Matthews and Matthews

[2012] FamCA 23

FAMILY COURT OF AUSTRALIA

MATTHEWS & MATTHEWS [2012] FamCA 23

FAMILY LAW – CHILDREN – Interim – Where the mother resumed her relationship with a man who had been convicted and imprisoned for indecent treatment of a child who had just turned 14 and did not tell the father about it – Where the mother and the mother’s partner maintain the partner’s innocence - Where the mother’s partner is an unacceptable risk to the children – Where the mother’s partner reportedly left the mother’s household upon this finding – Where the children are to remain with the father in Brisbane with the matter to be reconsidered in the event the mother re-establishes herself within a 45 minute drive radius of the father’s residence

Family Law Act 1975 (Cth)

APPLICANT: Ms Matthews

RESPONDENT: Mr Matthews

INDEPENDENT CHILDREN’S LAWYER: Mr Chris Wright

FILE NUMBER: CSC 456 of 2010

DATE DELIVERED: 31 January 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Cairns

JUDGMENT OF: Watts J

HEARING DATE: 7 - 9 November 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Rosen Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Benson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Murray Lyons Solicitors

Orders

(Orders made 9.11.11)

1. Unless and until the mother moves to reside within a 45 minute drive radius from the father’s home:

   1.1.The children T born … August 1999, M born … August 2000 and K … August 2002 (“the children”) will live with the father.

   1.2.The father enrol the children into P School.

   1.3.Pending further order the parents will have equal shared parental responsibility.

2. Upon the mother moving to reside within the Brisbane area but outside a 45 minute drive radius from the father’s home the children will spend time with the mother during the school term as follows:

   2.1.throughout the school term, on each alternate weekend,  by collecting them from after school on Friday and returning them to school the following Monday, or Tuesday if Monday is a public holiday or pupil free day.

   2.2.on any other weekend which is agreed to between the parents, on the same basis.

   2.3.in the event the mother is not able to return the children to school on the Monday/Tuesday morning she is to notify the father and make arrangements to return them by 6pm on the Sunday/Monday evening.

   2.4.for the second half of each school holiday period in odd numbered years and the first half in even numbered years.

   2.5.on the mothers day weekend from after school on the Friday until before school the following Monday or Tuesday if Monday is a public holiday or pupil free day, noting that the children will spend the father’s day weekend on the same basis, with the father.

   2.6.Pending further order the parents have equal shared parental responsibility for the children.

3. In the event the mother and father each live within 45 minute drive radius of one another:

   3.1.Pending further order the parents will have equal shared parental responsibility children.

   3.2.Pending further order the children will live in an equal shared arrangement with each parent being:

   3.2.1.week about with each parent, with changeovers to occur from the children’s school at the conclusion of school each Friday

   3.2.2.one half of each school holiday period

   3.3.The children to spend time with the parent with whom they are not otherwise residing on the following special days:

   3.3.1.on the children’s birthdays for 3 hrs after school on a school day and from 1pm until, 6pm on

   3.3.2.on each of the parents birthdays for 3 hrs after school on a school day and from 1pm until, 6pm on

   3.3.3.on Mothers day with he mother , from 9am the day before until 9am the day after

   3.3.4.on Fathers day, with the father, from 9am the day before until 9am the day after

4. In the event the mother continues to reside outside the Brisbane area:

   4.1.the children will live with their father and

   4.2.the children will spend time with their mother:

   4.2.1.for all of the Easter, the June/July and the Sep/Oct school holiday periods and

   4.2.2.for half of the Christmas school holiday period being the first half in even numbered years and the second half in odd numbered years

5. The children will have telephone communication with the parent with whom they are not living :

   5.1.once each week, being Sunday evenings:

   5.1.1.with the non-resident parent to place to the call between 6.30pm and 7.00pm and

   5.1.2.the parent with whom the children are living to ensure each child has privacy in the phone call to the other (noting that if the children wish to have a joint discussion on  speaker phone they should be able to do so without any interference from the parent with whom they are living)

   5.2.on each of the children’s birthdays

   5.3.on fathers/mother day

   5.4.on the birthday of the parent with whom the children are not living

   5.5.on the birthdays of each of the children’s half siblings

6. Neither parent will denigrate the other or members of the other family to or within the hearing of the children

7. The mother is restrained from:

   7.1.bringing the children into contact with  or permitting any communication whatsoever between Mr T and the children

   7.2.suggesting to the children, in any way, that the father is to blame for these proceedings or their outcome

   7.3.suggesting to the children (or allowing them to overhear) that anyone of them is favoured, or less favoured, by the father

   7.4.telling the children (or allowing them to overhear) that K was conceived through a violent or forced act

8. The mother’s time with the children is conditional upon her not being involved in or maintaining a relationship or any communication with Mr T and in the event the mother does communicate with or become involved in any relationship with Mr T:

   8.1.she is to inform the father forthwith and

   8.2.the children are to remain living with the father until the mother’s relationship with Mr T ceases

9. The mother and the father will attend a Parenting Orders Program as is provided by Relationships Australia or such other organization that might be recommended by the Independent Children's Lawyer specifically to assist them to communicate for the purpose of co-parenting their children and for this purpose:

   9.1.the father will locate and enrol in such course within 3 months and

   9.2.the father will notify the mother of the course in which he has enrolled and

   9.3.the mother will enrol in the same course, if the mother has moved back to the Brisbane area

10. Wherever the parties are unable to communicate effectively about the children, the mother will communicate with the father’s partner, Ms H

11. The mother will attend upon a suitably qualified psychologist to assist her with issues relating to the ending of her relationship with Mr T and for that purpose that psychologist be provided with copies of:

    11.1.My Reasons in this matter

    11.2.The two Family Reports of Ms P

12. The father will, forthwith, arrange for the children to attend upon a child therapist at CentaCare or Relationships Australia or such other therapist as is recommended by either of those organisations for the purpose of assisting them:

    12.1.to adjust to their new living arrangements

    12.2.to understand and adjust to the absence of Mr T from their lives

    12.3.any other relevant issue

13. That Mr T be restrained from:

    13.1.spending any time 

    13.2.being in the company of 

    13.3.being within proximity

    13.4.having any communication of any kind, including written and electronic communication

    with the mother or with any of the children

14. A copy of my Reasons, copies of the two family reports and a copy of these orders be available to any professional person providing either or both the parties with assistance pursuant to orders 9, 11 and 12. 

15. Upon the expiration of any appeal period or the conclusion of any appeal lodged, the Registrar ensure that the copied pre-recorded evidence provided pursuant to the order of Rafter DCJ, dated 3 November 2011, be returned to the Independent Children’s Lawyer so that the Independent Children’s Lawyer can return it to the District Court Brisbane and the Registrar ensure the transcripts of the copied pre-recorded evidence, which is marked Exhibit 6, be returned to the DPP. 

16. The matter be adjourned to 30 March 2012 at 2pm for mention by telephone for further consideration of interim orders 1.3, 2.6, 3.1 and 3.2. The Independent Children’s Lawyer is requested to inform the court at that time as to what the current position is in relation to general compliance with all the orders, particularly the orders in relation to the parties receiving assistance from professional persons.

17. I note that in the event the parents are able to reach an agreement for final orders relating to the inter orders 1.3, 2.6, 3.1 and 3.2, then those can be reduced to writing and forwarded to me in chambers for my consideration. 

18. Only in the event the Independent Children's Lawyer thinks it is appropriate, the family consultant prepare a supplementary report for the adjourned date. 

19. I note the family consultant has been in attendance throughout the hearing. I note that she has indicated that she will meet with the children to explain to them the outcome of these proceedings.

20. I note the children will leave Town 1, Far North Queensland to go to Brisbane at 2.30pm on 10 November 2011 and the mother will be delivering the children to E Street Town 1 (the exact location to be agreed) no later than noon on 10 November 2011.

21. 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. 

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CSC 456 of 2010

Ms Matthews

Applicant

And

Mr Matthews

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. I heard evidence in this matter over two days in what was to be the final phase of the hearing. As it turned out, I did not determine this matter on a final basis but rather, determined what was clearly the central issue in the case. Once that central issue was determined, then it was clear that the mother’s situation had dramatically changed.

2. The central issue in the case was the risk the three children, T (aged 12), M (aged 11) and K (aged 9) faced in the home of the mother.  The father’s case was that the mother’s partner, Mr T, constituted an unacceptable risk to the children. Mr T had been convicted and imprisoned for indecent treatment of a child who had just turned 14. Mr T maintained his innocence.

3. At the time of the commencement of the final part of the hearing, the children were living with their mother in Town 1, Far North Queensland and the father was living on the south side of Brisbane. 

4. Given the urgency of the need to make a change to the arrangements in relation to the children, I made interim parenting orders on 9 November 2011. I gave the parties some indication at that time as to why I made the orders but indicated I would give more complete reasons. These are those reasons.

THE APPLICATIONS

1. The mother sought equal shared parental responsibility.  She sought at the commencement of the hearing that the children continue to live with her in Town 1 in the household with Mr T and spend time with the father during school holidays.  She proposed telephone contact.

2. The father sought sole parental responsibility and for the children to live with him in Brisbane.  He sought that the children spend time with the mother during school holidays and otherwise as agreed.  He also sought an order that the mother not bring the children into contact with Mr T.

THE MOTHER’S CHANGED POSITION

1. During the course of the hearing, the mother indicated that if the court made a finding that Mr T was an unacceptable risk to the three children, then the mother would end her relationship with Mr T. Her alternative medium to long term proposal was that she would return to Brisbane and seek to have the children with her in Brisbane. In the short term she applied for an order that the children be allowed to stay with her in Town 1 until they completed their 2011 school year.  The children had been involved in preparation for end of school year events. 

SHORT HISTORY

1. The father was born in 1972 and is now aged 39.

2. The mother was born in 1980 and is now aged 31.

3. The parties commenced cohabitation in 1998 and married in April 1999.

4. The child T was born in August 1999 and is now aged 12.

5. The parties separated in March 2000 on a ‘final basis’.

6. The child M was born in August 2000 and is now aged 11.

7. The child K was born in August 2002 and is now aged 9.

DETAILED CHRONOLOGY

1. Mr T, the mother’s partner, was born in 1967 and is aged 44.

2. The father was born in 1972 and the mother was born in 1980.

3. Ms H, the father’s partner, was born in 1974 and is aged 37.

4. Ms H’s first son B was born in August 1997 and is aged 14.

5. Ms H’s second son Y was born in February 1999 and is aged 12.

6. The parties commenced cohabitation in 1998 and married in April 1999.

7. T was born in August 1999.

8. The parties separated in March 2000 on a ‘final basis’.

9. M was born in August 2000.

10. K was born in August 2002.

11. The mother commenced a relationship with Mr T in March 2005.

12. In June 2005 the father started spending time with the children every second weekend.

13. The mother separated from Mr T in August 2006.

14. Mr T began a relationship with Ms A in November 2006, began cohabitation in January 2007 and separated in November 2007 when he was accused of indecently dealing with Ms A’s daughter S. When told, the mother did not believe he was guilty and invited him to stay at her house at this time. The mother and Mr T shortly thereafter resumed their relationship. The mother’s home has been Mr T’s primary residence ever since.

15. In about March 2009 the mother relocated with the children and Mr T to Town 1, with the father’s consent. This was so that Mr T could obtain employment.

16. Mr T was found guilty of indecent dealing with a minor in August 2009. He was sent to gaol and remained there until February 2010.

17. The father became aware that Mr T was in gaol in September 2009. The parties differ about whether the father was told anything about why Mr T was in gaol but agree the father only became aware of the real reason in July 2010.

18. The first daughter born to the father and Ms H was born in November 2009 and is aged 2.

19. On 6 July 2010 the Department of Child Safety (“DoCS”) initiated their investigations about the safety of the children living in a house with Mr T. The matter was reportedly closed around the end of July 2010 after a number of interviews.

20. On 10 July 2010 the father did not return the children to the mother as planned, as DoCS recommended that he not do so.

21. The mother retrieved the children on 23 July 2010 from the school they were temporarily attending. The children remember this day with sadness and the family report writer said they appeared to fear the mother’s uncharacteristic behaviour.

22. A family report dated 17 January 2011 has been prepared by the Family Consultant and a supplementary report of 7 October 2011.

23. The second daughter born to the father and Ms H was born in July 2011 and is aged 6 months.

CENTRAL ISSUE AND THE REASON FOR ORDERS RELATING TO MR T

1. As indicated, the central issue in the case was the risk the three Matthews children, T born in August 1999, born M born in August 2000 and K born in August 2002, faced in the home that consisted of the mother, Mr T and themselves. 

2. It was alleged that on 25 November 2007 Mr T had sexually interfered with S, who had just turned 14 years of age and was a daughter of Mr T’s former de facto partner.  Mr T was found guilty by a jury for this offence and was sent to prison.  Mr T maintains his innocence. 

3. Relevant to this central issue, I viewed and read the following documents:

   40.1.The recorded interview given by S to the police in the early hours of 25 November 2007;

   40.2.The recorded interview given by Mr T to the police at around 6am on 25 November 2007;

   40.3.The recorded interview of S’s twin sister E;

   40.4.Transcripts of those three interviews;

   40.5.Evidence given by S and her cross examination which was presented to the jury in Mr T’s criminal trial; a transcript of that evidence (exhibit 6) together with the order made by His Honour Rafter SC DCJ placing conditions upon the use of the recorded evidence of S (exhibit 4) during this hearing;

   40.6.Statement of medical practitioner, Dr N, who examined S;

   40.7.Statement of Ms A;

   40.8.Transcript of day 1 of Mr T’s criminal trial;

   40.9.Transcript of day 2 of Mr T’s criminal trial;

   40.10.Transcript of the sentencing of Mr T after the jury had found him guilty;

   40.11.Reference used for the sentencing plea provided by the mother dated 26 August 2009; and

   40.12.Comments made by the family consultant, Ms P, in her report dated 17 January 2001 and her supplementary report dated 7 October 2011.

4. Mr T also gave written and oral evidence before me.

5. What I now set out is a summary of the agreed facts about Mr T and a summary of the facts arising from the evidence against Mr T.

6. The mother met Mr T in March 2005 and started a relationship with him. They separated in about August 2006, although Mr T said there was a separation under the one roof prior to that time. 

7. Mr T soon after formed a new relationship with Ms A and he says became a member of her household in January 2007, although Ms A put it slightly later than that.  Ms A had twin daughters, S and E born in September 1993. 

8. Mr T continued to live with Ms A until 25 November 2007.  On 24 November 2007 Mr T, together with the girls, had arranged for a surprise party for their mother.  Two other couples and their children came to a barbeque that evening. 

9. Mr T went to S’s bedroom on three occasions that night. He admitted to one of them in his record of interview with the police the following morning and to two of them at his trial.

10. Mr T conceded at his trial that in the early part of the evening he went from the general entertaining area upstairs to S’s bedroom. Mr T denied he did so in his record of interview. S was in her bedroom with a friend O and her younger sister.  They played a game of truth or dare which involved O going downstairs and obtaining a drink for Mr T which was then brought by O back upstairs.  They also played a tickling game in which Mr T participated.  Mr T conceded at his trial that during this game he pinched S on the bottom.

11. After the guests from the party had gone, Mr T went to S’s bedroom on a second occasion to say goodnight to her.  This was not an unusual occurrence.  Mr T assisted S undo a knot in her belt and take her belt off.  Mr T also suggested to S that she would be more comfortable if she was going to sleep in her jeans, to undo the buttons of her jeans.  Because S was nearly asleep at that stage, she did not resist Mr T undoing her buttons for her.  S said that Mr T kissed her goodnight (partly on her lips as she turned her head away), walked out, turned the lights off and closed the door.  Music was still playing downstairs. S fell asleep. 

12. S does not remember how long she was asleep but some time later she woke up. It was either late on 24 November or early on 25 November. She was lying on her side on her bed with her body towards the window in the room.  She became aware Mr T was also lying on her bed, positioned behind her on the bed and that he was facing towards her back.  Mr T then placed his left hand down the back of her pants and around until he touched her vagina.  This took place for two or three seconds until S moved.  Mr T took his hand away.  S commenced to gently weep. 

1. Mr T shortly thereafter though put his left hand back down her pants from the front and touched S on the outside of her vagina again until she moved.  He then took his hand away again.  A short time after that he moved his hand up to her top until he moved it under her bra and he held her left breast for approximately three seconds until she moved, at which time he took his hand away again. 

2. Mr T then put his hand back down S’s pants and attempted to push his finger into S’s vagina.  That caused S some pain.

3. At that point S got out of bed and left the room and went to the bathroom for about five to ten minutes.  She was gently crying all the time. 

4. Mr T denies that he went to S’s bedroom on a third occasion or that anything remotely like what S described took place.

5. Eventually she came out of the bathroom and looked in her twin sister’s bedroom and her mother’s bedroom but they were not there.  She went downstairs to find her mother but was initially unable to do so. She went to the garage and hid there behind a couch. 

6. Mr T came to the garage and turned the light on.  He eventually saw where she was hidden. S told Mr T she wanted to talk to her mother.  S went back upstairs and then eventually came back down and located her mother and her sister E sleeping on the floor of the lounge room.  She was very upset and crying.  S woke her mother up and she told her mother that she needed to speak to her.  She took her mother into the garage and told her mother what had happened.  Her mother confronted Mr T about the allegations and eventually asked him to leave the home.  It was the end of their relationship.  The police were called.  S gave a statement in the early hours of Sunday morning. 

7. During his record of interview with the police, Mr T denied going to S’s room earlier in the evening and he denied going to her room after he had said goodnight to her and after S had gone to sleep.  However, during his criminal trial, Mr T conceded that he had gone to S’s room halfway through the evening; that S, O and her younger sister were in the room; that he had engaged in a tickling game, pinched S on the bottom and that O had gone downstairs to get him a drink.

8. When confronted at the hearing before me with inconsistency in the evidence that he gave at his trial and his recorded interview with the police some eight hours after the incident, Mr T was unable to offer any explanation as to why he had lied to the police officer who had interviewed him about going to S’s room and involving himself in the activities he conceded at his trial. 

9. One possible explanation was that at the trial, evidence was given, both from O, who corroborated S’s version, and by the doctor who examined S on the night who gave evidence about the pinch mark on her bottom and accordingly, Mr T thought that maintaining his story that he did not go up there half way through the evening was no longer tenable.

10. By lunch time on 25 November 2007, Mr T had contacted the mother, Ms Matthews, and they met.  The mother said that Mr T had told her what he had been accused of but that he had denied that he had done anything inappropriate.  She gave him a place to stay. Although both said that it was only intended at that time to be a temporary arrangement, Mr T did not leave and within a couple of months, the mother and Mr T had resumed a defacto relationship. 

11. In late August 2009 Mr T was convicted by a jury after a criminal trial, of indecent treatment of a child who had just turned 14, which conviction arose out of the incident on 24/25 November 2007.

12. As a result of this conviction, Mr T was sentenced to twelve months imprisonment, but that sentence was suspended upon him serving a period of six months.  The operational period for the suspended sentence was two years (which meant that had he committed another offence in the two year period then he would have been dealt with in relation to the suspended term of the imprisonment).

13. Neither the mother nor Mr T made any disclosure to the father of the three Matthews children that Mr T had been charged with a sexual offence against a child who was only just 14.  They subsequently made no disclosure to the father that Mr T had been convicted in a criminal jury trial. The father had no knowledge about this until July 2010 when the Department, after Mr T had been released and as a matter of course, had informed him that his three girls were living in a household with a convicted sex offender.  At that time, the girls were holidaying with the father.  The Department contacted him and advised him to retain the children until the Department had completed its inquiries.  Before that had happened, the mother flew to Brisbane from Town 1 and took the children away from their temporary school and removed them back to Town 1. The mother gave the Department assurances in relation to her supervision of the children whilst Mr T was present and in the short term the father, pending the final hearing of this matter, relied on the mother’s assurances as to her vigilance. 

14. In consent orders dated 20 September 2010, the mother gave an undertaking to the court that the children would not be left alone with Mr T. She found compliance difficult.

15. Both the mother and Mr T gave evidence at the hearing. During their oral evidence, both maintained that justice had miscarried during Mr T’s trial and that there were many inconsistencies in the evidence that the jury had not properly taken into account.

16. Mr T gave evidence that no appeal was lodged against the conviction because his lawyer rang him on the last day for appeal and had a discussion with him.  He was informed that by the time the appeal got on he may almost have served his six months sentence and there was some suggestion that an appeal may open up the possibility of a reconsideration of whether or not the original sentence was adequate.

17. The mother indicated that she had “read papers” and she had serious difficulties in accepting the jury’s verdict, particularly knowing Mr T as she said she did.

18. Mr T said that his counsel at the criminal trial pointed out to the jury the numerous inconsistencies in the prosecution’s case. I did not have the benefit of final submissions made to the jury or the judge’s summing up.  Consequently I do not know the nature of the “numerous inconsistencies” put to the jury during final submissions.

19. Both the mother and Mr T indicated that there had been no DNA evidence (for example, the finding of some scientific evidence that Mr T’s hand had been near S’s vaginal area).

20. During his cross examination, I attempted to get Mr T to detail to me what he believed were the inconsistencies in statements made by S.  Mr T said he could not remember them in detail.  He however referred to Ms A’s statement about what she remembered S saying to her when S woke her up in the early hours of 25 November 2007.  The relevant parts of Ms A’s statement are as follows:

    9.  I then took [S] into the garage and she said, “I just woke up and [Mr T] had his hands in my pants”.  I said, “What do you mean?” she said, “He was fingering me”…..

    11.  I then went back to [S] and said, “Can you tell me what happened?”  She said, “I remember waking up and [Mr T] was lying beside.  I was taking my belt off and [Mr T] said, “What are you doing”, and I said “I am taking off my belt”.  I then felt [Mr T’s] hand down the back of my jeans, go over my bum and into my vagina.

    12.  I then went over this story several times with her, however can’t remember the exact words.  The way [S] told me what had happened was the same on each occasion.  I remember getting frustrated towards the end and her saying, “I remember his big fat fingers being in my vagina”.  I also remember [S] saying at about this time how sore she was. 

21. Ms A confirmed the evidence in her statement at the hearing. 

22. Two possible inconsistencies arise.  The first arises from paragraph 11 of Ms A’s statement and the sequence in which S provided the information contained in the three sentences in the quotation marks.  The inconsistency is that the second sentence which relates to S trying to take her belt off did not happen on S’s version after S woke up and became aware that Mr T was lying beside her on the third occasion he came to her room that night. S’s version was that the belt was taken off when Mr T came up to say goodnight to her on the second occasion, he visited her room that night.

23. The version S gave both in her interview with the police in the early hours of 25 November 2007 and during video cross examination for the trial was far more detailed than the simple three sentences which her mother indicates that she said. I found S’s taped record of interview and the tape of her oral evidence and cross examination as presented to the jury to be very convincing. S indicated that each of the three things, to which her mother refers, happened.  I put no weight on the fact that there may be an impression given by Ms A’s evidence that the events took place in a slightly different sequence.  In fact, there does not appear to be any logic in S saying, “I was taking my belt off” immediately upon waking up and being aware that Mr T was lying beside her.

24. The second asserted inconsistency and the one that Mr T mainly referred to in his cross examination before me, was the use of the word “in”, in the sentence used by Ms A as to what S said to her, “I remember his big fat fingers being in my vagina” [italics added].  Mr T points out that that could be interpreted as digital penetration by him of S.  S did not at any stage herself allege penetration. In the record of interview given in the early hours of 25 November 2007, S indicated that on the fourth occasion that Mr T had indecently touched her, he had attempted to digitally penetrate her but his finger was in the wrong location and he was unable to do so.  I do not find anything inconsistent with the use of the word “in” by S to her mother given S’s overall evidence as to what happened. 

25. The family consultant having viewed all the material, reached the opinion that Mr T is an unacceptable risk to the Matthews children. 

26. She gave evidence about the nature of sexual grooming behaviour and was disturbed by a number of matters in the dynamics of the relationship between the girls and Mr T. Sexual grooming involves the abuser gaining trust, making the child feel good, desensitising the child to touch, and then violating boundaries. Trust is gained from both the child and the adults in the child’s life, and may involve becoming indispensible in the life of the child’s parent. In this way, the perpetrator gains access to the child, strengthens their credibility; casts doubt over future disclosures and makes it harder for the child to confidently make disclosures to their parent. Compliance from the child may be achieved through threats, secrets, gifts or privileges. It was also noted that grooming behaviour has many things in common with normal behaviour and it may be difficult to differentiate. The family consultant records that M said that Mr T had a habit of kissing the girls and patting them on the back.  She said that she could not distinguish whether this was good or bad touching.  The family consultant was also concerned about the fact that the children spoke in far more elevated language about Mr T than they did about their mother, describing him as “amazing”, “smart”, “caring”, “loving”, “he helps me get smart, I was dumb when I came to [Town 1]”. 

27. The family consultant believes Mr T may have sexually groomed S. She said a kiss and cuddle with S was normal practice and moved on to tickling and pinching and playing ‘truth or dare’. This ‘desensitised’ S to his touch and boundaries were pushed.

28. The family consultant also was concerned about the fact that girls seemed to be aware that “family business” should not be discussed outside the family (for example with teachers at school) and that they had an attitude that it was permissible to keep “secrets”. The family consultant raises concerns that the mother sits with the children when they speak to the father on loud speaker, which will make it difficult for the girls to confide in the father.

29. By way of explanation as to why S made the allegations that she did, Mr T told the family consultant that S, “hated me with a passion, I was convicted on moral outrage. I am the victim”.  However, Mr T gave evidence at his trial relating to the nature of the relationship between he and S prior to the night of 24 November 2007.  During that evidence he said he got on well with S generally on most occasions and that he felt comfortable enough to routinely kiss S goodnight in her bedroom.  The fact that Mr T conceded at his trial that he got on with S most of the time does not sit well with the explanation Mr T gave to the family consultant as to why S would make the allegations that she did if they were not true. 

30. I do not share the mother’s and Mr T’s view that the verdict of the jury is unsafe.  Having carefully reviewed the evidence which the jury heard; having looked at material that did not go to the jury and having heard evidence from Mr T in the witness box, I am able to comfortably agree with the conclusion the jury reached.  The jury found beyond reasonable doubt that Mr T sexually interfered with S.

31. I find that there is an unacceptable risk to the mother’s three children of Mr T remaining in the mother’s household.

32. Of considerable concern is that Mr T has throughout, maintained his innocence and has shown no remorse.  The family consultant said that amongst all of the matters to take into account, this is the highest indicator of future risk.

33. Whilst Mr T had been drinking during the party, his evidence is he only had four or five drinks.  I observe he is a man of greater than average body weight.  He indicated to the constable who interviewed him in the record of interview on the morning of 25 November 2007 that he did not feel at that time (during the interview) affected in any way by alcohol.  I conclude that Mr T was not so affected by alcohol at the time he interfered with S that it is a matter upon which I would place any significant weight. 

34. I know that this finding will be one which the mother will find very difficult to receive.  She undoubtedly loves Mr T.  The girls obviously also have a relationship with Mr T as a step parent whom they love. 

35. The mother has indicated that, given the finding that I have made, she will, in order to maintain her relationship with her children, end her relationship with Mr T.  I have no doubt that that will cause the mother a period of grieving.

36. The mother gave evidence that, not only she, but her family were supportive of Mr T’s protestations of innocence.  It is part of my intention in providing these reasons that they can be shown to the mother’s extended family so that they might understand the reasons as to why Mr T has been asked by the mother to leave her family.  The reasons will also serve as a summary for future reference if there is any further application made in relation to the children (particularly if it is asserted that Mr T has re-established a relationship with the mother). 

37. On the evening of 8 November 2011, Mr T was informed by me of my finding.  I also indicated to him orders that I intended to make against him.  Mr T, to his credit, conceded that given the finding that I had made about him, those orders were appropriate. 

38. So far as I know, Mr T maintains his innocence.

CONSIDERATION OF WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN

1. On the last day of the hearing the mother announced that Mr T had left her home in Town 1 and was heading back to Brisbane. As indicated she made an application that the children be allowed to stay with her in Town 1 until they completed the 2011 school year. She explained that the children had been involved in preparation for various end of school year events.

2. The mother also indicated that she was now in a very difficult financial position. She had a commitment under a lease for the premises in which she lived in Town 1. The rental payments under that lease had been paid from income earned from employment by Mr T in Town 1 and given that he had left, that income was no longer available. The mother was unsure as to how she would renegotiate her obligations under that lease. It was likely that any benefits the mother was entitled to receive under an income tested pension would not be available if the children were to live with their father. She had no other readily available financial support from any relative or friend.

3. I explained to the mother that given the finding I had made about Mr T, it was my view that the children should be moved immediately to their father’s home in the short term.

4. It was appropriate and in the best interests of the children not to finalise the proceedings but to adjourn them for a time in the new year when the mother might be in a position to inform the court as to whether or not she had been able to re-establish herself in Brisbane.

5. The mother’s family lives on the opposite side of Brisbane to where the father currently resides.

6. I need to reflect upon what arrangements are in the children’s best interests on an interim basis.

7. Clearly they would benefit from having a meaningful relationship with both their parents.

8. There is a need to protect the children from the unacceptable risk that Mr T presents.

9. The mother has told me that as a result of the findings I have made, she has taken the decision to end her relationship with Mr T. The mother’s behaviour in relation to Mr T however raises serious concerns.

10. I note that immediately upon hearing about the allegation, the mother invited Mr T into the home where her three young girls were living. This clearly was a significant error of judgement on the mother’s part which put her children at considerable potential risk.  

11. The Family Report of January 2011 notes:

    28.[The mother] stated she has read all police statements pertaining to the offence.  [The mother] emphasised, “I don’t believe [Mr T] is guilty. I know him; her [Mr T’s step-daughter, S’s] statements constantly changed.  There was no DNA evidence.  It was his word versus her word. She hated him”.  [The mother] admitted she did not directly ask [Mr T] if he was guilty nonetheless, “I asked the normal questions of [Mr T]”.  [The mother] asserted “these are my girls, I would protect them.  I told [Mr T], if you did that [sexually abuse a child] I won’t have you.  I would not put the girls in that situation”.  [The mother] disclosed she was sexually abused as a child.

12. The mother pointed out the Department of Child Safety assessed Mr T as “low risk”.

13. When an undertaking was made to the Court that the mother would not leave the girls alone with Mr T, the mother and Mr T said they found compliance arduous.

14. Unfortunately, the mother allowed her feelings for Mr T to get in the way of an objective assessment as to the risk he posed to her daughters. She also failed in fulfilling obligations she owed the father to inform him of information she knew about Mr T and led the father to agree to arrangements which she knew he would not have agreed to, had the father known what the mother knew about Mr T.

15. I say this acknowledging that I have had the advantage of analysing all of the available material (some of which was not available to the mother). The mother now has had the advantage of seeing all the evidence and Mr T giving evidence before me (including questions that I asked of Mr T).

16. In the event the mother has genuinely reached a conclusion in her own mind that Mr T is a risk to the children and is not somebody who can be a member of her household then, given her feelings for him, there will be a period where the mother will grieve for the loss of that relationship and resettle back in Brisbane.

1. I take into account that the family consultant said the children were ‘adamant’ that they wanted to live with the mother and spend time with the father. That was in the context of them having a settled arrangement with the mother and Mr T in Town 1.

1. The father’s relationship with the children was ‘reasonable’ and affectionate though it was noted in the family report that his relationship with V (the daughter of his current relationship) is stronger than that with the subject children. The father is closest to T, who is keen to spend time with him and speak on the phone to him. K is the least close to the father, talks little on the phone to him and still refers to the issue where the father did not believe he was her father. She still takes offence to the father not having tattooed her name on him as he has the other girls, though the father says he will remedy this. Initially the younger two children did not like telephone time with the father but after it resumed at Christmas 2010, M especially became more positive about communicating with her father and spending time with him and K said she was enjoying spending time with him.

2. The girls will need to adjust to the absence of Mr T. Notwithstanding the threat that he posed to them, the girls have developed a close (albeit inappropriate) relationship with him. He spent a significant amount of time helping them with their homework, cooking for them and teaching them how to cook. He referred to them as “my girls” and they call him “Dad”. The girls referred to him as ‘amazing’, ‘smart’, ‘caring’ and ‘loving’.

3. The girls’ relationship with the father’s partner Ms H, was regarded to be ‘reasonably close’ and affectionate. The girls’ relationships with Ms H’s sons were problematic in the past. It is an agreed fact that there was an incident over four years ago involving one of Ms H’s sons attempting to kiss the girls. The boys and girls reportedly keep to themselves now, and although they ‘dob’ on each other a lot, there are no major issues. B sometimes clashes with the two older girls but gets on well with K. He has some anger management issues which are being dealt with by Ms H. Y gets on better with the two older girls and sometimes clashes with K. The family consultant noted the relationship between the girls and B was lacking in depth and was not a typical ‘sibling relationship’ and the girls’ relationship with Y is far stronger.

4. The three girls reportedly have a good relationship with their half-sister V and T always asks about her.

5. The mother’s description of the children and their personalities appears to be insightful. Apart from her major misjudgement in relation to Mr T, the mother is a dedicated parent. The mother’s affidavit includes three letters from teachers and a doctor, all professing that the children are well and that the mother is a diligent mother.

6. The father is similarly insightful about the children’s personalities.

7. The mother asserts that between 2000 and 2005 the father spent little time with the children, perhaps once a month for a couple of hours and even that time was at the mother’s insistence. In 2005 when the children started spending every second weekend with the father, the mother said this was at Mr T’s insistence. She said that when the children spent time in hospital the father did not visit.

8. The mother claims the father leaves the children in the care of his partner much of the time and they are often left without supervision. The mother reports K broke her tooth while the children were riding bikes without supervision, and T had a ‘suspected broken arm’ and was only belatedly taken to hospital. The mother also claims the children contract lice when they visit the father.

9. The father acknowledges the children are left in Ms H’s care while he is at work but said there has never been an issue with this. He said he lives in a quiet street where many children regularly ride their bikes. The children are always under supervision. The father admits K broke her tooth, for which he sought appropriate attention. T sprained her arm and only told the father’s partner much later that it was hurting, and after icing it, she felt fine. She was taken to the doctor the next day when it was still hurting. These issues attracted little attention during the final phase of the hearing.

1. The children report having fewer rules with the father. Ms H’s sons said the girls have many rules at their mother’s house which are unnecessary. 

2. The way the father retained the children in July 2010 and the mother’s subsequent retrieval of the children and initiation of court proceedings was a reaction to Mr T’s conviction becoming known and the intervention of DoCS. I do not consider any action taken during this time to be representative of any lack of willingness by either parent to encourage a relationship with the other parent.

3. On the contrary, both parties agree that the mother keeps the father informed about the children and keeps him involved. The father is very complimentary about the mother as a parent and thinks she has done a very good job with the girls, apart from the one significant lapse of judgement in relation to Mr T.

1. The children’s move back to Brisbane will move them out of what has become for them a familiar situation.  In the short term they are likely to have a disrupted relationship with their mother whilst she does what she can to reorganise her life so that she can re-establish herself back in the Brisbane area. 

2. To assist the children in this transition, the Independent Children's Lawyer has proposed that the father arrange for the children to attend upon a therapist to assist the children in adjusting to their new living arrangements to understand and adjust to the absence of Mr T from their lives.  I accept that such assistance is appropriate.  The children should also, given their exposure to Mr T, be provided with some protective behaviours therapy from the professional assisting them.

1. Whilst the mother is child-focused in many areas, I find she had prioritised her personal needs over her children’s safety, even though I accept that was not what she thought she was doing.

1. Apart from the risk posed by Mr T’s behaviour, no other issue of family violence is raised in this matter.

2. Given the findings that I have made in respect of Mr T and the findings I have made about the mother’s lack of judgement in exposing the girls to Mr T, I find that it is in the girls’ best interests in the short term for them to relocate and live with their father in Brisbane. I note that the family consultant has indicated that she will meet with the children to explain to them the outcome of these proceedings prior to them leaving Town 1.

EQUAL SHARED PARENTAL RESPONSIBILITY

1. Generally, the father is supportive of the mother and the mother is supportive of the children spending time with the father (although not the time I propose in the short term). The parties communicate adequately with one another although the father concedes that “sometimes what I want to say comes out wrong” and the mother prefers to speak to the father’s partner.

2. It was noted in the family report that both parents hold similar views with regards to the children’s health, religion and education.

3. The family consultant was hopeful that the difficulties in the parties’ communication with one another would improve once the mother re-establishes herself and with the advantage of them both being required to attend a parenting orders program and the mother attending a suitably qualified psychologist to assist her with issues relating to the end of her relationship with Mr T.

4. At least in the short term and pending further order, I intend to make an equal shared parental responsibility order.  That position can be reviewed if major problems arise in its implementation between now and when the matter is further reviewed by me. 

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. Given I have made, at least on an interim basis, an order for equal shared parental responsibility, I am required to consider the children spending equal time with both their parents or if not, substantial and significant time with the parent with whom the children are not ordinarily living most of the time.

2. As indicated, I have concluded, at least in the short term, that the children should return to Brisbane.  The mother currently does not have any accommodation organised in Brisbane.  In the short term the children will live with their father.  It is appropriate however, if the mother can arrange for it to be reasonably practicable, for the children to spend equal time with her.  This would necessitate her living within a maximum of a 45 minute drive from the father’s home.  I intend to make equal time orders if that is the case.  It is difficult however to see, if the mother lives further than that in travelling time away from the father, how an equal time or substantial and significant time arrangement could be reasonably practicable.

PROPOSED ORDERS

1. I have concluded that it is in the best interests of the children to temporarily live with their father.  Whether or not that becomes the final position will depend upon developments that take place between now and 30 March 2012. In the event the mother remains outside the Brisbane area or is living in Brisbane more than 45 minutes drive away from the father’s residence and consequently not in a position where she could easily share in the co-parenting of the children and taking them to school, then I find it is in the children’s best interests to reside with their father.

2. If the mother comes to Brisbane but is unable to relocate within a 45 minute drive radius from the father’s residence, then I find it is in the children’s best interests for them to live with their father and spend time with their mother during school term on an alternate weekend basis and for half the school holidays and special days.

3. In the event the mother remains in Town 1 or lives outside the Brisbane area and is unable consequently to participate in alternate weekend time, then the children will spend time with their mother all of the term school holidays and for one half of the Christmas school holidays.

4. In the event the mother moves within a 45 minute drive radius of the father’s premises, I will make an interim shared parenting arrangement on a week about basis during school term. If the mother successfully relocates within a 45 minute drive radius of where the father is living, then there will be further consideration in March (if the parties have not already agreed) as to what arrangements will be put in place as to the time that the children will spend with each of their parents. I will also in March if need be, revisit the interim order I have made in respect of equal shared parental responsibility.

5. The father should enrol the children in P School.

6. I will make an order in relation to telephone communication.

7. There is evidence to support various injunctive orders that have been sought. Neither party made submissions opposing any of those orders which are to be made requiring them to do or not do things. Mr T has agreed to me making orders against him. I will make all those orders.

8. I note order 4 as originally made by me has an error. There is an inconsistency between order 2.4 and order 4.2. I have amended order 4 under the slip rule.

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 31 January 2012.

Associate: 

Date:  31.1.2012