Mayer and Mayer (No 2)

[2018] FamCA 910

FAMILY COURT OF AUSTRALIA

MAYER & MAYER (NO. 2) [2018] FamCA 910

FAMILY LAW – CHILDREN – With whom the children should live with – With whom the children should spend time with – Where the father proposes the children live with him and spend either no or supervised time with the mother for a period before moving to alternate weekend and school holiday time – Where the mother proposes the children spend no time with the father until 2022 – Where the mother alleges the father poses a risk of harm, and in particular, sexual harm to the children – Where the daughter’s disclosures of sexual abuse cannot be substantiated – Where the father does not pose any material risk of harm to the children – Where the mother poses a risk of emotional harm to the children by coaching them into making disclosures against the father – Where the children’s primary attachment is with their father – Where the father is more likely to facilitate a relationship between the mother and children – Where the children should live with the father – Where a three month moratorium will be placed on the mother’s time with the children – Where the mother’s time with the children will be initially supervised moving to unsupervised time – Father to have sole parental responsibility.

FAMILY LAW – APPLICATION – Mother’s Application to lead oral evidence in chief from a witness – Where the mother did not cause an affidavit to be filed by the witness – Where mother in clear breach of trial directions – Where the witness’s counselling notes were in evidence through subpoena material – Where it would be controversial to allow the mother to lead evidence in chief from the witness – Application dismissed.  

Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC
Evidence Act 1995 (Cth) ss 140

Banks & Banks [2015] FamCAFC 36 Mauldera & Orbel (2014) FLC 93-602 Wacando v The Commonwealth (1981) 148 CLR 1 Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 N & S & The Separate Representative (1996) FLC 92-655 M v M (1988) 166 CLR 69 Harridge and Anor & Harridge [2010] FamCA 445 Re Andrew (1996) FLC 92-692
APPLICANT:	Mr Mayer

RESPONDENT: Ms Mayer

INDEPENDENT CHILDREN’S LAWYER: Ms N

FILE NUMBER: CSC 263 of 2017

DATE DELIVERED: 8 November 2018

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 13, 14, 15 and 16 August, and 17 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lindsay

SOLICITORS FOR THE APPLICANT: Marino Lawyers

THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN'S LAWYER :

Ms Lawrence

SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: Susan Gray

Orders

1. All previous parenting orders are forthwith discharged.

2. Mr Mayer (“the father”) will have sole parental responsibility for making decisions about major long term issues regarding the children X born on …2011 and Y born … 2012 (“the children”).

3. The children are to live with the father.

4. Ms Mayer (“the mother”) shall forthwith deliver the children to the father at the Registry of the Family Court in Cairns at 4:00pm today.

5. The children will spend no time nor communicate with the mother for a period of 3 months from the date of these Orders.

6. Both parties are to forthwith do all things necessary to enable the mother to be able to spend time with the children at the B Town Contact Centre.

7. Following the conclusion of the period of time outline in Order 5 herein the mother will spend time with the children as follows;

   (a)From 8 February, 2019 each alternate week supervised at the B Town Contact Centre (or supervised by such other person as may be agreed to by the father) for a period of 6 months, at such times as can be facilitated by the Centre or other agreed person, with the mother to be solely responsible for the cost of supervision;

   (b)The commencement of the mother’s time pursuant to Order 7 (a) is contingent upon her attending upon a treating psychiatrist or psychologist and being compliant with any regime of attendance recommended by the psychiatrist or psychologist and with any recommendations made by them in relation to prescription medication;

   (c)The mother shall provide the father with a letter from her treating psychiatrist or psychologist on one occasion during the 6 months of supervision confirming that she is complying with attendance and treatment upon them;

   (d)Unless there is a Country D interpreter present when the mother is spending supervised time with the children, the mother will at all times speak English to the children and the supervisor.

   (e)After a period of 6 months of supervision, the mother is to spend unsupervised time with the children as follows;

   (i)Each alternate Saturday or Sunday from 9.00am until 5.00pm; until

   (ii)After 3 months when the children will spend time with the mother each alternate weekend from after school Friday until 5.00pm Sunday.

   (f)Commencing in the Queensland Christmas school holidays in 2019, for one half of each school holidays, being the first half in even numbered years, and the second half in odd numbered years, save that the father be permitted to telephone the children when they are in the mother’s care on each Monday and Thursday between 6:00pm and 6:30pm, with the father to initiate the call.

8. All changeovers (including those for supervised time pursuant to order 7 herein, unless it is occurring at the B Town Contact Centre) will take place at school if on a school day, and if on a non-school day, at the C Supermarket.

9. Until the mother commences to spend unsupervised time with the children, she is restrained from attending their school or place of residence, or any extra-curricular activity they may be engaged in.

10. Once the mother commences to spend supervised time with the children, and thereafter, the mother is permitted to telephone the children each Monday and Thursday from 6.00pm to 6.30pm and each child’s birthday and Mother’s day (if the mother is not then otherwise spending time with the children).  Until unsupervised time commences in those telephone conversations, the mother is to speak in English to the children, and the father is permitted to have the telephone calls on speaker, and to terminate the calls if the mother speaks in Country D, discusses Y’s disclosures or these proceedings, or denigrates the father.

11. Both parties are restrained from discussing these proceedings with the children or in the presence of the children and shall remove the children from any person that may be discussing these proceedings.

12. Neither party is permitted to denigrate the other party or their family members in the presence or hearing of the children and shall remove the children from any person that may be denigrating the other party or their family members.

13. Each party is to inform each other of a current contact address and telephone number, and will inform the other parent in writing within 48 hours of any change.

14. The mother is to advise the father if she intends to travel with the children away from her home for a period of over 12 hours and will provide an alternative contact telephone number or address and itinerary.

15. The Children’s Australian and Country D passports are to be held by the Father.

16. The Independent Children's Lawyer is discharged with the thanks of the Court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.

17. Otherwise all extant applications for parenting orders are dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mayer & Mayer (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC263 of 2017

Mr Mayer

Applicant

And

Ms Mayer

Respondent

REASONS FOR JUDGMENT

INTRODUCTION    

1. These proceedings relate to the parties’ two children, X, born in 2011, and hence presently 7 years of age and Y, born in 2012, and hence presently 6 years of age (“the children”).  For her part, by her Amended Response filed 6 August 2018, Ms Mayer (“the mother”) sought orders that she have sole parental responsibility for the children, who would live with her in Brisbane, and spend supervised time with Mr Mayer (“the father”) on school holidays.  She justified such orders on the basis that the father presents such a risk of harm to the children that the only means of safely protecting them is for his time to be permanently supervised.  The trial was conducted by her on that basis.

2. However unexpectedly, in response to my request to the parties at the conclusion of the trial to provide detailed final proposed orders within 7 days, the mother’s position dramatically changed, in that the primary proposal she articulated would see the children spend no face-to-face time whatsoever with the father, until Y turned 10 in 2022.  She did, however, concede that until then, the father could communicate with the children by Facetime each Monday and Thursday.  Supervised time in Brisbane was only offered as her “number two choice;” and supervised time in B Town, her “number three choice.”  She also proposed “worse choice” orders if the children were ordered to live with the father, under which she would spend every weekend and half school holidays with the children, such time to be unsupervised.

3. For his part, the father disagrees that he presents any risk of harm to the children, and says that the mother has coached them to make false disclosures about him, as part of a deliberate campaign to destroy his relationship with them.  He contends that the appropriate outcome is for him to have sole parental responsibility for the children, who would live with him and spend either no, or supervised, time with the mother for a nine month period, before progressing, ultimately, to time on alternate weekend and for half the school holidays, if the mother lives in the B Town or E Town area, and only school holiday time in the event that she does not.  The Independent Children's Lawyer largely supported the position of the father.

4. On 16 August 2018 at the conclusion of the trial I reserved my judgment.  In due course I advised the parties that I was in a position to deliver that judgment, however that precipitated an application to re-open the case by the Independent Children's Lawyer, so as additional material produced since the conclusion of the trial, could be put in evidence before me.  Accordingly, on 17 October 2018, the trial resumed, and in addition to some recently produced material being tendered, oral evidence was led from a witness who appeared pursuant to subpoena.  At the conclusion of that hearing I again reserved my judgment.   This is that judgment and the reasons for it. 

5. It is convenient to also use this judgment to provide my reasons for not allowing the mother to lead oral evidence in chief from a witness at the trial.

BACKGROUND FACTS

The father

1. The father was born in F Town in 1959, and hence is presently 59 years of age.  At age 4, he moved to E Town with his family, and has lived in that area ever since.  He attended school to midway through grade 11, likely at coinciding with the time when his father passed away.  Ultimately he commenced training to be a health professional, but whilst undergoing that training, in 1979 he suffered a severe motor vehicle accident which resulted in the amputation of a limb, after which he had a long period of rehabilitation.  In 1982 he obtained a commercial licence in a trade and worked for about 10 years, until it became too physically demanding for him.  He then qualified for a disability support pension, and has been in receipt of it since 1992.  In addition, the father became involved in helping his mother in a small retail business.

2. In about 1994 he purchased his own home on the G Street, H Town, which is near E Town.

3. In about 2003 the father’s then de facto relationship terminated after about 12 years.  No children were born to that relationship.

4. Later the father became involved in an online dating service, seemingly specialising in Country D women, and commenced to learn that language.  He met someone online and travelled to Country D to meet her, although it did not work out.  Nonetheless he continued to learn Country D, and it was at that stage of his life, in about 2008, when he first met the mother online.

The mother

1. The mother was born in Country D in 1971, and hence is presently 47 years of age.  The town she was born in was in the north of that country.  Apparently she had a happy childhood, and indeed provided Dr J, a psychiatrist who examined the parties for the purposes of these proceedings, with a statement from an old Country D school friend who spoke fondly of her memories of growing up with the mother.  I do not know a great deal of the mother’s life in Country D, save that apparently she has three university degrees, and it seems that she likely worked in the fashion industry.  In about 1988 she married her first husband, to which relationship there were born two children, Mr K, in 1992, and Ms L, on in 1996.

2. Although the mother’s first marriage failed, she and her first husband continued living together under the one roof, and raised their two children jointly.  It was at that stage of her life, that the mother started communicating with the father in 2008.

The relationship

1. Initially the parties both travelled to City M to meet in person in 2008, and both accept that their relationship started then.

2. On 6 April 2009 the mother travelled to North Queensland on a tourist visa, and stayed with the father at his H Town home until 4 May 2009.  She then returned to Country D, but travelled again to Australia, intending to stay permanently, on 26 September 2009.  She brought Mr K and Ms L with her.  Mr K was then 17 years of age and Ms L 13.

3. Inevitably there were adjustment issues for all three immigrants.  Not only was the climate quite different, but as Ms L says in her affidavit filed in these proceedings, Australia has “a completely different language, way of living and mentality.”

4. The father assisted Mr K obtain part-time employment, whereas Ms L enrolled at and attended the E Town High School.

5. In August 2009, Ms N, a friend of the father’s who gave evidence before me, gifted the father her and her partner’s business location.  Apparently unusually, the father, even though he was a new to the business, was able to keep this position, which was highly desirable, whereas normally a new business owner would have to start at a much less desirable location.

6. In 2009 the parties married.  Ms N was the mother’s matron of honour at the wedding.

7. At about that time, Mr K left home to move to Brisbane.  Why he did so is not agreed; the mother seems to say that he resented the father’s controlling behaviour, particularly in relation to him maintaining a girlfriend in Country D, whereas the father seems to think it was a desire on his part to be independent.  Whatever be the case, he has not returned to live with parties since then.

8. In March 2010 the parties travelled to Country D, and the father was baptised into a Country D Church.  The parties also celebrated a second marriage ceremony there, and then travelled in the Middle East on holidays.  Whilst they were away, Ms L stayed with the paternal grandmother, Ms O, in her home, which is two doors down from the father’s.

9. By then it seems as though Ms L was starting to develop an interest in boys.  It is also said that she was starting to mix with the “wrong crowd” at school.

10. Apparently she developed a practice of climbing out of her bedroom window at night, and getting up to mischief.  For instance, one night she was seen with another girl at a 24 hours service station, well after midnight. 

11. On 29 November 2010, there was a report to DoCS that the mother and Ms L had physically fought, and that Ms L had, as a result of the fight, a bruise over her right eye.

12. In 2011 X was born. 

13. During 2011 the parties began to experience matrimonial difficulties.  Much of this seemed to focus around the father accessing internet pornography.

14. On 6 October 2011, both parties concede they physically assaulted the other.  At the time the father was recovering from facial surgery (the removal of some skin cancers) and for some reason, the mother slapped his face, causing some stitches tear, and he retaliated by hitting her.  She suffered bruising and damage to her ear drum.

15. Now is an appropriate occasion to record that the father has a long history of use of marijuana.  In the notes of Ms P, it is said that the father conceded that when using marijuana, it “exacerbates his anger.”  She noted that “[the father] wants to learn to manage his anger.  He wants to never be aggressive again.  He wants [the mother] to never be aggressive towards him again.”

16. Also at this time, Ms L was becoming increasingly unhappy living at home, and began to contemplate moving to Brisbane.  When she returned to the home on the afternoon of the fight, and saw her mother crying and bruised, she then went and confronted the paternal grandmother about it, and unfortunately they disagreed.  A couple of days later according to her evidence, Ms L “decided to fly out and leave all this behind ..”  She says that she did not even say goodbye to the father or the paternal grandmother.  She has thereafter remained living, and completed her schooling, in Brisbane.

17. On 4 November 2011 the parties’ jointly attended a psychologist, Ms P.  Her notes were in evidence.  She recorded both parties’ views.  In relation to the mother her notes detailed:

    [The mother] discovered [the father] watching pornography and it disillusioned her view of him.  She began to fear he was too controlling of [Ms L] and felt he was inappropriately taking on a parent role with [Ms L].  She began to fear [the father’s] sexual interests were in young girls.  She stated he often watches young girls when in public.  She accused him of being a paedophile.

18. Later in Ms P’s notes it is recorded “[the mother] wants him to not watch pornography and to desire her, rather than young girls (as she fears he may do).”

19. For his part, the father’s views are recorded as being that he was “devastated” when the mother accused him of being a paedophile, although he conceded a history of accessing internet pornography.  However the father told Ms P that “he had ceased watching porn since he knew [the mother] objected …”

20. In 2012 Y was born.

21. On 25 January 2015 the mother obtained Australia citizenship.

22. It is agreed that the parties separated on 30 March 2017, although they remained living under the one roof in the H Town home.

Post-separation

1. Initially it seems that the father, post-separation, essentially lived at his mother’s home two doors away, but spent considerable time at the former matrimonial home.  Although there is some confusion as to the dates and sequences of various events, ultimately little falls to be determined by whose contentions are correct.  There is in evidence before me a hand written letter dated 12 April 2017, although the date appears to be in a different hand to that of the letter itself.  For her part the mother says it was given to the father on 10 April; nothing probably turns on when it was given.

2. Relevant parts of the letter are as follows:

   ..

   Children I will move to [B Town] children with me from Mondey (sic) to Friday.  With you on weekends (sic).  For holidays as we agree.  If you do not break my nerves you can take them sometimes on weekdays to walk in the [B Town].  If you want to court, I will insist on moving to Brisbane so I’ll have to say I do not really want, but if you force me, then I will.

1. The mother then made demands for one half of the business premises and one half of the house, before concluding:

   If you do not want to do this be (sic) agreement with me, I will sue.  It will cost a lot of money and you will have to explain where you got the money from.  We have common children and [part of letter missing] many years.  I hope that we can remain not enemies and communicate in the future given the benefits for children I hope for your discretion.  You lost your first relationship with this fucking house, you lost the second relationship because of this fucking house, I hope yuo (sic) have the intelligence to not lose your children because of this fucking house.

2. Also in evidence before me is a letter which the father wrote responding to the mother on 12 April 2017.  It relevantly said:

   I do not wish for my children to leave this area where they have a loving father, family support, a good education and security for their welfare.

3. There is some lack of clarity as to the other events of 12 April 2017.  It appears as though the mother had, for some period of time, been hiding cash from the business under Y’s bed.  She says there was a sum of $9,000.00 so secreted.  However on the morning of 12 April, when she went to check that the money was there, it had disappeared.  She accused the father of having taken it, and on her evidence, he taunted her and said that she should have hidden it better.  Whatever be the case, the mother, in view of her limited proficiency in English, contacted Ms L in Brisbane, and asked her to contact police on her behalf in relation to the father having stolen the money.  In evidence before me, were police notes of that attendance, which bear a timing of 19:30-20:30.  They relevantly record:

   Informant’s mother has contacted her asking her to call the police due to disturbance at her home.  Informant’s mother stated that she can’t leave the house and her husband has taken her money.  No history of DV at the address…

   …

   Comments: Attended provided address and TUW [the mother] and [the father].  The pair are in the middle of a separation and divorce, nil Domestic Violence Order.  [The mother] required help and advice re settling joint property ownership issues speaks very little English and has no support network in the country.  Referral furnished for her, advice provided to both parties as to conduct required during the ensuing process to ensure no DV does occur.  

4. Whilst the notes are self-explanatory, and I accept them, they do not align with some other evidence.  Particularly the mother says that, by the time the police attended on her and the father, Y had disclosed that the father had sexually abused her.  I will need to discuss the alleged disclosure in greater detail when assessing the father’s risk of harm to the children, but in substance, the mother says that the child told her that the father touched her on “her intimate area” and said that “it tickles her there” and “when he put me to bed.”

5. In her oral evidence, Ms L said that when the mother contacted her asking to call the police, she told her that Y had been sexually assaulted by the father.  Further, she says that she told the police about that when she spoke to them.  She also thinks that she told them about domestic violence in the home.

6. A matter of some curiosity, and potential significance, is that the mother says that, notwithstanding the police attendance at the home, she did not tell them about Y’s disclosure, because “the police were not there for helping.”  On some occasions she has said that, in substance, if the police could not help her in relation to the stolen money, then she did not believe that they could help her in relation to Y.  On other occasions she has said that she simply did not know who to make complaint to in relation to any sexual abuse of the child.

7. The difficulty for the mother in all of this, is that it does seem somewhat unlikely if, having just been told that Y had been sexually abused by the father over a period of time, that the mother did not raise that with police who shortly afterwards attended at the home.

8. On 13 April 2017 the father’s solicitor wrote to the mother, indicating that the father did not agree to the children leaving the home, or the E Town area more generally.  The letter threatened proceedings if the mother removed the children from the area.  Later that day the father went to the former matrimonial home to put the children to bed.  He had a conversation with the mother, which he believes indicates she had read the solicitor’s letter.  She said to the father that there were no vegetables in the house and asked for some money to go shopping the following day.  It seems that in fact on the very next day the mother left the home with the children and some paperwork, but no other possessions, and went into a women’s shelter.  That was confirmed to the father at 8:00pm on Saturday 15 April.  The father believes that, after receiving the solicitor’s letter, the mother “panicked and .. left in a hurry without taking any of their personal possessions and also to present herself as destitute.”

9. On 20 April 2017 the father commenced these proceedings.  Subsequent attempts to negotiate for the father to spend time with the children were unsuccessful.  On 27 April, the mother’s solicitor advised the father’s solicitor that they had instructions that the mother was alleging that Y had disclosed that she had been sexually abused by the father, and that the mother would not allow him any time with the children unless it was supervised.

10. Notwithstanding the alleged disclosure by Y on 12 April, and the fact that the mother left to reside in a women’s shelter with the children on 14 April, it was not until 21 April 2017 that the mother made complaint to police that Y had been sexually abused.  Their notes record that the mother “stated to police that her child may have been indecently dealt with by her husband, the suspect.”

11. A 93A interview ensued, but the child made no disclosures.  Police records note that “she stated that she felt happy and safe and further stated that only negative in relation to [the father] was that the mother and father would fight on a regular basis.”

12. Obviously not content with this, on returning back to where she was staying, that night, the mother proceeded to engage with Y and eventually made a video of the child.  As noted by the police records, “the video starts with the child sitting on a couch and [the mother] asking “where did daddy tickle you.”  The child excitedly screams out and proceeds to rub around her vaginal area stating “my lip my lips” while laughing and giggling.  The child then excitedly jumps up and down on the couch before yelling out again “my lip” and rubbing her vagina again and stated “I couldn’t stop him he tickled too hard.”  The video then stops.”

13. The mother also played to the police an “audio clip” which started with Y laughing and screaming.  Police concluded that the child was likely being tickled by the mother during the course of the recording.  The police records note “due to [the mother’s] lack of English it is hard to make out the conversation however it appears she is saying to the child “did daddy tickle you here, did daddy tickle you on the bum.”  This went on for about five minutes and during this time [the mother] appears to be tickling the child whilst asking leading questions and making a game out of it.”

14. Police concluded that “it appears that [the mother] is attempting to lead questions and influence a disclosure out of the child.  Police viewed the child and she appeared well and healthy.  [Y] remembered talking to police and when asked if she would like to talk to police again she stated no.”

15. Worryingly, the police records also note that the mother “indicated that she will seek out sexual support services for a child as well as apply for further prep positions with a number of schools and as such further notifications can be expected.”

16. The following day the mother again attended the police station, seemingly to provide video from her phone.  Police recommended protective behaviours be initiated for the child.

17. The first notation in records of the Department of Children’s Services in relation to sexual abuse of Y, is on 23 July 2017.  However by then Y had been referred to the B Town Sexual Assault Service on 5 May 2017, with the reason for referral being “recent sexual assault/rape of a child.”  Likewise X had been referred on 5 May to the same service, with his reason for referral being “child exhibiting sexualised behaviours.”

18. On 10 May 2017 Ms L attended the Suburb Q Police Beat, according to the police records “to report that domestic violence against [the mother] and abuse against Y…”  The police notes continue:

    In the past week [Ms L] has been receiving messages from [the mother] in relation to abuse of [Y] by [the father].  [The mother] has also becoming increasingly scared of [the father] due to his continual emotional abuse and due to [the father] having recently acquired ammunition for an unregistered rifle which is stored at his residence.

19. I confess to some difficulty with the latter aspect of this complaint, as by then the mother had been in a Women’s Shelter for nearly a month.

20. On 18 May 2017, the children attended their first counselling appointment with the sexual assault counsellor, Ms R, albeit apparently operating under the description of “S Group.”  The notes of that first consultation were in evidence before me.  They record that on the evening of 12 April, “two male police officers attended and attempted to interview [Y].  [Y] did not make any more disclosures.  [The mother] described [Y] as being “very frightened.””

21. Thereafter Y has been “counselled” by Ms R on many occasions, seemingly on a weekly basis.  No disclosure of sexual abuse was made by Y until the 19^th such appointment, although thereafter they seemed to come reasonably thick and fast.

22. Although I will discuss Ms R’s records when giving my reasons for declining to let her give oral evidence in chief, from them it appears as though she engages in what is known as “sand tray” therapy, which the Family Report writer, Ms T, described as “controversial.”

23. On 14 June 2017 consent orders were made by Judge Baumann (as his Honour then was).  They provided for the father to spend three hours of supervised time each Saturday with the children, such time to be privately supervised by, inter alia, U Group.  Further time was contemplated at a Contact Centre “as availability allows.”  Orders 6 and 7 comprised restraints as follows:

    6. That the mother be restrained from taking the children to medical practitioners, counsellors or other authorities in relation to her allegations without leave of the court to do so.

    7. That the children’s attendance on the Sexual Assault Service be limited to learning self-protective behaviours.

24. It is plain that the children’s engagement with Ms R after those dates went far beyond learning self-protective behaviours.

25. Although the first occasion when the father was supposed to spend supervised time with the children was the following Saturday, 17 June, that did not occur.

26. On 22 June 2017 the mother’s solicitors filed her Response to the father’s Initiating Application.  Curiously, it did not seek supervised time, but rather “that the children spend time with the father as ordered by the court.”

27. According to the mother, Y continued to make disclosures of being sexually abused by the father, to herself, and eventually to Ms R.  Seemingly in consequence, on 29 December 2017, police conducted a 93A interview with the child.  Although disclosures were made, no action was taken against the father.  I will need to consider the disclosures to Ms R in some detail, but most worryingly, according to the mother, on 11 June 2018, after spending supervised time with the father, Y advised that the father had attempted to tickle her private parts during the visit.  This was during an occasion when, according to the mother, Y asserted that the supervisor had left and abandoned supervision in order to buy batteries for a toy gun for X.  Curiously this was not repeated by Y during the Family Report interviews on 22 June 2018.  Police investigated and determined that the complaint was unfounded.

28. Another allegation of the father sexually abusing Y during the course of a supervised visit is relied upon by the mother, although she became a little vague as to what the relevant date was.  Certainly there is no doubt that the children spent time with the father, supervised by U Group, at a place called V Playground, on 30 June 2018. 

29. On 1 July 2018 the mother made complaint to police that the father had sexually abused Y during that visit.  Police subsequently investigated, and ascertained that the specific allegation that Y had apparently disclosed, was that the father had taken her to the toilets at V Playground and touched her private parts.  However police obtained CCTV footage from the centre which showed that the father never took Y to the toilet, but rather the child attended a toilet individually, and the father attended a male toilet individually.  On this basis the police concluded that the events alleged did not occur.  In the face of that, the mother moved her allegation to not be specific to 30 June, but perhaps to be some other occasion when the father has been with the children at V Playground.  No other such occasion appears in the material.

30. Also in evidence before me was the result of a Departmental investigation arising from these further disclosures.  As a part of that investigation, Y was again interviewed by Departmental officers, and on this occasion did make disclosures.  Although not entirely satisfactory, by email dated 10 August 2018, the Independent Children's Lawyer was advised that “in short, as a result of the assessment, there would be no ongoing intervention with the family at this time.”

31. That was the state of the evidence when the trial first concluded before me on 16 August 2018.  However subsequently, pursuant to order which I made on 7 September 2018, the Department produced additional material, which put quite a different complexion of the outcome of its investigation.  Particularly, based solely upon the child’s disclosures to a Departmental officer, the Department formed the view that the father posed a risk of sexual harm to the child, but because he was seeing her on a strictly supervised basis, no Departmental intervention was warranted.

32. By the time of the resumed trial, the Departmental officer had left the Department’s employ, and was coerced to give evidence by subpoena.  Whilst I will discuss her evidence in due course, it included detail of disclosures made by the child in a conversation which she had with her, together with some attempt to explain the basis upon which the Departmental opinion was concluded.

Current situation

1. As at the time of trial before me, neither the mother or father had re-partnered.  The father remains living in his house at H Town, is in receipt of a disability pension, but augments that income with sales from his business.  His mother – who gave evidence before me, and presented as a very spritely, albeit elderly woman – remains living two doors down from him.

2. For her part, the mother remains living in B Town in appropriate accommodation, and appears to have recently commenced both undertaking some tertiary study, and to operate her own business, albeit in B Town.

3. The children are in prep and grade one respectively, and appear to be achieving their milestones.  That said, there are concerns in relation to X’s hands, and particularly some tendon issues which apparently require surgery, and the children’s immunisations appear to have been delayed.  Nonetheless, with those exceptions, they appear to be in good health and thriving.  X is a large boy for his age, and appears likely to have some sort of sporting future ahead of him.  Y is more varied in her interests.

4. One feature which needs to be noted is that the children, without exception, are reported by all of the supervisors to have a strong attachment with the father, and to deeply enjoy their time with him.  I will discuss that evidence in greater detail in due course.

THE APPLICATION TO CALL ORAL EVIDENCE-IN-CHIEF FROM MS R

1. On 31 May 2018, I conducted the Trial Management Hearing in this matter.  At the time, the mother was represented by a solicitor in Western Australia.  That solicitor indicated that at the trial, the mother intended to call evidence from herself, Ms L and Ms R.  By order 5, I granted the mother leave to, on or before 4:00pm on Friday 20 July 2018, make file and serve one affidavit from each of those persons.  I further ordered, by consent, that the rules of evidence apply to the issue of the father’s alleged misconduct towards Y and Ms L.

2. Thereafter, the mother’s solicitors ceased to act for her.

3. On 12 July 2018, Austin J dealt with the mother’s application to adjourn the trial.  In the course of dismissing that application, his Honour extended the time for compliance with order 5 of the 31 May 2018 orders, until Thursday 2 August 2018.  At that hearing the mother was self-represented.

4. No affidavit from Ms R was filed by 2 August 2018.  Rather, on the first day of trial, the mother indicated that she intended to lead oral evidence from her instead.  At that time, the Independent Children's Lawyer was seeking to tender into evidence the full records of Ms R’s counselling.  That was opposed by the father, inter alia, on the grounds that Ms R could not be called as a witness, because no affidavit had been filed from her.  I pointed out that Ms R could be called as a witness, although no evidence-in-chief led from her, and hence any suggestion that she was not then made available for cross-examination would evaporate.  Perhaps in light of that observation, as the trial progressed, counsel indicated that, if Ms R was simply called, but no oral evidence led, neither the Independent Children's Lawyer nor the father would seek to cross-examine her, and therefore the objection to admission of her records would fall away.  Nonetheless the mother persisted with her application to call Ms R, intending to seek to lead oral evidence from her.

5. On 16 August 2018 I dealt with the mother’s application and dismissed it.  I deferred giving reasons for so ordering, and for convenience I have included them in this judgment.

6. The mother had plainly not complied with the trial directions.  The purpose of those directions was to ensure the smooth conduct of a trial, with parties knowing well in advance the evidence in the case which they needed to meet.

7. Not only was no adequate explanation by the mother as to why no affidavit of Ms R had been filed, but worse, when I inquired of her what the evidence was that she was intending to lead from Ms R, she could only say that it would relate to her qualifications, and the means by which she counsels children.  However when I pressed the mother as to what her evidence would be in relation to those matters, she was unable to say.  In other words, the mother was intending to call Ms R blind.  Therefore not only was there no affidavit prepared, nor was any precis of the proposed evidence available, but there would be no forewarning whatsoever of the detail of her evidence given to the other parties.  The parties were therefore not on notice of the substance of the evidence, which could prove controversial.  There was therefore a significant opportunity for the trial to be derailed if her evidence proceeded in a controversial direction.

8. Moreover, by the time of the mother’s application, Ms R’s reports and counselling notes were all in evidence.  Therefore what the mother was seeking to do was to augment those by evidence which might go to the weight which I would otherwise give those records.  However her substantive evidence of her counselling of the children was already before me.

9. There were further difficulties with the mother’s proposed application.  She is self-represented and has difficulty with the English language, to the point where an interpreter was required for the entire trial.  Her solicitor had previously consented to the rules of evidence applying to the issues of the father’s alleged sexual misconduct towards Y and Ms L.  Presumably the mother has no knowledge whatsoever of the rules of evidence, and it is likely that her questioning would therefore prove legally controversial in relation to some aspects; certainly there was the real prospect of difficulty in that regard.

1. Further, there was the difficulty that it seems plain that the counselling that Ms R has been affording the children, in the course of which alleged disclosures have been made, was in breach of the orders of Judge Baumann, which restrained the mother from taking the children to counsellors without the court’s consent, and further, specifically restricted the Sexual Assault Service counselling to protective behaviours only.  Ms R’s counselling went well beyond that.  Therefore, in a sense, the mother is seeking to obtain an advantage from her breach of orders.  Whilst that did not preclude the notes – which plainly are business records – being tendered into evidence, nonetheless by seeking to obtain further advantage from her breaches, the mother is being rather cute.

2. Finally, in fact there was already evidence pertaining to Ms R’s qualifications.  Specifically at Independent Children's Lawyer Tender Bundle 172, Ms R says in a report written by her “I am an accredited member of the Australia Association of Social Worker, and I have attained a diploma in Narrative Therapy (Dulwich Centre 2003) and diploma in Sand Tray and Symbol Work (Expressive Therapies Institute 2015).  I have been working, researching and lecturing in the field of family therapy, domestic violence and sexual assaults since 1991.”  Precisely how the mother sought to augment that information is entirely unclear. 

3. There is then the issue as to the evidence as to Ms R’s method of counselling the children.  It appears that sand tray therapy has been a significant part of the modality employed.  It is likely that, if she gave evidence to that effect, a sustained attack upon the reliability of such therapy, or more precisely, alleged disclosures made during the course of it, would ensue.  Neither of the parties, so far as I was aware, were in a position to deal with such a contentious matter, and it was likely that the trial would need to be adjourned in order for the cross-examination of Ms R to conclude.  It may also be the case that further evidence was sought to be led from other witnesses as to sand tray therapy.  Given that the disclosures made by Y to Ms R were already in evidence, the benefit of that disputation is dubious, at best, and potentially counter productive to the mother’s case, at worst.

4. Weighing all of those matters in the balance, I therefore determined not to permit the mother to lead any oral evidence from Ms R.

THE ISSUES

1. With the assistance of the parties during the course of the Trial Management Hearing, I identified the following were the issues raised by this case, in the sense that their disposition is likely to substantially inform the outcome of my discretion:

   1.What is the nature of the relationship between each parent and the children. 

   2.What risk, if any, does each parent/parent’s household pose to the children and what, if any, means are available to mitigate such risk.

   3.Would the children benefit from a meaningful relationship with each parent, and if so, how might it best be facilitated.

   4.Would each parent facilitate a meaningful relationship between the children and the other parent.

   5.Is it reasonably practicable for the mother to return to:

   (a)Live in B Town; or

   (b)H Town, and if so, what effect would it have upon:

   (i)     Her emotional and financial circumstances; and

   (ii)    Her parenting capacity.

   6.What benefits would remaining in Brisbane have for the mother, particularly in relation to:

   (a)Her financial circumstances;

   (b)Her family support;

   (c)Her parenting capacity. 

   7.If the mother and children remained in Brisbane, but the father did not, would the mother facilitate a meaningful relationship between the father and children.

   8.Is it reasonably practicable for the father to spend time with the children in Brisbane and/or B Town?

   9.What is the likely impact on the children of each parties’ proposal. 

   10.Would the parties’ communication and personal beliefs be sufficient to support equal shared parental responsibility, or sole parental responsibility with an obligation to consult the other parent.

2. Once I have considered the relevant statutory provisions and legal principles, but in advance of a traverse of any residually relevantly s 60CC considerations, I shall address those issues, and then consider the appropriate parenting orders in this case.

RELEVANT STATUTORY PROVISIONS AND LEGAL PRINCIPLES

The statutory regime

1. Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:

   (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.

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

2. Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.

3. However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.

4. In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.

5. Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks [2015] FamCAFC 36 at [49].[1]

   [1] Although that case was in relation to interim orders, there is no reason to think it does not equally apply to final orders.

6. In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At [72] the Court applied the principles enunciated in Wacando v The Commonwealth (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission (2005) 144 FCR 431 at [22] per Mansfield J). At [79] the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.

Abuse, neglect and family violence

1. “Abuse” is defined in s 4 of the Family Law Act  in the following  terms:

   Abuse, in relation to a child, means:

   (a)      an assault, including a sexual assault, of the child; or

   (b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or

   (c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or

   (d)      serious neglect of the child.

2. Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings.  I can discern no contrary indication in the Act.  The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”

3. “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:

   For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.

4. Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.

The standard of satisfaction required

1. Section 140 of the Evidence Act 1995 (Cth) provides as follows:

   140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

   (2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:

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

   (b)      the nature of the subject-matter of the proceedings;

   (c)      the gravity of the matters alleged.

2. In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:

   The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.  That remains so even where the matter to be proved involves criminal conduct or fraud.  On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove.  Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”.  Statements to that effect should not, however, be understood as directed to the standard of proof.  Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

3. Conduct intended to, or with a risk of, destroying or impairing a relationship between a child and a parent, is not, of itself and without more, necessarily criminal. Nonetheless an allegation of that kind is potentially a grave one, although whether it is so or not will depend upon the facts of individual cases. It is probably idle to seek to arrange conduct in some hierarchy of gravity; rather what s.140(2)(c) requires is that appropriate consideration is given to the gravity of the matter in question in determining whether or not the Court is satisfied of its existence on the balance of probabilities.

4. Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”[2] 

   [2] See K v R (1997) 22 FamLR 592 and Re W (sex abuse – standard of proof) [2004] FamCA 768 at [15].

The notion of unacceptable risk

1. It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating.  A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:

   Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.  Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.

2. In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings albeit in the context of allegations of sexual abuse of a child. At [20] and [25] the Court said as follows:

   20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v Lieschke [1987] HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.

   …

   25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A v A [1976] VicRp 24; (1976) VR 298, at p 300), "an element of risk" or "an appreciable risk" (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), "a real possibility" (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a "real risk" (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

3. In Harridge and Anor & Harridge [2010] FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:[3]

   (1) What harmful outcome is potentially present in this situation?

   (2) What is the probability of this outcome coming about?

   (3) What risks are probable in this situation in the short, medium and long term?

   (4) What are the factors that could increase or decrease the risk that is probable?

   (5) What measures are available whose deployment could mitigate the risks that are probable?

   [3] Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.

4. I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

1. Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent.  Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable.  Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child.  The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.

2. Plainly however a Court would only cut the relationship between the child and parent on such a ground with considerable hesitation.

ISSUE 1 – NATURE OF RELATIONSHIP BETWEEN EACH PARENT AND THE CHILDREN

1. This case was unusual, in that notwithstanding the fact that for over a year now, the children have only spent, at most, three hours of supervised time with the father each Saturday, Ms T’s unchallenged evidence was that the children’s primary attachment remains with him.  She thought that the children derive nurture, comfort and support from the father, and the only limitation to the obtaining of that benefit was the restriction in the time they spend with him.  She gave as an illustration, that in the 2018 interviews, the children were so excited about the prospect of seeing their father, that whenever the interview door squeaked, they would expectantly and excitedly yell “Daddy!”

2. Also unusually, Ms T did not accept that the children derived nurture, comfort and support from their relationship with the mother.  She said that the children obeyed her and were not scared of her, but to her observation, there was an absence of physical contact between them, and she did not see the children looking for comfort from her. 

1. In the course of her Family Report interviews, the mother, in declining to play with the children, explained to Ms T that she was a “take care of” mother, not a “play with” mother.  That said, Ms T thought that the mother provided good food to the children, and in that sense provided support for them, but she was adamant that the children’s primary attachment lay with the father.  She explained that the impact which the children’s very limited time with the father in the last 12 months would have had upon that relationship, would be to diminish it.  She therefore thought that the fact that the children’s primary attachment still lay with the father, spoke loudly as to the strength of that attachment at the time of separation.

2. That evidence was not challenged.  I accept it.  It follows that the children’s primary relationship from which they primarily derive nurture, comfort and support is, counterintuitively, with the father, notwithstanding the limited time which they have spent with him since separation.

ISSUE 2 – RISK OF HARM EACH PARENT POSES TO THE CHILDREN AND AVAILABLE MEANS OF MITIGATION

Overview

1. This was the primary battlefield in this case.  For her part, the mother says that the father poses such a risk of harm to the children, that his face-to-face time with them should be stopped until 2022, or at least permanently supervised.  For his part, the father contends that the mother is a risk of emotionally harming the children by depriving them of a relationship with him, in part, by deliberately contriving false disclosures to be made by them.

The father

Overview

1. The mother’s affidavit filed 22 June 2017 is a quite remarkable document.  Even accepting that she has English language difficulties, and that, on her evidence, much of that affidavit was written in Country D and translated into English using Google Translate, she nonetheless had assistance in creating it from domestic violence support workers, and at least, as I understand the evidence, two solicitors.  The affidavit itself was filed by a solicitor, and purports to have been translated to the mother over the telephone prior to her having signed it.

2. The level of attack which the mother makes upon the father in the affidavit is noteworthy.  However, equally noteworthy is the sequencing of that attack.  Using the mother’s headings in that affidavit, the order in which she raises concerns about the father is as follows:

   Access to weapons/threats to harm

   Isolation

   Regarding cultural abuse

   Drugs

   Harm to the children

   My role and my access to money

   Emotional abuse/putting me down

   March 2017

   Child sexual abuse

   Why I am afraid of the father

3. The relegation of the risk of harm arising from alleged sexual abuse to the penultimate heading, is difficult to understand.  After all, the mother asserts that, but for the alleged disclosure by Y on 12 April 2017, she would have been quite happy to indefinitely live under the same roof as the father, and it was only that alleged disclosure which caused her to flee with no possessions two days later.

4. Many of the risks which the mother asserts are historical, for instance, the father’s alleged isolation of her.  Further, most do not speak to the likely prospect of the father effecting harm to the children if he has them in his care, or spends time with them.  The impression I have of the mother’s affidavit is that it is a highly coloured attempt to prejudice any reader against the father, and cause them to form a strongly adverse view of him.

5. It is difficult know what to make of the relegation of sexual abuse allegations to the closing parts of the affidavit.  In a sense it is almost dismissive of them, although at least in the trial before me, they were the central theme.  It is that risk which I propose to primarily evaluate under this heading (although I will briefly address the others).  I will deal with it by identifying the particular facts which speak to the father posing some risk of sexual harm to the child, and then evaluate their cumulative effect.

The father’s interest in pornography

1. I have already noted that it is not in dispute that, in 2011, the mother was troubled about the father watching pornography, and the father conceded to the parties’ joint counsellor, Ms P, that he had been doing so, but “he has ceased.”  Indeed it appeared to be common ground between the parties that at about that time, they jointly destroyed the computer upon which the father had been accessing pornography.  However, the mother’s specific complaint was that the father’s “sexual interests were in young girls.  She stated he often watches young girls when in public.  She accused him of being a paedophile.”

2. Ms P’s notes of that first consultation, under the heading “next session” in part read:

   Concentrate on issue of accusations about paedophilia?  Ask for evidence against accusation.  Evidence for includes his decrease in interest in sex, his use of pornography, his watching of young girls, his defence that it is normal, and what [the mother] feels was an inappropriate solicitous relationship with her daughter.

3. The notes of the second session are also in evidence.  That session did not seem to deal with the pornography issue, but rather the notes record, in substance, that the mother wanted the father “to stop commenting on other women’s beauty, but wants him to also comment on her good points.”  Indeed that thereafter became the theme of the counselling, and there does not appear to have been any further focus upon pornography.

4. The next time the accusation was raised, appears to be in a question which the mother posed to an online “sexologist” on 9 October 2012.  In that inquiry she asked whether it was possible to treat “the head of a man who is obsessed with young girls,” and who allegedly finds “sexually attractive girls who do not yet have female forms.”  Next it appears to have been raised by the mother in a letter to an online psychologist, on 4 January 2014, where she commenced “I found on the computer that the husband was interested in porn with children and teenagers for many years.”

5. Then later, in the mother’s letter to a lawyer dated 26 June 2016, the mother said “I found child porn on [the father’s] computer.”

6. A slightly different story emerges in the mother’s affidavit filed 22 June 2017.  At paragraph [96] she gives the following account (in original):

   I think about all things that made me uncomfortable with [the father] and [Ms L] also all the pornography on rape and strangulations to death, search history about “fuck little girl” (eg), talking all the time about paedophiles .. I recall many times to count [the father] having saliva to see little girls, sometimes ten years old, sometimes young teen, to follow behind with tongue out …

7. Other than the concession that he accessed pornography during the course of the marriage, but thereafter destroyed the computer, there is no evidence as to the father subsequently accessing pornography (other than via the mother, as I shall shortly detail).  Moreover, as has been seen, the mother has inconsistently reported what it is she believes the father accessed, although there is a recurrent theme of young girls.  However in counselling that then became more a focus upon younger women, or at least women younger than the mother, and the lack of the father commenting upon her own attractiveness.

8. One aspect of the trial cross-examination bore upon this.  Counsel for the father challenged the mother that she herself had sent pornographic photos to the father, and some specificity was given in relation to one or more photographs.  The mother fervently denied having ever sent such a photograph to the father, but after the next break, photographs, apparently conforming with counsel’s description, were shown to the mother.  The mother appeared to concede that indeed the photographs were authentic, in that she indicated that in retaliation, she now intended to tender some pornographic photos of the father.

9. Ultimately I am satisfied that the father has an historical use of pornography, and that he favoured as subjects, women who the mother thought were too young, although part of her concern was that he was showing sexual interest in women other than himself. 

10. However there is no evidence from which I could be persuaded that the father has any continuing interest in pornography which would pose a risk of harm to the child, nor does the evidence permit me to conclude that the father had any historical access to pornography involving children.

The father’s conduct towards Ms L

1. There are two species of conduct towards Ms L which were relied upon by the mother.  The first was the father’s allegedly inappropriate touching of her; the second was him being naked in the home at night time.  In her affidavit filed 20 July 2017, Ms L said that the father gave her “extra attention” and specifically “he would grab my legs, and be extra touchy towards me.”  In her oral evidence, she said that the grabbing of her leg was playful, and had occurred at a restaurant on one occasion.  She said that nonetheless it made her feel uncomfortable, and she did not know what to do.

2. Whilst I am satisfied that the father did likely touch Ms L on her thigh, I am not persuaded that he did so intending to either groom her, or sexually assault her.

3. As to him being naked at night, Ms L’s affidavit said “there was a couple of times I would went go to the bathroom at night time and he would be there walking around naked, and when he has seen me notice him he would hide but just smile, which scared me and I was locking my door at night time because I was afraid of him.”

4. I am not persuaded, even if those events occurred, that the father was thereby engaging in some sort of predatory or grooming behaviour in relation to Ms L.

Y’s disclosures

1. Y has allegedly made disclosures to the mother on numerous occasions, to the effect that she has been sexually abused by the father.  She has also allegedly made that disclosure to Ms L.  Plainly both of those persons are partisan, and there is room to doubt the reliability of their evidence in that respect.

2. However the child has also made disclosures to the Family Report Writer, Ms R, and most recently, the police.  Dealing firstly with the disclosures to the Family Report Writer, it is noteworthy that in the first Family Report interviews conducted on 1 September 2017, Y did not make any disclosure of sexual abuse, but did say “daddy did naughty stuff.. like he punched mummy and argued” but when it was inquired whether the child had seen this, she said “no, mummy told us.”

3. However the child did make disclosures in the second Family Report interviews on 22 June 2018, and in the ensuing report, there appears as follows:

   When asked if there was anything she did not like about her father, [Y] said, “yes, daddy tickles my private parts.”  When asked if anyone had told her to say that, [Y] stated, “yes, mummy told me to tell you.”  [Y] was asked when the “last time” that daddy tickles her private parts, [Y] stated clearly, “when I was living with dad at the house.”  Again [Y] stated that her mother had told her to say that.

4. There is no reason to doubt Ms T’s evidence in this respect, and certainly she was not challenged in relation to her accuracy or veracity.  I am therefore satisfied that the child told her that the mother had told her to say those two things, and further, that in saying that to Ms T, what the child said was true.

5. Turning then to Ms R, it appears as though the first record in her notes of anything approaching a disclosure was on 21 September 2017, when the child told her that the father “loves me special.”  Then, on 12 October, there was a disclosure, during sand play therapy in the following form, namely that the child said “I told mum that daddy licks my bum-bum when he licks my other places too.”  She then later said “I like it when daddy does that.”

6. Ms R then told this to the mother, who in turn told Ms R that the child “had disclosed to her that the father has shown her pornographic movies and that [the father] had “licked her anus and put fingers inside her bottom.””  Ms R reported that, in her opinion, the mother’s appearance at the time was congruent with shock. 

7. On 19 October 2017 there was a disclosure by Y that the father “loves her too very much” and gives her “little kisses and tickles all over” which are “just for her.”  She then pointed to her vulva and said “he kisses me right there.”

8. Next, on 2 November 2017 there was a disclosure that, in substance, the father licks the child’s vagina, which the child indicated by pointing to her vulva area.

9. There then seems to have been a break in any disclosures until 12 June 2018, on which occasion, when discussing “important body rules,” and particularly that “no one is allowed to touch her private parts,” the counselling notes record “[Y] turned to me and said “Daddy touches my private parts.  Daddy touched my private parts last weekend when we were at the pirate ship.”  When asked where the supervisor of her time with the father was during the assault, Y said “she went to the shops.  She took [X] and they went to get batteries for [X’s] toys.”  Y then said “when she came back I told her that Daddy touched my private parts and Daddy said “liar liar” to me.”

10. The final disclosure was on 5 July 2018, and is recorded in Ms R’s notes as follows:

    We were discussing colours and shapes of Lego pieces when [Y] said, seemingly out of the blue, that her father had been touching her private parts again.  [Y] said this occurred while she was on a supervised contact with her father.  [Y] said her father took her to the toilet and then tickled her private parts.  [Y] pointed to her vulva when she said “private parts.”  [Y] said she “might have” told her father to stop but it is difficult to know if her words were in her head or whether they came out of her mouth.  [I interpolate that I confess I have no idea what this last sentence means].  [Y] said she didn’t think she could tell other grown ups like the supervisor of the contact visits because she was “scared.”  [Y] stated she had told her mum after the contact visit and she wanted to tell me too because I am one of her five safe people from the protective behaviours safe hand activity.

11. It is convenient to discuss the last two disclosures first.  As to the “pirate ship” incident, the contact supervisor’s notes were in evidence.  That visit occurred on 9 June 2018 and the notes make no reference to a battery powered toy, (seemingly, on the mother’s case, said to be a gun).  There is mention of X playing on a scooter, and using a bow and arrow, but no mention of a gun, nor is there any suggestion that the supervisor ceased supervising the father at any time.  I am satisfied that the supervisor’s notes in this respect are likely accurate.

12. This allegation was investigated by Queensland Police.  Their report is in evidence.  The police spoke to the particular supervisor who advised them, according to their notes, that “she watched the father closely at all times, as she does in all of the supervised visitations and that the children seem both happy and [the father] had his own mother .. come along to this visitation to see her grandchildren.  At no point did any conversation occur between [Y] and [redacted] in relation to concerns of her father or anything inappropriate occurring and [redacted] stated she never left the children with their father to go to a shop and purchase batteries or anything similar, she was present for the entire supervised visitation.” 

13. Whilst noting that “it was believed the mother is possibly leading the child into disclosures due to ongoing family court matters” that was not the basis of the police ultimately determining that the allegation was unfounded.  Rather it was on the basis of the evidence of the supervisor.

14. Significantly, ten days later, when the child was asked by Ms T when was the last time that the father had tickled her private parts, she did not refer to the pirate ship playground incident.

15. Turning then to the last alleged disclosure, the mother first raised this claim by taking the child to police on 1 July 2018.  The police report notes:

    At 15:00 hours on 01/07/18 [the mother] … attended the [B Town] Police Station and stated that her daughter [Y] … disclosed yesterday (Saturday 30/06/18) to her that her father had indecently touched her on two occasions.  These times being when he had visiting time with [Y].

    …

    The second occasion was yesterday (Saturday 31/06/18) (sic) when Y and her brother went with their father to “[V] Playground” in [Suburb W].  At some time in the three hour period he took her downstairs to the change room, took her pants off and touched her private parts.  He licked her bum and put his fingers in her bum.  She was sad and scared.  The allocated supervisor was not present because she was still seated upstairs in the café area. 

16. Police thereafter attended V Playground and reviewed CCTV footage.  It did not support the mother’s claim, and did not show the father taking the child to the toilet, but rather that she toileted by herself.  Again the police recorded the outcome of their investigation as unfounded, as “evidence clearly indicates that no offence has occurred.”

17. I have chosen to deal with the two most recent disclosures to Ms R first, because in my view, they inform the likely accuracy of any other disclosures.  Plainly the events which the mother claims occurred on 9 June and 30 June 2018, simply did not in fact occur.  The allegations are wholly false.  It follows therefore that Ms R is extracting from the child (I do not mean seeking to extract, but nonetheless obtaining) disclosures which are demonstrably untrue.  The veracity of the earlier disclosures must, therefore, be highly suspect.

18. It is important to recall the circumstances around the mother’s recording of the child after her 93A interview with police on 21 April 2017, which, as police have noted, seems to show that the mother approached eliciting disclosures from the child as part of a game.  It is a truly concerning recording, and all the more concerning because the mother thought that it in some way assisted her case.  It does not.  It suggests that she is seeking to have the child make disclosures consistent with her beliefs, rather than allowing the child to do so in an unprompted and un-coached way.

19. More, the fact that the mother did that so quickly after taking the child to police – unsuccessfully at least, from a point of view of eliciting disclosures – suggests that she was anxious to achieve disclosures, and have evidence of them.  It cannot be overlooked that all of this is against the background of her 12 April 2017 letter to the father, which threatened that he may “lose your children” if an appropriate property deal could not be done, and the fact that the first initial disclosure was allegedly made by Y on the very afternoon that the mother discovered that the father had, on her version, taken $9,000.00 in cash, but before police arrived, and yet she raised nothing in relation to the disclosure with them then.

20. Further, the number of occasions that the mother has now taken the child to police is itself troubling.  It is consistent with her being on some kind of campaign.

21. Finally, I should note my concerns that the disclosures to Ms R were said to have taken place during the course of protective behaviours awareness training.  Although remaining professional, Ms T was scathing of the extent of Ms R’s involvement with the children.  She said that such protective therapy should not extend beyond more than five sessions, and certainly should not be weekly over any protracted period of time.  I accept that evidence.  Moreover, it is deeply troubling that, notwithstanding the injunctions ordered against the mother by Judge Baumann on 14 June 2017, she persisted with the counselling.  It cannot be ignored that those orders were made by consent, on an occasion when the mother was represented by a solicitor.

1. As to any improvement in her parenting capacity, it is likely that she would have additional resources to assist, from time to time, with the care of the children, particularly if living with Ms L.  However I am not satisfied that her parenting capacity is thereby likely to significantly, or even materially, improve.

2. Therefore, whilst it might be that there is some improvement in the mother’s financial circumstances, and her family support, in Brisbane, I am not satisfied that is likely to translate into any material improvement in her parenting capacity.

ISSUE 7 – IF RELOCATION WERE PERMITTED, WOULD THE MOTHER FACILITATE A MEANINGFUL RELATIONSHIP BETWEEN THE FATHER AND THE CHILDREN

1. I have already addressed the concerns which I have in relation to the mother’s facilitation of a relationship with the father generally.  However, if relocation were permitted, the nature of the relationship the children enjoyed with the father would become highly dependent upon Skype and telephone calls.  The mother does not have a good history of actively facilitating those calls, as the father relates in his affidavit, in which respect I accept his evidence.

2. However, also strongly informative is the way in which the mother acted after her other two children moved away from their father to come to Australia in 2011.  On her evidence, she left it to them to maintain communication with him, and simply believed that they have done so.  Needless to say, those children were significantly older than these children in this case, and yet there is no reason to think that the mother would adopt a different approach than that she did with Ms L and Mr K.

3. Ms T, when asked about this issue, gave an emphatic “no” in answer to it.  Unfortunately, not only do I accept that evidence, but I would independently reach it on the other evidence as well.

ISSUE 8 – REASONABLY PRACTICABLE FOR FATHER TO SPEND TIME WITH CHILDREN IN BRISBANE AND/OR B TOWN

1. If relocation to Brisbane were permitted, no issue arises in relation to the practicability of the father spending unsupervised block holiday time with the children in either Brisbane or North Queensland, although practical issues would arise in relation to the children’s travel until such time as they are able to do so unaccompanied. 

2. Difficulty would only arise in relation to holiday time if the father’s time was required to be supervised.  It is inconceivable that a Contact Centre would be able to supervise extensive periods of holiday block time, and further, it is unlikely that the father would be able to continue to fund private supervisors for that time either.  The mother’s suggestion that she might jointly holiday with the father and children, or have herself or her two adult children supervise the father’s holiday time with the children, is impractical and unrealistic.  Ms T’s evidence is that the presence of the mother as a supervisor would be very tense for the children, and she suspects that the mother would always find some difficulty with the arrangement.  I accept that evidence.

3. However the real focus of this issue is directed towards weekend time.  Because the father operates a business every Sunday, and needs to prepare for that on Saturday, it would be impracticable for him to spend anything other than fleeting amounts of time with the children on weekends in B Town.  Moreover, it would be wholly impossible for him to spend time with the children on weekends in Brisbane.  Further, the cost of flying the children or the father between B Town and Brisbane on anything like a regular basis, would likely be beyond the means of these parties.

4. I am of the view that there are real issues as to the reasonable practicability of the father being able to regularly spend time with the children, if relocation were permitted.

ISSUE 9 – IMPACT ON CHILDREN OF PARTIES’ PROPOSALS

1. Turning firstly to the mother’s proposal, Ms T was of the view that, if relocation were permitted, the impact on the children would be quite great, because they would not be able to regularly see the father, who she emphasised was their primary attachment figure.  She was also critical that the children would yet again be required to change schools.  Although she identified that the children have a good relationship with Ms L, she indicated that the children had never mentioned Mr K to her.  She did not appear to support the notion that any increased time with Ms L would in any way offset the effect of losing regular contact with the father, and I accept that is so.

2. Ms T was concerned that the children might internalise the loss of their father, and blame themselves for it.  She said that children generally either internalise or externalise, which latter, she explained, might include lashing out, hitting and kicking.  She was not able to predict that they would not externalise, but she appeared to think it was more likely that these children would internalise.

3. Although not directly impacting upon the children’s welfare, the unchallenged opinion of Dr J, the psychiatrist who examined both parties for the purposes of these proceedings, was that each of the parents’ psychological condition would weaken if the other one “wins.”  I am satisfied that the father would find the loss of the children devastating, and would likely require the sorts of assistance which Dr J predicted.  Any loss of emotional availability of the father to the children by virtue of diminished mental health, is indirectly likely to effect the children, because of their attachment with him.

4. Turning to the father’s proposal, Ms T thought that the effect on the children was that they might “miss” their mother a bit, but otherwise she thought that they would cope with it well.  The justification for this lay in her evidence that the children appeared far more strongly attached to the father, and had a tactile and much more engaged relationship with him.  She emphasised the benefit of tactility for children, and particularly that close physical touching, proximity to the parent, and lots of engagement, stimulates the development of “mirror neurones” which are necessary to enable a child’s brain to develop normally.  She thought the children derived that sort of stimulation from the father, but not from the mother.

5. Again, she predicted a poor outcome for the mother psychologically if the father’s proposal were ordered.  She accepted that the mother’s mental health is vulnerable, and adopted Dr J’s predictions of a decline in her mental health if the father’s proposed orders were made.  She thought that the mother would need regular counselling for her loss and grief, and further, that the impact on the mother would be considerably increased if there were a period of time where she was not seeing the children at all.  She thought that it would be hard for the mother to communicate with the children if they had been moved from her care, and she would need support in that.  That said, she emphasised that the mother is quite a resilient person, and would likely ultimately prove able to manage. 

6. Whilst the mother’s adverse reaction may impact adversely on the children, if she becomes emotionally unavailable to them, I do not assess that impact to be anywhere near as severe as would ensue if the father became less emotionally available to them.

ISSUE 10 – WOULD PARTIES’ COMMUNICATION SUPPORT EQUAL SHARED PARENTAL RESPONSIBILITY, OR CONSULTATION AND SOLE PARENTAL RESPONSIBILITY

1. Ms T was somewhat equivocal in relation to this issue, although ultimately opining that she did not think that the parties could adequately engage.  She emphasised that there is still an enormous amount of tension between them, which is perhaps unsurprising given the allegations which the mother promotes against the father.

2. That said, during cross-examination by counsel for the Independent Children's Lawyer, she identified that the mother did appear to have some trust in the father, given her suggestion that she might holiday with him, or go to again live in his house.

3. However, ultimately no party sought orders for equal shared parental responsibility, and hence I am, practically, absolved from finally making any conclusion on this point.

4. As to the parties’ capacity to consult, I am satisfied that they could by email inform the other of issues needing to be determined, and consider any emailed response.

SECTION 60CC CONSIDERATIONS

1. It will be appreciated that I have already addressed both primary considerations, and a number of the additional considerations, in traversing the issues.  However I make the further observations.

2. The children are too young to express any wishes deserving of weight.

3. The children have a good relationship with the paternal grandmother.  It does not appear as though they have ever had face-to-face time with their Country D relatives, other than Ms L and Mr K.

4. There has been family violence, and it is conceded by both parties.  Family violence orders have applied from time to time.  However I am satisfied that the historical family violence was situational, and likely in part the product of the father being under the influence of marijuana, and hence angry, together with the parties’ fundamental differences in personality and character.  This is not a case which falls to be determined by reference to family violence (excluding under that terminology, any sexual abuse of Y).

5. Subject to relevant domestic law, the mother has the right to travel and live wheresoever she wishes.

PARENTAL RESPONSIBILITY

1. Parental responsibility should be awarded to the parent with whom the children primarily reside.  That is what the parties contend, and I am satisfied that such an order would be in the best interests of the children.

2. As shall ultimately be seen, I will order that the children should primarily live with the father.  It therefore follows that orders for sole parental responsibility should be made in his favour.  I am satisfied that such an order is in the best interests of the children, and further satisfied that the obligation to consult which he proposes is an appropriate and workable one.

WITH WHOM SHOULD CHILDREN LIVE

1. During the course of the trial, and with the assistance of the parties, I identified that, on the assumption (as is now the case) that I was not satisfied that the father was an unacceptable risk to the children, then the following were the points in favour of the children living primarily with him, or against them living primarily with the mother:

   (a)The children’s primary attachment is with the father;

   (b)The children have a strong relationship with the father, from which they derive nurture, comfort and support, albeit presently limited by time;

   (c)It would likely optimise the benefits which the children would derive from their relationship with the father;

   (d)The father remains living in the former matrimonial home, in which the children have lived for most of their lives, until April 2017;

   (e)Living in the E Town area would see the children return to familiar surroundings, including friends and the paternal grandmother;

   (f)The father is likely the better parent in relation to medical matters;

   (g)It would mitigate, to some degree, the risk which the mother’s household poses to the children of them being alienated from the father (albeit they have not been to date);

   (h)The father would likely better facilitate the mother’s relationship with the children, than vice versa, although he is untested in that respect;

   (i)The father is likely financially more secure than the mother;

   (j)The father may (and I find, is likely to) provide greater emotional support for the children;

   (k)The father is likely more motivated to engage the children in extra-curricular activities;

   (l)The father has greater family support to help with the care of the children, than does the mother;

   (m)The mother is not actively seeking psychiatric support, (notwithstanding Dr J’s diagnosis)

2. On the other hand, the following points lie in favour of the children living primarily with the mother, or against them living primarily with the father:

   (a)The children have always been in the mother’s care (albeit until April 2017, in the parents’ joint care) and have a relationship with her from which they derive physical nurture and logistical support, but little emotional support or comfort;

   (b)Living with the mother would mitigate, to some degree, any risk of harm which the father poses to the children;

   (c)Living with the mother would likely optimise the benefits which the children obtain from their relationship with her;

   (d)Moving primarily into the father’s care would disrupt the children’s arrangements that have prevailed since April 2017;

   (e)Assuming that (ultimately) a regime of the children spending time with the mother was ordered, to be reasonably practicable, the mother would need to relocate to the E Town area, which is not her preference;

   (f)The mother presents as the children’s primary source of their Country D heritage, and Country D language skills, neither of which the father is likely to actively promote;

   (g)The children are presently thriving in the mother’s care (excepting concerns about vaccination, and X’s tendon surgery);

   (h)There is some risk that the father may use the children to retaliate against, or punish, the mother, for what he believes is her deliberate attempt to remove him from their lives;

   (i)There is some risk that the father may relapse into marijuana use.

3. Given that the mother proposes that she should relocate with the children to Brisbane, it is also useful to identify the points in favour of that proposal, which are:

   (a)Living in Brisbane would allow the children a greater experience of their Country D heritage, and Country D language;

   (b)Relocation accords with the mother’s wishes;

   (c)Living in Brisbane would afford the children more time with their older siblings (albeit there is a significant age difference between them).

4. On the other hand the points against the mother’s relocation with the children to Brisbane are as follows:

   (a)Given his weekly (Sunday) business, it would not be reasonably practicable for the father to spend any weekend time with the children in Brisbane, nor for the children to regularly travel to E Town to spend weekend time with him;

   (b)It would therefore dramatically curtail the father’s time, and hence relationship, with the children, and make it impossible for them to spend substantial and significant time with him;

   (c)If the mother did not comply with orders for the children spending holiday time with the father, it may see the children’s relationship with the father effectively terminated;

   (d)It would likely substantially diminish the children’s relationship with the paternal family generally, including the paternal grandmother and cousins, all of whom live in the Far North Queensland area;

   (e)There is little evidence that relocating to Brisbane would improve the mother’s parenting capacity;

   (f)It would see the children’s relationship with the father largely dependent upon the mother’s desire to facilitate it, which is doubtful, given her view of the father.

5. Weighing all of those matters in the balance tells strongly in favour of the children living primarily with the father.  Particularly significant is Ms T’s unchallenged evidence that the children’s primary attachment is with him, and it is from that relationship which they primarily derive nurture, comfort and support.  Likewise I place significance upon the fact that the father is likely the better facilitator of the relationship between the children and the mother, than the mother would be between the children and him.

6. I am therefore satisfied that the best interests of these children lie in them living primarily with the father.  It follows, therefore, that the question of relocation does not arise.

TIME AND COMMUNICATION WITH MOTHER

1. There are three options as to the type of time which the mother should spend with the children, at least initially.  Those three options are that there be a moratorium on the children spending face-to-face time with the mother for a period, or that they spend supervised time with her for a period, or that any time the mother has with the children is unsupervised from the outset.

2. Again with the assistance of the parties, during the course of the trial I identified the following points as being in favour of there being a moratorium, as was recommended by the Family Report Writer:

   (a)It would obviate the risk that the mother might seek to undermine the order that the children live with the father, particularly by ensuring she cannot seek to elicit further disclosures (or otherwise influence them);

   (b)It would allow the father to strengthen his relationship with the children unhindered by the mother (although the relationship is presently good);

   (c)It may allow the children time to adjust to the new arrangements, free of exposure to parental conflict;

   (d)The mother denies she would avail herself of supervised time, which if true, would create a moratorium in practical effect anyway.

3. On the other hand the following points favour a period of supervised time, rather than a moratorium on time altogether:

   (a)It would mitigate, to some degree, the risk of the mother seeking to undermine the orders (as discussed above);

   (b)It would allow the children to regularly spend face-to-face time with the mother, and hence perhaps cushion them from the impact of the change in primary care, and thus enhance their adjustment;

   (c)It might go some way to help the mother cope with the outcome of the proceedings.

4. Finally, the following points were identified as being favouring unsupervised time:

   (a)Assuming the mother did not seek to utilise such time to undermine the orders, it would likely maximise the chance of the children adjusting well to the changes in their care arrangements;

   (b)It would allow the mother to undertake a greater range of activities with the children, than supervision of her time would;

   (c)It might best help the mother cope with the outcome of the proceedings.

5. Although I am conscious of the Family Report Writer’s recommendation of a nine month moratorium on the mother seeing the children at all on a face-to-face basis, I am troubled about the likely effect which that would have upon the mother’s own mental health.  However, whilst ideally the mother would spend unsupervised time with the children, given the restrictions which supervised time would impose, unfortunately I am satisfied that the mother would likely utilise, at least in the short term, any such unsupervised time to seek to further her prospects of undermining the orders, perhaps by seeking to elicit further disclosures from the children.

6. Although the matter is finely balanced, ultimately I assess that balance as lying in favour of there being a three month moratorium (as proposed in the alternative by the Independent Children's Lawyer), but that thereafter the mother be permitted to spend supervised time with the children on alternate weeks for six months, contingent on her accessing appropriate mental health supports, before thereafter moving to unsupervised time on alternate weekends. 

7. I am satisfied that the condition of accessing mental health supports is in the children’s best interests, so as to ensure that any grief or sense of loss which the mother may still be experiencing after three months of no contact with the children is appropriately supported and managed.

8. Further, I am satisfied that supervision should be either at the B Town Contact Centre, or undertaken privately as the father suggests.  The Contact Centre option is likely more affordable for the mother, and hence more likely to be availed of.

1. Once unsupervised time commences, changeovers should be at E Town, as the father proposes.

2. I am not satisfied that, as the Independent Children’s Lawyer suggested, the commencement of unsupervised time should be conditional upon the mother’s mental health therapist’s recommendations, as I am satisfied that the mother is likely sufficiently resilient such that, after nine months, she will have recovered from any loss or grief, especially given the precondition I intend to impose for the commencement of supervised time.  That conforms with Ms T’s assessment, and further, there is no suggestion that the mother’s depression per se adversely affects her ability to care for the children, or poses a risk to them.

3. I am further satisfied that the mother should be able to spend one half of school holidays with the children, on and from the Christmas holidays in 2019.  Although neither the Independent Children's Lawyer nor the father proposed such orders, the mother did.  The risk which the mother presently poses to the children is not one which should, in my assessment, preclude her spending block holiday time with the children once they have adjusted to being in the primary care of the father.  Moreover such time is likely to afford them real benefits, especially if it enables them to spend time with Ms L and Mr K.

4. Structuring holiday time so that the mother has the first half of holidays in one year, and the second half in the next, will ensure that Christmas and Easter will alternate between the parents, without the need for changeovers on the day.

5. Unfortunately arrangements for time on the children’s birthdays and other special days are likely presently beyond these parties, given the need for changeovers and the distance between the parties’ households, however telephone communication should be permitted on those occasions.

6. I am of the view that so long as conversations are in English, the mother should be permitted to communicate by telephone with the children once the moratorium period has elapsed, albeit supervised by the father, until her time with the children ceases to be supervised.  As to the mother’s communication with the children generally, at that time, conversations may be in Country D.   

OTHER ORDERS

1. Otherwise I am satisfied that the orders proposed by the Independent Children's Lawyer are in the children’s best interests, and will make them.

CONCLUSION

1. For these reasons there will be orders as set out at the commencement of this judgment.

I certify that the preceding two hundred and forty (240) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 8 November 2018.

Associate:

Date: 8 November 2018