MAXWELL & ADAMS

[2015] FamCA 919

FAMILY COURT OF AUSTRALIA

MAXWELL & ADAMS [2015] FamCA 919

FAMILY LAW - CHILDREN – where there are allegations of sexual abuse – where there has been significant domestic violence – where the mother seeks the children spend no time with the father – where the children have not spent time with the father since May 2011 – where the father seeks the children undergo restorative counselling and then spend supervised time with him before moving to unsupervised alternate weekend and holiday time

Family Law Act 1975 (Cth)

B & B (1988) FLC 91-957
Cox & Pedrana (2013) FLC 93-537
M & M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
W & W (Abuse Allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr Maxwell

RESPONDENT: Ms Adams

INDEPENDENT CHILDREN’S LAWYER: Carter Farquar Mediation and Family Law

FILE NUMBER: BRC 7183 of 2013

DATE DELIVERED: 27 October 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 19 and 20 October 2015

REPRESENTATION

THE APPLICANT: In person

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Carter, Carter Farquar Mediation and Family Law

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

1. All previous orders are discharged.

2. The children B, born … 2002, C, born … 2003 and D, born … 2005, live with the mother.

3. The mother shall have sole parental responsibility for the major long term issues for the children with such issues to include but not be limited to:

   (a)       the children’s education;

   (b)       the children’s religious and cultural upbringing; and

   (c)       the children’s health.

4. Save as is agreed between the mother and father in writing, the children shall not spend time or communicate with the father.

5. The Independent Children’s Lawyer is discharged.

6. All outstanding Applications are dismissed and removed from the list of cases requiring finalisation.

7. After the expiration of the appeal period:

   (a)all subpoenaed documents shall be destroyed or returned to the persons or institutions from which they emanated; and

   (b)any exhibit shall be returned to the party by whom that exhibit was tendered.

8. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxwell & Adams 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 BRISBANE

FILE NUMBER: BRC 7183 of 2013

Mr Maxwell

Applicant

And

Ms Adams

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. The relationship between the mother and father started in about 2000. They married in 2006. They initially separated in early 2010 after an episode of acute violence perpetrated by the father. At that time, the mother took the children from E Town, where the family had previously lived, to F Town. In about mid-2010, the father moved from E Town to F Town and the parents reconciled. After further violence – again perpetrated by the father - they separated finally in early 2011.

2. The parents have three children together:

   a)B, born in 2002 (now about 13½ years of age); and

   b)C, born in 2003 (now about 12½ years of age); and

   c)D, born in 2005 (now 10 years of age).

3. The children have lived with their mother since separation. Other than incidental interactions at the children’s school during the father’s attendance there to collect another child, they have not spent time with their father since mid-May 2011. At that time, the children were 9, 8 about 5½ years of age respectively.

4. The mother has not re-partnered. Whatever may have been his previous concerns, the father and Ms G told Mr H[1] in January 2015 that they did not hold active concerns about the mother’s general care of the children.

   [1]           The author of the two Family Reports prepared to assist the Court in this matter.

5. The father has another son from a previous relationship, Mr I, who is now an adult.  Whilst the children have had some communication with him after separation, this appears to have petered out more recently.

6. The father started a relationship with Ms G in about April 2011. They commenced cohabitation in about August 2011. They have a son, J, who was born in 2012. Ms G’s son from a previous relationship, K (who is about eight years of age) lives with Ms G and the father.

7. The father has committed significant domestic violence against Ms G:

   a)on 12 May 2012 (when she was about seven months’ pregnant with J) he punched her to the right eye with a closed fist, causing her to suffer a swollen and blackened eye – K (then about five years of age) was in the home at the time; and

   b)in May 2013, he assaulted her, pulling clumps of her hair out, whilst J was in her arms and K was present.

8. Despite these significant assaults, Ms G remains supportive of the father. They continue to live together and both contend there has not been any domestic violence in their home since May 2013.

9. One of the difficulties in assessing their evidence in this respect arises because, during her cross-examination, Ms G was clear in saying that she:

   a)had not sought nor wanted police to be involved in either the May 2012 or May 2013 assaults; and

   b)would not have prosecuted the application/s for a domestic violence order which followed these assaults if asked; and

   c)would not have taken any steps herself to bring the violent and unprovoked assaults of her by the father to the attention of any authorities.

10. That is: as Ms G did not think it appropriate or necessary to take any action when she was, in fact, assaulted by the father, it is difficult to give any particular weight to the absence of complaints made to external authorities as the basis for concluding positively that domestic violence has not occurred since May 2013 in the home she shares with the father.

11. Of course, if I concluded that the father and Ms G were credible witnesses whose evidence generally should be accepted, such conclusion would provide a basis for accepting their denials about the existence of domestic violence in their home since May 2013.

12. Unfortunately, I find myself unable to accept their evidence generally and, particularly, where it touches upon the issue of the existence of domestic violence in their home.

13. I consider the father a witness of extremely limited credit for the following reasons:

    a)despite a history of criminal offences (such as theft, possession of illicit substances, assault occasioning bodily harm, breach of a domestic violence order and common assault) between 1995 and August 2014,[2] for which he was either charged and/or convicted, he told Mr H in February 2014 (when asked whether he had a criminal record) that he was “not convicted, not that I know of”; and

    b)despite positively asserting to Mr H that he had not been charged in relation to assaulting B and that “the police said I could have had [Ms Adams] (the mother) charged for provoking it”, his criminal history (which he accepted as accurate during cross-examination) clearly establishes he was, in fact, charged with assaulting her, pled guilty to the charge and was fined; and

    c)despite initially telling Mr H that he had had no involvement in domestic violence orders, he subsequently admitted that Mr I’s mother had sought a domestic violence order against him, the mother had sought (and obtained) domestic violence orders against him and he had been the respondent to a domestic violence order made in Ms G’s favour – additionally, reference to his criminal history reveals that, in May 2013, he was placed on 12 months’ probation as a consequence of contravening the domestic violence order in respect of which Ms G was the aggrieved spouse (made after he assaulted her in May 2012); and

    d)despite telling Mr H in January 2015 that he had followed all of the Court ordered requirements (such as counselling, attendance at a parenting course and drug testing), the father has, in fact, failed to comply with each of the 13 requests made by the Independent Children’s Lawyer that he participate in urine analysis to determine the absence of illicit substances (in circumstances where his evidence during cross-examination was that he attended upon his general practitioner every three months or so to have a blood test for cholesterol) and his counselling has been limited to two sessions conducted in Ms G’s presence; and

    e)his evidence during cross-examination was significantly internally inconsistent and, I consider, chopped and changed as he attempted to minimise his actions, divert responsibility for his actions and say those things he thought may be most beneficial to his case: for example, despite first saying he had threatened to kill the mother (explaining that this comment was made – not with any intention of acting on the threat - ‘out of anger’) during their relationship, he later said he had never threatened to kill the mother; and

    f)despite giving evidence that the first time he heard about the allegations that he had sexually abused B was after he commenced proceedings (which occurred in April 2013), he was in fact spoken to by police on 25 January 2012 and interviewed by them on 26 January 2012.

    [2]          Pages 69 and 70, Exhibit 2.

14. I consider Ms G to be a witness of limited credit for the following reasons:

    a)despite the recorded police dealings associated with the violence that has occurred during her relationship with the father, she joined with him in presenting to Mr H that she and the father were engaged in a stable and healthy relationship; and

    b)whilst she initially told Mr H there had been no abuse or violence in her relationship with the father, when challenged about this assertion, she (and the father) offered that he threw an object at her and she suffered a glancing blow and minor injury - whilst this may well have been a reference to part of the May 2013 event, Ms G omitted to tell Mr H about the balance of that assault and made no mention at all of the occasion on which the father punched her, causing her to suffer a black eye; and

    c)when asked about the assault in May 2012 (when she was seven months pregnant), she downplayed the fact of her pregnancy, stating at first that she was about 20 weeks into her pregnancy at the time.

15. It seems to me that, for whatever reasons, Ms G has been willing to support the father in his ongoing attempts to deflect responsibility for his past actions toward the mother and to buttress him in the belief that he has no behaviour issues which require modification. In such an environment, his already limited insight into the necessity for change has little – if any – prospect of improvement; especially given that his mother (the paternal grandmother) also stands willing to accept and condone his well-established pattern of violent and abusive behaviour towards the women with whom he has had children.

The Proposals

1. The father proposes that the Court make orders that “reintroduction counselling” between him and the children start as soon as possible to assist them to work toward the children initially spending supervised time with him and, thereafter, moving towards unsupervised time which would culminate in each alternate weekend from Friday evening to mid-afternoon Sunday and half of each school holiday period. He also proposes the children speak with him regularly by telephone on a phone he will provide and that this communication begin when the counsellor engaged to do the restorative or reintroduction counselling considers it appropriate.

2. The issue of counselling has previously been dealt with by Order:

   a)on 16 July 2014, Registrar Brooks noted that the parties were partway through the counselling process recommended in the first Family Report and wished to progress that further; and

   b)the Order made 22 October 2014 contained a further notation to the effect that the mother and father would be attending to sourcing a counsellor to assist the family in the restorative counselling recommended by the March 2014 Family Report – further, it was noted that all parties agreed that counselling had reached the point where restorative counselling should commence.

3. Despite this, no restorative counselling has taken place. The mother and children have, in fact, engaged with and received counselling from respective counsellors. This counselling appears to have been intended to assist them to deal with the effects of the domestic violence to which they were exposed during the relationship between the parties and other behavioural and relationship issues.

4. Despite advancing that orders should be made for restorative counselling and saying that he would pay for it, the father did not identify any organisation other than S Org – the organisation from which the children and the mother are currently receiving counselling support – as one which may be able to assist. He has not made any inquiries of S Org to see whether it can, in fact, assist or even whether it would be prepared to assist in the circumstances of this case. Counsel for the Independent Children’s Lawyer advised from the Bar table that, despite enquiry, the Independent Children’s Lawyer had been unable to identify any counsellor and/or organisation, located in the relevant area, which was prepared to undertake and/or facilitate restorative counselling.

5. The mother proposes the children continue to live with her and spend no time with the father. She also proposes that she be accorded sole parental responsibility for the major long term issues relating to the children.

6. Counsel for the Independent Children’s Lawyer submitted that the evidence was such that it did not support an order requiring the children to spend time with their father on anything other than a supervised basis. Additionally, he submitted that, in essence, the only choice for the Court was whether the children spend supervised or no time with their father. Counsel submitted that there was enough in the evidence before the Court to establish that the children had been physically and emotionally abused by the father - and perhaps, in so far as B is concerned, sexually abused - such that they need to be protected during any time with him.

Post separation parenting arrangements

1. For the three months immediately after separation, the children spent time with the father from 5.00 pm Friday to 4:30 pm Saturday.[3] I accept as highly likely that, during at least some of these visits, the father was intoxicated. I also accept it was highly likely he was verbally abusive toward the mother on at least some of these occasions and that his behaviour is highly likely to have distressed the children.[4]

   [3]          Affidavit of the mother filed 25 July 2013, at [10]

   [4]          Affidavit of the mother filed 15 July 2015, at [6]

2. The mother says that, on 15 April 2011, she received a text message from the father in which he said he did not want to see the children. She says, and I accept, that after this, she facilitated the children spending time in a park with their father, in her presence, for a couple of hours on a couple of occasions.

3. Doing the best that I can on the evidence before me, it appears likely that the parties argued on Mother’s Day (May) 2011 when the father arrived at the home with a bunch of flowers for the children to give to the mother and a bunch of flowers for K to give Ms G. I accept the mother’s evidence to the effect that during a telephone conversation between the parties later that evening, the father threatened to kill her and her family and that, after that, she informed him by text that he would never see the children again.

4. The father accepted that he only ever received one text message from the mother in which she told him that he would never see the children again. This admission may be particularly relevant given that the contents of police documents (included within Exhibit 2) in the proceedings suggest that at least one of the matters relied upon by the police in deciding to finalise the investigation into B’s complaints of sexual abuse by her father was that this text message was received by him about a week before the complaint - seemingly first made in September 2011 – was made.

5. In April 2013, nearly two years later, the father commenced proceedings in the local State Magistrates Court. On 9 May 2013, Magistrate Vasta made an information order, ex parte. On 15 August 2013, Magistrate Smith transferred the matter to the Family Court of Australia at Brisbane. The matter initially came before the Federal Circuit Court where, on 19 September 2013, Judge Spelleken appointed an Independent Children’s Lawyer and transferred it to this Court with a request that it be considered for inclusion in the Magellan list.

Matters clearly established on the evidence

1. There is no dispute that children will continue to live with their mother. I accept that she is strongly opposed to any order requiring that the children spend time with their father. She has maintained this position consistently from the time proceedings were commenced by him in 2013. She does so on the basis of her concern that, if the children spend time with the father, she will not be able to protect them from exposure to the consequences of his ongoing pattern of abusive and violent behaviour.

2. I accept that such concerns cause her significant anxiety and stress. I consider that, at this time, it is more likely than not that an order which requires her to facilitate the children spending time with their father may well undermine and destabilise her attempts to ensure that the cycle of inappropriate anger management and conflict resolution to which they (the children) were exposed during her relationship with their father is not repeated by them.

3. The mother also believes B’s disclosure of sexual abuse. Additionally, she genuinely believes the children do not wish to spend time with their father, will not obtain any benefit from an ongoing relationship with him and that reintroducing him into their lives will destabilise them and their functioning.

4. The mother is the parent who has met all of the children’s financial, physical and emotional needs since separation in early 2011. The father has made minimal, if any, financial contribution to the children’s support since separation. He explained that he had not paid any child support to the mother because she had not asked him to. As Counsel for the Independent Children’s Lawyer pointed out, that does not mean that the children did not have financial needs in the time since separation to which he could have contributed if he had wanted to.

5. All of the parties live sufficiently proximate to each other that geographic distance is not an issue which would in any way practically restrict the children from having the opportunity to spend time with all of the parties if such time is otherwise considered to be in their best interests.

Principles

1. In these proceedings, being proceedings for a parenting order[5] in relation to the children, I may, subject to s 61DA[6] and s 65DAB[7] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[8] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[9] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[10]

   [5] s 64B of the Family Law Act 1975 (Cth).

   [6]          Presumption of equal shared parental responsibility.

   [7]          Parenting plans.

   [8]          s 65D of the Act.

   [9]          s 60B of the Act.

   [10]         s 60CA and s 65AA of the Act.

Relevant considerations[11]

[11]The consideration of the relevant s 60CC considerations under this heading is, of course, to be read as supplemented by any other discussion of the relevant considerations wherever this finds expression in these Reasons for Judgment.

1. The Act does not define the term ‘meaningful relationship’ nor does it prescribe criteria on which the Court should rely in order to assess how the children’s parents have or should have a meaningful involvement in their lives. In McCall & Clark[12] the Full Court concluded[13] that the ‘preferred interpretation’ of ‘benefit to a child of a meaningful relationship’ is the ‘prospective approach’ – that is, the Court should consider and weigh the evidence at trial and determine how, if it is in the children’s best interests, orders can be framed to ensure that they have a meaningful relationship with both of their parents.

   [12] (2009) FLC 93-405.

   [13] Ibid at [19].

2. Given that it is accepted that the children will live primarily with the mother, the Court must consider and determine whether there is a benefit to them in having a meaningful relationship with the father: an affirmative finding is not to be assumed and does not depend simply on there being a lack of danger of physical or psychological harm to them arising from time and/or communication with him. If I determine that such benefit exists, then I must consider whether this benefit needs to ‘give way’ to the need to protect the children from physical or psychological harm.

3. Neither of the two Family Reports prepared for the Court’s assistance in this matter identifies any benefit to the children in having a meaningful relationship with their father.

4. When asked during cross-examination about this issue, Mr H identified that the benefits to the children of the opportunity to spend time with the father and have a meaningful relationship with him are that:

   a)it will provide them with the opportunity, in developing their own sense of identity, to have some direct experience of the father; and

   b)they will be able to learn about conflict resolution and relationships; and

   c)it will provide them with the opportunity to answer questions like:  “who am I; where am I from; where do I belong; how similar or different am I to my parents and which of their behaviours and/or values do I wish to adopt or discard?”; and

   d)“at some stage” in their development, they will need to revisit who and what the father is;  and

   e)it may be helpful for the children to explore whether or not there can be some reparation and for restoration with their father in or via a managed process;  and

   f)it would enable them to know who their father is, in an updated sense;  and

   g)it may (this being a matter of significant conjecture) prevent them casting their mother in a negative light in the future – that is, it may mitigate against them seeing her as the parent who prevented them from having an ongoing relationship with their father;  and

   h)it may help to guard against the children so “awfulising” the father that they miss out on acknowledging the good qualities he has;  and

   i)it will provide them with the opportunity to explore their curiosities, thoughts and feelings about him and the opportunity to re-appraise him.

5. With respect to Mr H, the evidence in this case appears to me to establish many of these matters already. That is, these children have had their own direct experience of their father from their respective births until early 2011. That direct experience has resulted in them regarding him as an angry, aggressive, violent and frightening man who hurts women. Anything that they may be able to learn from him about conflict resolution and/or relationships could not be thought to be beneficial for them.

6. Further, I consider that they have had more than enough actual experience of their father and his unrestrained behaviours to be able to answer many of the questions and issues which Mr H identified as important for them in developing their respective identities. Further, given the father’s behaviour on 30 May 2015 whilst at a family function, any relatively current revisitation by the children of ‘who and what their father is’ would only have resulted in a clear confirmation that he remained aggressive and unrestrained.

7. I am not persuaded that there is any particular benefit to the children in having a meaningful relationship with their father into the future given his:

   a)violent behaviours toward the mother and the children during the relationship; and

   b)his violent behaviour toward Ms G in the presence of her children in 2012 and 2013; and

   c)his violent and aggressive behaviour on 30 May 2015 at a family function; and

   d)his ongoing lack of insight into the necessity that he address his excessive alcohol consumption and absence of appropriate anger management; and

   e)his continued minimisation of his responsibility for his violent and aggressive actions toward his intimate partners and his and their children,

   and the example and/or modelling that exposure to these behaviours provides to the children.

8. Whether I am wrong in arriving at this conclusion or not, it is necessary I consider the mother’s case that there is no benefit to the children in having a relationship with their father because they would be at an unacceptable risk of harm if they spend time or communicate with him. In advancing this case she relies upon B’s disclosures of alleged sexual abuse by the father and the father’s history of domestic and family violence during their relationship and his continuing violent behaviour in his relationship with Ms G and his history of drug and alcohol abuse.

9. As Counsel for the Independent Children’s Lawyer accurately submitted, the Court must accord more weight to the imperative of protecting children from harm than it must to the consideration of the benefit to them of a meaningful relationship with both of their parents. Consequently, even if the benefit to the children of having a meaningful relationship with their father is more significant than I have assessed it to be, such benefit may still need to yield to the imperative of protecting them from harm.

The allegations of sexual abuse

1. It may often be that the Court cannot confidently make a finding that sexual abuse has or has not taken place.[14] It must not be forgotten that the ultimate or primary or paramount consideration is whether a particular order is in the best interests of the children.[15] The existence of allegations of inappropriate behaviour or sexual abuse does not alter this fundamental. The resolution of such allegations is ancillary and subservient to a determination, following an assessment of the relevant statutory considerations, of that parenting order which is in the children’s best interests.

   [14]         B & B (1988) FLC 91-957.

   [15]M v M (1988) 166 CLR 69.

2. That is, whilst authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of the terms of a parenting order which is in the children’s best interests,[16] a close assessment of such allegations is clearly necessary given that the prescribed statutory framework imposes an imperative of protecting children from harm.[17] In undertaking this assessment, the Court is not compelled to make a determination about whether the father sexually abused B: the ultimate and paramount requirement remains to make orders which are in the best interests of each of the children.

   [16]         M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.

   [17]         Section 60CC(2)(b).

3. It is well established[18] that a positive finding about the allegations made by B should not be made unless the Court is satisfied, to the highest standard on the balance of probabilities,[19] that these alleged events occurred. In determining  whether the issues have been proven to the reasonable satisfaction of the Court, due regard should be paid to matters like the seriousness of the allegation, the inherent unlikelihood or likelihood of an occurrence of a given description and the gravity of consequences flowing from a particular finding.[20] Further, ‘reasonable satisfaction’ about the matters alleged should not be produced by ‘inexact proofs, indefinite testimony or indirect inferences.’  Proper regard should always be had to other, not improbable, explanations for events.

   [18]See, for example: M and M (1988) 166 CLR 69; W & W (Abuse Allegations: unacceptable risk) (2005) FLC 93-235; (2005) 34 Fam LR 129 at [92]; [111].

   [19] s 140(1) Evidence Act 1995 (Cth).

   [20] s 140(2) Evidence Act 1995 (Cth).

4. The mother says that, on 19 September 2011, B (then about 9½ years old) was misbehaving. She (the mother) became frustrated with her and threatened to send her to live with her father. Later that day, B asked to speak to her mother by herself. During their conversation, B told her that last year (2010) when her mother went out with her aunt, her father made her look at “rude magazines” and made her “do the same as in the pictures”. When the mother asked her to clarify what she meant, B pointed to her mouth and then her vagina and said “just like in the magazines…put my mouth on his”.[21]

   [21]         Affidavit of the mother filed 25 July 2013, at [88] – [106].

5. When the mother asked B when the alleged abuse occurred, she said: “the night you went out with Aunty [L]”. B asked her mother not to tell anyone because she felt “dirty and disgusting”. After her mother asked her if the father had threatened her to do it, B said he said he would hit her if she did not do it.

6. The mother reported the allegations to the police on 19 September 2011: the records of that report[22] are that the father had shown B pornography and had her perform oral sex on him and that this occurred at some time between 1 November 2010 and 7 November 2010 when the mother attended a school reunion. Additional information provided to police was that the two younger children were asleep when this incident occurred, that the father made B promise not to tell anyone and that he was intoxicated.[23]

   [22]         Page 406, Exhibit 2.

   [23]         Page 408, Exhibit 2.

   B’s police interviews

7. B was interviewed by the police on 27 September 2011, 29 September 2011 and 17 November 2011. The contents of her interviews were regarded by police as failing to provide a proper basis for the father to be charged with any offence.

8. During B’s third interview – which occurred after her mother attended on police on 17 November 2011 to say that she (B) had made further disclosures to her about the incident - B said, when asked why she did not disclose all of the information in her previous interview, that she was not ready, but felt more comfortable with the investigating officer now and was ready to disclose. During this interview,[24] B told police:

   a)the father did to her what he made her do to him: namely, he put his mouth on her rude bit; and

   b)the father told her to pull her pants down and she eventually did; and

   c)she crouched like a rabbit – the father put his mouth on her rude bit from behind and that she looked around seeing this in the mirror; and

   d)that the father said to her “this is so you know what to do when you are older”; and

   e)when asked questions about her father’s “rude bit” - that some yellowish stuff came out of his rude bit, that he wiped it with a tissue and threw that in the toilet.

   [24]         Page 408, Exhibit 2.

9. As well as making these comments to police, B has told a number of other people about what she says the father did to her.

   What B told her aunt (Ms M Adams)

10. Ms M Adams (the mother’s sister) said that “around four years ago”, B told her that her brother and sister were asleep, her dad was drunk and had put his doodle in her mouth. Ms M Adams said B was extremely scared and embarrassed and, as she was terrified her father had sex with her, asked if what her father had done was “sex”. Ms M Adams said she told B it was not sex and that what her father had done was wrong and illegal; she said B was scared to say something because she was terrified her father would find out.

11. Ms M Adams said she made a statement to police. For reasons not known to me, this statement is not in evidence before me.

    The father’s response to the allegation when spoken to by police

12. Police attended at the home of the father and Ms G on 17 November 2011. Ms G told them he was working in N Town and was not home until the following weekend. Police left a card so that the father could contact them upon his return to F Town.

13. As he had not done this, police then attended the father’s home on 25 January 2012 and offered him the opportunity to be interviewed. He subsequently attended the police station on 26 January 2012 and was interviewed.[25] This interview took place in the presence of Ms G who was permitted to be present as his support person.

    [25]         Page 409, Exhibit 2.

14. The father confirmed that there was an occasion on which the mother went out for a school reunion. He said he was left to care for the children, they watched a movie and then he put them all to bed. He went to bed. He admitted he owned pornographic magazines and DVDs and that the children had seen them before, after finding them in his bedroom - this was his explanation for how B would have known about the pornographic material. He denied all of the allegations she outlined in her police interview. He denied being drunk that evening and said he did not drink when he was looking after the children. He said he had looked after the children on his own many times and believed the allegations were driven by the mother due to the breakup of their relationship and the fact that he had a new partner.[26]

    [26]         Page 409, Exhibit 2.

    The decision made by the police

15. Police determined not to take the matter any further. The mother said she was told this was because B could not say the words ‘penis’ and ‘vagina’, had great difficulty in expressing herself and her evidence was uncorroborated.

16. The documents tendered by the Independent Children’s Lawyer reveal the following by way of explanation for the police decision:[27]

    The disclosures from the victim child were over the course of three separate 93A statements. The victim child was unable to use the correct name for the male and female genitals. Some of the disclosures were made under direct questioning. There are ongoing issues between the informant and the suspect. A breach of DVO is currently being investigated. The informant’s phone has been downloaded, which revealed a text message where the informant stated to the suspect that she will make sure that the suspect never sees his kids again. This message was sent only a week or so prior to this indecent treatment complaint being made to police. The indecent treatment complaint was reported in conjunction with a breach of DVO. There are no independent witnesses to the incident. These issues would make it difficult to gain a conviction in court, therefore this matter will be solved as per section 4B of the pac procedures manual as the victim child is too young without corroboration.

    [27]         Page 409, Exhibit 2.

17. That a child of B’s age was “unable” to use “the correct” name for genitalia in the presence of a complete stranger, conducting an interview in an unfamiliar environment about issues that may well have been thought “private”, does not seem to me to be of particular significance. The presence of “ongoing issues” – inferentially, at least, arising out of the breakdown of the parental relationship and the father’s relatively proximate commencement of a relationship with Ms G – between the mother and the father may or may not be relevant to an assessment of the likelihood of the occurrence of the events alleged by B. As noted earlier, the only text message containing the mother’s statement that the father would never see the children again is said to have been sent in about May 2011 – or, alternatively, given that, according to the mother, B told her mother on 19 September 2011 but was only interviewed for the first time on 29 September 2011, may well have been sent a week or so before interview. Without further detail, I am simply unable to reach a view about possibilities like this. The absence of an independent witness and other corroboration is hardly unusual, especially given the nature of the behaviour in which B alleged her father to have engaged.

    B’s disclosures to a learning support teacher

18. Correspondence[28] from Ms O, the principal of P School, records that, on 14 May 2013, B told Ms Q (a learning support teacher at the school) that she had been sexually abused by her father. The school informed the mother and contacted the Department.

    [28]         Page 520, Exhibit 2.

19. Ms Q, whose evidence I accept, told the Court that she wrote a statement – Exhibit 7 – in which she recorded what B had told her. She wrote this statement on the same day (14 May 2013) B spoke with her. Reference to Ms Q’s statement establishes that, amongst other things, B told her that:

    a)she does not see her father because he did something bad to her when she was eight years old; her mother took her to the police but she just could not tell the policeman; she had asked for a lady but none was available; and she does not want to talk to police because she does not want her father to go to jail because she loves him;

    b)having asked Ms Q if she could write it down, B wrote “I had to suck his doodle” – she was sitting out near the pool, C and D were inside asleep, her mother was at a function and she was allowed to stay up, her father had been drinking and came up and told her to do it; and

    c)she did not want to do it, but her father told her he would hit her if she did not: he did boxing and she was scared of him hitting her because she had seen him hit her mother when he had been drinking (the latter assertion clearly established on the evidence); and

    d)that she had to do “it” a bit that night – it was not just once; and

    e)she is stuck between loving her father and how much fun he is when he does not drink too much and how D is now the age she was when her father touched her and she does not want D to go through what she is; and

    f)she was missing not seeing her father but understands why she cannot; and

    g)she never told her mother about the incident until she was in year four when her parents split up and she was going to have to stay with dad without her mother around; and

    h)she had never told her mother before that because her father had told her not to and she felt it was her fault.

    B’s comments to a medical practitioner

20. Records of B’s attendance upon a medical practitioner on 24 July 2013 are that she was “weepy” on talking about her father’s abuse.[29] No further particularisation is recorded to identify the nature of the “abuse” and, in this case, where the father has engaged in repeated abusive acts during his cohabitation with the mother, it is, I think, impossible to conclude – without further information – that the “abuse” referred to was the allegation of sexual abuse.

    [29]         Page 479, Exhibit 2.

    Notifications and/or information provided to the Department

21. A Departmental intake document dated 3 September 2013 records the information that B had disclosed that the father had shown her pornographic magazines and made her give him oral sex when she was eight years of age. A child concern report dated 5 September 2013 recounts that B said she did not tell police when interviewed because no female officer was available.

22. The Departmental notes also contain the assertion that previous police interviews did not contain any disclosures from B.[30] Given the information outlined earlier, this summary seems, to me at least, to be a somewhat inaccurate summary of information contained in documents provided by the police: a more accurate summation may well be that B had failed to make any disclosures assessed by police as being likely to found a successful prosecution of the father.

    [30]         Pages 215 and 216, Exhibit 2.

    B’s comments to her counsellor[31]

    [31]         Exhibit 3.

1. B has engaged in counselling with Ms R (a domestic and family violence counsellor employed by S Org) since mid-June 2014. During a session on 20 August 2014, B told Ms R that her mother had told her to talk to her (Ms R) about what her father had done. B told Ms R she had previously talked to the police and had been scared. When asked at the end of the session whether she had seen her father, B said she had not seen him for four years. When Ms R asked her if she would like to tell her what had happened with her father, B appeared anxious, unsure and uncomfortable, stating that Ms R would feel different once she knew what her father had done. Ms R gave B the choice to write or share verbally and B wrote:

   Dad made me suck his D***.  I hate talking about this and I hate wrighting what he did to me or saying it.

2. B also told Ms R that this happened when she was eight years old and it happened once.

3. S Org subsequently notified the Department and proposed that a referral to T Org (a sexual assault support service) be discussed with the mother and B.

   The father’s evidence during cross examination

4. The father confirmed that the mother did go to a school reunion during their relationship and that the children did have access to pornography at some stage. He reiterated that he was not drinking alcohol that night, stating that he did not consume alcohol when the children were in his care. He said he sent all of the children to bed and they slept in the same room.

   Discussion of sexual abuse allegations

5. As alluded to earlier, it is not the role of this Court to hear cases so as to determine the guilt or innocence of a party; this Court should refrain from making a positive finding that sexual abuse has actually occurred unless impelled by the circumstances of the particular case to do so.

6. In M v M[32] the High Court noted, at p77:

   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 were granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of the child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they came about, would have a detrimental impact upon a child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of the child, is a fundamental matter to be taken into account in deciding issues of custody and access cases.

   [32]Ibid.

7. In balancing the risk of harm from abuse and the possible benefit from parental time and communication, the test which remains to be applied, notwithstanding the amendments to the Act which post-dated M v M, may best be expressed by saying that a Court will not make an order for time between children and a parent if such time would expose them to an unacceptable risk of abuse.

8. In applying this test, the Court must determine whether there is a risk that sexual abuse will occur and then assess the magnitude of that risk. A decision may then be made in respect of the means by which, if considered appropriate, such risk may be ameliorated. Whilst the imposition of supervision on the time children spend with a parent may sufficiently meet the risk of physical harm, supervision does not necessarily deal with the potential impact on a child of face-to-face interaction with a parent who has abused the child or whom the child believes has abused that child.

9. Having regard to the degree of satisfaction required before a positive finding can safely be reached, it is, I think, difficult to reach a positive determination that the father has, in fact, sexually abused B: the evidence before me, whilst exceedingly concerning, does not impel me to make such a finding.

10. I accept the submissions by Counsel for the Independent Children’s Lawyer that the evidence before the Court is concerning, especially given that B has provided consistent and explicit detail in relation to her allegation. I also accept, however, that in her comments to her teacher and counsellor, she is now recounting an event alleged to have occurred a number of years ago.

11. However, having regard to the consistency in B’s accounts over time, her expressed concern about D being at the age she was when she says her father acted as she alleges, her age when she first told her mother, the fact that there was, in fact, an occasion her mother went out to a function at night leaving her father to care for the children and the extent to which the father admits consuming alcohol on occasions (which, at other times, has resulted in him being unable to recall events which occurred during these periods of extreme intoxication),  I am left with a sense of unease and disquiet.

12. Whilst the father asserts that the mother is, in some way, responsible for somehow influencing B to say that he behaved toward her as she alleges, this seems inconsistent with the mother’s actions in keeping family photos (in which the father appears) available to the children, B’s later statements to the support teacher and her counsellor and her expressions of concern about D being the same age she was at the time of the event she alleges: that is, it seems highly implausible that the mother would be capable of influencing B (the child the father asserted would be the one who would think all of it was “bullshit”) to make such a connection and express it to a third person in the absence of any actual experience at all. 

13. For these reasons, I am left with the uncomfortable conclusion that B may well have been at an unacceptable risk of suffering harm if she had been required to spend unsupervised time with her father in or around late 2011. Given D’s age, the father’s continued abuse of alcohol and that I think it highly unlikely he does not consume alcohol when the children are in his care, my concerns about the risk to her now if she was to spend unsupervised time now with her father are as they would have been for B then.

14. Even if I am wrong in the conclusions I have outlined here, other matters are relevant to the ultimate determination of whether compelling the children to spend time with their father now is in their best interests.

Domestic violence during the parents’ relationship

1. I accept the mother’s evidence about the father’s behaviour toward her and the children during the relationship.  It follows that I am persuaded that the father was repeatedly physically and verbally abusive toward her and the children throughout their relationship. I accept as highly likely that his behaviour was exacerbated by his abuse of methamphetamine and alcohol at various times.

2. I accept that the following events were the “most traumatic incidents”:

   a)on the day before B was born (in 2002), during a discussion about whether the father should leave work immediately upon the mother’s waters breaking or not (where the father said he should and the mother advanced that he should finish work for the day before coming to the hospital if her labour was not advancing), the father kicked her in the face, knocked one of her front teeth back and said “you stupid bitch, I should be there”[33] - I note that, given that the father assaulted Ms G when she was seven months pregnant, the fact of the mother’s pregnancy does not constitute a fact which makes it less likely her account is truthful;

   b)in May 2004, the father punched the mother in the face and, when she fell to the ground, slammed her head into the tiles and dragged her by her hair (as he did to Ms G in May 2013) into Mr I’s bedroom, continuing to yell abuse[34]; and

   c)in August 2005, when the mother was approximately six months pregnant with D, and in the presence of the children, the father threw her to the floor and drew his hand back, threatening to punch her in the face - he did not follow through[35]; and

   d)in March 2006, after going to the paternal grandparent’s residence to collect a lounge suite, the father became angry at the mother for not doing what he said and, in front of the children, told the mother “I want to fucking kill you”; after the children were in bed, the father continued to yell abuse at her, punched her in the head repeatedly and kicked her in the face: her eye swelled closed[36]; and

   e)in October 2006, after driving one of the father’s co-workers home after work, the father repeatedly punched the mother in the side of the face while she was driving, accusing her of being a smart arse in front of his co-worker and of having sex with his 20 year old co-worker. During this event, the mother’s glasses fell from her face; the father picked them up, snapped them and threw them out the window[37]; and

   f)during 2007, the father would regularly punch her in the face, including whilst the children were present and particularly when she was driving; when the children screamed and cried, the father threatened them by saying: “If they don’t shut up, they will get one as well”[38]; and

   g)throughout 2009, the father regularly backhanded her when she was in bed sleeping or just as she was waking.[39]

   [33]         Affidavit of the mother filed 25 July 2013, at [61]

   [34] Affidavit of the mother filed 25 July 2013, at [62].

   [35] Affidavit of the mother filed 25 July 2013, at [65].

   [36]         Affidavit of the mother filed 25 July 2013, at [66]-[70].

   [37] Affidavit of the mother filed 25 July 2013, at [72].

   [38] Affidavit of the mother filed 25 July 2013, at [75].

   [39] Affidavit of the mother filed 25 July 2013, at [76].

3. I also accept the father accused the mother of having an affair (as he subsequently accused Ms G), stood over her and yelled abuse - which included calling her a “slut” and a “whore” (as he has toward Ms G).

4. I am fortified in my acceptance of the mother’s recounting of the father’s abusive and aggressive behaviour toward her by the fact that he behaved in a similar manner toward Ms G in 2012 and 2013: that is, he was verbally abusive to her while intoxicated, he struck her while she was pregnant; he punched her, causing her eye to swell; he dragged her by the hair across the room; he accused her of infidelities.

5. On 27 August 2009, the parties argued about the discipline of the father’s oldest son. The mother says the father threatened to shoot her, went to the gun safe to retrieve the gun and she drove straight to the police station. Police subsequently attended the parties’ home. When interviewed, the father’s son supported his account of events which was to the effect that the mother was the aggressor that evening. Whilst I consider the father quite capable of acting in the manner alleged by the mother, I am not prepared to reach an affirmative conclusion in relation to this alleged event in the absence of the opportunity to assess directly the evidence of either the attending police officers or the father’s (now adult) son.

   The father’s behaviour toward the children

6. A Departmental investigation in September 2007 involved assessing information that included that, six weeks earlier, C said he had an ear ache because his father hit his ear when he was naughty. He was said to have disclosed that he was scared of his father.

7. On 1 February 2008, the Department received information that B had welts and bruising to her legs - she said her father hit her with tongs at dinner the night before. The allegation was that, after the mother asked him to help her manage the children’s behaviour, the father hit B a number of times on her legs and thighs with a pair of kitchen tongs. 

8. Officers from the Department of Communities, Child Safety and Disability Services[40] attended at the parties’ home the next day to enquire about the bruising. B and C were removed from their school the following Monday by police and the mother was asked to deliver D to the Department. On 4 February 2008, the Department obtained a Temporary Assessment Order granting custody of the children to the Chief Executive. The children were placed with a foster carer on 4 February 2008 for one night and were then in the care of their paternal grandparents (pursuant to a safety plan) between 5 February 2008 and 7 February 2008. They were returned to their parents care on 7 February 2008.

   [40]         By whatever name it was then known.

9. As a result of an investigation and assessment undertaken between 18 September 2007 and 9 February 2008, the Department concluded that there was substantiated emotional harm to all of the children (with both parents identified as the persons responsible for this harm) and substantiated physical harm to B.  The father was identified as the person responsible for this harm.

10. The father was subsequently charged with Grievous Bodily Harm of a minor. Having pleaded guilty to this charge, he was fined $400.00. No conviction was recorded.[41]

    [41]         Affidavit of the mother filed 25 July 2013, at [111] – [124].

11. I accept the mother’s account of an event which occurred in or about November 2009 when she left the children and father in the car while she went into the grocery store. I accept that, when she returned, all of the children were crying and B had blood on her face; when she asked the father what had happened, he said the children were misbehaving, a woman had walked past the car and laughed, saying she had been in that position before. I accept as likely that the father told her he had hit C and D across the head and, when B threatened to tell her mother, punched her in the face, causing a tooth to go into her lip. I accept the mother’s evidence to the effect that the father then told her (the mother) to shut the children up or she would “get one as well”.[42]

    [42]         Affidavit of the mother filed 25 July 2013, at [79] - [80].

12. I accept the mother’s recounting of an event which occurred in early 2010: the parties were building a cow pen on their property, she told the children to stand under the patio because it had started to rain, they did not listen to her and she asked the father to say something to them. I accept as likely that he got on his quad bike and drove at the children, B and D ran away and that he kicked C into the bricks of the house. I accept her evidence to the effect that he returned to the mother, saying “I think I just killed your son” and that C’s head was severely swollen.[43]

    [43]         Affidavit of the mother filed 25 July 2013, at [81] – [82].

    The father threatens to kill the mother – the first separation

13. I accept that, in or about February 2010, the father locked the children outside the home and then attacked the mother with a roasting fork; that he chased her around the home and told her he was going to kill her. When she tried to hide in the toilet, he pushed his way in and told her to shut the kids up and that, if the police came, it would be worse. I accept that the children were screaming and pleading for their father to stop hurting their mother. Later that night, he punched her, causing her tooth to go into her lip.[44]

    [44] Affidavit of the mother filed 25 July 2013, at [84].

14. The father’s account to Mr H of this event is: “a violent incident with me and [Ms Adams]…I trapped [Ms Adams] in the kitchen…we were yelling and screaming. I had a roasting fork and was carrying on like a dickhead…it was for intimidation”. The father accepted during cross-examination that he had said “I’ll fucking stab you with that fork” to the mother and that the children had heard this.

15. I accept the mother’s recounting to Mr H in February 2014 that a “light bulb” came on for her during this incident - she left, seeking a domestic violence order. A Protection Order, to which she was the aggrieved spouse and the father the respondent spouse, was made on 14 April 2010. It was then that the mother moved with the children to live in F Town. In fact, the father told Mr H that she “fled”.[45]  Given his admitted actions, this description is apt.

    [45]         Paragraph 26, Family Report dated 3 March 2014.

16. Whilst the father’s affidavits contain no direct denials of the behaviour alleged by the mother, he contends that he has never been charged with any offence arising out of any of the alleged incidents and advances that the mother has not proven that those events occurred. This latter assertion is now incorrect given my acceptance of the mother’s recounting of his explosively violent outbursts.

17. It appears the father engaged in counselling after the mother left with the children. He attended six one-hour sessions and then moved to F Town and persuaded the mother to reconcile with him. I accept as likely that she did so because she decided to give him another chance, believed his behaviour had changed and she did not want to be a separated person or a single parent.

    The father destroys property including the doll’s house and the Wii – the final separation

18. I accept the mother’s account of the events of 13 January 2011: that is, I accept that the father attended at the mother’s home under the influence of alcohol, engaged in threatening behaviour and was destructive of property, including that belonging to the children. I also accept her evidence to the effect that he made a verbal threat toward C (that is, threatening to stab him) if that child did not get him a knife to allow him to slash the mother’s tyres.

19. When police attended at this incident, they observed that the children were visibly distressed.[46]

    [46]         Page 382, Exhibit 2.

    The father threatens to kill the mother and her family: May 2011

20. The mother says that, in May 2011, the father told her he would make one phone call and she, her family, and friends would all be dead and that his parents had the money to pay for it. He later sent her a text message, indicating that Ms G would support anything he said. Given Ms G’s evidence before me, I consider this, unfortunately, to be an accurate statement. I accept that the mother told him she would not allow the children to spend time with him again.[47]

    [47]         Affidavit of the mother filed 15 July 2015, at [3]

21. The mother then applied to vary the existing Protection Order. This occurred on 25 May 2011 - although the variation then made is not clearly apparent from the face of the Order itself. The Protection Order was to then remain in force until 13 April 2012.

22. The father denied threatening the mother on this occasion but I do not accept his denials. Given C’s recounting to Mr H of comments made by the father on occasion, a threat to harm seems highly plausible.

Family Violence in the father’s relationship with Ms G

1. The evidence clearly establishes that, on 7 May 2012, the father punched Ms G with a closed fist, causing her right eye to swell and blacken.[48] He was significantly under the influence of alcohol, very angry and accused her of infidelity. Given that J was born in July 2012, she was about seven months pregnant at the time of this violent assault. K, Ms G’s then about five-year-old son, was in another room of the home at the time of this assault.

   [48]         Page 350, Exhibit 2.

2. It appears Ms G attended a neighbours’ address. She does not accept the assertion that she was seeking assistance but rather says she attended at the neighbours’ residence to berate them for causing trouble. During her cross-examination, Ms G confirmed that she had gone to the neighbours to “have a go” at them for causing trouble. She denied asking them to call the police. In fact, she was quite emphatic in telling me that she did not ask for the police to be called and that, if the neighbours had not done so, she would not have done anything to inform the police.

3. In any event, police attended. The documents record the observation that Ms G had a large black eye; she is recorded as having told police the father had been at a friend’s home and had been drinking alcohol for the afternoon and evening; he came home very intoxicated and very angry, yelled at her and accused her of infidelity; they had a verbal argument and he punched her with a closed fist to her right eye, causing it to swell and bruise. Departmental records contain the assertion that, as a consequence of this assault, Ms G was taken to hospital.

1. When he spoke with Departmental officers in early August 2013 about the family violence event between him and Ms G, the father said: “we all have arguments; we all yell and scream – everyone does”[89].  This comment clearly demonstrates an attitude which minimises his actions toward Ms G, noting as I do that they involved the infliction of physical harm in front of children on two occasions.

   [89]         Page 345, Exhibit 2.

2. Nothing in the father’s attitude toward and manner in which he answered questions about, his assault of Ms G in 2012 and 2013 suggests that he has reflected upon his abusive behaviour. In fact, his recounting of slapping her on the face - which he thought caused her to suffer a bruise - appeared, to me, to be very matter of fact.

3. Whilst the father attempted to deflect blame for his past abusive behaviour onto his previous drug use and asserted severe depression, the reality is that he assaulted Ms G on two known occasions after he was first prescribed the antidepressant medication he spoke of.

4. The father and Ms G attended two counselling sessions with a person from Relationships Australia. The father says this person told them there was no need for either them or the father to participate in further counselling. Given the father’s admitted violence, Mr H’s assessment of him, my conclusions about his evidence generally and the absence of evidence about:

   a)the qualifications of the person who conducted the counselling; and

   b)the nature of their engagement by the father and Ms G; and

   c)the nature of the counselling undertaken; and

   d)the basis upon which any asserted advice was provided to the father and Ms G,

   I am not remotely persuaded that the father’s functioning is such that there is no need for him to engage in further counselling in relation to anger management and alcohol misuse.

5. Should further support for this conclusion be needed, it can be found in the father’s evidence to the effect that, about once a month, he enjoys “a few” drinks (by which he meant a carton of XXXX Summer Bright Lager, a 4.2 per cent abv lager) and his aggressive and agitated behaviour at a family function at his parents’ home on 30 May 2015:  behaviour which saw him restrained by his father and fellow guests and which resulted in police attending.

6. Additionally, if the counsellor in fact told the father and Ms G that they had no need for further attendance, such a recommendation can only have been made in the absence of a full appreciation of the matters which predated their attendance.

7. The father and Ms G told Mr H in February 2014 that they expected B to seek contact with them and D and/or C to run with fear. They attributed the younger children’s anticipated reticence to spending time with them to the “brainwashing” imposed by the mother and/or her family. They asserted that B would know it was all “bullshit”.[90] However, as B’s comments to Mr H, her counsellor, the support teacher at school and her aunt make clear, she does not think the allegations about the father’s behaviour toward her and her mother to be “bullshit”. That the father expressed such a view to Mr H only demonstrates his inability to appreciate the impact of his behaviour upon his children.

   [90]         Paragraph 29, Family Report dated 3 March 2014.

8. The March 2014 Family Report contains a list of those matters Mr H then urged the father to address.[91] None of these have been addressed by the father in any meaningful way.

   [91]         See paragraph 78.

9. Despite raising concerns about the mother’s care of the children with the Department in about March 2014 – which resulted in the children being interviewed by Departmental officers in April of that year – the father failed to return calls from Departmental officers. His apathy in this respect suggests an ulterior purpose in contacting the Department at that time.

10. When the father spoke with Mr H in January 2015, he was frustrated by what he appeared to perceive as external factors which impeded a restoration of his relationship with the children. According to Mr H, his “self-scrutiny” was seemingly absent or “markedly blunted”.[92] Nothing in his presentation at trial suggested any improvement.

    [92]         Paragraph 20, Family Report dated 8 January 2015.

11. The father also sought to explain his behaviour and violence to which the children were exposed and/or which they heard was because he was then suffering from major depression – on his assertions this was only diagnosed after his separation from the mother. Of course this fails to provide the explanation for his violent and aggressive behaviour in 2012 and 2013 toward Ms G.

12. I accept the submissions made by Counsel for the Independent Children’s Lawyer to the effect that, whilst the father has had the opportunity to address those deficiencies in his parenting capacity and functioning identified by Mr H in his first report, he has failed to do so in any meaningful way.

The mother, her parenting capacity and attitude to the children and the responsibilities of parenthood

1. Between 4 February 2014 and 1 September 2015, the Independent Children’s Lawyer asked that the mother undergo urine analysis and hair follicle analysis to test for the presence of illicit substances. The hair sample provided by the mother on 12 February 2014 was analysed - no illicit substances were detected. Urine analysis undertaken by her on 6 February 2014, 21 March 2014, and 4 December 2014 did not reveal the presence of any illicit substance.

2. Whilst previous Departmental interventions in around 2007 and 2008 highlighted some weaknesses in the mother’s parenting of the children, interviews with all children in April 2014[93] resulted in the Department concluding that the children had not suffered emotional and/or physical harm from their mother. At that time, the children reported that they felt safe with their mother; they presented well and were clean and tidy; they reported that their mother did not hit or smack them now but used other forms of discipline and said that she had a family member supervise them now when she had to work. Departmental officers observed that the children’s home was clean, tidy and orderly with adequate furniture and equipment.

   [93]         Exhibit 2.

3. An officer assessed that family therapy and/or counselling would assist the family unit. After the first Family Report was released, the mother commenced attending counselling. I accept that, for her personally, this has been, at least in part, to address the impacts of the domestic violence inflicted on her by the father during their relationship. She also arranged for the children to participate in therapeutic counselling.

4. I accept that the mother was frank when she told Mr H in January 2015 that she did not want the children to undergo restorative counselling with the father. I also accept that she was genuine when she questioned how it could be thought in the children’s best interests to be required to undertake this process with the father given his previous behaviour and the absence of any demonstrable change to the same. I accept she was genuine when she told Mr H in January 2015 that it was not healthy (I infer, emotionally) for the children to require them to have a relationship with their father, that she would not countenance them spending time with him under any circumstances and that she was concerned the children would be supported by him in challenging her authority. I accept that she expressed a concern to Mr H that the children had previously treated her in the same way as they had seen their father treat her. I also conclude that, given she explained that counselling had assisted B, she was concerned that a reintroduction of the father at this time may undermine the effectiveness of that therapeutic support.

Mr H’s reports

1. In the March 2014 report, Mr H opined that it was in the children’s best interests to not further erode or compromise the mother’s capacity to parent them by compelling her to co-parent with the father. He also considered that the father’s ‘significant unaddressed personal, relationship and/or parenting gaps, flaws and dysfunctions’ were so extensive and severe as to preclude a recommendation that the children to spend time with him at all.

2. As already mentioned, Mr H identified and specified issues which the father should properly address.

3. Despite:

   a)being aware that the father had not in fact “robustly addressed” the matters he identified in his earlier report as constituting the ‘gaps, flaws and dysfunctions’ in his parenting capacity and/or personal relationships; and

   b)commenting that it was concerning the father claimed the counsellor he saw had advised he had no issues he needed to consider and/or address; and

   c)noting that the father, Ms G and the paternal grandmother gave indications that the father did not take and was not encouraged to take  responsibility for his contributions to past events and issues and the evolution of the breakdown in his relationship with the children; and

   d)assessing the father as still being largely in a state of denial about his responsibility for partner and child abuse,

   the January 2015 Family Report contains Mr H’s recommendation that the children initially spend time with their father, Ms G, J and K and their paternal grandparents at a Contact Centre and, after a period of several months of “sustained and consolidated” time at a Contact Centre, move to spending daytime time with the father and Ms G (supervised by the paternal grandparents) and, later, supervised time on weekends and holidays at their home.

4. When asked to explain the change in his recommendations - given that the father had not meaningfully addressed any of the deficiencies he had earlier identified and relied upon as the basis for his recommendations that no time between the children and their father was in their best interests - Mr H emphasised that he had done so because the children appeared to be curious about the father and whether he had changed and/or were willing or wanting to see him. He also said that the children may need to review their views of the father. 

5. Whilst it may well have been that at least B and D were more curious about spending time with the father after they had spent time with their paternal grandparents, it cannot be forgotten that, during this time, the paternal grandmother appears to have actively sought to engage them in changing their minds about their father: for example, the comments to Mr H clearly suggest she told the children that their father had changed and she also facilitated him (the father) speaking with her whilst the children were present in circumstances where she knew the mother did not agree to any interaction between the children and their father.

Further discussion and conclusions

1. I am not persuaded that the explanation for the change in Mr H’s recommendations withstands careful scrutiny and/or analysis. Nothing of significance has changed in the time between the two reports. The paternal deficiencies he identified as the basis for his earlier recommendations remain significantly unchanged and, for this reason, I accord weight to the  recommendations contained in the first Family Report and decline to accord weight to the recommendations contained in the later Family Report.

2. I am not persuaded that any curiosity the children expressed about their father after time with their paternal grandparents is likely to have been reflective of anything more than the likely influence of supportive comments and/or statements about him made by their grandmother.

3. During cross-examination, Mr H said that he anticipated the mother would suffer a certain angst if required to deliver the children to a Contact Centre to spend time with the father. He recommended that, in order to deal with this, and in addition to her Intake session, she undertake a number of orientation visits and that she and the children attend themselves with the supervisor on a number of occasions to develop rapport. He suggested that these introductory and incremental steps be taken before the father is introduced into the process of spending time with the children. He also said that  the children themselves would likely need counselling to support them in and during their reintroduction to their father.

4. If ordered, all of the precursors to commencing time with their father are likely to have significant destabilising impacts upon the children: for example, the mother – their sole financial support – will be required to bear the financial and emotional cost of engaging with the Contact Centre on a number of occasions; the children themselves will be required to undertake this engagement process and, for C at least, this is highly likely to come at a significant emotional cost. All in the mother’s household will be required to bear this impost in circumstances where the benefits to the children of the opportunity to spend time with the father are, at the very best, uncertain and ill-defined and the father himself has undertaken extremely limited remedial action to address those deficiencies in his functioning and parental capacity identified by Mr H.

5. In this case it appears that the mother and children (the victims of the father’s explosive and violent behaviour) will require counselling to ensure that they are able to manage the process of the children’s reintroduction to the father (the perpetrator of that violence). This is to occur, it seems, in circumstances where, as I have said, the father – the perpetrator of the violence – has undertaken extremely limited self-reflection and has failed to obtain meaningful professional support to assist him to address his violent behaviours: that is, he who has perpetrated the behaviour has not undertaken any meaningful steps to minimise the chances that he repeat these behaviours in the future whilst those who have been the recipients of his violent behaviours are expected to undertake counselling so that they can obtain sufficient support to enable them to recommence a relationship[94] with him.

   [94]         The mother’s being as a co-parent.

6. In my view, it could only be thought beneficial to the children to require them to bear the imposts identified above if they were likely to receive significant benefit as a result. Unfortunately for the children, I am not persuaded that this is the case.

7. I consider that the father has shown limited insight, taken limited responsibility and made limited changes to his attitudes behaviours and beliefs. Whilst imposition of supervision by a Contact Centre may well impose the external controls required to manage the children’s physical interaction with their father safely and eliminate the risk that they are re-exposed to his violent and abusive behaviours, the impost of this upon them and their psychological functioning is not, it seems to me, justified given the limited – if any – benefit to them of an ongoing relationship with their father.

8. I consider that the imperative of protecting the children against the possibility of exposure to any repetition of the father’s consistently aggressive and abusive behaviour toward women with whom he is in intimate relationships outweighs any negative impost of any difficulties for the children into the future if they are left wondering whether their father’s behaviours have changed. At this stage, nothing in the evidence suggests that he has in any meaningful way.

9. Whilst it may well be beneficial for the children to be afforded an opportunity to develop a relationship with J, their half sibling, it cannot be forgotten that, given he was born in 2012, they have not spent any time with him at all.

10. Ms G and the mother do not have a relationship at all. It is unlikely, at this stage, that this situation will change in the foreseeable future.

11. Whilst Mr H opined there was a possibility that B, C and D may “borrow” positives if they had the opportunity, as “participant observers”, to observe how the father behaves toward J (and, presumably, K), the reality is that, if they had been in the father’s household in May 2012 and May 2013 they, too, would have been exposed to his assault of Ms G. Whilst, had this happened, they may well have been able to have the shared experience of exposure to the father’s violent and abusive behaviours toward women, this could not sensibly be seen as beneficial for them. After all, it would simply have meant that they had witnessed a repetition of the father’s violent behaviour toward their mother.

12. The fact that the father has two other children living in the home he shares with Ms G does not mean that it is in these children’s best interests to spend time with him, even on a supervised basis.

13. I consider that there may come a time when the mother considers the children able to deal with either time or communication of some sort with their father and, accordingly, the order I intend to make will enable this to occur.

Parental responsibility

1. When making a parenting order, I am bound to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them.[95]  The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them.[96] If the presumption does not apply, then the power to make parenting orders pursuant to s 65D of the Act is ‘at large’, albeit subject always to the best interests of the children being the paramount consideration.[97]

   [95]         s 61DA of the Act.

   [96]         s 61DA(4) of the Act.

   [97]         Cox & Pedrana (2013) FLC 93-537, [19]; s 60CA; s 65AA of the Act.

2. Given the father’s admitted violence toward both the mother and Ms G, it is clear that the presumption of equal shared parental responsibility does not apply in this case.

3. I accept the father’s evidence to the effect that there is “zero” likelihood of him and the mother reaching agreement about the children. I note his evidence that he is happy to allow the mother to make decisions about the children and, from his perspective, he wanted to give her the right to do so.

4. The only rational conclusion on the evidence before me is that these parties could not make a decision jointly about major long term issues relating to the children. Thus, in circumstances where the exercise of parental responsibility involves making a decision about major long-term issues in relation to the children, they could not comply with the requirement which would be imposed upon them by an order requiring that they share parental responsibility for the children.[98]

   [98]         s 65DAC(2) of the Act.

5. Given the consequences for the children of the conclusions I have outlined above, I accept the submission made by Counsel for the Independent Children’s Lawyer that an order according sole parental responsibility to the mother is an order which is in the children’s best interests.

I certify that the preceding two hundred and twenty-eight (228) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 27 October 2015.

Associate: 

Date:              27 October 2015