email account.” 

   Several months later, however, they re-established contact.  It seems likely that the mother took the first step to rekindle the relationship.

6. The mother gave a history of the relationship to Mr W, a psychologist who assessed both parties.  She said that she and the father saw each other monthly during 2000, when she was in Year 12 at high school.  She said that he regularly travelled to Brisbane and she flew to Sydney “more than once”.  On these occasions she told her parents that she was staying with friends in their neighbourhood.

7. The father placed the date of the parties’ first sexual encounter as 27 December 2000, in part by reference to his “flight log”.  He said that he remembered flying from Brisbane and that he took photos which presumably bore that date.  The parties agreed that this first encounter took place in bushland near Brisbane Airport.  They had travelled to the airport in a rented car so that the father could watch planes.

8. In August 2001 the mother took a job in the Northern Territory in the travel industry.  A few days after she started work the father faxed photos of her wearing only trousers and a bra to her office.  The father expressed his regret but offered no satisfactory explanation for this extraordinary behaviour.

9. In September 2001 the mother lost her job in the Northern Territory due to the collapse of Airline 1.  Initially she returned to Brisbane but soon moved to Sydney and began to live with the father.  She was 18 and the father 27 years old when they commenced cohabitation.

10. In 2004 the mother and C moved to Brisbane, when she commenced a degree course at University 1.  The father remained in Sydney and travelled to be with the mother and C every second weekend.  He moved to Brisbane in June 2005. 

11. The parties separated in September 2006 but continued to live under one roof for approximately the next month.  The father then moved into a rented one-bedroom apartment in the same area.

12. In about October 2006 the parties resumed a sexual relationship, which continued until August 2008.  The mother ended this relationship after she returned from a three week trip to Asia.  While she was in Asia, the father cared for the children in her home for two weeks.

13. During 2006, 2007 and 2008 the father regularly cared for the children in the mother’s home.  She spent some of this time at his apartment, where she could attend to her university work without interruption.  The parties and children regularly spent time together as a family during this period.  The father had a key to the mother’s home and came and went without prior arrangement and, apparently, with no complaint from her. 

14. In January 2009 the mother became concerned that the father may have touched C inappropriately in the genital area.  The children spent the nights of 9 and 10 January 2009 with the father and returned to the mother on the morning of 11 January 2009.  C wet her bed on each of these three nights. 

15. On 13 January 2009 C said to the mother “my vagina is sore”.  The mother assumed that she was suffering from a urinary tract infection.  C had suffered from these infections previously and the parents had an established routine for dealing with this problem.

16. P had a very disturbed night’s sleep on 14 January 2009.  Early in the morning on 15 January 2009 the mother rang the father and arranged for him to take the children so that she could get some sleep.

17. In her affidavit sworn on 7 December 2010 the mother gave this account of C’s first complaint on 15 January 2009:

    “In the afternoon back at my home, [C] went to the toilet and left her clothes and undies on the floor.  When I went into the bathroom to dress her, I turned her undies inside out and I saw a hair on them.  It looked like a pubic hair.  I shook them and came to the conclusion myself that it may have come from the floor at [the father’s] house or from his washing.  Over the next hour I remembered about [C] saying to me that her vagina hurt earlier in the week, and about the bed-wetting at [C’s] on the weekend.  I felt that I needed to talk to [C] to put my mind at ease.  So I went and asked [C] “Is your vagina still hurting?” to which she replied “Yes”.  I said to her “We need to work out why it’s hurting so we can make it better.   Have you touched it or has [P] touched it in the bath or something?” and she replied “No”.  I asked her “Have I ever touched it when I have wiped for you?” and she said “Yes but it didn’t hurt”.  I asked her “Has Dad ever touched it when he has wiped for you?” and she said “Yes Dad has touched it on purpose”.  I asked her “When has he touched it?  When he was wiping your bottom for you?” and she said “No at story time”.  Then she walked away to her room.  I was disturbed by this and let her go for a minute, then went back to her and said to her “It is important that you tell me the truth so that we can make it stop hurting”.  C said “I am telling the truth”.  I asked her “What did you do when he touched you?” and C said to me “I told him stop I don’t like it and he stopped”. 

18. On 17 January 2009 two police officers (‘Mr Y and Ms Z’) interviewed C.  She made no complaint of sexual abuse and the allegation was found to be unsubstantiated.

19. On 21 January 2009 C made a second complaint that the father had touched her inappropriately in the genital area.  In her affidavit sworn on 7 December 2010 the mother gave this account: 

    “While the kids were having a bath that night at my home on 21 January 2009, I saw [C] start kissing [P’s] neck.  I heard her say to [P] “Sit sideways on me or I’ll have to touch your penis”.  I stopped her and said to her that she shouldn’t touch [P’s] private parts and I got them out of the bath.  [P] ran right into my room (he likes to jump on my bed).  Concerned about what had happened in the bath, I followed [C] into her room, where she’d gone to get dressed.  I saw her standing in her room near her built in wardrobe.  She’d opened the doors of the wardrobe and I couldn’t really see her because of the open doors.  I sat down on her floor, and I said to [C] “I want you to tell me more about what happened at story time”.

    She remained standing up, and from behind the door she said:  “Dad touched my vagina in my bed”.  I asked [C]:  “Why didn’t you tell [Mr Y and Ms Z]?”.  She said:  “I was too scared and wasn’t going to talk to boys because boys aren’t my friends”.  I asked her to show me what had happened, and she got onto her bed and she lay on her back and she showed me, by parting her labia with her fingers and said to me:  “He put his fingers in the middle.  It feels nice when you itch it but daddy itched it too hard”.  She then got up.  I said:  “Come on, get dressed”.  I helped her to get dressed, and took her in to read a book with [P].  I was extremely concerned and upset about what [C] said and did.”

20. In her oral evidence the mother explained that she interpreted C’s use of the word “you” as a generic term and not as a reference to herself.  She said that C uses the word “you” to refer to “someone” or “one” and gave as an example:  “Mum, isn’t it fun when you go fast on your scooter?”.

21. On 26 January 2009 C was interviewed by two female police officers.  Again she made no complaint of sexual abuse and this allegation, too, was found to be unsubstantiated.

22. In January 2008 C commenced her formal education in the Prep class at Primary School 1.  She soon began to display behavioural difficulties at school, which continued into 2009 and 2010. 

23. The children last stayed overnight with the father on 1 and 2 February 2009, apart from one occasion on 14 May 2009 when the paternal grandfather was present in the home.  From February 2009 until November 2009 the mother allowed the children to spend unsupervised time with the father from 8:00am until 7:00pm each Sunday; every third Saturday and from after school until 7:30pm each Thursday.

24. On 22 September 2009 the father filed an application for orders that the children live with each parent on a week-about basis.  From 4 November 2009 the mother permitted the children to spend time with him only under supervision.

25. On 22 December 2009 the Federal Magistrates Court made orders to the effect that the children live with the mother and spend time with the father under the supervision of either of their grandfathers or at a contact centre.  This arrangement has continued to date.

Approach To These Proceedings

1. In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.

2. Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil his or her responsibilities as a parent.

1. The court must have regard to the objects of Part VII, as set out in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child’s right to enjoy his or her culture.

2. Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility.  This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence.  The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

3. If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5).  There is no temporal definition of “substantial and significant time”. 

4. In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:

   “[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…

   [13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…

   [15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”…

5. In Cowley v Mendoza [2010] Fam CA 597 Murphy J set out a “summary of principles”, drawing together the relevant legislation, the decision of the Full Court in Goode and Goode (2006) FLC 93-286 and the judgment of the High Court in MRR v GR.  I extend my gratitude to my learned colleague for this analysis, which has figured heavily in the approach which I now set out to my determination of these proceedings.

6. When a court makes or contemplates making a parenting order, it must:

   ·apply the presumption of equal shared parental responsibility

   ·determine whether there is abuse of a child or family violence, which means that the presumption does not apply

   ·determine whether the presumption is rebutted by evidence that it is not in the child’s best interests for there to be equal shared parental responsibility

   ·if the presumption applies:

   ¨   determine whether it is in the child’s best interests for there to be an order for equal time with each parent

   ¨   make findings as to the matters set out in section 65DAA(5) which are:

   Reasonable practicality: In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

   ¨   as a result of this enquiry, make findings as to whether an equal time order is reasonably practicable

   ¨   if an equal time order is not reasonably practicable, carry out the same process in respect of a “substantial and significant time” order

   ·if there is no equal time or substantial and significant time order, proceed to determine what orders are in a child’s best interests

7. A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166CLR 69. Their Honours said (at page 76):

   “…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child.  The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”

   and at page 75:

   “…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child.  The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.”

8. In M and M the High Court identified the relevant standard of proof as (at pp76-77):

   “In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:

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

9. The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:

   “140(1) In a civil proceeding, 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.

   (3)       Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:

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

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

   (c)the gravity of the matters alleged.”

10. The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):

    “In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.  After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare.  The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.  In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.

11. In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:

    “In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.  We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.  However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.”

12. The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S:

    “In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as:  What is the nature of the events alleged to have taken place?  Who has made the allegations?  To whom have the allegations been made?  What level of detail do they involve?  Over what period of time have the allegations been made?  Over what period of time are the events alleged to have occurred?  What are the effects exhibited by the child?  What is the basis of the allegations?  Are the allegations reasonably based?  Are the allegations genuinely believed by the person making them? What expert evidence has been provided?  Are there satisfactory explanations of the allegations apart from sexual abuse?  What are the likely future effects on the child? 

    I would respectfully observe that this series of questions is a useful, practical tool in the determination of the issue of “unacceptable risk”.

The Evidence and Witnesses

1. The applicant father relied on his affidavits sworn on 3 December 2010 and 17 December 2010.  He presented as an intelligent and articulate person who gave truthful evidence.  He spoke respectfully of the mother and the maternal grandparents.  As appears below, it seems that there are some unusual aspects to his personality and behaviour.

2. The mother swore an affidavit on 7 December 2010.  She, too, presented as an intelligent and articulate person.  She acknowledged her past untruths, such as the non-existent pregnancy.  As with the father, it seems that there are unusual aspects to her personality and behaviour to which I refer later in the reasons.

3. The maternal grandfather, Mr M, swore an affidavit on 3 December 2010.  He is an academic.  Unsurprisingly, Mr M expressed disquiet about the evolution of the parties’ relationship, given the age difference.  To his considerable credit, Mr M has been prepared to supervise the children’s time with their father.  He made a number of favourable observations of their interaction in his oral evidence.

4. Ms N, the maternal grandmother, swore an affidavit on 3 December 2010.  She is a professional person who conducts a private practice.  Again unsurprisingly, Ms N was opposed to the relationship between the parties.  She was adamant that she has never made negative comments about the father to the children and that she will support their relationship with him in the future. 

5. Ms K swore an affidavit in the mother’s case on 2 December 2010 and was not required for cross-examination.  I was not greatly assisted by her evidence.  She offered critical observations of the father’s behaviour in social settings and seemed to suggest that he interacted with children rather than adults.  I had the opinions of two experts as to the father’s behaviour patterns, which were of much more assistance than the observations of Ms K.  She described C’s disturbed behaviour, as to which the mother gave unchallenged evidence.  She raised an issue that the father collected C before P in August/September 2009, a fact upon which she seemed to place a sinister connotation.

6. The Family Consultant, Ms B, swore an affidavit on 8 December 2010 which annexed her report of the same date.  Ms B gave oral evidence.

7. The ICL also relied on an affidavit sworn on 9 September 2010 by Mr W, a psychologist, which annexed his report.  Mr W became involved in the proceedings when the Family Consultant recommended a psychological assessment of each of the parties.  Ms B had the benefit of Mr W’s report.  Mr W gave very helpful oral evidence.

8. Ms L swore an affidavit on 14 January 2011 and gave brief oral evidence.  She is a psychologist who saw C and assessed that she suffers from anxiety.

9. As noted, the ICL obtained an updated report in relation to P from Dr S at my request.  I record my gratitude to the ICL for obtaining this important additional evidence. 

The Allegations of Sexual Abuse

1. C has made two statements which could be construed as complaints of sexual abuse by her father.  I decline to apply the word “disclosure” to these statements, because it imputes a validity which may be illusory.

2. I have set out above C’s statements to the mother on 15 January 2009 and 21 January 2009.  There was no evidence that she has made a similar statement to any other person.  I do not suggest, in making this observation, that the mother was untruthful in her reporting of C’s statements.

3. The Family Consultant raised the issue of sexual abuse when she interviewed C on 8 November 2010.  She reported:

   “I suggested to [C] that she may have said something to her mother that worried her.  [C] responded by saying; ‘well I might have said it, but it might not have happened’.  When asked to explain what she meant, she replied; ‘well I told Mum that Daddy tickled my vagina, but it was only when it was sore and I told him, and then he put powder on it’.  [C] indicated that she would like to be seeing her father more.”

4. As noted, C was interviewed by police officers on two occasions in 2009.  On 17 January 2009 the interview team consisted of a male and a female officer (‘Mr Y and Ms Z’).  C made no complaint of sexual abuse by her father during this interview.

5. The mother claimed that she had a conversation with C after the bathtime incident between the children on 21 January 2009.  She alleged that the following occurred:

   “I said to [C] ‘I want you to tell me more about what happened at story time’.  She remained standing up, and from behind the door she said:  ‘Dad touched my vagina in my bed’.  I asked [C]:  ‘why didn’t you tell [Mr Y] and [Ms Z]?’  She said:  ‘I was too scared and wasn’t going to talk to boys because boys aren’t my friends’.”

6. There was no evidence that C has displayed sexualised behaviour in the presence of any person other than the mother.  Again, by making this observation, I do not suggest that the mother untruthfully or inaccurately reported on C’s behaviour.

7. This conversation prompted a further police interview of C on 26 January 2009, which was conducted by two female officers.  Again, C made no complaint of sexual abuse by her father.

8. The mother deposed that C “retracted her disclosure” and denied to her “what she had previously said about [the father] touching her”.  She said that C told her “Daddy didn’t do anything” and that she has been very angry that she is not allowed to stay with him.

9. In a document headed “Assessment and Outcome Summary” dated 23 February 2009 an officer of the Department of Child Safety reported:

   “The outcome is unsubstantiated for [C] and [the father].

   There is no evidence to support that [C] has been sexually abused by her father [Mr Mason].  [Ms Finton], the children’s mother, had alerted authorities as to her concerns in relation to [C] indicating to her that her father had touched her private parts when reading a story to her and that she had also found a pubic hair in [C’s] underpants.

   Child Abuse Investigation Unit interviewed [C] on two separate occasions and [C] made no disclosures.  The school that [C] attends, [Primary School 1], has similarly advised there have been no recorded concerns in relation to [C’s] behaviour.  [The mother] has acted protectively of [C] by reporting her concerns to police.  It is unsure as to the exact information [the mother] obtained from [C] and as to how [the mother] then questioned [C] about the alleged concerns.  [The mother] has recently engaged [C] in counselling as a protective measure and to ensure that anything is occurring to [C] of a sexual nature then she will have someone that she feels comfortable talking to and disclosing information.

   [The father] advised that he was shocked by the concerns but that he did not sexually abuse [C] and that the thought of it disgusted him.  He was unable to explain how [C] may have had soreness of her vagina area or as to how a pubic hair may have been in her underpants.  [The father] advised that it may have been when the children’s washing were with his washing.

   [The mother] is believed to be genuinely concerned about [C] and is not vindictive towards [the father] and making up the concerns to prevent him from having access to the children.”

1. The father has at all times vehemently denied that he sexually abused C.  He denied the allegations to officers of the Department of Child Safety at the first possible opportunity.  The Family Consultant reported:

   “[The father] stated that he doesn’t know what to think about [C’s] disclosures and commented;  ‘I don’t know where she would get these ideas from, we don’t read books in bed’ (this is in reference to [C’s] assertion that the alleged inappropriate incidents occurred during the time her father would read stories to her in bed).  He has emphatically denied sexually abusing his daughter, and could not think of anything that he has done while [C] was in his care that she or anyone else could misconstrue as inappropriate.”

2. The father maintained that C spontaneously raised the allegations of sexual abuse with him on 25 April 2009 and 24 October 2009.  On the first occasion the children and the father were visiting two of his friends.  During dinner C asked him if they were to stay at his home that night.  He replied “no” and asked if they wanted to stay with him.  When they said “yes”, he suggested that they ask their mother.  C said:  “She says no because you touched me”.  The father asked “did I touch you?” and C replied “no”.

3. On the second occasion the parents had discussed arrangements for the return of the children when the father collected them.  As they drove away C asked the father if they were “agreeing” and then said “it’s all my fault as I had told the lies”.  C then said “it’s not true, I don’t like [P] touching privates.  I told mum heaps of times that it is not true.  I don’t like talking about it because it’s not true.  I’m seeing [J] on Monday, I like [J], I trust [J]”.

4. This evidence was unchallenged.  Prima facie, C’s statements appear to be unsolicited and to reflect her unhappiness at being allowed only very limited time with her father.

5. The written submissions on behalf of the mother contained these concessions in relation to the allegations of sexual abuse:

   “(a)     there is no discernable forensic (medical) evidence to support the allegations

   (b)      DOCS and QPS have found the allegations to be unsubstantiated

   (c)      the father has been wholly consistent in denying the allegations.”

   These concessions were appropriate and accurately reflect the evidence. 

6. It is clear that the mother has discussed the allegations of sexual abuse with C.  There was some evidence to suggest that the maternal grandmother has done so as well.  In her affidavit sworn on 29 October 2009 the mother deposed:

   “On Saturday 14 February 2009 [C] said to me ‘Nanny (her maternal grandmother) is a shithead for asking so many questions’ when she was told that Nanny and Pa were going to babysit that night.  I told her ‘we are all worried and you don’t have to keep secrets or look after yourself…adults are supposed to look after kids’.  She said to me ‘I am never telling you again…I want to have a secret’.  [C] was very upset and very angry, but she let me hold her and calm her down after some time.”

7. In her affidavit sworn on 3 November 2009 the maternal grandmother deposed:

   “I recall that over the weeks after the disclosure, I was very upset as [C] seemed frightened.  She seemed to me to be very remote.  I felt I couldn’t reach her.  I recall saying so to [the maternal grandfather] and my being very disturbed by this and [the maternal grandfather] agreed that he knew just what I meant by ‘remote’.  This was a change from [C’s] usual behaviour with us.  I recalled one day [C] burst out to me with the statement ‘nothing happened’.  I understood she was referring to the disclosure.  I felt [C] felt she had to change her mind.  She said to me at the time ‘don’t ask me any questions’.  On the advice of a friend of mind, [the maternal grandfather] and I tried to behave normally around [C] and [P] and to let them have some normality.  I tried not to ask [C] questions.”

8. In her second affidavit the maternal grandmother omitted from this paragraph the words “I tried not to ask [C] questions”.  “In cross-examination she said “I took this out of my second affidavit because it looked as if I had been asking questions”.  She said also “it was a struggle for me not to ask questions”.  My impression was that, even with the best of intentions, it may have proved impossible for her to refrain from raising the subject with C.

9. This evidence suggests that the mother and the maternal grandmother have discussed the sexual abuse allegations with C, although probably on limited occasions.  Of course, C’s statements would have been most concerning to them and they would naturally wish to pursue the issue with her.  Such discussions, however, would have kept the subject alive in C’s mind after the allegations had been found to be unsubstantiated.

10. C began counselling at Organisation 1 late in 2008.  In mid-2009 the counsellor introduced “protective behaviours training”.  After one such session, C refused to return and was then placed in a counselling group.  There was no evidence as to what the counsellor said to C when she began this “protective behaviours training”.

11. The Family Consultant commented on C’s refusal to return to counselling after the introduction of “protective behaviours training”.  She opined:

    “Perhaps when she was placed in a Protective Behaviours Program previously she was not mature enough to understand it and benefit from it.  Hence this could be the reason as to why she resisted engaging in the Protective Behaviours Program before, as reported by her mother, rather than an indicator that she had been sexually abused.”

    This opinion was unchallenged.

12. I find, on the balance of probabilities, that the father did not sexually abuse C for the following reasons:

    ·she never made a statement which could be construed as a complaint of sexual abuse to any person other than the mother

    ·she never displayed sexualised behaviour to any person other than the mother

    ·she spent unsupervised time with the father for approximately nine months after the January 2009 incidents, with no further statement whatsoever which could be construed as a complaint of sexual abuse

    ·she told the mother, the father and the Family Consultant that her statements were untrue

    ·it is likely that the mother, the maternal grandmother and the Organisation 1 counsellor have had limited discussions with her about the issue of sexual abuse by the father

    ·there was no physical evidence of sexual abuse (which is, of course, far from uncommon)

    ·the father has been vehement and consistent in his denials that he perpetrated sexual abuse

    ·she made no complaints of sexual abuse in two police interviews

    ·she showed no fear of the father when observed with him by the Family Consultant

    ·the two complaints were found to be unsubstantiated by officers of the Department of Child Safety

13. I further find, to the requisite standard, that neither child will be exposed to an unacceptable risk of sexual abuse in the unsupervised care of the father.  Such a risk cannot be extrapolated from the two statements made by C, in combination with the father’s alleged issues with “boundaries” in interpersonal relationships. 

14. In advancing the argument that the father has issues with “boundaries” in interpersonal relationships, the mother placed considerable emphasis on their own history.  For reasons to which I now turn I do not accept that the father was solely or even significantly more responsible than the mother for the evolution of the parties’ relationship.

Risks Alleged to Arise from the Father’s Personality Traits and Patterns of Behaviour

1. The mother alleged that the history of the parties’ relationship gives rise to concerns as to the father’s “understanding of appropriate social norms and boundaries”, to such an extent that the children would be at unacceptable risk in his unsupervised care.  The mother harboured a belief that the father may suffer from high-functioning Asperger’s syndrome, which undermines his ability to interact appropriately with other people.

2. Regrettably, the Family Consultant may well have reinforced the mother’s fear that the father suffers from this condition.  She did not purport to make a diagnosis, for the obvious reasons that her qualifications are in the social work area.  She did, however, make these comments in her report:

   “68.  [The mother] through her retrospective account of [the father’s] demeanour and behaviours and the subsequent diagnosis of their son, has led her to question whether [the father] has a level of high-functioning Asperger's.  While there is no formal diagnosis, it is my opinion that some of the behaviours and characteristics of [the father] as described by [the mother] and her parents are congruent with some of the traits commonly displayed by those people with high-functioning Asperger’s.

   69.  If [the mother’s] suspicion is correct, it would serve to explain why [the father] has in the past behaved in a manner which would suggest that he does not recognise and/or conform to generally accepted social mores, thus rendering him prone to exhibiting mannerisms and social reactions that could be viewed as insensitive to other people’s feelings and perceptions.

   70.  It is interesting that [the mother] and indeed her parents perceive that [the father] relentlessly pursued [the mother] and that [the mother] felt that [the father] was possessive of [the mother].  Recent research into individuals with high-functioning Asperger’s has suggested that a combination of poor social understanding, a lack of understanding of behavioural propriety and the obsessional preponderance found in high-functioning Asperger’s may lead an individual with high-functioning Asperger’s to determinedly pursue, harass and intimidate another into some kind of relationship.  Hence it is my opinion that it is possible to explain/contextualise some of [the father’s] behaviour and attitudes particularly in regard to intimate relationships by understanding the idiosyncratic nature of individuals with high-functioning Asperger’s, rather than seeing it as overtly abusive behaviour that has been underpinned by malicious intent.”

3. In fairness to the Family Consultant, it should be acknowledged that she has an interest in the area of Asperger’s syndrome and autism.  She said that she “has had a lot of experience with adults and children [with these conditions]” in her work in a government department and the field of child protection.  She said that her interest has led her to carry out research into these conditions.  As noted, however, she did not purport to make a diagnosis of Asperger’s syndrome in respect of the father.

4. The notion that the father suffers from Asperger’s syndrome was firmly refuted by Mr W, who is a psychologist.  He said that he read the Family Report and the article apparently relied upon by Ms B in reaching her conclusions.  Mr W said that the she “seems to have relied on an article but not seen the original research by Nelson and Nelson, so the article is a secondary source of research”.  He added “the whole article refers to adolescents and the authors say that they can’t extrapolate to adults”.  He also noted that Ms B “drew on information from [the mother] and her parents”. 

5. Mr W outlined to his experience with people who suffer from autism or Asperger’s syndrome.  He worked with autism sufferers on a full-time basis and established a private practice because he had skills in this area which were then relatively uncommon.  His current practice includes the assessment and counselling of people who suffer from autism and Asperger’s syndrome.

6. Mr W opined that the father’s successful work history, which involves dealing with people in a sales context, is inconsistent with a diagnosis of Asperger’s syndrome.  He considered that the father has obsessional traits, as illustrated by his fussiness with food and hobby of watching planes and documenting flights.  He said that the father “may focus on some things disproportionately”. 

7. Mr W recommended that the father undertake individual counselling “to help him appreciate the wider picture, shift his focus and understand context”.  To his credit, the father said that he was willing to accept and act on this recommendation.

8. Considerable attention was focussed in the trial on the history of the parties’ relationship.  It was common ground that they met in an internet chat room when the mother was 15 and the father 24 years old.  They began to have conversations of a sexual nature by telephone and email before they met face to face for the first time.  During this period the mother invented stories about sexual encounters, teenage pregnancy and a miscarriage.  For example, she emailed the father on 14 June 1999 about a sexual encounter with one “…” whom she said that she had known for one week.  She was just over 16 years old at the time.

9. The parties first met face to face in late 1999 when the mother was 16 and the father 25 years old.  The father claimed that they first had sex on 27 December 2000.  The mother did not give a specific date, other than to allege that she was in Year 11 at high school.  As noted, the father claimed that he was able to pinpoint the date of 27 December 2000 because he remembered flying to Brisbane and that he took photos on approach to the airport.  He said also that this occasion was “memorable” for him, which assisted his recall of the date. 

10. In 1999 or 2000, but more likely 1999, the mother reported to police that the father was stalking her.  On another occasion she “trashed” her bedroom in an attempt to create the impression that he broke into her parents’ home while the family was away on a holiday.  She admitted that the report of stalking was false and that she had fabricated evidence by damaging her bedroom.

11. As noted, on 9 November 1999 the mother emailed the father:  “I decided it was better if we didn’t talk any more.  I realised it wasn’t it wasn’t suitable for us to be talking about what we were talking about with the age difference and everything.  I just wanted to write a final message to let you know that my phone numbers have changed and I will be cancelling my email account”.  There was no further communication for several months.

12. The father maintained that the mother re-instigated contact in 2000 and expressed affection toward him.  She said that she “can’t prove” that she did not rekindle the relationship. I am inclined to the view that she did so.

13. In August 2001 the mother moved to the Northern Territory to take up a job in the travel industry.  She claimed that she took this step in an attempt to extricate herself from the relationship.

14. A somewhat different picture emerged from the evidence of the father, which was largely unchallenged.  He said that the mother stayed with him in Sydney for three nights before she left for the Northern Territory.  On his version of events, she arrived on his birthday; they took a day trip to Melbourne to visit friends; he bought an engagement ring for her and drove her to the airport on 7 August 2001. 

15. By this time the mother was 18 years old.  Even allowing for her youth, these actions do not appear to be those of a person desperate to escape from an oppressive relationship.  Obviously, she could have gone directly from Brisbane to the Northern Territory and avoided seeing or communicating with the father at all.

16. Soon after the mother started her new job the father faxed to her employer photos of her wearing only a bra above her waist.  His unchallenged evidence was that she was wearing three-quarter length pants in these photos as well as the bra.  He also emailed these photos to her parents and sister.  As noted, he could offer no acceptable explanation for these actions and, in fact, he did not attempt to do so.

17. The mother returned to Brisbane in October 2001, after she lost her job due to the collapse of Airline 1.  She quickly moved to Sydney and the parties began to live together.  At this time the mother was 18 and the father 27 years old.  The mother could have remained in Brisbane, where she had the support of her parents, rather than move to Sydney to live with the father.

18. The mother and C moved to Brisbane in 2004.  The father followed in June 2005 and the parties lived together until September 2006.  He had travelled to Brisbane every second weekend between 2004 and September 2006.

19. The parties remained in the same premises for approximately one month after their separation.  The father then moved into a one-bedroom apartment in the same neighbourhood.  Within weeks of the separation they resumed a sexual relationship, which continued until September 2008.  The mother ended this relationship when she returned from a three-week trip to Asia.

20. Between 2006 and 2008 the parties and children sometimes had dinner together and went on outings as a family.  The father had a key to the mother’s home and he cared for the children there regularly, while she used his smaller premises for her university studies.  He also cared for the children in the mother’s home when she socialised, for example, on a close friend’s birthday in 2006.  The mother said that the father cared for the children in her home on an average of two or three times per week.

21. My impression was that the parties’ relationship between 2006 and 2008 was not nearly as one-sided and unbalanced as the mother suggested.  She maintained that she engaged in sexual activities with the father unwillingly and only to placate him. 

22. This proposition sits uncomfortably with the mother’s apparent willingness to allow the father to maintain a key to her home and to come and go without prior arrangement for approximately two years.  Her evidence also sits uncomfortably with the sexual nature of some of her communications with the father during this period.  For example, the father gave this unchallenged evidence: “I have a vivid recollection of an evening either in 2006 or early 2007 when the mother was ironing and I was watching TV, she said:  ‘I have nearly finished ironing, if you are still here when I am finished I am going to have to fuck you’ (or words to that effect)”. 

23. The father further deposed to an evening on 12 April 2008, when the mother was at his apartment and he was with the children at her home.  He said:

    “…we were engaged in an MSN conversation and she said ‘HAHAHAHA, I’m fuckin freakinnn outttt, hahahah, but I just did my bit for proj management and I’ve done my stats tut work now I’ll do a bit of my stats assignment or do you think i’d concentrate better if I ….’.  [The mother] was referring to using her vibrator to masturbate as she ‘just like the chilled out feeling afterwards’.  She even asked me ‘you don’t care bout tonight?’ meaning that she would not be that keen on having sex later.”

    The mother admitted that she masturbated with a vibrator while engaging in a conversation of a sexual nature with the father.

24. I am satisfied that the mother was a much more willing participant in the relationship of the parties between 2006 and 2008 than she suggested on the face of her affidavits.  I am satisfied that the mother exaggerated her unwillingness to participate in the relationship for the purpose of these proceedings.

25. There is no doubt that the father engaged in some dubious activities in the period between 2006 and 2008.  For example, in 2008 he searched through the mother’s handbag.  In 2006 he logged on to MSN Messenger with her password in 2006 and pretended to be her.  There is no excuse for this behaviour.

26. The father maintained that the mother had a practice, throughout the relationship, of checking his mobile phone whenever he received messages.  His unchallenged evidence was that, following the separation in 2006, “[the mother] would always want to know where I was whenever I was not home and would text or call to ascertain my whereabouts”. 

27. During the relationship the mother also engaged in conduct which did not do her any particular credit.  She made a false report to police that the father stalked her.  She deliberately damaged her bedroom to create the false impression that he committed the crime of breaking into her parents’ home.  She lied to her parents when she travelled to Sydney to visit the father.  She lied to the father about a sexual encounter with “…” and about a pregnancy.  She lied to a doctor about a previous pregnancy when she and the father attended a medical appointment after C was conceived.

1. Overall my impression was that both parties engaged in unusual behaviour in the course of their relationship.  To some extent the mother’s youth and the imbalance in the parties’ age and maturity may explain some of her actions.  My impression, however, was that she exaggerated the father’s unusual behaviour and minimised her own for the purposes of these proceedings.

2. Mr W carried out a psychological assessment of the mother and reported:

   “55.  [The mother’s] result profile on the MMPI-2 indicates that she has responded to the assessment items consistently, accurately and reliably.  There is no indication that she has attempted to present herself in a socially favourable manner.

   56.  On the clinical subscales (those which assess psychopathology) [the mother’s] scores suggest the following:

   57.  She may be experiencing somatic complaints and lack insight concerning the causes of the symptoms.  She may also be low in energy and may feel sad and/or anxious.

   58.  She may be rebellious towards authority, being likely to express resentment of societal and parental standards and customs.  She is also likely to have definite opinions about what is right and wrong and be likely to stand up for her own beliefs.

   59.  She may have family problems, describing her family of origin as lacking in love, understanding or support.  She may also feel that her family has been critical of her and has not permitted her adequate freedom and independence. 

   60.  She may have excessive energy and lack direction.  She may also have an unrealistic self-appraisal, be impulsive and have low frustration tolerance.

3. Mr W summarised his psychological assessment of each of the parties as follows:

   “I am of the opinion that neither [the father] nor [the mother] is suffering from a psychological disorder.  Each individual has a number of personality characteristics which predispose them towards conflict during their relationship, but neither of them is suffering from a personality disorder.  [The mother] has been, in the past, impulsive, reckless and rebellious and there are indications that she is still very free-willed and with a tendency towards rebelliousness.  [The father] is a very contained man who is likely to be somewhat inhibited and controlled with a tendency towards obsessionality.  Both parents are functioning at a high level in their respective professions and are likely to be above average intellectually.  [The mother] appears to have found an amount of direction in her life and she has recently demonstrated effective goal directed behaviour.  She has developed insight into the rebellious, ‘black sheep’ like behaviour she displayed in her teenage years.  [The father] is focussed on his career and, although he is not happy that it has been alleged that he has harmed [C], he does not appear to be bitter, angry or vengeful.  He spoke respectfully of [the mother].”

4. I am not persuaded that the father’s personality traits and patterns of behaviour are such as to expose the children to an unacceptable risk of harm in his unsupervised care.  I reach this conclusion having regard to the expert opinion of Mr W and to my own analysis of the dynamics of the parties’ relationship.

5. In this regard, I am also conscious that the mother allowed the father to care for the children in her home two to three times per week between 2006 and 2008.  She participated regularly in family activities with him and the children during this period.  The children also spent time with the father outside of the mother’s home during these two years.  Even after the allegations of sexual abuse arose in January 2009, the mother permitted the children to spend day periods of unsupervised time with the father until November 2009.  In my opinion, this history is incongruent with the concerns which the mother now asserts as to the father’s personality traits and behaviour patterns.

C’s Anxiety

1. It is clear that C suffers from anxiety, the source or cause of which was not identified in the evidence.  At least inferentially, the mother sought to attribute C’s anxiety to the father.

2. The mother maintained that C developed behavioural problems at school in 2008.  In her affidavit the mother said that staff reported to her that “[C’s] relationships with other little girls, her peers at school, were considered by the teachers to be overly dramatic and age-inappropriate”.  School staff informed the mother that C was involved in fights and disputes with other children.  I accept the mother’s evidence in this regard despite the contents of the “Assessment and Outcome Summary” previously referred to in paragraph 66.

3. In her affidavit the mother described a deterioration in C’s behaviour at school during 2009.  She began stealing from other children and her teacher and continued to experience problems with fellow students, particularly little boys.

4. The mother deposed that C is easily angered but later regrets her outbursts.  She throws things at the mother and P and scratches them. 

5. C developed a problem with bedwetting in January 2009, when she stayed at the father’s new premises for the first time.  He had moved house in December 2008.  The father said that C did not have a urinary tract infection and did not complain of soreness when she wet the bed.  He said “I put it down to the new environment, an unfamiliar house”.  He explained that he had read of this possibility in material issued by the Child Support Agency, which he annexed to his affidavit.  C’s bedwetting problem continued into 2010.

6. On an objective view, there were significant changes in C’s life between late 2008 and 2009.  In September 2008 the mother suddenly changed the nature of the parents’ relationship and the extent of the father’s involvement with the children.  Presumably, the family dinners and activities no longer took place and the father did not care for the children in the mother’s home.  The father moved to a different home in December 2008.  The mother was absent in Asia for three weeks and in New Zealand for one week in August/September 2008 and November 2008 respectively.  In December 2009, pursuant to orders of the Federal Magistrates Court, the children’s time with their father was severely reduced and occurred only under supervision. 

7. In these circumstances, it is perhaps unsurprising that C suffers from anxiety.  She has been subjected to major changes in her life and, clearly, she is unhappy at the limitations on the time she is permitted to spend with her father.  I do not draw an inference that C’s anxiety is caused or exacerbated by the father’s personality traits and behaviour patterns.

8. The Family Consultant, Mr W and Ms L all recommended that C receive individual treatment for her anxiety.  Mr W said that anxiety “is eminently treatable” in children.  The Family Consultant said that she “entirely agreed” with this opinion.  To their great credit, both parents indicated that they are prepared to act on these recommendations.

The Presumption of Equal Shared Parental Responsibility

1. The ICL and the father proposed that the parties have equal shared parental responsibility for the children.  The mother sought that she have sole parental responsibility on condition that she inform the father of all issues pertaining to the children’s health, religion and education and provide him with advance notice, before making any such decision.  Alternatively, she proposed that the parties have equal shared parental responsibility provided that C continues to receive counselling and P receives ongoing treatment for Asperger’s syndrome.  In her oral evidence the mother said that she agreed to equal shared parental responsibility.  She added that she has experienced difficulties in securing the father’s agreement to counselling for C.

2. Nothing in the evidence persuaded me that this presumption does not apply or has been rebutted.  I have found that the father did not sexually abuse C.  There was no suggestion that the children were physically abused by either parent or a member of his or her household.  I am not satisfied that either parent or any other person emotionally abused the children. 

3. The mother alleged that the father subjected her to violence on two occasions.  She alleged that on 5 September 2006 after an argument: 

   “[The father] suddenly lost it and he grabbed me, cornered me and held me hard against the wall with his hands on my shoulders, and then told me I had no idea what he was talking about and that when he looks at me he just sees his mum ([The father] has a difficult relationship with his mum).  [the father] was very angry and aggressive when he did this.  He was very threatening.  The way he said what he said to me, and handled me, left me feeling that he was going to really hurt me.  I was badly shocked and very frightened by this….”

4. The father gave a different account of this incident.  He agreed that there was an argument on the evening of 5 September 2006.  He said that he physically moved away from the mother so as to end the dispute and:

   “…[The mother] followed me around the house and continued to torment despite me indicating that I did not wish to argue whilst she was so agitated.  We were near the kitchen and [the mother] made a remark that I found particularly offensive.  I think it was about my mother.  I grabbed her and held her against the wall and asked her to stop.  I did not hit her nor did I intend harming her in any way.  I do not condone my actions however I find it surprising that [the mother] rarely seemed to believe that she carried any blame for our disputes….”

5. Obviously, the father should not have “grabbed” the mother and “held her against the wall”.  On the other hand, it seems that the parties were engaged in a heated argument but the mother resisted the father’s efforts to diffuse the situation.

6. The mother told the Family Consultant that the father punched her leg, as she walked away from him after an argument.  The father’s version was that she struck him on his back with her fist and he reacted immediately by hitting her thigh.  It is impossible for me to make any finding as to which version is more likely to be correct, as this evidence was untested.

7. The parties made mutual allegations of displays of anger during their relationship.  It may well be that they both engaged in such conduct.  I am mindful of Mr W’s opinion that “each individual has a number of personality characteristics which predisposed them towards conflict during their relationship…”.

8. I find that the mother failed to establish that there are reasonable grounds for the court to believe that the father engaged in abuse of the children or family violence or that there was evidence that equal shared parental responsibility would not be in their best interests. There will thus be an order for equal shared parental responsibility. The consequence is that I must consider whether the children should spend equal time with each parent. If I conclude that there should be no such order, I am then required to consider whether the children should spend substantial and significant time with each parent. I will do so, inter alia, by reference to the primary and additional considerations set out in section 60CC of the Family Law Act.

Primary Considerations

1. C and P have two parents who love them dearly and are strongly committed to them.  The Family Consultant reported on the children’s interaction with the father but apparently did not observe them with their mother.  It may well be that she considered that she had sufficient information to infer that the children have a loving, constructive and positive relationship with their mother. 

2. The Family Consultant reported: 

   “47.  Both children were very happy to see their father and ran up to their father and gave him a big cuddle.  The children appeared relaxed and were spontaneous in their reactions and conversations with their father.  It was observed that on both occasions (April and November) [the father] related very well to the children and engaged in age-appropriate play with [C] and [P] with considerable ease.  One could almost say that he was like a big kid, who was comfortable with engaging at that level.

   48.  Neither [C] nor [P] displayed any hesitations or reservations when relating to their father.  Both children appeared to revel in the opportunity to spend time with their father.  It was assessed that both [C] and [P] have a secure attachment to their father.  They have both indicated that they wish to spend more time with their father.”

3. In her oral evidence the Family Consultant spoke positively of the father’s commitment to the children.  She said:  “he presented as someone who is very keen to pursue his role as a father”.  She said also “I think they feel safe with him”. 

4. There was no suggestion at all that the children have other than a close, loving relationship with their mother.  She has been their primary carer throughout their lives.  The father himself said:  “she is a good mother”. 

5. For these reasons I conclude that the children currently enjoy a meaningful relationship with each of their parents.  The meaningfulness of their relationship with their father could be enhanced by the introduction of unsupervised overnight stays and holiday time.  Of course, this step could be taken only if the children’s safety can be ensured in those circumstances.  As indicated, I have found that there is no need to protect the children from abuse or family violence.

Additional Considerations

1. C has repeatedly expressed her unhappiness with the limited time she is able to spend with her father and the fact that on occasions she can only see him at a contact centre.  The Family Consultant reported:

   “40.  During the April interview [C] was very restless and it was difficult to contain her during the interview.  She reported that she used to ‘go over to Dad’s house…but we go to the special place at [Town 1]…don’t know why’.”

2. In June 2010 C expressed the same dissatisfaction to the mother.  She deposed:  “After their visit to [Contact Centre 1] on 20 June 2010, [C] said to me in the car ‘one of the girls who used to come there doesn’t have to come there any more and gets to see her dad at his house now – why can’t we do that?’.  Later that day [C] said to the mother: “I hate going to [Town 1], people look at you all the time and you can’t even tell secrets there’.”

3. P expressed to the Family Consultant a clear wish to spend more time with the father.  She reported: 

   “In November [P] informed me that he wished he could see his dad; ‘for a long time…wish we could have dinner with him…’”

4. There is thus no doubt that both C and P miss their father and have a strong wish to spend more time with him.  Sadly, C appears to blame herself for this loss in the lives of herself and her brother.

5. The mother has an admirable history of support for the children’s relationship with the father.  After C’s complaints in January 2009 she did not seek to terminate the children’s time with him or to sever the paternal relationship.  In fact, she continued to permit daytime unsupervised contact until November 2009.  I am satisfied that she appreciates the importance of the father in the children’s lives. 

6. It is somewhat puzzling that the mother allowed unsupervised time to continue for some ten months after C made her statements of possible sexual abuse by her father.  She suggested that there were essentially two factors which prompted her to seek supervision of the children’s time with their father in November 2009. 

7. Firstly, she became aware that the father collected C before P and spent time alone with her three times in late August and early September 2009.  Secondly she claimed to have become concerned about the father’s likely reaction when he received her affidavit and learned that she reported C’s statements of possible sexual abuse to police and child protection authorities.

8. The father conceded that, with hindsight, it was unwise for him to collect C ahead of P and spend time alone with her.  It seems that on one of these occasions he did so because the mother asked him to help her collect her car from a repair shop.  Otherwise, he explained that he did not want to take P out of kindergarten when he and his school friends were about to have afternoon tea together.  He said that he therefore picked up C, bought food and prepared dinner and then collected P.  His reasoning was that he could play with both of them when they got home, instead of having to prepare a meal.  The father reverted to collecting the children together when the mother complained about the alternative arrangement.

9. The Family Consultant observed that the father “at all times spoke respectfully of the mother and was positive about her parenting capacity”.  He told the Family Consultant “once this is all over, I will not hold a grudge because it won’t be good for the kids…”  My impression was that the father genuinely wishes to establish a constructive co-parenting relationship between the parties. 

10. The mother gave evidence that she would accept a finding of the court that the father did not sexually abuse C.  The Family Consultant opined that she would encounter initial difficulties in coming to terms with unsupervised time.  She reported: 

    “I suspect that [the mother], not surprisingly, will struggle to reconcile with my opinion in regard to future of levels of risk to [C] whilst in the care of her father.  It is my opinion that [the mother] has gained considerable insight into adult relationships as she has matured and sought personal counselling.  She presented as child-focussed, appropriately concerned about the disclosures [C] has reportedly made, but at the same time demonstrated an appreciation of the importance of the children being able to enjoy a safe and unimpeded relationship with their father.”

11. As noted, both parents indicated a willingness to embark on individual counselling.  This process should assist the mother in coming to terms with the children spending unsupervised time with the father.  The Family Consultant opined:

    “It is my opinion that [the mother] has the capacity to self-reflect and take responsibility for her actions and decisions in regard to her children’s wellbeing.  I am also confident that in time, if she is able to gain confidence that [the father] is well-intentioned and willing to seek assistance with his parenting and characteriological peculiarities that they will be able to co-parent their children.”

12. Overall, it was my assessment that the parents each have the capacity to focus on their children’s best interests and to co-operate with each other.  They did so for two years between 2006 and 2008.  Generally, they spoke respectfully of each other during the trial.  They each acknowledged the importance of the other in the children’s lives.

13. The children have spent only supervised time with the father since December 2009.  The proposals of the ICL and the father would thus involve a significant change for them.

14. As noted, I had substantial concerns as to whether P’s condition of Asperger’s syndrome would undermine his ability to cope with a graduated regime of time with the father, moving to a week-about arrangement.  I had real concerns as to his capacity to negotiate regular moves between two households.  I was greatly assisted by the May 2011 report of Dr S, who had a benefit of a copy of the ICL’s proposed orders. 

15. It is common ground that P suffers from Asperger’s syndrome, which appears to be well managed at present.  In her report dated 19 May 2011 Dr S stated: 

    “Current functional issues described by his mother include difficulties with sleep routines.  [P] has long standing sleep issues and often wakes at night.  He has developed rituals which can sometimes extend the getting to bed time period.  He can sometimes be restless when sitting at a table and can occasionally knock things over or frequently touch others sitting around him.  He sometimes requests help to assist with wiping his bottom but does not have any toileting accidents.  At times he can be reluctant to have a bath and in particular dislikes having his hair washed.  He likes receiving help with getting dressed in the morning and has reduced motivation to do this independently.

    Many of these issues reflect [P’s] personality style (Asperger’s syndrome) which reflects a tendency towards oppositionality, rigidity, anxiety and at times sensory disturbance which stems from weakness in theory of mind and weaknesses in central coherence.  Given that he currently functions well at school it seems that [P] has adapted well, which likely reflects the efforts of professionals and his mother who have worked together that [P] fits in, participates well and interacts with others using appropriate social and communication mechanisms…”

1. Dr S continued:

   “Like all children of this age, [P] will need his parents to continue to communicate well with each other to enable him to cope with transitioning from one home to the next and to ensure that adequate information is provided to each parent in order to avoid [P] becoming distressed or anxious with this inevitable change in routine.  Whilst intrinsically [P] may potentially find it more difficult to cope with change between two households, there are of course other considerations beyond the scope of this report which are relevant in determining whether such an arrangement as proposed is in his best interests.  Both parents have indicated to me that they intend to be involved with the various interventions and supports that are currently in place which are focussing on improving [P’s] social skills, communication and emotional self-regulation.  It would be to [P’s] advantage if both parents were able to maintain a shared commitment to contributing ideas and strategies on how successful or otherwise various approaches in the context of day-to-day life to enable as much consistency as possible and continuity of implementation of strategies which in turn have an overall effect of reducing [P’s] anxiety and distress.  It is inevitable that each of his parents will have different parenting styles and that [P’s] behaviour will be different in each of the two environments, reflecting different approaches, personalities and relationships as well as other factors that differ between the two environments.  It would be helpful for both parents to have a sound understanding of how to assist [P] with self-regulation (dampen down anxiety, anger and upset) as well as discuss what strategies may be successfully employed within each home to assist him in enjoying time with each parent.”

2. Dr S commented specifically on the proposal of the ICL and the father.  She reported:

   “I have reviewed the proposal supplied to the court outlining increased time over the next six months with [P’s] father to move towards shared care by the end of this year.  I believe this arrangement would be most successful if his two parents would be able to support each other and communicate effectively and mutually with respect to ensure that [P’s] needs are prioritised.  This will require some flexibility and at times compromise, however such approach would be more likely to be beneficial to [P].”

3. For reasons which I have identified above, I am of the view that the parents are capable of fulfilling Dr S’s criteria for a successful co-parenting arrangement for P.  I do not suggest that the mother will immediately warm to that notion but I am persuaded that she has the capacity to put the children’s needs ahead of her current views of the father.  It is thus probable that P could cope with the arrangements proposed by the ICL and the father.

4. The parents live in close proximity to each other.  In the past they have had no difficulty in making arrangements for handovers of their children and they have been flexible and co-operative with each other.

5. The mother raised concerns as to aspects of the father’s capacity to care for the children in addition to those matters to which I have referred already.  For example, she maintained that he behaved irresponsibly in failing to obtain proper medical care for the children prior to the separation.  On the other hand, she conceded that since separation he obtained appropriate treatment for C’s ear infection while she was in Asia in 2008.  She conceded, further, that he took P for medical treatment for an infected bottom in 2009.  I see no difficulties with the father’s willingness to obtain proper medical care for the children.

6. Generally I am satisfied that each parent has the capacity to provide for the needs of the children. It is encouraging that they both attended the interview with Dr S and she noted “their genuine desire to meet [P’s] needs and make his best interests a priority”. 

7. I am satisfied that each of the parties has an entirely proper attitude to the children and the responsibilities and duties of parenthood.  I accept that the mother acted in a genuine belief that she needed to protect the children and not out of malice or a desire to exclude the father from their lives.  For his part, the father persisted in spending time with the children in difficult circumstances.  He has paid child support reliably at the rate assessed from time to time.

8. I am satisfied that the father has taken every opportunity to participate in making decisions about major long term issues relating to the children.  At the same time, the mother’s genuine fears for the children created a situation which severely limited these opportunities for the father.

9. There was almost a complete lack of evidence as to the day-to-day arrangements proposed by each of the parties for the care of the children.  I am aware that the father has full-time employment and that he sought orders leading to a week-about arrangement.  I simply do not know how he intends to juggle his employment commitments with provision for full-time care for the children each alternate week.

10. There was a similar gap in the evidence presented in the mother’s case.  I am aware, however, that she is a university student and that she has provided full-time care for the children since supervision commenced in November 2009.  There was no criticism offered by the father or the ICL as to the quality of the mother’s day-to-day care of the children.  In these circumstances, I am prepared to infer that the mother has and will continue to make proper arrangements to accommodate her university commitments with the care of the children.

Conclusion as to Equal Time

1. I regard the complete lack of evidence from the father as to how he would implement an equal time arrangement as an impediment to the orders proposed by him and the ICL.  I have no knowledge of his hours of work, let alone how he intends to fit the responsibility for full-time care of the children each alternate week around those commitments.

2. I remain somewhat concerned about P’s ability to cope with a graduated regime of time with the father and a week-about arrangement.  I expect, however, that each of the parents would make genuine attempts to implement such an arrangement successfully in the interests of their children.  The difficulty is that I simply do not know how such an arrangement would operate in practice.

3. The state of the evidence makes it difficult for me to determine whether an equal time arrangement would be in the best interests of the children.  It is impossible to determine whether such an arrangement would be reasonably practicable, given that I am ignorant of the specifics proposed in each parent’s household.  In these circumstances, I am not prepared to make an order that the children spend equal time with each parent.

Conclusion As To Substantial And Significant Time

1. The legislation contains no temporal definition of “substantial and significant time” but does detail requirements for an arrangement to fall within this definition.  It is necessary for:

   ·a child to spend with a parent days which fall on weekends and holidays and also at other times

   ·a parent able to be involved in the child’s daily routine and events which are of particular significance to the child

   ·a child is able to be involved in events which are of particular significance to a parent

2. It seems to me that the bulk of the proposals of the ICL and the father fit within this definition.  The challenge is to find a balance between the benefit to the children of a reintroduction of extended, unsupervised time with the father and the fact that his practical proposals to meet their needs are unknown.  I observe, however, that I am confident that the father will do his utmost to make appropriate arrangements to care for the children. It may be that the parents are able to regain their previous level of cooperation when they are free of these proceedings.

3. It seems to me that I could make orders for the children to spend five nights per fortnight and block school holiday periods with the father in confidence that he will put into place appropriate arrangements for their care.  I will thus adopt most of the proposals of the ICL and the father, including the suggested orders for time with each of the parents on special occasions.  I note that the mother trusted the father to juggle his work commitments with full-time care of the children while she travelled to Asia and New Zealand after their separation.

I certify that the preceding one hundred and sixty four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on July 2011.

Associate:     

Date:              26 July 2011