Maxwell and Cross - [2014] FamCA 170

FAMILY COURT OF AUSTRALIA

MAXWELL & CROSS

[2014] FamCA 170

FAMILY LAW – CHILDREN – Sexual abuse allegations – All parties agree the evidence does not support any unacceptable risk findings – Personal lifestyles and relationships of the parties make any chance of joint parenting impossible – Both parents have drug and criminal history backgrounds – Should father’s time now be unsupervised? – Having regard to his behaviour, time needs to be supervised until he proves he can be responsible.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Maxwell

RESPONDENT:

Ms Cross

INDEPENDENT CHILDREN’S LAWYER

FILE NUMBER:

DGC

182

2013

DATE DELIVERED:

25 March 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

24, 25, 26, 27 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Venice

SOLICITOR FOR THE APPLICANT:

Tyler Tipping & Woods

COUNSEL FOR THE RESPONDENT:

Mr Cash

SOLICITOR FOR THE RESPONDENT:

Griese Lawyers

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER Ms Carter
SOLICITORS FOR THE INDEPENDENT
CHILDREN’S LAWYER Victoria Legal Aid

Orders

That all parenting orders are discharged.
The mother have sole parental responsibility for the children B and N.
The children live with the mother.
The father and mother enrol at C Contact Centre and do all things required to attend there for the father to spend supervised time with B and N.
The father spend such supervised time with the children at C Contact Centre as that contact centre can provide and such supervision continue indefinitely.
The father communicate with the children by telephone each Tuesday and Thursday at 4.00pm.
That the father be at liberty to attend the contact centre with the paternal grandmother.
That the father be at liberty to attend such school events at which parents normally attend provided:
(a)       The children are not left in his care;
(b)       The school principal has no objections to his attendance; and
(c)       Such attendance is not inconsistent with any intervention order.
The Independent Children’s Lawyer provide a copy of this order to:
(a)       The school principal of the school the children attend;
(b)       The mother’s psychologist; and
(c)       The father’s psychologist
The Independent Children’s Lawyer be otherwise discharged.
All outstanding applications are otherwise dismissed.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Maxwell & Cross 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 MELBOURNE

FILE NUMBER: DGC 182 of 2013

Mr Maxwell

Applicant

And

Ms Cross

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

This parenting dispute between Mr Maxwell (“the father”) and Ms Cross (“the mother”) concerns two children B aged nine and N aged five. The two children were born during an appalling turbulent relationship between the father and mother (even if the father did not see it that way).
The parenting dispute between the father and the mother was transferred to this Court from the Federal Circuit Court because of an allegation against the father that he had sexually abused one or both of his children.
At the conclusion of the hearing, it was common ground that the evidence was confusing and unreliable on the abuse issue.
Counsel for the mother was joined by both counsel for the Independent Children’s Lawyer and counsel for the father in urging the Court to find there was no unacceptable risk of sexual abuse of either child in the father’s care. I accept that but because of the serious nature of such an allegation, the circumstances under which it arose and the consequent risk to the parties and the children if there is a misunderstanding about what happened, the records should show why it is not an issue any longer.
The father had been spending overnight with the children albeit it in a limited way. The separation of the parties had occurred a long time before and it would not be unkind to describe it as traumatic.

Sexual Abuse Allegations

In January 2012, after a weekend with the father, B (then aged seven) was observed by the mother lying back in a chair with her legs spread making “stabbing movements” with her fingers towards her genital area. When asked, B said she saw her father put cream on his groin and he offered to do the same for her. The evidence of the mother contained in her February 2014 affidavit was particularly poor in relation to its attention to detail. It took cross-examination by counsel for the Independent Children’s Lawyer to discover a far more comprehensive picture.
In addition to this reported incident, although not in the mother’s affidavit, there was apparently another issue raised including the father sleeping in the same bed as the children and one relating to the father’s conduct with the child or children whilst they were showering.
In relation to the incident in January 2012, what followed the mother’s observation of B that day was not accurately recorded in the affidavit. She spoke to B and then the police. Despite a portrayal of this being a seamless discussion, the reference by B to the use of cream only arose after the mother had already spoken to the police. The police gave the mother a variety of questions to ask B and just exactly what those questions were remains something of a mystery. Having spoken to the police for 10 to 15 minutes, the mother rang the maternal grandmother. She conceded that she was upset during all of this time. She agreed she asked B some questions about the father’s conduct with the children. Just what was discussed was confusing and unclear. B told her mother about what her father did to her when she was in his bed. This evidence became a little clearer with the production of the police interview with B but its reliability is questionable because of the mother’s discussion with B beforehand. The police decided not to take matters further. Whilst it is natural for parents to react with horror at a child’s statements like this, the value and truth of the statements can be damaged if the child is manipulated. I have concerns about that here for some of the following reasons.
The mother could not recall in evidence whether the police attended her house. She could not remember the detail of the conversation with B after speaking to the police. It was most likely that the mother spoke to B on the day after she spoke to the police. Rather than there being just one conversation, the mother said that B kept bringing it up. She said she told B that “people” got into trouble for this sort of behaviour. All of this took place before B was interviewed by police.
Strangely, a friend of the mother was present when B was seen doing these “stabbing” movements and when she made some of the comments to the mother but subsequently, this witness maintained that she did not see or hear anything. Although spoken to by the police, this witness did not want to get involved despite the mother telling the Court that the woman was “shocked” by what she saw and heard.
On the police interview with B which was taped in February 2012, the child said she thought she had gone to the interview to talk about her father touching her “rude parts”. I am satisfied even on the mother’s evidence that a discussion took place with B before arriving at the police station. She was asked by the police about her father’s conduct and she said that after she went into the shower, he “walked up and touch” her rude parts. She said he did it all the time when she went to his place. She proffered that he touched her with his hand and his feet. Indeed, she alleged that he penetrated her with his feet. She said that her father’s behaviour hurt her and so she applied some cream which she had packed in her case when she had gone to her father’s house. She said she had had a sore “[EE]” (she identified “[EE]” as her genitalia). B then reaffirmed to the investigator that she applied the cream to herself and importantly for the purposes of trying to work out what happened (because it was certainly not obvious from the mother’s affidavit evidence) it was not applied by her father. She said her mother had taught her how to apply this cream. Whilst nothing of this nature was in the mother’s evidence in chief, it emerged only in cross-examination that the mother had no such cream.
When pressed, B went on to say that she told her father not to touch her sister because he had done so. She told the investigator about the incident where she was found by her mother stabbing at her genitals some weeks before. She explained that her genitals were “itchy” and she was scratching along the side of her genitalia. She then denied telling her mother that her father did anything improper to her.
In his affidavit, the father said he did not recall having to rub cream on his own groin and he had not rubbed cream on the genitals of the children. He said that there was a rare occasion where one of the children slept in his bed if they had had a nightmare. Whilst that was his affidavit evidence, he gave an entirely different picture to the police when he was interviewed. He said B had thrush and had used cream provided by the mother. As I have said, the mother denied any such cream ever existed.
Despite having denied using cream, in cross-examination, the father said he had applied cream to N. He said he went to the doctor about the thrush problem; no record corroborated such a visit. Indeed, there seems to have been no visit by the mother attending upon any doctor in relation to thrush cream or any other sort of skin problem. The father also said that he had spoken to the mother about it but that was something she denied. When asked why the more comprehensive details were not in his affidavit, the father said he did not think that they were relevant because he had told the police about them. Implausible as that may seem because the affidavit was drawn by a lawyer, the father has health problems, a dysfunctional background and limited education.
The father told the Court he discussed the issue with his own mother who then applied cornflour to the girls as an old-fashioned remedy that she had been well used to employing. However, when the paternal grandmother gave evidence, it was so inconsistent and confusing that I could place no weight upon it.
As I have indicated, it was noticeable in the child’s interview with the police that she said that she had used cream and that she had packed it herself. The mother denied that B ever packed her own bag and she had always done it for her.
The mother’s allegation about sexual misconduct brought about the cessation of the father’s time in 2012 and litigation then followed. After hearings and the involvement of a family psychologist, the father’s time with the two children was reinstated under supervision at C Contact Centre. I shall refer to those details below.
As part of the litigation process in the Federal Circuit Court, the father was asked to undertake a psycho-sexual evaluation. Dr D is a forensic psychologist with expertise in the psycho-sexual area. He was brought in to examine the allegations against the father but also to watch the video recording of the police interview with B. He found that there was a moderate risk that the father would be likely to harm B or for that matter, N, sexually. I had the benefit of Dr D being cross-examined alongside Ms F who wrote the family report. They were “hot-tubbed” because they were both addressing the same issue and it was better to hear their evidence contemporaneously. Ms F thought that the interview with B showed that her story was improbable. Dr D’s evidence was very much based on what he saw and read. He carefully considered each of 12 factors that have weighting concepts to come to the conclusion he did. Because the evidence is so ununreliable, I find the subjective judgment of Dr D does not help me.
Whilst the test for a court accepting whether or not something happened is on the balance of probabilities, s 140(2) of the Evidence Act 1995 (Cth) urges a court to be cautious if the consequence of a finding such as that a child is at risk of being sexually abused, is likely. The s 140(2) provision arises out of concepts as well discussed in Briginshaw and Briginshaw (1938) 60 CLR 336 per Dixon J (as his Honour then was) but the comments about how one approaches the question of determining the balance of probabilities can also be seen in the judgment of Rich J.
There is no possible way in this case I could draw any conclusion from the disjointed and unsatisfactory evidence of the mother and the father and the paternal grandmother. The police interview does not advance the matter nor shed any light on the various versions. Indeed, the police indicated they were not prepared to authorise any brief of prosecution. The experts disagree about what the interview actually means.
Counsel for the mother said he was instructed by his client not to seek any unacceptable risk finding. Indeed, she was ultimately prepared for him to have some time with the children although that was not her position when the case began.
In finally putting this issue to rest, I observe that despite the interview by the police, the complaint of the mother to the police and remark by B to her school staff about her father’s conduct, none of these matters seem to have been drawn to the attention of the Department of Human Services in the local area.
Further, albeit the allegation of the mother was raised in affidavit form, no Notice of Risk of Child Abuse was formally filed on her behalf although one apparently was drawn. The Court did not have the opportunity to bring the scattered evidence to the Department of Human Services’ attention.
Accordingly, I find there is no unacceptable risk to the children from sexual abuse by the father.
If things as outlined above were that simple, the matter might otherwise have resolved. It did not occur that way.
Despite their initial positions, in closing address by counsel, the only issue for determination by the Court was the duration of the supervision of the father’s time with the children.
The father’s time with the children after he and the mother finally separated was anything but regular. On any view, the children were exposed to an appalling conflictual family breakdown for a number of years and that can be seen from the history of their relationship.
The background of the parties appears to be that they met and commenced a relationship when the mother was working for a health professional. On the evidence, it would seem that the father has never had employment. Both concede an existence thereafter of their drug use and criminal behaviour. The two children were born into that environment.
Much needs to be said about the parties as parents but the Court takes little comfort in saying that it is doing the best it can where the future of these children looks bleak if, as would appear to be the case, they have these parents as role models.

The father

The father is 34 years of age. He is unemployed. He could not obtain a job at the moment even if he wanted to. He is physically unwell including having Hepatitis C. He is constantly attending appointments. He has no trade or qualifications. He has been a severe drug addict throughout his years since a teenager and even he conceded that his memory loss was a drug abuse result. His garrulous approach to justifying his position on matters of principle indicated that it would be unlikely that he would be swayed from whatever position he adopted on any issue. Most significantly, his criminal history about which he was disarmingly candid, was appalling. My concern is whether he has drawn the line and closed the book. I have to acknowledge that I doubt it.
The case began with cross-examination of the father where it was bluntly put to him that he had lied throughout his affidavit. There is sometimes a fine line between lying and looking at a particular fact through subjective eyes. Because of the father’s drug history and the confusing evidence he gave, I could not rely on anything he said unless it was corroborated by an independent objective and reliable source. I do not find that he is a liar.
In 2000, the father pleaded guilty to charges of handling stolen goods and was placed on a community based order. He committed offences in 2001, 2002 and 2003 including offences relating to weapons. In 2003 he was convicted of causing injury and in February 2004 was given a suspended sentence. His February 2004 appearance included an offence of threatening to kill someone and when asked what that was about, he said it was an “altercation” and that it was “irrelevant” to this case but in any event, he was not “on drugs” at the time.
In 2005, police were called to both the parties’ residences at which time B was only seven months of age. The father could not remember circumstances of the dispute but did not deny the police recording of the nature of the offence as being “pushing and pulling” and where it was noted that he “threatened to smash” the mother’s face in. He denied emphatically that he had ever threatened anyone like that but a further police record of that incident shows that he “head-butted” the mother. When asked about that, he said that he had never done anything like that and after some reflection about the head-butting, challenged the cross-examiner to say whether there were injuries but then said that he remembered that the mother came at him whilst he was wearing a cap which when she was “in his face”, the peak of the cap hit the bridge of her nose. He did not seem to think that there was a problem with that because both parties were involved in the argument. The police record went on to show that the mother told them that he had grabbed her by the throat. When asked for a response to that assertion, the father’s response was that it did not occur to that extent and if there was any contact between them, he would simply have pushed his hand out at her and told her to stay away.
In his affidavit of evidence, the father said that the year after the birth of B was a very happy one. That statement was inconsistent with not only the mother’s evidence but also the father’s police record. In June 2005, the police were called over an argument. The father did not see any difficulty at all with people having arguments. As he said, it was “normal” in “happy families”. When asked why it might be that the police were then called, he seemed oblivious to the problem.
When challenged about his inability to recall things in that first year with precision, leaving aside the question of how long ago the incident occurred, he was asked whether perhaps his drug- affected short term memory was a problem. He said that was not possible because his long-term memory was good.
In September 2006, the police records showed that he was charged with an assault but his only recollection of offences in that year was relating to driving a motor car. That was curious having regard to the fact that he apparently did not have a motor car driver’s licence.
The father’s record in September 2006 showed an assault. He also has a conviction for recklessly causing injury. He seemed unsure as to what that was about but when asked what the injury was that was sustained by the person over whom he was charged, he did recall that and said they sustained a broken arm.

In January 2007, he was convicted of offences of resisting police, being drunk in a public place and breaching an intervention order. His explanation for that was that he was drinking with friends and he made remarks to police as they were arresting one of his companions and the police then arrested him. Leaving aside the flippant attitude that he had about the responsibilities of police in maintaining order in chaos like this, the real problem with that particular series of events was the offence of the breach of the intervention order. He conceded that the intervention order was in relation to the mother. When that case was heard, he was given a suspended sentence.
This seems to have been one of the numerous intervention orders. Whilst there may be some substance to what he said, his explanation for shrugging off the seriousness was that both parties had breached the order and whilst the order was against him, the mother should not have allowed it to occur. The mother’s evidence was entirely different on this issue and I shall turn to that below.
In May 2007, he appears to have pleaded guilty to another breach of the intervention order. He conceded that. This time, he was sentenced to two months imprisonment which he served.
An interesting example of the father’s approach to life can be seen in one of the convictions that he has. In around 2007, he was convicted of causing criminal damage. His immediate response in cross-examination was to say that it was his own property that was damaged. When pushed to explain, he said that there was an argument between he and the mother over items that he thought belonged to him, one of which was a video camera. Initially, I thought that it was the video camera that was damaged. It was only later in the day when counsel for the Independent Children’s Lawyer cross-examined the father that it transpired that he had been outside the house having an argument with the mother and he threw the video camera through a window of the house and smashed it. When pushed in cross-examination further, he conceded that B was inside the house.
This particular period of time also saw a report to the police that culminated in prosecution of the father in which the mother accused him of “trashing” the house. The father denied this allegation and reverted to the mantra that it was his property. However, one of the other allegations against the husband according to the police records was that he had smashed some outdoor lights and a mobile telephone. His response to the mobile telephone allegation was that it belonged to his own mother. As for the outdoor lights, he conceded that they had been smashed and when asked why, he said he was angry at the time and “you don’t think at the time”.
In July 2007, it seems that the father had completed his term of imprisonment and was released. In November of that year however, police were called to the mother’s house. According to the evidence of the father, he went to the house and the mother would not allow him in. He said things turned nasty and they were “verbal” towards each other which required the attendance of the police. He could not remember the circumstances of the offence but responded by saying that he was “probably” under the influence.
When cross-examined about whether all this could be construed as violent, he said it was not physical violence.
The father was back in court in April 2008 for breaching the intervention order. This time he was sentenced to six months imprisonment but remarkably, that sentence was suspended. As to why, he could not remember. When he was challenged about the fact that this was only five years ago, he described all of these things as “sporadic” to explain why he could not remember them.
In November 2010, the father faced court for charges of theft and possession of heroin. The theft seemed incongruous having regard to his general history so he was asked what that was all about. Candidly, the father said that he went to Coles store and was under the influence of prescribed medication and he grabbed things such as men’s cosmetics because he had no money. The lack of concern for the property of others ought be self-evident.
The father’s position was that by 2011, he was sick of the use of drugs and his problems from that lifestyle and he chose to go on the Methodone program to “kick the habit”. He conceded however that he had been on the program a few times before that. He was emphatic that he ceased using drugs in 2011. That might have been plausible having regard to his urine tests about which he had some experience, if not expertise, except that in June 2012, the father was convicted of cultivating a narcotic plant. He was quick to point out that he was cultivating it but not for his own use and that it was a stupid thing to do. He was fined $500. The relatively modest fine would indicate that the magistrate was not particularly troubled about the offence in the context of the father’s prior criminal history. But for a person who had kicked the drug use habit, this seemed strange. He conceded in cross-examination that he was growing the plants in the laundry for the purposes of selling them. Again in his unusual candour, he said he was “dealing” at that time. That evidence did not sit comfortably with his own mother’s evidence. She said she saw the plants albeit not in the laundry but at the back shed and warned him. He took little notice. When asked if he was using marijuana, the paternal grandmother said she did not know but said he probably was. She then volunteered that he did not get rid of them and he “got done by the cops”. Counsel then asked was the father smoking marijuana at that time and the grandmother said that he was “dabbling in it”. Asked how she knew that he was dabbling in marijuana, she said she could tell by his eyes.
It was in the context of the father’s statement about having changed his lifestyle counsel for the father put to him that these were early days. His response was that, in counsel’s terms, that might be so but he had remained abstinent. His indignation at being accused of still using drugs at that time was palpable but his credibility must be questioned having regard to the evidence of his mother.
One recent incident that concerns me concerning the parties’ ability to co-exist, occurred in October 2013. There seemed little dispute about the fact that they sent text messages to each other culminating in another intervention order. Language such as “toothless cretins”, “blond abbo”, “brother fucker” and comments about being molested as a child were all floating back and forth. References to “black dog”, “snake in the grass” and “albino abbo” could hardly be seen by reasonable and civilized parents as just an argument. Perhaps it was fortuitous that it was conducted by text messages. I find however, the parents have no respect for each other and I do not accept that, if an opportunity arose, the children would not be protected from that vitriol. Unsupervised time of the father is therefore the focus of my concern. I find he has no control over his anger.
This is the environment into which both parents desire the children to have an existence in the future. Notwithstanding the appalling record, the mother was at pains to say in her evidence that she wanted the children to have time with their father (as indeed had occurred up until 2011) but she was just worried about his potential to sexually abuse them.

The mother

To balance the ledger of lifestyles, one needs to look at the criminal history and general lifestyle of the mother over the same period of time. The father’s evidence was that the mother had been working in the sex industry in Suburb G when he met her. In her affidavit in reply, the mother denied that. She was asked whether she had been working in the sex industry and she conceded readily that she had. At that time, she was extensively using heroin. When asked why she had denied it in her affidavit, her only complaint was that she had never worked in the sex industry in Suburb G. Indeed, she had worked in the sex industry in Suburb H.
Somehow, she obtained a position which she described as a healthcare worker although she was at pains to point out that she worked in the back room. She was emphatic that she knew nothing about the father having stolen the cash box in the place where she worked. She observed that when the incident occurred, she was pregnant with B and that accounted for her leaving the healthcare practice rather than having been caught involved in the theft. I accept that the mother did leave the healthcare position as she described but little turns on it having regard to the fact that she was pregnant at that time and most likely was going to leave. The critical question arose from the mother’s evidence that she had not used drugs since 2002.
In 2000 she was found guilty of possessing heroin and in 2001 appeared before a court charged with possessing a regulated weapon and cannabis. She was prepared to agree that those charges were correct but she could not remember the details because as she said, she was a heavy heroin user at that time. The more she thought about the weapon charge, it related to a knife that she kept with her when she was working in the sex industry.
She was shortly thereafter charged with cultivating a narcotic and failing to answer on bail all of which seemed to be consistent with a person struggling with a heroin addiction.
In 2001, the mother was convicted of robbery and sentenced to ten months imprisonment. Her explanation for that was that she struggled with an elderly woman and stole her purse and the woman fell and hurt herself. Although she was sentenced to ten months imprisonment, the mother appealed and her sentence was reduced so that she did not serve that full time. Her explanation for her behaviour was that it was all about being affected by drugs.
In 2003, she was charged with theft from a car and failing to answer bail although she was unsure as to what that was all about.
All of the details about which she was unsure were really not challenged by her counsel and it was common ground that the criminal history of both parties should be admitted into evidence pursuant to s 69 of the Evidence Act 1995 (Cth).
In 2004, the records showed that she was charged with unlawful assault and using threatening words but she had no recollection of what that was about.
There seemed thereafter to be a hiatus during which time she was involved in the relationship with the father and having the care of B and N. After that relationship came to an end, she was in trouble in 2010 and her criminal record shows that she was charged with affray. She had no idea what the word meant so it was difficult to explain to the court what the offence was about. The record showed that she had been ordered to do community work but she did not know why. After some prodding, it transpired that a woman where she lived had taken $50 and the two families involved met and had some sort of conflagration which ultimately ended up on her being convicted of affray.
The record also showed that she was charged with failing to comply with the community work order but she could not understand that because she felt that she had completed it. It transpired however that she was charged during the period after the community based order was imposed, with refusing a breath test. Even on that charge, the mother was vague. The curious feature of this evidence was the mother’s statement that she did not drink alcohol. When pressed about that, she conceded she did drink alcohol on special occasions one of which was the occasion of her mother’s birthday. When asked what she drank, she said four cans of Jim Beam over a space of two hours. At that time, she was the holder of a learner’s permit in Victoria and without the assistance of a licensed driver, she drove a motor vehicle and was intercepted by the police. She conceded she blew into the breathalyser and having regard to her concession about what she drank, she was clearly over the required alcohol limit for the offence. She said she was given the option of giving up her learner’s permit which she did and therefore was not prepared to go back to the police station to undergo the breath test. When asked why she did not undergo the breath test, she said she did not like going to police stations and the like. Although she denied it, I suspect that the children were in car with her. On any view, it was irresponsible to be driving at all. Having said that, these children have seen much in their very short lifetime.

Parental responsibility

The question of parental responsibility and with whom the children have primary care has never been an issue in this case.
In her evidence, the mother said she had no hesitation in saying that she believed that the father had abused the children. Despite that, after hearing the evidence, she adopted the position earlier mentioned notwithstanding the confusing nature of the evidence. The mother sat through the cross-examination of both Dr D and Ms F so there could be no misunderstanding that she heard everything that was said about the allegations. I have concluded on that basis, her scepticism, if not adamant position, has arisen as a result of hearing a number of objective voices about the sexual abuse issue.

The 2011 dispute

The parties disputed what time the father spent with the children in 2011. Each of them reconstructed those dates by what they said was a reference to a calendar that they kept. Whilst it is difficult to feel comfortable about any version of evidence of the mother unless it is corroborated by objective fact, it seems to me more probable that she is right about the number of times that the father saw the children during that year. The paternal grandmother was not a reliable witness in terms of accuracy particularly as to dates and although the father was emphatic in his affidavit about dates he had the children, the mother was equally emphatic that he was wrong and she had the dates that she said were correct. On the balance of probabilities, the mother’s version is more likely to be correct as her memory did not seem to be as bad as that of the father (notwithstanding she could not remember the precise details of criminal offences that she had faced in courts). During those critical years, there was no evidence of police involvement pursuing her in relation to drug matters. The evidence supports the conclusion that the police attended numerous times for arguments and if they were caused by drugs or alcohol, the police certainly took no action against the mother. During that same period, the father conceded that he was affected by drugs. The mother’s evidence is therefore more plausible and it would seem that it was only a relatively few weekends that the father spent time with the children.

The applications for orders

In relation to this application for parenting orders, the father initially sought that the children spend time with him for a number of hours on a series of Sundays leading up to alternate weekends from June 2014 together with a visit after school on Wednesday evenings. He then sought half of each of the term and Christmas holiday periods. That was not what he pursued at the conclusion of the hearing. He said he sought fortnightly supervised time for three months (which in discussion, his counsel said should be extended to nine months if the Court thought three was too little) leading up to six hours per fortnight unsupervised. He also sought telephone contact on two days per week and it is interesting to note that the mother did not oppose that order.

The litigation from 2013 and the father’s time with the children

On 19 April 2013, Judge Phipps in the Federal Circuit Court made orders by consent for the father to have supervised time with the children. The significance of the orders was that the mother consented. That is significant because at that time, the mother’s view was that there was an unacceptable harm to the children of any contact occurring.
In July 2013, the first visit at the contact centre occurred. There was an immediate recognition of the father by both children albeit N was reserved. Save for some minor issues, the visits thereafter went well. Nothing I have read indicated that the father was unprepared or inappropriate at the visits. To the extent that the mother was discontented with the visits, she took no steps to have the April 2013 orders reconsidered.
In November 2013, the orders transferring the proceedings to this Court took place but the supervisor was to remain in place. The proceedings were transferred because of the sexual abuse allegation notwithstanding it was then almost two years old. Drug issues were also still then relevant because both parties consented to random supervised drug screenings at the time.

Ms F

In November 2013, the parties attended Ms F who gave evidence before me. No-one challenged her expertise nor challenged her written conclusions. Admittedly, Ms F did not have the parties’ trial affidavits at the time she interviewed them but it seems the evidence did not vary from the affidavits which the parties had previously filed in the Federal Circuit Court.
Ms F said the mother’s position was confusing and unclear because her preference was effectively to have no time occur but otherwise, if that was not acceptable to the Court, the mother would seek that the time be supervised. The mother told Ms F that she knew she would have to let the children sleep over “may be in twelve months’ time”. This confusing picture was actually consistent with the confused story about the sequence of events as to what B said and what the mother did. It was consistent with her contradictory statements to the family consultant in April 2013. I consider the mother does not necessarily think clearly at all.
The mother’s perception of the father as portrayed to Ms F was that he was nasty and spiteful. Having regard to my findings about the father’s conduct, I can understand that sentiment. That said, the mother conceded she was not above retaliation herself. Some understanding can be found from Ms F’s view that it was difficult for the mother to parent when, as a child herself, she was deprived of appropriate adult role models. The history earlier set out in these reasons probably justifies the view of Ms F. The mother’s treating psychologist advised Ms F that the mother was engaging well in therapy. Obviously, that needs to be encouraged.
Ms F interviewed the father who told her he separated because he was sick of the drugs. If the father’s evidence is accepted that the separation occurred in June 2009, even on his evidence, he was still using drugs at that time. The mother’s evidence was that she had not used marijuana since 2002 but that does not sit comfortably with a drug screen obtained in December 2013. The mother’s confusing evidentiary explanation was that she had been the victim of what she described as “passive smoking”. How and when that occurred was explained by her presence at a social event although when it occurred was unclear. I have no evidence about whether it is possible to have a detected positive result from passive smoking. As implausible as it may seem given the history, the other supervised and random drug screens all seemed to be clear.
The father told Ms F that the mother was still using marijuana. He claimed N flushed “dope” down the toilet. I am not sure how the father obtained that explanation given N’s age but the mother’s explanation was that she had disciplined N for flushing a packet of tampons down the toilet. The packet was described as green with flowers on it. It was the mother’s case that she did not believe that N understood what marijuana was. On the balance of probabilities, as the mother’s explanation for the passive smoking is so implausible, I find she probably did smoke marijuana. What is difficult to accept however was the source of the father’ s information because all he was prepared to say was that it came from an unknown friend.

B listed the father as a person she loved and as part of her family. N had no difficulty with a concept of having two fathers in her life.
Ms F explained the situation as one where both parties had experienced social, emotional and educational deprivation. I accept that. It is important to keep in mind that the Court only has limited tools to work with and no chance to alter the social and economic factors for the betterment of these children.
Ms F recommended a phasing in of time moving to alternate weekends. That recommendation is difficult to accept because of the incident that occurred in October 2013 mentioned above. His explanation was that he was retaliating. In my view that indicates that he has learned little about the responsibilities of parenting. In addition, I have the conviction of the father for growing marijuana. The minimisation by the father of the offence in those circumstances including his health, his need to be responsible for the care of children and his position of having ended his drug usage, leaves me in doubt that it would be safe yet to leave the children in his unsupervised care. I have the evidence also of Dr D who thought that a drug user had to be clean for over a year before any confidence could be placed in them. Because of the father’s criminal background, his minimisation of his conduct and his constant need for medication for anxiety, I find that a cautious approach towards the father’s parenting is well-justified. I would therefore not be prepared to put an end date on the supervision because of the possibility of a relapse. The total supervision might be appropriately reduced to monitoring in about 12 months’ time and thereafter for limited daytime contact until agreement to the contrary between the parties is reached. However, there is not sufficient evidence at this stage for me to be satisfied that that option is open.
I turn then to the legal issues that need consideration bearing in mind the findings I have made.
The Court is obliged to consider the provisions set out in Part VII of the Act. Part VII guides the exercise of the Court’s power to make parenting orders.
Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and details how those objectives are achieved (s 60B(1)) together with the principles which underlie those objects (s 60B(2)).
Section 60B(1) provides:
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underpinning those objects focus on children having rights to know and be cared for by their parents. Being “cared for” by both parents (s 60B(2)(a)) has been distinguished in the legislation from “spending time” with both parents (s 60B(2)(b)). “Spending time” is referred to as a right of children to happen regularly. Similarly, the significant roles of parents are repeated throughout Part VII (as examples, s 60B (1), s 60CC(2)(a), s 61C, s 61DA and s 65DAA) These are optimum levels of participation by parents but that participation must be restricted when it is not in a child’s best interests.
That participation is obviously affected if the parent and child relationship is restricted by supervision. There can be little argument that supervised time, particularly in a contact centre, is not natural, is restrictive and inhibiting for the relationship of a parent and child. Against that, the Court is obliged to consider the child’s welfare as the paramount consideration.
In F v H [2003] FamCA 477, Dessau J said at paragraph 123:
Supervised contact has obvious limitations. It will frequently be inappropriate or untenable on an on-going basis. But in C v J (1996) FLC 92-697 the Full Court emphasised that the Court’s discretion should not be circumscribed by absolute rules, excluding, for example, one of the available possibilities, namely on-going supervised contact.
That statement has been considered by the Full Court in Carpenter and Lunn [2008] FamCAFC 128. It was also considered in Moose and Moose [2008] FamCAFC where the Full Court said:
119.The undesirability of, and the practical difficulties associated with long term supervision in a children’s contact centre are referred to in the Guideline for Family Law Courts and Children’s Contact Services January 2007, Part C 4.1.1 and 4.1.2 (published by the Attorney-General’s Department, the Family Court of Australia and the Federal Magistrates Court of Australia). In Fitzpatrick & Fitzpatrick (2005) FLC 93-227, May J, having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W [Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
The problem with leaving supervision in the hands of the contact centre as well as the other party beyond the period that the centre is willing to undertake is that disagreement provokes further litigation. Litigation is cumbersome as well as costly for not only the parties but also the community. Many litigants might attend a family dispute resolution practitioner to try and resolve their problems but having regard to the matters that I have earlier described, the prospect of success in this case having regard to the nature of the relationship between the parties, is most unlikely. An alternative is to crystal ball gaze and endeavour to hope that beyond the best available time in the contact centre, the Court could presume that things between the parties will have settled down and the welfare of a child would not be at risk. In my view, that conclusion is not open here. Having regard to the nature of the father’s relationship with the mother as epitomised by his conduct in late 2013 and my unresolved reservations about his drug usage, I doubt very much whether I could rely upon the father to negotiate with the mother in a positive way. Similarly, the mother’s evidence as I have described it was so confusing and unreliable including in relation to her own drug situation that I have little doubt that she wanted nothing to do with the father even for the sake of the children. It must also be remembered in this case that the parties are quite accustomed to solving their problems outside of the legal system and then having the State have to intervene by intervention orders to restrain their movements. Even those have not been entirely successful as the prior convictions of the father attest.
The evidence in this case suggests that the father’s role in the lives of these children has been relatively modest and as such, increasing his time is something that is not particularly of concern because the children maintain a recollection and knowledge of him notwithstanding that limited role that he has played. I am satisfied there is no prospect of any meaningful advance on the limited arrangements that I could make but I am comforted by the fact that the contact centre has expressed a willingness to continue its role for a long as it is physically capable of so doing. I am left with a situation where I can see no alternative other to encourage the parties to go through the s 60I process failing which, they shall have to return to Court if they cannot reach agreement. I am very conscious of the fact that the two children are still very young and there are many years of childhood ahead of them. Unfortunately, it seems that it is inevitable that there will be further litigation unless the parties use some common sense.
It is not appropriate in the circumstances to simply adjourn these proceedings and make interim orders to see how things go. The contact centre evidence indicates that the contact has proceeded extremely well and there is little doubt that the children enjoy the time that they spend with their father. The issue in this case is whether the Court can have confidence of what might happen outside of that restrictive environment and it ought be evident now that I have no such confidence. If the father and the mother cannot reach agreement, the problems about the children’s future will have to be addressed by the issuing of fresh proceedings.
Section 65D of the Act provides the source of the Court’s power to make a “parenting order” and s 64B sets out the types of orders that a court can make if it decides to exercise the power.
Section 65D is subject to s 61DA which requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. However, that presumption does not apply where the Court finds there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. It is also a presumption that is rebutted if the Court is satisfied that it is not in the best interests of the child for the parents to have equal shared parental responsibility.
There is no dispute here that the presumption is rebutted. Counsel for the father did not argue otherwise. I need only refer back to my earlier description of the most recent event between the parties.
Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. The best interest principles are guided by the matters that the Court is required to consider as set out in s 60CC.

Section 60CC Considerations

Section 60CC refers to primary considerations and additional considerations. The primary ones require the Court to focus on the benefit to the children of having a meaningful relationship with both parents but also to protect them from physical and psychological harm from (relevantly) being exposed to abuse or family violence. To the extent that there was ever any doubt as to which of those takes priority, the legislation now makes clear that the Court is to give greater weight to the latter.
Having regard to the propositions put by all counsel, the relevant additional considerations in s 60CC are contained in the paragraphs enumerated (a), (b), (ca), (d), (f), (g), (i), and (l). I propose to deal with those matters globally. I have left out the issues associated with family violence on the basis that there is ample description set out above as to the impact that that has had on not only these parties but also the children.
It is clear that the children express a desire to spend time with their father notwithstanding some of the statements that they made in various interviews with authority figures. Be that as it may, neither child is sufficiently mature in my view to understand the nature of the problem that I have had to deal with. The nature of the relationship of the children with each of the parents is clear. Both children want to spend time with both of their parents but they see the mother as their central figure and their father as a person with whom they play. There can be little doubt that the father has not maintained a significant role in the lives of these children and in part, that is as a result of the lifestyle and background that he engaged in as I have described. It would be obvious that these children need to spend time with their father in a protected environment and any change from that would have to depend upon how confident the Court or the mother was that the father was maintaining a stable lifestyle. To change the children over to a situation where they spend time with their father unrestricted, would be difficult to contemplate at this stage. I know little about the circumstances under which the father lives in a physical sense.
There is little doubt in my mind that the capacity of the father as a parent is limited. Whilst he expresses things to the contact centre supervisors indicating that he wants to be a role model and guide for his children, I accept that his limited opportunities as a child mean that whilst his aspirations for his children might be well spoken, there are limitations on what he can actually do because of his lifestyle and background. As Ms F said, the mother is in a situation where her background restricts her ability in respect of parenting but she is all they have.
I have already dealt with the issue of the attitude of the parents in respect of their responsibilities. I refer back to the reasons I gave to indicate how concerning it was that the children were exposed to that sort of lifestyle.
In my view, this is a case for the reasons articulated why it is preferable to make final orders at this stage to avoid further proceedings. That is to encourage the parties to actually work things out amongst themselves. When respect returns between the parties, if it ever does, there is a prospect that these children will know that their parents can be civilized towards one another and know that neither would put the children at risk either physically or psychologically. On the evidence, I find that we are a long way from that situation at the moment particularly having regard to the evidence of Dr D about the abstinence from drugs and I would add criminal lifestyle. It is still very early.
In my view therefore, it is important to make supervision orders that are open-ended and in the event that the parties cannot reach agreement at the time that the contact centre concludes that it is no longer able to provide assistance, the parties will have to go through the family resolution process or obtain an exemption from that and then ultimately litigate again if they consider it necessary to do so. The orders therefore that I make are those set out at the start of these reasons.
The parties and the Independent Children’s Lawyer also sought various injunctive orders including in relation to the misuse of drugs and alcohol. Having regard to their respective histories, the findings I have made and their scant regard for the law, such orders would be pointless. It would not be proper to make them.

I certify that the preceding Ninety Seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 25 March 2014.

Associate:

Date: 25 March 2014