MERTENS & MERTENS - [2014] FamCA 475

FAMILY COURT OF AUSTRALIA

MERTENS & MERTENS

[2014] FamCA 475

FAMILY LAW – CHILDREN – Best interests – With whom the child shall live and spend time – Child has meaningful relationship with both parents – Mother is the child’s primary attachment figure – Mother alleged father posed unacceptable risk of harm to the child through subjection to sexual abuse and exposure to family violence – Magellan protocol – Unacceptable risk of harm through sexual abuse established – Child to live with the mother – Child to spend limited supervised time with the father.

FAMILY LAW – CHILDREN – Parental Responsibility – Presumption of equal shared parental responsibility does not apply – Reasonable grounds to believe that both parties engaged in past family violence – Mother to have sole parental responsibility.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B
Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth)

Johnson v Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69
Michaels v Commonwealth (2002) 124 FCR 473
Nikolakis v Nikolakis [2010] FamCAFC 52
NSW Bar Association v Somosi (2001) 48 ATR 562; [2001] NSWCA 285
Rogers v The Queen (1994) 181 CLR 251
Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19; (1991) 30 FCR 578
Savage v Lunn [1998] NSWCA 203
Schorel & Schorel (1990) FLC 92-144; (1990) 99 FLR 375; (1990) 14 Fam LR 105
TransportIndustries Insurance Co Ltd v Longmuir [1997] 1 VR 125

APPLICANT:

Mr Mertens

RESPONDENT:

Ms Mertens

INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

FILE NUMBER:

NCC

2009

2013

DATE DELIVERED:

3 July 2014

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

16, 17, & 18 June 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

N/A

COUNSEL FOR THE RESPONDENT:

Mr A. Mooney

SOLICITOR FOR THE RESPONDENT:

Legal Aid NSW

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr B. Kelly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Grant & Co

Orders

All former orders relating to the child M Mertens, born … 2009, (“the child”) are discharged.
The mother shall have sole parental responsibility for the child.
The child shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the child spends supervised time with the father for not more than two hours each alternate weekend on the conditions set out hereunder.
In the event the father fails to attend two consecutive scheduled visits with the child in accordance with Order 4 hereof, unless otherwise agreed, Order 4 is discharged and each of the parties shall instead take all reasonable steps to ensure that the child spends supervised time with the father for not more than two hours on or about the first weekends of March, June, September and December each year on the conditions set out hereunder.
For the purpose of implementing Orders 4 and 5 hereof:
(a)The supervisor of the time spent by the child with the father shall be staff of “BB” or some other person or entity nominated by such staff or agreed between the parties (“the supervisor”);
(b)Each party shall forthwith contact and satisfactorily complete any intake assessments or procedures required by the supervisor;
(c)The time that is to be spent by the child with the father each fortnight shall commence at the time designated by the supervisor;
(d)The venue at which the time is to be spent by the child with the father each fortnight shall be designated by the supervisor;
(e)The father shall pay all costs due to the supervisor;
(f)The mother shall cause the delivery of the child to, and the collection of the child from, the supervisor at the commencement and conclusion of the time spent by the child with the father;
(g)The mother and father shall comply with all reasonable requests and directions of the supervisor; and
(h)Leave is granted to the parties to provide to the supervisor a sealed copy of these Orders.
Order 4 hereof is suspended for a period of not more than six consecutive weeks in any period of 12 consecutive months on condition that:
(a)The child travels inter-State or internationally with the mother during that period; and
(b)The mother gives the father notice in writing not less than two months in advance of the intended suspension period.
Pursuant to s 68B of the Family Law Act, the father is restrained from entering upon or approaching within 100 metres of:
(a)The mother’s residence; and
(b)Any school attended by the child.
Each of the parties shall take all reasonable steps to ensure that the child is able to communicate with the father in the following manner:
(a)By the father being able to send letters, cards, and/or gifts to the child on or about dates proximate to her birthday, Father’s Day, and Christmas Day; and
(b)By the mother promptly sending to the father:
(i)Written acknowledgement of receipt of the father’s written communication; and
(ii)Any letters, cards, photographs, or other written communication that the child wishes to be conveyed to the father.
For the purposes of implementation of Order 9 hereof:
(a)The mother shall, within 7 days hereof, obtain and thereafter retain a post office box to which the father may send written communication; and
(b)The mother shall, within a further 7 days, notify the father of the address of that post office box by sending written notification to his current residential address disclosed in his affidavit filed on 14 May 2014.
Each party is restrained from denigrating the other in the presence or hearing of the child and from permitting the child to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from permitting the child to refer to any person other than the father by use of the term “Dad” or any derivative thereof.
The mother shall notify the father of any medical emergency, illness or injury suffered by the child whilst in her care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the father about the condition and treatment of the child.
The mother shall authorise and request the principal of any school attended by the child to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the child.
Each party shall forthwith inform the other, and keep the other informed, in writing of their respective mobile telephone number.
The mother shall forthwith do all such acts and things as may be necessary to remove the child’s name from the Airport Watch List.
The parties are at liberty to provide a sealed copy of these orders to:
(a)The principal of any pre-school or school attended by the child;
(b)Any authority entitled to issue Australian passports; and
(c)Any authority with control over international departure points in Australia.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.
Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2009 of 2013

Mr Mertens

Applicant

And

Ms Mertens

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

The parties are in dispute over future parenting arrangements for their only child, a young daughter.
Both parties seek the residence of and sole parental responsibility for the child.
The applicant father proposed that the child spend substantial amounts of time with the mother, but contended her removal into his residential care was necessary to ensure she is able to enjoy a meaningful relationship with him, since the mother thwarted it.
The mother proposed the child’s relationship with the father should always be supervised, since he allegedly posed an unacceptable risk of harm to her in a number of ways. The Independent Children’s Lawyer agreed.
The evidence substantiated the existence of an unacceptable risk of harm to the child and so orders are necessary to restrict the nature of the child’s interaction with the father.

Short history

The parties married overseas in June 2007. The father returned to Australia soon after, but the mother was unable to join him until April 2008, following her grant of a spousal visa.
Their child, who is the subject of these proceedings, was born in 2009 and is now five years of age.
The parties both realised their relationship was waning from late 2012.[1] They separated by early May 2013 at the latest,[2] but the mother and the child did not vacate the former matrimonial home until late July 2013.[3]
[1] Father’s affidavit, Annexure Z (pages 8, 13)
[2] Father’s affidavit, para 138; Mother’s affidavit, paras 22-24; Family Report, para 12
[3] Father’s affidavit, para 143; Mother’s affidavit, para 25
Shortly before the mother and child vacated the former matrimonial home, the child made a statement to the mother that she suspected may have implicated the father in the child’s sexual abuse. The mother raised her concern with the father, causing him to angrily refute any implication of impropriety. The child’s disclosure was reported to and investigated by the authorities, but it was unsubstantiated. Nevertheless, the mother was not placated and she refused to allow any further interaction between the child and the father.
The father commenced these proceedings a month later in August 2013. His proposal at that time was for the child to live for equal time with each party.
Interim parenting orders were first made by the Federal Circuit Court on 27 August 2013. Both parties were restrained from removing the child from Australia and the mother was restrained from removing the child from the geographical area of the Central Coast of NSW. No orders were made re-instating any form of interaction between the child and the father.
In September 2013, the proceedings were transferred to this Court.
More interim orders were made on 23 September 2013, this time with the parties’ consent, providing for the mother to have sole parental responsibility for the child and for the child to live with the mother. Again, no orders were made re-instating any form of interaction between the child and the father.
Because of the unresolved allegations about the child’s possible sexual abuse by the father, the proceedings were entered into the Court’s Magellan protocol, which expedited progress of the proceedings to final hearing.
Further interim orders were made on 6 November 2013, again with the parties’ consent, providing for the child to spend supervised time with the father for two hours each fortnight at a designated contact centre.
The parties confirmed the child continued to spend supervised time with the father in accordance with the interim orders until the final hearing in June 2014, despite the Family Consultant’s apparent misunderstanding about some problem with implementation of the orders at the designated contact centre.[4]
[4] Family Report, paras 16, 18

Proposal of father

The father sought the orders set out within his Amended Initiating Application filed on 7 January 2014. He proposed the allocation to him of sole parental responsibility for the child, for the child to live with him, and for the child to spend “substantial and significant time” (as that term is defined in s 65DAA(3) of the Family Law Act) with the mother.

Proposal of mother

Rather than the orders set out within her Amended Response filed on 19 February 2014, the mother sought the orders set out within a minute of orders she tendered at the close of the evidence.[5]
[5] Exhibit M7
Her proposal was for the child to live with her and for her to have sole parental responsibility for the child. She proposed that the child indefinitely spend only two hours per fortnight with the father, supervised at a contact centre. She envisaged those visits would cut back to only four visits per year if the father did not demonstrate sufficient commitment to the more regular regime.

Proposal of independent children’s lawyer

The Independent Children’s Lawyer did not reveal the orders he sought until the close of the evidence, when he tendered a minute of orders.[6] The proposal was closely aligned with the mother’s proposal.
[6] Exhibit ICL3

The evidence

The father relied only upon his affidavit filed on 14 May 2014. He was permitted to rely upon other evidence,[7] but did not do so.
[7] Orders 4, 5 made on 28 January 2014
The mother relied only upon her affidavit filed on 15 April 2014. She filed other affidavits in reliance upon earlier procedural orders,[8] but realised such evidence did not materially advance her case or detract from the father’s and so she abandoned reliance upon it.
[8] Orders 4, 6 made on 28 January 2014
The parties and the Independent Children’s Lawyer also relied upon:
(a)The report, dated 23 October 2013, furnished to the Court by the NSW Department of Family and Community Services (“the Magellan Report”); and
(b)The Family Report, dated 17 December 2013, prepared by the Family Consultant.
The father disagreed with the Family Consultant’s conclusions in the Family Report, which were generally favourable to the mother. Although the actual meaning of the father’s criticism of the Family Consultant was far from clear, the existence of his critical attitude was unmistakeable when he deposed:[9]
It is my view that the Family Consultant did not have the overall capacity to provide an holistic report to recommend jurisdiction on any time spent with the Father (sic).
It is my view that further consideration be granted by the Court suppose there be substantiated conjectural contrary hypotheses in the Family Consultants Report Evaluation together with the caveat on this to infer onus with the Court (sic).
[9] Father’s affidavit, Annexure Y
Despite his disaffection with the Family Consultant’s conclusions, and despite being informed of the need for him to cross-examine the Family Consultant to make good on his contentions of incompetence or error, the father refrained from any cross-examination of her.
The Family Consultant’s evidence in cross-examination endorsed the contents of the Family Report in all respects. In advance of her cross-examination she was furnished with the parties’ affidavits to read and during cross-examination she was invited to read the exhibits. She said that extra information only “strengthen[ed] [her] resolve” over the recommendations she made in the Family Report. I accept her evidence in all respects. She was logical and convincing.

Legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.

Best interests of child – primary considerations

Section 60CC(2)(a)

There was no dispute that the child has a meaningful relationship with the mother from which she derives significant benefit. Although the father did not expressly make such a concession, it is implicit from his proposal for the child to spend substantial and significant time with the mother. He expressly accepted she was a “good mother” who loves the child.[10] The Family Consultant was not challenged about the validity of her opinion that the mother is the child’s primary attachment figure.[11]
[10] Family Report, para 24
[11] Family Report, para 97
There were, however, discrepant opinions about whether the child currently enjoys a meaningful relationship with the father. In final submissions, the father surprisingly asserted she did not, and further, contended the imposition of supervised visits would preclude the child from developing a meaningful relationship with him.
Despite the father’s contrary submission, the child does have a meaningful relationship with him, although it may not be as meaningful to her as the relationship she enjoys with the mother. The mother expressly conceded the child has a “positive relationship” with the father, which she appears to enjoy. In truth, the child’s relationship with the father is deeper than that. The records of the contact centre reveal the child to be happily expectant about her visits with the father and animated in his company.[12] Although she was not as effusive with the father when observed by the Family Consultant,[13] it is likely she was subdued by the adverse comments she felt pressured to make about the father to the Family Consultant shortly before her observation session with him.[14]
[12] Exhibit ICL2
[13] Family Report, para 88
[14] Family Report, paras 83-85
There is a benefit to the child in maintaining her meaningful relationship with the father, just as there is in respect of her relationship with the mother, but the manner of retention of the child’s relationship with the father is heavily influenced by the risk of harm the father poses to her. Since these proceedings were commenced after amendment of the Act by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 (Cth), the considerations prescribed by s 60CC(2)(b) of the Act carry greater weight than those prescribed by s 60CC(2)(a) of the Act (s 60CC(2A)).

Section 60CC(2)(b)

At least from the mother’s perspective, the predominant issue in this litigation was the need to protect the child from either physical or psychological harm that might be caused to her by the father, either by his sexual abuse of her or his exposure of her to family violence committed by him.
The risk of harm posed to the child by the father was described in the following fashion by her counsel:
The unacceptable risk is said to arise on the totality of the evidence pertaining to a risk of sexual harm to the child by the father, a risk of family violence, a risk of drug use, a risk of predatory behaviour on the part of the father, and a risk posed by the father’s lack of insight, and unwillingness and/or inability to take responsibility for his past behaviour (sic).
The mother’s miscellaneous concerns over the father’s drug use, lack of insight, and failure to take responsibility for his conduct are not primary considerations pursuant to s 60CC(2)(b) of the Act because they are not forms of “abuse” or “family violence”. To the extent they are not indirectly addressed under s 60CC(2), they are taken into account under s 60CC(3) of the Act.
The evidence germane to the alleged risks of sexual abuse and family violence are conveniently analysed separately, even though the mother worries about the individual risks in aggregation.

Alleged risk of sexual abuse

The mother’s concern about the child’s subjection to sexual abuse is not premised on one single event or factor. Rather, her concern arises from a conglomeration of circumstances, which include: the father’s conception of his first child with a female who was still only a child herself; allegations of child sexual abuse made against the father by his second wife in past family law proceedings in New Zealand; the father’s past conviction for the sexual assault of an unrelated minor in New Zealand; and the mother’s suspicion that the father may have more recently sexually abused the child.
Most of the evidence upon which the mother’s concern is based is entirely uncontroversial. The parties simply hold different opinions about whether the evidence is sufficient to demonstrate the existence of an unacceptable risk of harm to the child.
As is well established, the Court must determine whether on the evidence there is a risk of sexual abuse and assess the magnitude of that risk. The Court’s inquiry is directed both to the existence and quantification of risk, since there is a discernable difference between any risk at all and a risk which is not worth taking. The Court should not permit unconditional interaction between a child and a parent if their interaction would expose the child to an unacceptable risk of sexual abuse (M v M (1988) 166 CLR 69 at 77-78).
The father has three other children, all of whom are now adults. They were born to two different mothers, who were the father’s first and second wives.
The father was pressured to marry his first wife when he was 19 years of age and she was only 16 years of age. She was already pregnant, having conceived their child at 15 years of age. Their child was born in 1980 and the marriage did not last long.[15] Although the father was still quite young himself to be a parent, it could not have reasonably escaped his attention he was then having sexual intercourse with a child. The fact the child was his girlfriend is hardly to the point. He was an adult and she was not. In all probability, there was a power imbalance in their relationship and the father exploited it.
[15] Family Report, para 33
The father began his relationship with the woman who became his second wife before he extricated himself from the relationship with his first wife. Two children were born to his second marriage in 1984 and 1987.[16] When that marriage broke down in or about 1989, family law proceedings ensued over the two children. During those proceedings the father’s second wife alleged, either explicitly or implicitly, that he had sexually molested the children.[17] That was because the children were acting in sexualised or erotic ways[18] and also because the father allegedly acted in “sexually suggestive ways with women and young girls”.[19]
[16] Family Report, para 34
[17] Family Report, para 35
[18] Father’s affidavit, para 113, Annexure I, Annexure Z (page 6)
[19] Father’s affidavit, Annexure I (report 7 May 1991)
There was apparently no dispute in those proceedings about the father’s sexual magnetism. The father conceded he had “always had difficulty being overly attractive” and cited examples of “young girls and women being infatuated by him and continually accosting him”.[20] Indeed, the father is unfamiliar with the virtue of modesty. He has never owned or worn pyjamas since 1976, he does not close the door when using the toilet or bathroom, he prefers to be nude within his own home, and he modelled for a nude calendar during his “professional modelling years”.[21]
[20] Father’s affidavit, Annexure I (report 7 May 1991)
[21] Father’s affidavit, Annexure Z (page 12)
Two psychologists were appointed to furnish the New Zealand court with expert evidence in those former proceedings. The two reports prepared by one psychologist are in evidence, but the two reports of the second psychologist are not.[22] The father deposed that, in general terms, the two psychologists opined that the evidence did not substantiate any connection between the children’s sexualised behaviour and his care of them.[23] However, the first psychologist’s conclusion to that effect was inferentially reached simply on the basis that the children appeared bonded to and affectionate with the father, which is hardly a persuasive chain of logic. Importantly, the first psychologist acknowledged that, if the wife’s allegations about the father’s “inappropriate attention” to women and young girls were accurate, then the children were “vulnerable to inappropriate sexual behaviour”.[24] Her opinions were not therefore the resounding exoneration for which the father contended. In the absence of the second psychologist’s reports it is impossible to evaluate the veracity of her conclusion about the father’s innocence, which was selectively quoted by him in the evidence.[25]
[22] Father’s affidavit, para 88, Annexure I
[23] Father’s affidavit, paras 88-117
[24] Father’s affidavit, Annexure I (report 7 May 1991)
[25] Father’s affidavit, para 115
In any event, orders were ultimately made in those New Zealand proceedings for the children to spend substantial amounts of unsupervised time with the father,[26] so the Court must not have found the father posed any material risk to them. That, however, is not a finding which is binding on this Court. The finding does not create an issue estoppel (see Schorel & Schorel (1990) FLC 92-144 at 78,000-78,005).
[26] Family Report, para 36
The parenting orders made in those proceedings regulated the father’s interaction with his children until his arrest several years later in December 1995 on charges related to his sexual assault of a minor.[27] The victim was an acquaintance of the father’s daughter.
[27] Father’s affidavit, para 118
The father was convicted on those charges and sentenced for the offences in March 1997. In effect, the father stealthily broke into the victim’s home in the middle of the night and sexually abused her in her own bedroom.
The gravity of the offences was made plain by the presiding judge in the remarks on sentence published by the High Court of New Zealand:[28]
…you are appearing for sentence having been convicted before a jury on one charge of sexual violation by digital penetration and one charge of attempted rape. The first charge carries a maximum penalty of 20 years imprisonment and the second a maximum penalty of ten years imprisonment.
…
…you knew who she [the victim] was and indeed your former partner also knew who she was, where she lived and knew of her parents and that her parents are profoundly deaf.
…your fingerprints and nobody elses were inside a window which gave access to her [the victim’s] brother’s bedroom. The evidence also was that debris from the garden was found inside the house indicating that you had climbed through that window and made your way through the house into her bedroom. There you put your hand across her mouth, threatened her and then violated her by inserting your finger in her vagina and then got on top of her and tried to rape her. It was a dastardly, gross piece of criminal behaviour. You invaded not only the privacy of her home but the privacy of her bedroom, the place where she felt most safe. She was only twelve.
[28] Exhibit M4
The father was sentenced to seven years imprisonment on both charges, which sentences were served concurrently. The sentences began from the time of his conviction in March 1997[29] (not 30 May 1997[30]) and he was released on parole in January or February 2002,[31] having served approximately four years and eight months in custody.
[29] Exhibit M4
[30] Exhibit M1
[31] Father’s affidavit, para 120, Annexure Z (page 3)
The father’s conviction is a decision in rem which is conclusive proof of his commission of the offences (see Saffron v Federal Commissioner of Taxation (1991) 102 ALR 19 at 21; Rogers v The Queen (1994) 181 CLR 251 at 274; NSW Bar Association v Somosi (2001) 48 ATR 562 at [80]; Michaels v Commonwealth (2002) 124 FCR 473 at [31]-[49]). It is both impermissible and undesirable for this Court to inquire behind the conviction. The underlying facts of the offences are also incontrovertible, having been established beyond reasonable doubt and set out within the sentencing judge’s reasons.
Although the father understands this Court must accept those facts as unimpeachable, he nonetheless maintains his innocence of the charges. Significantly, he also understands his attitude manifests a complete lack of remorse for the offences. The father deposed:[32]
Given that I do have a serious criminal conviction. And I do maintain my innocence, I accept the Judiciary deems this stance as being “in denial” (sic).
[32] Father’s affidavit, Annexure Z (page 17)
The father’s denial of responsibility has been unwavering. He denied his guilt to the probation officer who prepared his pre-sentence report,[33] to the sentencing judge,[34] to the psychologist engaged by the Department of Corrections some years later,[35] to the Parole Board prior to his release from custody,[36] to the Family Consultant in these proceedings,[37] and in evidence in these proceedings.
[33] Exhibit M1
[34] Exhibit M4
[35] Exhibit M2
[36] Exhibit M3
[37] Family Report, para 32
The father is also reluctant to discuss the circumstances of his offences. In June 2001, close to the end of his incarceration, the Department of Corrections psychologist found the father “uncooperative and avoidant”.[38] Even when speaking with the Family Consultant in December 2013 the father was reluctant to reveal details about his conviction, he refused to provide information about the nature of his defence of the charges, and he said he was “sick of talking about it”.[39]
[38] Exhibit M2 (page 1)
[39] Family Report, paras 28, 31, 39
The father conceded he was offered, but refused, participation in rehabilitation programs whilst in prison designed to reduce the prospect of his recidivism. He said in cross-examination he “did not see the point” in his participation. The Department of Corrections psychologist reported to the Parole Board in June 2001 that the father:[40]
…remains unmotivated for psychological treatment and is not interested in considering strategies for reducing his risk of future offending.
[40] Exhibit M2 (page 2)
Rather ominously, that psychologist concluded his report to the Parole Board by remarking:[41]
He remains a high risk for re-offending as long as he continues to avoid addressing his past problems, his offending behaviour, and fails to consider his future behaviour.
[41] Exhibit M2 (page 3)
As the Family Consultant observed in cross-examination, nothing has changed for the father since then. He still maintains his innocence and still refuses participation in any rehabilitation program. The Family Consultant agreed with the comments made by the Department of Corrections psychologist and said the father remains a “high risk” to the child.
The Family Consultant explained why she held that opinion, both in the Family Report and during her cross-examination. She expressed it thus in the Family Report:[42]
…engaging in the sexual assault of a child demonstrates that the father has the proven capacity and willingness to utilise a range of tactics and strategies for the purpose of personal gratification to the detriment of the child’s inherent need for physical, sexual and emotional safety. Specific examples of such would include the father having disregarded or deliberately utilised the inherent power imbalance between an adult and child for his own sexual advantage; the father having behaved in an exploitative rather than protective manner toward a child (suggesting significant empathy deficits for children in general); and, the father having clear difficulty with impulse control and with his ability to recognise and implement age and developmentally appropriate boundaries (particularly in relation to sexuality of children).
Given that the father denies in that he has behaved in the manner which it has been proven beyond a reasonable doubt that he has behaved, it follows that he is not remorseful and that he has no insight into his offending behaviour (and the impact of it on the victim). Accordingly the risk of re-offending would appear to be reasonably high.
[42] Family Report, paras 101-102
The Family Consultant’s opinion makes perfect sense. An adult who breaks into the home of profoundly deaf parents in the middle of the night to sexually violate their 12 year old daughter in her own bed has no compassion, empathy or respect for either the victim or her parents. The father’s conduct was a pre-meditated pursuit of his own sexual gratification without any regard for the physical and psychological welfare of his victim, who was a defenceless minor.
The absence of any evidence suggesting the father has indulged in any further sexually exploitative conduct with a minor since 1995, at least up until 2013 when the more recent allegations concerning his possible sexual abuse of the child were made, does not necessarily mean the risk posed by the father of child sexual abuse has abated.
The allegation of the father’s possible sexual abuse of the child arose in July 2013. When the mother was washing the child’s genitals she and the child had a conversation to the following effect:[43]
Child: Mummy my pee pee is sore.
Mother: Why is it sore?
Child: Daddy touched my pee pee when you sleep (sic).
[43] Mother’s affidavit, para 46
It is common ground the child was referring to her genitals when she used the term “pee pee”.
The mother inspected the child’s genitals and observed them to be inflamed.
She immediately telephoned the father to report the conversation and seek his explanation for the child’s complaint. There is some slight discrepancy in the evidence about whether the mother’s inquiry of the father was a polite question or an accusation,[44] but there is no doubt about the vehemence and aggression of the father’s reply. He admitted he responded to the mother with words to the effect:[45]
What are you accusing me of? Fuck off, don’t be stupid…Don’t be accusing me of that shit, I’ll fucking kill you if you’re accusing me of that.
[44] Mother’s affidavit, para 52; Father’s affidavit, para 236
[45] Father’s affidavit, para 236
The father said in cross-examination that his threat to kill the mother was just “hollow words”, but they cannot be passed off so easily. He knew from past experience the adverse repercussions in store for him if the abuse was proven. The mother was undeniably concerned about the prospect of the child having been sexually abused by the father and, when she promptly contacted him and gave him an opportunity to explain, he responded by threatening to kill her if she made an accusation of his sexual abuse of the child. It is wholly unsurprising the mother would have been unsettled by the hostility of the father’s words and demeanour.
The child’s report that the father touched her genitals could undoubtedly have been true, because the father conceded he did so from time to time in the course of her care, such as when bathing her, drying her, and assisting her at the toilet. The point of contention was whether he touched her genitals in a sexualised way and whether that was the cause of her genital soreness.
The mother was uncertain how to handle the situation. She spoke to a friend for advice, who advised her to take the child to the doctor,[46] which advice the mother followed.[47] The doctor found slight inflammation around the child’s vagina and labia and prescribed some cream for topical application.[48] The mother did not divulge to the doctor her concern about the possibility of the child’s sexual abuse by the father and the doctor’s notes do not suggest any such abuse was suspected.
[46] Mother’s affidavit, para 51
[47] Mother’s affidavit, para 53
[48] Exhibit M5; Family Report, para 64
Later that evening the mother reported to the father she had taken the child to the doctor and cream had been prescribed. The father deposed that “nothing more was said about this incident”.[49] No doubt the mother was disinclined to raise the matter with him again, given his threat earlier that day would still likely have been ringing in her ears.
[49] Father’s affidavit, para 237
The mother cogitated over the prospect of the father’s sexual abuse of the child. She and the child were still then living in the same household as the father. Over the course of the ensuing week or so the mother reached the decision not to allow the child to be alone with the father. Shortly thereafter she accepted advice from staff at the child’s pre-school, consulted solicitors at Legal Aid, reported her concerns to the police, and then vacated the former matrimonial home when the father departed to visit relatives in New Zealand.[50]
[50] Mother’s affidavit, paras 54-58, 68
The child was subsequently interviewed by authorities in relation to the allegation, but the allegation was unsubstantiated and the investigation was closed.[51] Of course, the failure by the authorities to substantiate the allegation does not mean sexual abuse did not occur. It may have or it may not have. On the available evidence it is possible, but no more. The mother has never pitched the allegation any higher than a “possibility”. She expressly denied believing the father’s sexual abuse of the child was “certain” or “probable”. She wisely considered the potentiality but did not jump to any impulsive conclusions.
[51] Mother’s affidavit, paras 61, 65; Magellan Report, page 3
The mother expressly disclaimed the evidence was capable of proving, to the requisite civil standard (see s 140 of the Evidence Act 1995 (Cth)), that the father actually did sexually abuse the child – either in July 2013 or at any other time. Her counsel acknowledged at the outset:
The evidence is not capable of sustaining, and the mother does not seek any finding that the father has sexually abused the subject child.
The father flatly denied any sexual abuse of the child,[52] but his denial is unconvincing. That is not to say his denial was a lie – only that his evidence was not convincing and so his denial of abuse did not materially add to the weight of other evidence that would tend to suggest no sexual abuse occurred. The father’s evidence did not appear to have the spontaneous integrity of the mother’s, but there were other more tangible reasons why the father’s evidence lacked credibility.
[52] Father’s affidavit, para 248; Family Report, para 49
The father simultaneously denied his sexual abuse of any child at all.[53] The Court is obliged to regard that denial as false because of his conviction for the offences of child sexual abuse in 1995. He was found to have committed those offences beyond reasonable doubt.
[53] Father’s affidavit, para 248

Moreover, the father conceded in cross-examination that he earlier filed an affidavit in these proceedings wherein he admitted “knowingly falsify[ing] [his] affidavit”. After his cross-examination, the father tendered in evidence a series of emails he exchanged with his former solicitor,[54] which he impliedly thought satisfactorily explained the anomaly, but they did not. All the emails did was prove he and his former solicitor disagreed over the manner in which a past affidavit was prepared. The father seems to have missed the point that his execution of the relevant false affidavit, either on oath or by affirmation, was a conscious and voluntary act of his, not the solicitor’s. If he adopted the affidavit as truthful and accurate when he knew it was not, the fault is his, not the solicitor’s. If he adopted the affidavit without first reading it, the fault is his, not the solicitor’s. If he read it and realised the contents were not truthful and/or accurate he should not have adopted it until the inaccuracy was rectified. Because he knowingly gave false evidence in an affidavit it must follow he is prepared to be untruthful when it suits him.
[54] Exhibit F1
The unexcluded possibility of a parent’s sexual abuse of a child may be sufficient reason in itself to conclude the parent constitutes an unacceptable risk of abuse to the child, just as it validly did in M v M. But more usually the existence of an unacceptable risk will be established by an accumulation of facts and circumstances, some of which may not be individually established as probable (see Johnson v Page (2007) FLC 93-344 at [68], [71], [76], [77]; Nikolakis v Nikolakis [2010] FamCAFC 52 at [41]-[53], [95]-[97]). The strength of the evidence lies in its cumulative effect, much like the strength of rope derives from the combination of its individually weaker strands (see Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127-130, 141; Savage v Lunn [1998] NSWCA 203; Cross on Evidence at [1110], [9040]).
So it is in this case. The evidence which establishes the father does pose an unacceptable risk of harm to the child through her sexual abuse encompasses, in summary:
(a)His sexual intercourse with a child aged 15 years when he was aged 19 years. Even though the sexual relationship was consensual, the child’s immaturity vitiated her consent. The father likely took advantage of his superior emotional maturity.
(b)His brazen home invasion and terrifying sexual attack upon a 12 year old child in the dead of night when he was aged 35 years.
(c)The “possibility” of his sexual impropriety with the children of his second marriage, albeit such allegations found no favour with the New Zealand Court which heard and determined those parenting proceedings.
(d)The father’s honest perception that “young girls and women” are infatuated by him and continually accost him, which self-belief in his physical appeal dovetails with his second wife’s allegations that he is flirtatious with young girls and women.
(e)His refusal to accept responsibility for his past misconduct, which tends to prove his willingness to prey upon those he perceives to be vulnerable or those he feels able to sexually beguile.
(f)The “possibility” of his past sexual abuse of the child.
(g)The father’s immodesty and frequent nudity in his own home, which behaviour is not modified in the presence of the child. As the Family Consultant said in cross-examination, there are different ways to regard that behaviour. On the one hand, it might be entirely normal and benign, but on the other, it might de-sensitise the child to nudity and blur the boundaries of propriety, making her sexual molestation easier to achieve.
The best available evidence is that the father remained a “high risk” of recidivism to the sexual abuse of children shortly before his release from custody and he remains a “reasonably high risk” of recidivism now, since his denial of guilt and lack of contrition for the offences remains unchanged. The father’s bald assertion that he poses no risk of harm to the child at all is unpersuasive.[55] When he was challenged in final submissions to explain why that was so he was unable to offer any cogent explanation.
[55] Father’s affidavit, para 260
The only way to satisfactorily avert the risk and protect the child from harm is to ensure she visits the father under professional supervision at a commercial contact centre.

Alleged risk of exposure to family violence

It was ultimately submitted for the mother that the issue of family violence was “minor” by comparison with the issue of potential sexual abuse. The father did not make any submission at all about family violence. Nonetheless, because both parties adduced evidence of family violence committed by the other, it is necessary to address it.
The mother told the Family Consultant of,[56] and adduced evidence about,[57] her victimisation by the father’s past family violence.
[56] Family Report, para 59
[57] Mother’s affidavit, paras 93-107
Conversely, the father told the Family Consultant,[58] and adduced evidence about,[59] his victimisation by the mother’s past family violence.
[58] Family Report, para 46
[59] Father’s affidavit, paras 156-160, 174-176
Undoubtedly, the parties occasionally confronted one another in a hostile manner. Police were summoned on several prior occasions, by both parties, to intercede in their arguments. Neither was charged with any offence. Neither was prepared to make a formal complaint to the police upon which a prosecution could be launched.[60]
[60] Exhibits M6, ICL1
In all likelihood, both parties were previously perpetrators of family violence, as it is relevantly widely defined in the Act (s 4AB). However, it is common ground there has been no family violence between the parties since July 2013, when they ceased living in the same residence. They have no interest in any future association. For the purposes of s 60CC(2)(b) of the Act, there is little chance of, and hence no need to protect the child from, harm she may suffer through exposure to family violence committed by either party.

Best interests of child – additional considerations

There was no suggestion the mother was incapable of providing satisfactorily for the child’s physical and intellectual needs. In that regard, her parenting capacity is well developed. As previously mentioned, the father conceded she was a “good mother”.
The father’s criticisms of the mother related to her capacity to provide adequately for the child’s emotional needs. In particular, he contended she was intent on excluding him from the child’s life. Some of the evidence vindicated his belief, but the evidence was not as damning as he asserted.
The father professed his belief that the mother maliciously fabricated the allegations of his sexual abuse of the child,[61] but the evidence does not support that theory and it is rejected as incorrect.
[61] Family Report, paras 8, 49; Father’s affidavit, Annexure Z (page 15)
The father was impelled to admit he had touched the child on the genitals in the past, albeit in innocent circumstances, so the child could well have reported such an event to the mother, just as the mother alleged. He was also impelled to admit a doctor verified the child did suffer from inflammation of the genitals at the time the mother said the child complained of being touched on her genitals by him. He also admitted the mother immediately informed him of the child’s disclosure and of her intention to have the child examined and inquired of him whether he had an explanation for it. It was quite reasonable of the mother to act as she did. In such circumstances it would have been curious if she acted otherwise.
The mother did not assert as a fact that the father sexually abused the child. She has only ever contemplated it as a possibility and, in conjunction with other facts and circumstances, wondered about the risk of his future sexual abuse of the child. That too is a reasonable attitude to hold.
However, other aspects of the evidence do tend to demonstrate some impairment of her capacity to encourage the child’s relationship with the father.
Significantly, the mother either encourages or allows the child to refer to her current partner as “… Daddy”, in circumstances where the word “…” means “uncle” in the mother’s first language.[62] The vice of such practice is that it risks demotion of the father, for whom the name “Dad” should be reserved, and the elevation of another person in his place as a parental influence in the child’s life. That potentiality is aggravated by the child being encouraged or allowed to refer to the father by his first name instead.[63]
[62] Family Report, paras 73, 82
[63] Family Report, para 83
The mother is clearly now distrustful of and ill-disposed to the father. Unfortunately, she is inclined to allow the child’s awareness of her ill-will towards the father. The mother told the child the father had punched her, she was not safe with the father, and she could not spend more time with him.[64] As the Family Consultant observed, it is concerning the mother imparted such information to the child because it could contaminate the child’s otherwise positive attitude about the father. It reflects poorly upon the mother that she would willingly immerse the child in the parental conflict in that way.[65]
[64] Family Report, paras 83-85
[65] Family Report, paras 90, 106
In the knowledge of such impairment to the mother’s parenting capacity, the Family Consultant still recommended the child live with her. She did not consider there was a “clear rationale” for the child to be removed from the mother, who is her primary attachment figure.[66] She said in cross-examination her concerns about the mother’s parenting capacity did not outweigh the benefits to the child in remaining resident with the mother.
[66] Family Report, para 97
That opinion was proffered in circumstances where the Family Consultant was still open-minded about whether or not the father constituted an unacceptable risk to the child’s sexual and emotional safety. The present finding that the father does constitute an unacceptable risk of harm to the child only serves to strengthen the Family Consultant’s recommendation that the child live with the mother.
The father also has deficits with his parenting capacity, not the least of which is his lack of empathy and insight. The failure to comprehend the significance of the evidence that causes him to be a risk to the child is a serious flaw.
He also unashamedly used illicit drugs on a recreational basis for many years. In 2001, not long before he was released from prison, the father confessed to the Department of Corrections psychologist he had used cannabis on a casual basis for the preceding 25 years.[67] His drug use even continued while incarcerated, for which he was punished.[68] The father also admitted his past use of “ice”,[69] which he conceded was a derivative of methamphetamine.
[67] Exhibit M2 (page 2)
[68] Father’s affidavit, para 215
[69] Father’s affidavit, Annexure Z (page 10)
The father’s evidence about current illicit drug use was inconsistent. He deposed he was “in no way dependent or habitual”,[70] implying his continued occasional drug use. In cross-examination he initially said he now only smokes cannabis rarely, which he estimated to be once every couple of months, but then later said he last used cannabis about 18 months ago. He said he last used methamphetamine about 12 months ago, proximate to the time of his separation from the mother. His evidence lacked weight without substantial corroboration, but there was little of that. The father did produce a drug-screen report from April 2014 which was negative,[71] but a single clear drug screen is an insufficient foundation to conclude he is now permanently abstinent. The result of an earlier test taken by him in February 2014 was not adduced in evidence.[72]
[70] Father’s affidavit, Annexure Z (page 17)
[71] Father’s affidavit, para 214, Annexure U
[72] Father’s affidavit, para 218
It may be the father has permanently ceased illicit drug use, but the evidence is not strong enough to enable that finding to be made on the balance of probabilities. The risk to the child through her exposure to any illicit drug use by the father is obvious enough. As the Family Consultant said in cross-examination, a stupefied parent cannot properly supervise a child and a parent withdrawing from drug use is liable to be perceived by a child as aggressive, neglectful or chaotic. That is to say nothing about the risk of the child injuring herself with drug-use paraphernalia, like syringes, nor the father’s intoxication modelling criminal and immoral behaviour to the child.
The child did not express any of her own views. Even if she did, she is too young for her views to carry any weight.
There are no current family violence orders involving the child or the parties.[73]
[73] Family Report, para 14

Conclusions and orders

The presumption of equal shared parental responsibility does not apply. That is because there are reasonable grounds to believe both parties engaged in family violence in the past (s 61DA(2)). The father certainly did so on 8 July 2013 when he threatened to kill the mother.
Even if the presumption of equal shared parental responsibility did apply, the parties and Independent Children’s Lawyer all agreed no such order should be made because it would not be consistent with the child’s best interests. Their mutual view was that the residential parent should have sole parental responsibility for the child because the parties were incapable of co-operation over decisions related to her care, welfare and development. The Family Consultant concurred.[74]
[74] Family Report, para 107
The critical question, therefore, was with which parent the child should reside. The inexorable answer was the mother. She is the child’s primary attachment figure, she has always been the child’s primary carer, the child has always lived with her, and vitally, the child’s physical and psychological safety cannot be assured in the father’s unsupervised care. The mother’s intentional or unintentional denigration of the father to the child, for which she is rightly criticised, does not weigh so heavily as the advantages for the child remaining in the mother’s residential care.
The next questions to address are the manner in which the child may spend time and communicate with the father.
It was not asserted the father should be eliminated from the child’s life. Rather, the mother and Independent Children’s Lawyer both contended the child’s protection from the unacceptable risk of harm posed by the father could be ensured by the child spending supervised time with the father at a contact centre. They agreed that could happen as frequently as fortnightly.
The Family Consultant said in cross-examination that permanent supervision would likely impair the relationship between the child and the father because, as the child ages and matures, she will wonder why she is only able to see the father under the supervision of another. Most likely she will also eventually feel unduly restricted by confinement to the venue and activities available to them. Nonetheless, the mother and Independent Children’s Lawyer regarded that as a better option than elimination of the father from the child’s life. In a choice between supervision and elimination of the father, his supervision is a preferable alternative, consistently with the proposal of the mother and Independent Children’s Lawyer. The child does have a meaningful relationship with him and she would be disturbed by his disappearance from her life.
The father told the Family Consultant he saw some personal benefit for him in the supervision of his relationship with the child,[75] but he submitted to the Court that the imposition of supervision would be detrimental to the child. Although he did not expressly say so, he implied his disaffection with any order for permanent supervision may lead him to abandon interest in spending time with the child under those conditions. For that reason, the orders provide for the automatic reduction in frequency of visits between the child and the father if the father fails to diligently attend the fortnightly visits, much as the mother proposed.[76] If such orders were not made, the child would be liable to persistent disappointment over the father’s lack of commitment to her.
[75] Family Report, para 26
[76] Exhibit M7, Order 5
The father is restrained from attending at or near to the mother’s home and the child’s pre-school or school so as to prevent his frustration of the orders restricting the nature of his interaction with the child. He is at liberty to procure the child’s school reports and photographs to monitor her progress.
The mother proposed continued use of the same contact centre as is currently used,[77] whereas the Independent Children’s Lawyer proposed use of a different contact centre in Sydney.[78] There is no good reason to alter the contact centre currently used by the parties, about which neither complained. The orders accommodate a change if they agree otherwise.
[77] Exhibit M7, Order 4
[78] Exhibit ICL3, Order 3
The Independent Children’s Lawyer proposed that the father be permitted to communicate with the child by telephone on a weekly basis.[79] The mother expressly opposed such an order and I accept the validity of her opposition. The father can be wily. On his own admission, he persuaded the mother he was wrongfully convicted for the sexual abuse of a child in 1995 because illegitimate inferences were drawn from the evidence.[80] The mother agreed she was convinced by his explanation at the time. The father acknowledged it was important to him for the mother to be aware of the conviction and convinced of his innocence. No doubt he would want the child to be similarly convinced of his innocence. It is unlikely he would be content for her to disrespect him due to his asserted wrongful conviction for such a sinister offence. The risk is too great he would try and subvert the orders restricting their interaction by persuading her to seek the mother’s permission to spend more time with him and perhaps also to dispense with supervision.
[79] Exhibit ICL3, Order 4
[80] Father’s affidavit, Annexure Z (page 2)
Although the orders do not provide for telephonic communication, they do provide for occasional written communication between the child and the father. The mother will be more easily able to vet their correspondence for suitability.
The mother said in re-examination she would submit to and comply with an order which restrained her from allowing the child to call anyone other than the father “Daddy”, or some derivative thereof. Such an injunction is made, consistently with her consent and the Independent Children’s Lawyer’s proposal.[81]
[81] Exhibit ICL3, Order 10
The remaining orders are either consistent with the various proposals of the parties and Independent Children’s Lawyer or could not be the subject of reasonable dispute.
The father sought a series of orders designed to restrict the mother’s removal of the child from Australia.[82] The basis for the proposal was the father’s apprehension the mother will abscond with the child and not return.[83] No such orders are made because there is an insufficient evidentiary basis for the father’s apprehension. Although an overseas national, the mother holds a current visa entitling her to permanent residence in Australia and she intends to apply for Australian citizenship.[84] It is her intention to remain resident in Australia with the child.[85] It is perfectly reasonable for her to want to take the child overseas occasionally to visit family,[86] when her financial circumstances permit. I accept the mother’s evidence. There was no reason to disbelieve her. The father is the only one who has considered absconding with the child. He admitted he considered detaining the child with him in New Zealand when he took her there, against the mother’s wishes, in late 2012 shortly before the parties’ final separation.[87]
[82] Amended Application 7/1/14, Orders 14-16
[83] Father’s affidavit, para 87
[84] Mother’s affidavit, paras 4, 126; Family Report, para 4
[85] Family Report, para 20
[86] Mother’s affidavit, para 127
[87] Father’s affidavit, Annexure Z (pages 7, 8); Family Report, para 10

As the recipient of sole parental responsibility for the child the mother is at liberty to obtain passports for the child as and when required to travel internationally. An incidental order is made for the removal of the child’s name from the Airport Watch List, since an interim order was made in August 2013 requiring the addition of her name to that list. The time spent by the child with the father may be suspended by the mother, on adequate notice to the father, so as to permit her occasional holidays with the child either inter-State or overseas.

I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 3 July 2014.

Associate:

Date: 3 July 2014