Monash and Monash

[2019] FamCA 372

FAMILY COURT OF AUSTRALIA

MONASH & MONASH [2019] FamCA 372

FAMILY LAW – CHILDREN – where the Court finds no unacceptable risk of sexual harm – orders made in the best interests of the children for significant and substantial time.

Family Law Act 1975 (Cth) ss.60B, 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Stone & Holmes and Anor [2017] FamCAFC 152
Jones & Dunkel (1959) 101 CLR 298

APPLICANT: Ms Monash

RESPONDENT: Mr Monash

FILE NUMBER: BRC 3893 of 2016

DATE DELIVERED: 12 June 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 27, 28 & 29 May 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr D Renfrey

SOLICITOR FOR THE APPLICANT: Condon Charles Lawyers

THE RESPONDENT APPEARED IN PERSON

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms S Christie

INDEPENDENT CHILDREN’S LAWYER: Mr N Grainger
Legal Aid Queensland

Orders

1. That all previous parenting orders be discharged.

2. That the mother shall have sole parental responsibility in respect of all major long-term issues (as defined by s 4 of the Family Law Act 1975) in respect of the children, X born … 2012 and Y born … 2014 ('”the children”), save that prior to making the ultimate decision about any such issue, the mother shall (save in an emergency):

   (a)use her best endeavours to advise the father in writing of the decision intended to be made, not less than twenty one (21) days before the decision takes effect;

   (b)seek the father’s written response in relation thereto, which the father shall convey to the mother, not less than fourteen (14) days after notice of the intended decision is sent to him;

   (c)consider, by reference to the best interests of the children, any such response prior to making any such decision; and

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

3. That the children live with the mother.

4. That the children shall spend time and communicate with the father at all times as may be agreed between the parents in writing, but failing agreement as follows:

   (a)From the date of these Orders and for a period of three (3) weeks, each Saturday from 9.00am to 4.00pm, commencing Saturday, 15 June 2019;

   (b)Following completion of three (3) visits pursuant to Order 4(a), then each alternate weekend from 9.00am to 4.00pm on both Saturday and Sunday, commencing Saturday, 13 July 2019;

   (c)Following completion of three (3) fortnightly cycles pursuant to Order 4(b), then each alternate weekend from 9.00am Saturday until 4.00pm Sunday;

   (d)Following completion of three (3) fortnightly cycles pursuant to Order 4(c), thereafter each alternate weekend from after school Friday (or 3.00pm if a non-school day) until 4.00pm Sunday and continuing during the 2019 Christmas school holidays, subject to Orders 6(a) and 7(a) ; and thereafter

   (e)Commencing on the first weekend after school recommences in 2020, each alternate weekend from after school Friday (or 3.00pm if a non-school day) until before school Monday, extending to before school Tuesday if Monday is a public holiday.

5. That the children shall communicate with the parents as agreed between parents, but failing agreement:

   (a)with the father by telephone/Facetime in the evening to be agreed and failing agreement each Wednesday and non-contact Sunday at 6.00pm; and

   (b)with the mother by telephone/Facetime at all reasonable times when the children are spending extended holiday time with the father.

6. That the children shall live with the parents for school holiday periods as follows:

   (a)With the father for one (1) five (5) night block period in January 2020, with such time to be incorporated into the weekend time the children will ordinarily be spending with the father pursuant to Order 4(d), with the children to be in the mother’s care the weekend immediately prior to the children commencing their 2020 school year; thereafter

   (b)From and including 2020, for the end of term gazetted school holidays (terms one (1), two (2) and three (3)):

   (i)with the father for the first half in even numbered years and for the second half in odd numbered years; and

   (ii)with the mother for the first half in odd numbered years and for the second half in even numbered years.

   (c)For the end of term four (4) 2020 school holiday period (Christmas/New Year holidays), the children shall live with the parents on a week about basis as agreed, with the children to be in the father’s care for the first week of this school holiday period and in the mother’s care for the last week of this school holiday period; and thereafter

   (d)From and including the end of term four (4) 2021 school holiday period (Christmas/New Year holidays), the children shall live with the parents equally during the end of term four (4) school holidays as follows:

   (i)with the mother for the first half in odd numbered years and for the second half in even numbered years;

   (ii)with the father for first half in even numbered years and for the second half in odd numbered years.

7. That notwithstanding any previous orders, the children shall spend time with the parents on special occasions as follows:

   (a)For the period commencing 4.00pm Christmas Eve (24 December) to 4.00pm Boxing Day (26 December) equally, with changeover to occur at 2.00pm Christmas Day, and with the children to spend time with the father for the 2019 Christmas period from 5.00pm 24 December 2019 to 2.00pm 25 December 2019, and alternating between the parents thereafter unless otherwise agreed;

   (b)On the birthday of each of the children with the parent they are not living with on the day for a few hours if it is a school day and for a half day should the birthday fall on a day the child would otherwise be with the other parent;

   (c)With the mother on Mother’s Day when they are not living with the mother on that day;

   (d)With the father on Father’s Day when they are not living with the father on that day;

Changeovers

1. That unless otherwise agreed between the parents in writing, changeovers that do not occur at the children’s school shall occur at the Service Station at Town N.

2. That during the time the children are with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

   (b)speak of the other parent respectfully;

   (c)not denigrate or insult the other parent in the presence or hearing of the children;

   (d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and

   (e)shall not physically discipline the children.

3. That the parents shall keep each other informed of the names and addresses of any medical practitioner, psychologist, specialist, hospital or otherwise who treat either of the children and any professional care provider of either of the children, whether a school, or otherwise.

4. That the parents shall inform each other as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by either of the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.

5. That this Order operates as any authority necessary for any medical practitioner, psychologist, specialist, hospital or otherwise who treat either of the children and any professional care provider of either of the children, whether a school, or otherwise, to release, upon request of either parent, any information (or documents) they are lawfully able to provide, to either parent concerning the care, welfare and development of the children.  Should either parent seek any document in relation to the children (including but not limited to school photographs and school photograph order forms), both parents shall be at liberty to do so, with any costs associated with such request to be borne by the requesting party.

6. That the parents keep each other informed at all times of their residential address and contact telephone number and advise the other parent in writing of any change within seven (7) days of any change.

7. That subject to the conditions imposed by the children’s schools, this Orders shall operate as authority for both parents to attend school functions to which parents are ordinarily invited, including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

8. That where the children are wishing to participate in a sport or activity (including dancing) which is likely to require attendance over a weekend in school holidays, the parents shall use their best endeavours to agree on supporting the children’s activities and facilitate them attending such commitments as is reasonable in the circumstances.

9. That pursuant to s.121 of the Family Law Act 1975, the mother and father each be granted leave and are at liberty to provide to any counsellor they may individually engage, a copy of the Reasons for Judgment delivered 12 June 2019, together with a copy of the family reports prepared by Ms C dated 18 October 2017 and 15 February 2019.

10. That the Independent Children’s Lawyer be discharged.

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 Monash & Monash 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 FamilyLawRules 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 BRISBANE

FILE NUMBER: BRC 3893 of 2016

Ms Monash

Applicant

And

Mr Monash

Respondent

REASONS FOR JUDGMENT

Introduction

1. Although the creation of the parents’ relationship 2011 had elements of ambivalence, the birth of their two children in 2012 and 2014, required them to seek to make suitable parenting arrangements when separation finally occurred in September 2014.

2. For over two years the parties post separation progressed the time the children spent with the father (whilst continuing to live with the mother), in an age appropriate way, such that by late 2016, they were spending each alternate weekend with the father and his new wife Ms B Monash (“Ms B”).

3. A comment made by the little girl Y on 10 January 2017 followed by subsequent “disclosures” by both Y and the older child X caused supervised time to occur since February 2017.  The events since then and the investigations undertaken whilst the Court process has slowly made its way through the system, culminated in a hearing over three days in May 2019.

4. The reasons which follow examine all the evidence about whether the father is an unacceptable risk to the children, and depending on that critical (but not only forensic finding), what orders now are in the best interests of X (aged six and a half years ) and Y (aged five years)

Contextual history

1. Statements of fact which follow are to be construed as findings of fact.

2. The father, was born in 1984 and is currently 34 years of age.  The mother is 26 of years of age.  The parents met “online“ and after a short courtship commenced cohabitation in August 2011.  The mother became pregnant quickly and gave birth when 20 years of age to the parties’ eldest child, X in 2012.  X is now approaching his seventh birthday.

3. After marrying in 2013, the parents were blessed with the birth of a daughter, Y, in 2014 – she is now five years of age.

4. Separation occurred on or about 30 September 2014, accompanied by what the Court Expert described as tensions causing situational violence – emanating, I find, from the father.

5. The mother, to her credit, supported the children maintaining a relationship with the father – initially and considering the ages of the children (with Y only five months old at separation) in her presence, graduating through an informal parenting plan reached in March 2015, to the children spending alternate unsupervised weekend time with their father from 10.00am Saturday to 4.00pm Sunday.

6. These arrangements continued to operate until early 2017, despite:

   a)an incident at a shopping centre in July 2016, causing an application for a protection order to be made by the mother on 1 August 2016.  These proceedings were finalised, without a formal order, when the father entered into an undertaking (without admission) to be of good behaviour towards the mother and the children and not to commit domestic violence;

   b)the father re-partnering with Ms B in mid-2015, and marrying in 2017 – with some tensions arising around the attendance of the children at the wedding; and

   c)the diagnosis of Y with epilepsy in August 2016 (which does not appear to be causing concerns at this time).

7. What ultimately caused the informal time arrangements to cease, was an initial disclosure by Y to her mother on 10 January 2017 that the father had “touched my vagina”.  Following a Police interview and further disclosures by Y and X, supervised visits began quickly at the Town D Children’s Contact Centre (“DCCC”) on 25 February 2017.  It is common ground that the children have not spent unsupervised time with the father since the weekend of 28/29 January 2017.

8. In circumstances where both the mother (through her Counsel Mr Renfrey) and the Independent Children’s Lawyer (“ICL”) (through his Counsel Ms Christie) submitted at the conclusion of the hearing on 29 May 2019 that the father presents as an unacceptable risk to the children, the issue of risk is analysed as a discrete topic in these Reasons, and is seminal to the orders that the Court believes are in the best interests of the children.

9. The mother’s initial application filed 7 February 2017 in the Federal Circuit Court of Australia sought, on a final and interim basis that the children live with the mother and spend unsupervised time with the father – a somewhat curious application by the mother considering that by the time of filing the application, Y had been interviewed by Police, and the mother now says (and maintains) that the child Y had been sexually abused by the father.

10. Certainly, the mother’s Notice of Risk filed on 7 February 2017 did not allege any sexual abuse allegations but did raise issues of alleged verbal abuse by the father towards her.

11. On 21 February 2017, Y (then aged 34 months) began counselling with social worker Ms E – a person the mother was referred to by organisations supporting children who have been sexually abused.  Ms E, who sadly passed away before the hearing commenced before me, produced reports that are in evidence, but of course, could not be tested by cross-examination

12. As set out below, the mother claims that X raised an allegation on 19 March 2017, of the father inappropriately touching him.  Thereafter, on 4 April 2017 X also began counselling with Ms E.  Despite a further interview of X by Police on 6 April 2017, and the decision by both Police and the Department of Child Safety, Youth and Women (“the Department”) to take no further action, Ms E produced a highly influential report on 21 April 2017, that was relied upon by the mother to amend her position to one of continual supervised contact, when the matter came before the Federal Circuit Court of Australia on the first occasion, on 4 May 2017.  Formal orders for supervised time to continue at the DCCC were made, and Judge Lapthorn transferred the matter to the Family Court of Australia with a notation that the matter be considered for inclusion in the Magellan list of cases.  This designation occurred by order of Senior Registrar Spink on 18 May 2017, resulting in a Magellan Report issuing on 21 June 2017.  I have marked the report as Exhibit 16, as it was referred to in evidence, but not formally tendered (I believe in error), during the hearing.

13. The father, who represented himself in these proceedings, denied any sexual abuse both in the only (two lines) affidavit he filed finally on 9 August 2018, as well as to the Police when interviewed (although neither the ICL nor the mother sought to tender the recording of the interview).  I say “finally”, as the father did not participate in the proceedings initially, and failed to file material as directed.  He also failed to attend the first family report interviews with Ms C on 4 October 2017.  The father says in evidence he was unable to attend because of work commitments.  It is not clear to me that the father really understood how important it was to engage in the process.

14. Despite the father’s lack of engagement, he maintained his supervised visits, as the notes from DCCC (Exhibit 13) reveal.  By March 2018, and with the father having failed (despite pour directions to do so) to file a response or any material, the mother filed a further amended application on 16 March 2018 seeking the matter be listed for an undefended hearing and that final orders be made that the children spend “no time” with the father.  When the matter came before the Senior Registrar on 28 June 2018, the father appears to have attended by telephone and the Senior Registrar gave the father the last chance to respond - which the father did by a response filed 9 August 2018 (supported by the two line affidavit).  In his response, the father sought orders ultimately reaching an equal time regime.

15. On 20 November 2018, a Registrar ordered a further family report to be prepared and allocated the matter to the trial pool.  Interviews for the second report took place with Ms C on 22 January 2019, and the second report issued on 15 February 2019.  Thankfully, the father and his wife Ms B attended; were interviewed and were observed with the children.  The family reports were tendered and marked Exhibits 14 and 15.  I note that for both reports the mother attended alone, with the children.  The mother’s parents, with whom she has lived since separation and the mother’s current boyfriend Mr F were not interviewed.  The mother’s boyfriend spends, on the mother’s evidence, approximately two days a week with her and the children.  Ms C, on reflection, acknowledge that interviewing the mother’s boyfriend for the second report may have been appropriate.

16. Although supervised visits each alternate weekend continued without any serious concerns (save for a couple identified by the ICL in her cross-examination of the father, which I refer to later in these Reasons), on 7 March 2018 the DCCC wrote to inform the mother that due to the high demand for their services, they would only be able to provide supervision on a monthly basis.  Time ceased on 19 May 2018.  The mother, at paragraph 122 of her trial affidavit said she felt the father’s lack of engagement meant “he really was not interested or committed to spending time with our children or having a relationship with them”.

17. Whilst I accept that the mother’s solicitors sought to engage the father (unsuccessfully) to discuss alternate arrangements, the father did not respond.  The Court asked him why he did nothing - or at least bring the cessation of ordered contact to the Court’s attention and he said, as an represented person, he did not know he could do so or how to proceed.  I find it curious that no party (including the ICL) seems to have brought this significant issue to the Court’s attention - the result being that no time occurred from 19 May 2018 until 17 March 2019.

18. The visit on 17 March 2019 was as a result of an order made by me on 14 March 2019.  This lack of time for nearly 10 months did not serve the best interests of X and Y and only caused the father’s frustrations and sense of injustice to increase.

1. Fortunately, it was possible for the matter to be expedited to a final hearing, considered over three days commencing 27 May 2019.  At the hearing, the father was unrepresented.  I gave him leave to file an affidavit.  I also directed that his wife Ms B appear for the purposes of cross-examination.  The father’s mother who had sworn affidavit in support of her son was not required for cross-examination.  The witnesses relied upon by the mother were the maternal grandmother Ms G, and the director and teacher’s aide from Y’s kindergarten.  All were the subject of cross-examination.

2. As I refer to below, the failure by the maternal grandfather to give evidence is, in my assessment, a matter of significance.

Competing proposals

1. The ICL provided the Court with detailed written submissions and a form of order, which appears as Appendix One to these Reasons.  The ICL contends that the Court will find the father is an unacceptable risk of harm to both children, such that there should be an order that the children spend no time with him.  The alternate proposal if the Court finds the father does not pose an unacceptable risk of harm provides for a graduated time regime, unsupervised.

2. The mother adopts, through her Counsel, the submissions of the ICL, but also offers the alternative proposal for unsupervised time, with the second version being Appendix Two to these Reasons.  As is identified, the progression is slower than that suggested by the ICL.

3. The father maintained that the mother’s allegations were “fabricated” and/or “coached” and that it was in the best interests of the children to have about three months of increasing unsupervised home, before week-about time commences and continues into the future.  Unlike the mother and the ICL, the father proposes that the Court order equal shared parental responsibility.

General parenting principles

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

5. Of course, in this case, the issue of alleged sexual abuse and the ongoing risk of harm the father is said to create, looms large.  I now deal with this issue.

The sexual abuse allegations

1. The mother says that both X and Y have made disclosures which, separately and seen in their entirety, should satisfy the Court that the father poses an unacceptable risk of sexual harm to both children.  I will soon analyse the disclosures and events in some detail, however the mother says she believes the children have been sexually abused by the father and seems to hold little doubt about her belief.  The maternal grandmother also holds the same belief.

2. It is worth noting that the father in this case is not said to have been involved in any concerning adult sexual behaviour (e.g. use of pornography; extreme sexual practices etc.).

3. The Full Court (Thackray, Kent and Watts JJ) in Stone & Holmes and Anor [2017] FamCAFC 152 identified some principles which give guidance to trial Judges at [34] to [38] which I incorporate in these Reasons:

   “34. The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:

   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.

   35. The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].

   36. In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:

   the standard used by the Family Court 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”.  In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

   37.      As an eminent former judge of this Court has said (emphasis added):

   … unacceptable risk in the High Court’s formulation requires two separate steps.  Is there a risk, and is it unacceptable?  The concentration by the High Court is upon both the nature and the degree of risk in the particular case.  Its formulation is all about balance.  In some cases a risk is ‘acceptable’ when balanced against other factors and other orders.  The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …

   38. We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67]).”

4. In giving “real and substantial” consideration to the facts of this case, it is important to consider the chronology of events.  The following findings are made by the Court.

5. The child Y

   a)Although the mother now says that from early January 2016 she was aware of some disclosures, she did not raise any such matters in her Notice of Risk (filed 7 February 2017); voluntarily facilitated and supported the father spending increasing unsupervised time (including overnight) with the children post separation and particularly during calendar year 2016, and there is no evidence at all that the mother brought her concerns to the attention of any authorities before the incident on 10 January 2017.

   b)The mother was not seriously cross-examined about the apparent deficiencies in her filed Notice of Risk, noting that she was legally represented at the time (by different lawyers then now), and at the time of the filing, the child Y had been interviewed by Police;

   c)The mother deposes (at paragraph 14) that on 10 January 2017 whilst preparing morning tea for Y (then aged two years nine months), that out of the blue Y said words to the effect “my daddy touches my vagina”.  She had never heard Y say anything like this before.  The mother did not question the child further.  When the mother was asked by the Bench why the words alone caused her concern, the mother said “it was the way she said it”.  The mother rang the Police immediately and an interview was arranged, and did take place, on 17 January 2017.  The tape of the interview is Exhibit 2 and has been viewed by the Court;

   d)Before the Police interview, the mother asserts Y made a different disclosure to her father (the maternal grandfather) on 13 January 2017.  No direct evidence from the maternal grandfather was offered.  I regard the failure for him to give evidence in this case as significant.  The alleged disclosures to him are repeated as hearsay by the maternal grandmother (see paragraph 13), without any clear timeframe other than it was “around” the time the child made disclosures to her kindergarten teacher’s aide.  This is inconsistent with the mother’s assertion that her father told her of a disclosure that “my daddy touches both my holes” on 13 January 2017;

   e)The maternal grandmother was an unimpressive witness.  She was vague and lacked the sort of memory one might expect of a trained teacher hearing sexual abuse allegations.  The vagueness, not clarified when given an opportunity to do so under cross-examination, with the alleged disclosures referred to at paragraph 10 of her Affidavit filed 10 May 2019, left me with a clear view that the grandmother’s evidence was unreliable.  In final submissions, Counsel for the mother did not cavil with my characterisation of the maternal grandmother’s evidence;

   f)During the Police interview it was difficult to understand some of Y’s words.  After some gentle exploration the child said that the father “smacks her when we are naughty” and when talking of a doctor’s examination said “daddy put finger in my ginie” – which I took to mean her vagina.  When the Police tried to get some context as to time or place, the words simply made no sense, for example:

   i)The child said it occurred when she was with her father getting the mail.  The father says the mail is collected at the front of the house – some 30 metres from the front door, but that Y does not and never has collected the mail – it is a job for X with Ms B;

   ii)The suggestion that this occurred at night but in the public area was some context – except that Y said it occurred when she was at daddy’s “by myself”.  The evidence is that X and Y always attended contact visits with the father together (although I accept that it is probably they were not together every moment of every visit);

   iii)Y says she told “daddy to stop” but he said “no”.  The father denies any such conversation.  Furthermore, Y says she told “B” (which I took to be Ms B); mummy and “grumpy” (which is the children’s word for the maternal grandfather).  Under cross-examination Ms B denies any such conversation with Y.  The mother had no conversation with Y about “fingers” in her vagina.  Again, we have no evidence from the maternal grandfather.  After 27 minutes the Police interview ceased.  After interviewing the father, the Police have elected to not charge the father.

   g)On 3 February 2017, at her kindergarten, the child made some disclosures to a teacher’s aide Ms H.  Ms H was aged 22 years at the time and was training to be an early education teacher.  She was cross-examined by telephone.  The events of 3 February 2017 proved, it seems, quite traumatic for Ms H.  She has now decided not to be a kindergarten teacher and is now training in a different field.  Her note, which she made soon after the conversations, is part of Exhibit 6, and it is included in its entirety now:

   “Y was on the toilet in the … room, once she was finished she was having trouble putting her pants back on.  I put Y up on the change table to help her put her pants on.  I was explaining to Y that it was hard to put her pants on because she was sticky & sweaty from the heat.

   She grabbed her vagina and said ‘ow, daddy puts his fingers in there’.  I replied and said ‘Is your ginie hurting?’  Y said ‘Yes, from daddy’.  I then finished dressing her and asked ‘where does daddy do that?’ Y replied ‘he puts his fingers in my ginie at his house’.  Once this had been said Ms G had just walked in to take Y home.

   After Ms G left I discussed what had happened with Ms P.”

   Ms H was clear, and I accept, that the child said to her initially “ow, daddy puts his fingers in there”.  Then followed a number of clearly leading questions.  In so saying, I do not wish to be overly critical of Ms H.  She was a young woman confronted with a concerning comment by a young girl.  She had never experienced such a situation.  She reflected, she says, on her younger female nieces and felt compelled to get more information.  Sadly, for reasons unclear, Ms H did not feel supported by senior staff and she described the culture at the centre as “bullying”.  It does appear that at some stage of the discussion, the maternal grandmother (who was at the time a staff mentor in a different section of the kindergarten) came near to where Y and Ms H were talking.  Ms H does not believe Y was aware of the maternal grandmother‘s presence, however she was concentrating naturally on the conversation with Y;

   h)The note of the discussion was handed to the director of the centre, Ms J, on the following Monday morning.  Consistent with the protocol for the centre, it was reported to both Police and the Department.  Ms J said that Y was only at the centre from 11 January 2017 to 22 February 2017.  She indicated that the child left when the maternal grandmother‘s employment ceased.  Ms J said when she first informed the mother on 7 February 2017 that she had reported the disclosure to authorities, the mother said Y had made two other disclosures.  No particulars were sought or given;

   i)The Magellan Report (Exhibit 16), refers to information about Y initially being notified to the Department on 11 January 2017 by an undisclosed source that:

   “The Notifier is aware the mother took Y to the doctor on 10^th January 2017.  She reported Y walked up to her in the late morning of that day with underwear off and said pulling her labia apart and said ‘Daddy touches me here’;

   The Notifier is aware Y was last with her father on Boxing Day;

   The Notifier is aware Y did not offer any further information, and has never in the past behaved in a manner suggesting there has been inappropriate sexual contact;

   The Notifier is aware that the Doctor reported that there was no rash and no signs of trauma to her anus and that the Doctor reported no excoriation, bleeding or trauma to her genitalia.  The Doctor did not find any evidence of abuse or neglect in their examination of Y;

   The Notifier is aware Y is age appropriate and developing well;

   The Notifier is aware there are no orders however a domestic violence undertaking was signed in August 2016 after a verbal altercation towards the mother by the father in a public place;

   The Notifier is aware the children attend their father’s house every second weekend from Friday midday to 5pm Sunday afternoon.”

   Thereafter the Magellan Report records three separate notifications which involve two different notifiers on 6 February 2019.  It is clear, from the evidence of Ms J, she was one notifier.  The identity of the second notifier is not known.  Again it is noteworthy to record the following information given by “notifier 2”, namely:

   “The Notifier is aware that Mr Monash and Ms Monash separated in September 2014.  They are not on talking terms with each other and Ms Monash has a DVO against Mr Monash;

   The Notifier is aware on 3 February 2017 Y disclosed that her father touched her vagina, to someone at her childcare centre.  She has also disclosed this same information to her maternal grandmother, her grandfather and her mother.  Each time she has said that daddy touches her vagina although when she spoke to her grandfather, she said, ‘Daddy touches my hole’.  It’s reported that Y has just come out with these disclosures randomly.

   The Notifier is aware that the Police previously interviewed her and she told police the same thing.  She said that X wasn’t there at the time, she had no pants on, he took her to the mailbox and touched her but she told him to stop which he did.  The Notifier is aware that Police spoke with Mr Monash who denied these claims and Y was taken to a doctor who couldn’t see anything wrong, therefore police are saying there’s no evidence to prosecute Mr Monash;

   The Notifier is aware that Ms Monash has been told by her solicitor to get advice from Child Safety;

   The Notifier is aware that the children were due to go back to their father’s for contact on Friday the 10th.  Their last contact with their father was on the weekend of the 28th/29th January;

   The Notifier is aware that X has been noted to have his pants down and to stroke his penis in front of his sister and Y has at times come over to him and tried to grab his penis at these times.  The Notifier is aware that Ms Monash has made sure this behaviour stops and makes the children bath separately;

   The Notifier is aware that Ms Monash has not talked to Mr Monash about the disclosures;

   The Notifier is aware that Mr Monash has a fiancé called Ms B but they don’t have children together.”

   This information suggests that it was only the maternal grandfather who had the disclosure “daddy, touches my hole”.  The information accurately records that the mother did take the child Y to the doctor who conducted an examination but found no visible evidence of abuse;

   j)In the context of these events, the intervention of counsellor Ms E is important.  It is not entirely clear how Ms E was selected, save that the mother gave evidence that her enquires led her to Ms E who was an expert in helping children who have been sexually abused.  The evidence from Ms E comprises the following:

   i)Exhibit 7 – counselling notes, mostly unreadable of one session with Y (on 21 February 2017) and with X (on 4 April 2017) – even though it seems up to six visits occurred. It is not possible from the notes to be clear who gave the initial context for the counselling to Ms E, however the details suggest it was probably the mother;

   ii)A report to the Dr K – dated 28 February 2017 that gives no details of what sexual disclosures were made – vaguely describing them in this way:

   “she disclosed to me, what she had disclosed several times earlier to others.  She is adamant and clear about what took place between she and her father.”

   I regard that this initial letter and the notes are entirely unclear what Y told Ms E – particularly when the “disclosures” to the mother, the maternal grandmother, the Police and the kindergarten teacher were all different and with little context.  It is clear from the mother’s evidence that from the earliest stages of counselling for Y, Ms E told the mother that she “believed something had happened” and, after speaking to X later in April, told the mother she believed “that the children were not making up stories”.  The mother confirmed that the father was not involved in the counselling;

   iii)A subsequent report dated 10 April 2017 about X again noting the summary that “X disclosed in a very matter of fact and direct way that his father had touched him sexually” are opinions unable to be tested or examined in context.  I do note that by 10 April 2017, X had undertaken his Police interview on 6 April 2017, to which I refer later in these reasons;

   iv)To support the mother’s changed proposals for the interim hearing conducted on 4 May 2017, the mother‘s former lawyer procured a report from Ms E dated 21 April 2017 (Annexure “M-4”).  In this report greater detail of the “disclosures” are recorded including:

   1.That Y stated that her father put his “finger into her vagina” and this occurred “in the bathroom just after bath time”.  The disclosure made by X that his father “grabbed” his penis also apparently “occurred in the bathroom after bath time”.  Neither child gave this information, with this detail, to either the mother, the maternal grandmother or the Police;

   2.Whilst Ms L records that their “accounts appear to be consistent” - that is not my finding.  Rather they are quite inconsistent in my view overall;

   3.Ms L appears to regard the children being at greater risk, because “the father at this time is denying the allegations” and “the children are reacting strongly to something that is making them feel unsafe when they visit their father”.  It is not clear what the source of information was for Ms E to form the opinion about “reacting strongly” and negatively to their father, but her opinion is not supported by the notes from the DCCC.  There is no evidence that Ms E contacted the centre to view any notes.  There is no evidence that, apart from believing the child (as she was perfectly entitled to do), that she considered any alternative scenarios around the father’s alleged behaviour around “bath time” to exclude any innocent explanation.  I am satisfied, looking at the evidence as a whole, Ms E formed a view based on the disclosures by the child and never sought to challenge her conclusion.  Of course, the mother’s beliefs were entirely supported by Ms E and as such she had no reason to challenge the conclusion reached by her.  For the reasons set out, I am not able to apply determinative weight to conclusions reached by Ms E.

1. The child X

   a)The mother gives evidence that by late 2016 she had decided not to continue to bathe X and Y together, as she observed some child sexual exploration between them.  At that time, it seems Y was more aware she did not have a “penis” and X was happy to show his off.  It is a little unclear whether the mother effectively communicated with the father she had taken this course.  I am satisfied that during overnight visits the children were bathed in the father’s home, mostly by and in the presence of Ms B.  The father acknowledges, particularly with X, that he would offer to assist X dry himself and put his clothes on and sometimes assisted – but often X preferred to demonstrate he was a big boy capable of doing it himself;

   b)X is a boy the mother described as exhibiting “behavioural problems” when he was about four years of age, often challenging the mother’s authority.  The first incident of concern the mother raises is on 19 March 2017 – nearly two months after the last unsupervised contact between X and his father.  The mother (at paragraph 34) says X was on the couch with his pet dog and was observed to be “stroking” the dog’s penis and “tickling” the dog’s testicles, to which the mother said “nobody goes around doing that to you and I’m sure [the dog] doesn’t want you to do that to him”, to which X replied “but daddy does” and further said “daddy touches mine in the same way”.  The mother took this comment to be a reference not merely to the father touching X’s penis and testicles, but doing so in the way X was performing the exercise on the dog a “sexual” act.  She immediately contacted Police;

   c)The maternal grandmother asserts (at paragraph 13 of her affidavit) that when the child Y had made disclosures to the maternal grandfather, the maternal grandfather “was concerned more so due to X’s reaction when he overheard what Y had said”, as X “had become teary and upset at overhearing it”.  Again I note the lack of evidence from the maternal grandfather and no context for how the discussion between Y and the maternal grandfather was overheard by X.  I cannot ignore the possibility that there were discussions about these events have taken place in the mother’s home – with adults in that home;

   d)The Police interview of X conducted on 6 April 2017 does reveal the child – in my view almost parrot-like – continually repeating the same phrase – and unprompted, namely:

   “Daddy touched my balls and penis and there is nothing else.”

   The context appeared to be around “bath time”.  He claimed it happened on 17 April – but of course only supervised time was occurring then.  X claimed he had “night time bath and morning bath and afternoon bath” and that he thinks he had “100 or 150” baths, and that his father touched his “balls and penis 100 times or 150”.  He says he told his teacher, but there is no evidence in the school records that he did.  He says he told his mother, nanny and “grumpy”.  The maternal grandmother gives no such evidence.  He also at one stage of the interview with Police, suggests he told “Bella” and that she was often present when he took baths.  Ms B denies any such allegations;

   e)I have already referred to the engagement by X with Ms E.

Police actions

1. The Police, as revealed by Exhibit 5, did express some concerns but also noted that:

   a)“the child appeared to be unable to provide any information in regards to any other events, actions or things that occur during time he was at the [father’s] house other than touching his penis and balls”.  I was also struck by this inability – when X was apparently highly articulate and liked to talk.  It was as if he had a message to deliver and he repeatedly delivered it;

   b)Furthermore, the Police record noted X had “little concept of numbers or time” despite being able to state with certainty that his mother “told him” about the incident on 17 April and 15 April – some days after the interview on 6 April 2017;

   c)The Police recorded the following conclusion:

   “Regardless of these issues, based on the level of particularisation provided by the victim child in regards to the manner in which the subject has touched his ‘penis and balls’ and given the circumstances in which this is alleged to have occurred (at both times where the suspect has been dressing, bathing and drying the child) it is difficult to determine that the contact is of an indecent/sexual nature and not part of the general care/bathing of a child and therefore would be insufficient for court purposes”.  As the mother indicated, there was insufficient evidence to charge the father with any offence.

Conclusion reached on risk of sexual abuse

1. I am conscious that the ICL, in thorough written submissions (paragraphs 34 to 64) contends that although no positive finding can be made about whether or not sexual abuse did occur, “the Court will find the father poses an unacceptable risk by reason of sexual harm”.  Such a conclusion is supported by the mother.

2. I respectfully, yet strongly disagree with the ICL‘s conclusion, and before providing a short summary, identify the following areas in the ICL’s written submissions which I have difficulty in accepting, namely:

   a)I accept the children spoke the words recorded by the mother; in the Police interviews and to Ms H.  I am less certain what they said to the maternal grandmother;

   b)At paragraphs 42 to 56, the ICL submits that the elements of the allegation make it “sexual” as opposed to innocent.  The first allegation to the mother on 10 January 2017 that the father “touched” her vagina is, of itself, insufficient to suggest sexual misbehaviour.  The utterings of this little girl to Police about fingers “in” are concerning, but are not inconsistent with bathing a child.  It is noted that it happening at “bath time” is more likely than on one occasion it happening getting the mail.  I do not accept that the child is consistent at all.  The maternal grandmother’s version about “holes” has no context and I give her evidence little weight.  I have no evidence from the maternal grandfather, a subject to which I will return.  I do not conclude from the questioning undertaken by Ms H, that the father did “hurt” the child’s vagina.  The comments are disconnected and established by leading questions.  At no time did the child express the father had hurt her – even when being medically examined on 10 January 2017.  I accept that if there was pain associated with touching, that might suggest insertion of a finger deeply (for example), but the evidence apart from the comment on 3 February 2017 does not suggest this.  No mention of pain is made to Police.  It is certainly less than clear that the child exhibited redness or experienced pain during the medical examination conducted by a doctor on 10 January 2017.  As a result, I do not accept the ICL’s submissions at [56];

   c)For the reasons already articulated, I find it difficult to apply the weight attributed by the ICL to Ms E’s reports.  I do not feel I can accept Ms E “as a witness of both reliability and credibility”.  Certainly she formed a view that something had happened and did not seemingly challenge in any way her conclusion;

   d)The allegations against the father are serious – with significant consequences.  The mother and the ICL say no time should occur in any form.  Applying the Briginshaw principles (see paragraph 24(b) of the ICL’s submissions), although the civil standard of proof applies, the lack of evidence of the maternal grandfather is significant.  I made a Jones & Dunkel (1959) 101 CLR 298 inference, namely that there was no evidence that the maternal grandfather Mr G could offer which could assist his daughter’s case. In a case like this where:

   i)the mother, the maternal grandmother and the children all say that disclosures were made to Mr G of a serious nature;

   ii)there is some evidence to suggest the maternal grandfather was present when discussions took place between, at least, X and Y; and

   iii)the mother has promoted, on the evidence, her father as the appropriate male role model to X who is said to have a very close relationship with him, the lack of any evidence about the discussions between the maternal grandfather and X in the “shed” is a gap that could have and should have been filled.

   e)No explanation for the failure to provide this evidence is given.  The mother at all times has been legally represented.  The maternal grandfather is apparently semi-retired and otherwise available.  It is hard to understand, if Mr G is as supportive of his daughter and his grandchildren as his daughter claims, why he did not give evidence and allow cross-examination.  The ICL does not seem to believe this is an important factor.  I do.

3. Finally, in concluding that the father does not present as an unacceptable risk of sexual harm, I do not ignore the evidence of the father and his wife Ms B Monash.  The father was not equipped to conduct any rigorous cross-examination of the mother, witnesses or the report writer.  He was unable to make many coherent submissions.  Ms Christie, Counsel for the ICL, cross-examined before the father, but she had limits and was not the father’s advocate.  The court conducted more questioning than might be otherwise the case, because of the clear deficit in the father’s capacity to advocate his case – but again there are limits.

4. The father presented as angry and frustrated.  I would have expected little else, considering the history and the limitations on his time with his children arising from the allegations and the time it has taken to come to Court.  Nonetheless, I generally regarded his demeanour and evidence as creditable – but I do not make the critical finding of risk on his denials alone – but on all the evidence.  In particular, I was impressed with the candour and demeanour of Ms B Monash.  As I note shortly, she is a strong supporter of the father – but not totally blind to some of his behaviour.  She has at times become his advocate (noting the conceded inappropriate text message sent by her on 19 December 2016).  However, the mother’s text messages preceding that reply were accusatory and also unhelpful.

5. The children have developed a good relationship with Ms B, and I have no doubt she would not standby if the children were being sexually abused.  When she said she saw nothing of concern, I believe her.  When she says the children said nothing to her about the father’s conduct, I believe her.

6. In respect of Ms B, both the father and Ms B were asked questions about the vague allegations notified to the Department on 22 June 2016 in respect of Ms B’s niece Z (aged three years eight months at the time of the notification).  No evidence, save for a notification about this issue, is offered to the Court (see Exhibit 10).  The parents of Z were under 20 years of age at her birth.  Z’s father is Ms B’s younger brother.  The Court knows nothing about the parents’ relationship at the time, however the evidence (such as it is) alleges the father in this case put cream on an “ant bite”.  The evidence suggests the little girl’s “version” of where it was applied changed etc.  It appears that the relationship between Ms B and her brother has broken down since the incident in June 2016.  On the strength of this limited and indirect evidence, the ICL submits (paragraphs 75 to 82) that it is “significant for a sibling relationship to be terminated” and as such there must be something in the allegation.  Such a submission is not only mere supposition in the absence of evidence about the previous relationship between the father of Z and his sister, it is not a basis to find Mr Monash’s behaviour in June 2016 (which she gave an explanation for in cross-examination) is more likely to abuse his own children.

7. A parent who hears a comment like the mother did on 10 January 2017 cannot simply ignore it.  However sexual abuse disclosures by young children are often fraught with unreliability due to the young ages, developing verbal skills and abilities to link time and place with accuracy.

8. Words alone are rarely enough.  Behavioural indications also need to be considered.  It is relevant that despite months of unsupervised time, Y makes a disclosure in January 2017 for the first time and apparently it seems about just one occasion.  Sensible assessment of the likely opportunity to permit a parent to abuse the child needs to be considered.  In this case, whilst I made no finding the mother has “coached” the children, I am less satisfied that no discussions in the mother’s home between the children and at least the grandparents took place.  I make no direct finding it did – but I am left with some residual concerns having seen the maternal grandmother give evidence and where no evidence was called from the maternal grandfather.  I do not accept that the mother “fabricated” the disclosures – but do believe the mother, her family and Ms E may have reached an unreliable conclusion.

9. I find, on the balance of probabilities, that the father does not pose an unacceptable risk of harm by sexual abuse, to the children X and Y.  In my view, as I further articulate, there are no other reasons why the children should not commence spending unsupervised time with the father immediately.  As to the form of that time, an examination of the competing proposals for time (if the Court made the finding it has), within the matrix of the relevant primary and additional considerations prescribed, is necessary.

Primary considerations

1. I find it is of benefit to both X and Y that they have a meaningful relationship with both their mother and father.  Of course, the mother’s proposal for the children to spend no time with the father, was predicated on a finding that the father posed an unacceptable risk of sexual harm to the children.  Having found that is not the case, the mother’s alternate proposal does, on its face, support graduating to substantial and significant unsupervised time.  Whether the mother can genuinely support such orders is a factor to be considered.

2. Counsel for the ICL, in her submissions, properly contends that some concerns exist related to father’s behaviour and the exposure of the children to acts of family violence. I find however that on the evidence, the mother’s household also presents with some risk factors to be considered.  I make the following findings for completeness, noting that apart from the issue of alleged sexual abuse, the mother and the ICL do not contend for supervised time to continue, whilst the father contends for an equal time regime.

Mother

1. Some statements and actions of the mother since January 2017 raise as a concern whether, in the future, the children will be psychologically at risk in the mother’s care, including:

   a)the mother’s actions in adopting a cautious approach to the children’s time with the father after the initial “disclosure” by Y is not open to criticism, and was supported by the expert she elected to retain, Ms E.  It was not her fault that, partially due to the father’s lack of engagement in the process, the proceedings took longer than desirable to get to a final hearing;

   b)however, I find that the mother, as a primary carer, should have done more to reduce the sense of loss to the children from there being no time with the father for 10 months.  Such inaction by the mother was, I find, shaped by her attitude to the father in believing he had sexually abused both children.  However the mother’s actions in telling children she did not know where their father was and giving a message to them that their father’s work was more important than him seeing them, was hurtful and wrong.  The mother said she was between “a rock and a hard place” but also described the father to Ms C as a “narcissist” and a parent who did not “deserve a relationship” with the children;

   c)although I accept the mother relied heavily on the views expressed by Ms E in respect of the children attending the father’s wedding, I regarded the hurdles raised for a public event which the children have a right to participate in (as the father sought) were unreasonable.  I do not accept that the father would have taken the opportunity on that day, to abuse the children.  X was to be the father’s “best man”.  Solutions which permitted the children to attend (even for the ceremony if not for the full celebrations) were obvious;

   d)although the mother, both to Ms C and in her trial affidavit, says she will abide by any finding of the Court as to risk, with the mother’s belief system intact that the father did abuse the children, supported by her mother and probably her father, a risk exists that the mother will not so easily embrace the orders even she proposes for unsupervised time.  In my view, she may be assisted by maintaining a therapeutic relationship with a counsellor of her choice.

Father

1. It is always difficult to be certain whether, and to what extent, some of the father’s behaviour is personality driven rather than merely a reflection of the father’s frustration and anger with his view that the mother’s support of the children’s “disclosures” was really nothing more than her vindictively trying to keep his children away from him.  The mother says that even before separation the father could be aggressive towards her.  I find that as the marriage deteriorated, the father at times was aggressive and verbally abusive towards the mother as she alleged.

2. After separation, there were some examples of the father’s behaviour which are concerning, including:

   a)The incident at the shopping centre on 29 July 2016, where I am satisfied that in a public place and in the presence of the children the father did verbally abuse the mother.  His actions cannot be justified, and his attempts to do so do him no credit;

   b)Counsel for the ICL identified a few occasions during contact centre visits at DCCC, where the father’s behaviour was rigid and dogmatic – especially relating to his views of the children referring to the mother’s home as “their home” and “manners”.  It is quite unusual, in my assessment, for the father to enforce “time out” on Y for three minutes during a contact centre visit.  I think the examples reveal the father’s need to show the children he is “still the boss” in his environment.  I deal with the clashes in parenting styles later in these Reasons;

   c)I am satisfied that the father has often, before the supervised contact visits began, used physical discipline and both children have constantly remarked about this to the Police (in the interviews) and to Ms C.  There is no evidence that this style of discipline caused actual physical harm, but for the children to constantly refer to them being “smacked” when they are “naughty” indicates it has had an adverse psychological impact.  I propose to make an order restraining the parents from using physical discipline;

   d)The intervention by Police into the relationship of the father and Ms B or 16 December 2017 raises concerns.  Again, whilst I take into account that the father‘s frustrations in not seeing his children were running high at this time, Ms B’s call to Police for information and advice arose because she was scared.  The father was somewhat dismissive of the incident.  He should not be.  Ms B did not press Police, after the incident, to seek a Domestic Violence Order however Police, on their own initiative, did so.  The State court made an order.  It is a concern that the father does not see how supportive his wife has been through this ordeal and he should treat her consistently well.  Certainly Ms B, in her evidence, reveals a woman of some strength and resilience (no doubt having to manage being wheelchair-bound for much of her life, has contributed to her resolve).  The fact that she expresses such support for the father and continues to show it, says that much of the father’s better attributes are demonstrated to her.  However, with the orders I propose to make, his role as the major male role model to the children will return to him, and he needs to be conscious of the influence on the children that flows from the way he treats his wife and the respect he shows for her;

   e)Although I am inclined to accept the evidence of Ms B that they do not talk negatively about the mother in the presence of the children (and there is little evidence of the DCCC notes to suggest otherwise), the father has expressed some hurtful remarks about the mother to Ms C and in some text messages.

1. The concerns raised above about the father do not, the ICL contends, require a minimisation of unsupervised time.  I agree with this submission.  However, despite the father saying he completed some form of anger management course, I believe he would greatly benefit from a course of therapeutic support now that this litigation has ended.  It might be difficult for him to move on (especially when the Court has found that an equal time regime is not in the children’s best interests) without such therapy.  However, for the reasons discussed with Ms C, I do not propose to order he does so.  It is something that hopefully (after considering these Reasons), he can see some benefit in undertaking.  Certainly I felt that his current wife sees the benefit for him.

2. Clearly the ineffective communication and, at least for a time, the potential for a public conflict between the parents (like the shopping centre incident), are concerns.  If the children, moving forward, are exposed to the parental conflict, it will be likely to cause them psychological harm.  The parents must simply do better in the future.

Additional considerations

1. Although the children are young, the ICL submits (at paragraph 115) and I agree, some weight can be given to the children’s wishes – reflected in their conduct at supervised visits (particularly more recent ones as observed by Ms M) – that they enjoy time with their father and want to spend time with him.  These views, recorded in the most recent family report, need to be seen within the context that they were expressed at a time when the children had not spent time with their father for eight months - and they were clearly missing him, particularly X.  The mother conceded the children enjoy spending time with the father and no real reluctance by them to attend is exhibited.

2. Clearly the children’s primary attachment is with the mother.  This is not only because of the limited (and interrupted time) the children have spent with the father since January 2017, but also reflective of their ages at separation.  I am prepared to accept, with limited evidence offered, that the children have a warm and close relationship with the maternal grandparents with whom they have lived since separation, with their mother.

3. I find that the children’s relationship with their father has probably been damaged by the events, set out in the chronology above, since January 2017.  There is simply no way of assessing what night have been the relationship now with the father if the interruptions to their time with him had not occurred.  Many missed birthdays and special events were not shared with the father.  However, with the support of Ms B, and observing how comfortable the children are observed to be when Ms M has been supervising time, I am satisfied that the orders I make will go some way to repairing the damage done to the relationship – although much might depend on how the parents deal with the results of this litigation and become more child-focused as “co-parents”.

4. Section 60CC(3) requires the Court to consider the “extent to which the parents have participated in making decisions or spending time with or communicating with” the children.  I have observed the father’s lack of engagement, particularly after time ceased at DCCC in May 2018.  It is not clear why, at least, telephone time was not occurring – even if no order was in place.  The father must accept some of the responsibility for this – however I accept that the overhanging allegations of sexual abuse and his lack of sophistication (contributing to his lack of understanding about the Court process) meant he felt somewhat marginalised.  As a result, the mother made all the decisions.  The father does not suggest she made “poor” decisions – just that he was not involved with the process.  There were no orders by any court that prevented the father contacting schools or health professionals about the children.  I also regard the ineffective (and at times accusatory) communication between the parents, even before the events of January 2017, contributed to the mother feeling she had to get on with things, in the best interests of X and Y, and not seek the father’s input.  Certainly the exchanges about moving “swimming lessons” (see Annexure “M-03”) is an example.

5. The mother in her affidavit (and presumably with an eye to s 60CC(3)(ca)) at paragraphs 144 to 150 raised the failure of the father to financially support her care of the children.  Of course, the mother had options open to her to seek a departure of administratively assessed child support if the needs of the children or the income of the parties established a basis for departure.  There is no suggestion the mother undertook any such options.  Rather, the evidence reveals the father has paid child support as assessed – although it is a minimal amount (paragraph 146).  Interestingly, after the Court ordered supervised time recommence, the mother made a demand upon the father, acknowledging that she had “never asked for any support in the past”.  Whilst he mother’s quantification is seemingly reasonable, at the time of the demand, the father had not spend time with the children for 10 months.  The father’s response (at Annexure “M-012”) dated 24 March 2019 tying the amount of his contribution to the amount of time he was spending does reflect a concerning and poor attitude to parenting.  It is noted that apparently, in the early period post separation, the father, without a child support assessment, voluntarily contributed $500 a month (paragraph 144).  That revealed a more insightful attitude to the fact that parents should meet the reasonable needs of their children equitably – not based on time.  Of course, with the children likely to spend much more time with the father under the orders the Court intends to make, he will, by merely caring for them, meet a greater share of their expenses than he currently does.  The mother would also be aware that recent pronouncements by the Australian Taxation Office directed to parents liable to pay child support but who do not file Income Tax Returns, might assist.

6. I find that it is in the best interests of the children that they spend unsupervised time with their father and that the time increase to include alternate weekends, holidays and special occasions.  That is a significant change to what they have experienced over the last nearly two and a half years – but it will be a positive change for them.  I do not find that spending less time with the mother (or in the mother’s household) will significantly or negatively impact on the children’s relationship with the mother and her parents.

7. Although the mother currently lives a little distance out of Town D at a small rural town called Town M, the distances between where the mother and father live creates no real practical difficulties.  The parents agreed that if the Court was to order the children spend time with the father (as opposed to a “no time” order), then changeovers should occur at the children’s school and if a non-school day, at the Service Station at Town N – about mid-way between the current homes.

8. During the course of these Reasons, the Court has made some criticisms of some behaviour by both parents that reflect their attitude to parenting (s 60CC(3)(i)) and their capacity to parent (s 60CC(3)(j)).  I make a finding that both parents have a capacity to meet the needs of the children, including their emotional and intellectual needs.  However it is very clear that the parents have very different parenting styles. There has been little evidence about how the mother’s household runs.  Her parents often assist – the mother working as a nurse at least regularly if not full-time.  There is an acknowledgment that some of X’s behaviour can be challenging and at times aggressive.  The school records confirm some of this behaviour has been exhibited at school.  I would not ignore the possible contribution to X’s poor behaviour of not spending time with his father.

9. I assess it is likely that the father’s parenting style is firmer and more direct than that of the mother – yet it is likely, at this time, the mother is more emotionally attuned to the children.  The father’s emphasis on manners and proper conduct is manifest in the DCCC notes – and many of the examples identified in the ICL’s submissions at paragraph 145 were put to the father.  His rigidity and, I find, need to show he is a “good parent” by being strong on routine, manners and correcting minor language flaws, did interrupt the “flow” of the limited time the supervised visit afforded.  I find that with more time in his care, the father will have the opportunity to balance the time better and better understand when it might be important for consequences to flow from truly poor child behaviour.  They are not enlisted in the military – and overly harsh disciplining will likely cause the children to feel less comfortable with their father than the apparently more relaxed parenting style offered by the mother.  Hopefully, and I assess this is a reasonable probability, with the assistance of his wife Ms B, the father will learn to adjust his behaviour with him having more time and as the children grow older.

10. However, the “clash” in parenting styles and the poor communication are contraindicative for a smooth co-parenting relationship being created in the future.  One of the primary concerns for the Court about parental attitude is the capacity for a parent to separate their own adult views and feelings about their former partner, from the needs of the children.  The father, over the last two years or so, has been tested in this dynamic and has often shown an inability to do so.  The mother frankly has not been tested in the same way – although the inability to support the children attending the father’s wedding is an example, I find, of a lack of child focus.

11. I have previously dealt with concerns about the likelihood of the father exposing the children to family violence in interactions with the mother and, now, in his relationship with his wife Ms B.  Although this is a slight risk, I am not satisfied it is at a level such that the orders I pronounce are contrary to the children’s best interests.  Certainly I am firmly of the view the father would benefit from counselling.  I will give the father (and for that matter, also the mother), leave to provide a copy of these Reasons for Judgment to their chosen counsellors if they wish to do so.

12. Section 60CC(3)(l) requires the Court to consider “whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings”.  If the mother is not able to accept my finding on sexual abuse risk, then any similar comment by the children to those already made, could prompt the mother to cease time and/or bring fresh proceedings.  Without knowing if any such comments will be made, there is little the Court can do to inhibit the mother.  The father may well be disappointed with the Court not agreeing with his proposal for equal time.  He sees some of these issues within the pursuit of “his rights” as a parent – and his perception that he is at least as equally a good parent as the mother.  He may, even with counselling, not be able to easily move forward from the pain and his sense of injustice created by the events since January 2017 – and this attitude could fuel further proceedings in the future.  I am optimistic that the issues and beliefs which have led to this family being engulfed in this difficult litigation will moderate, and that these two delightful children Y and X will not have to suffer a further outbreak of hostility between their parents.  On the evidence at this time, the orders I now pronounce should achieve finality – subject to any agreed variations in the future that two child focused and capable parents regard as appropriate at that time.

Parental responsibility

1. The mother seeks, and the ICL supports, a final order that the mother have sole parental responsibility for major long term issues as defined by s 4 of the Family Law Act 1975.  The father proposes that an order for equal shared parental responsibility should be made as he wishes to be involved in major decision-making for X and Y.

2. The history reveals that the mother has essentially made the major decisions to date, particularly schooling and engagement of health professionals, with limited participation by the father.  However, as these Reasons make clear, at least for the last two years, the father has generally disengaged from the process.

3. It would be, in my view, overly optimistic to believe the father, once the orders for supervised time cease and more regular time occurs, would quickly improve the level of his communication.  Important decisions may need to be made, and the father’s past reaction to attempts to have him constructively respond on smaller issues around, for example, securing a new supervisor, compel me to the view that it is in the best interests of X and Y, that the mother have sole parental responsibility, but with a condition that she seek input from the father before she makes her final decision.

4. Clearly, although I accept at the present time, the children’s participation in dancing classes is important to them, their participation is an exercise of parental responsibility of a day-to-day character.  The orders I propose to make about extra-curricular responsibilities and the like (which might change to other activities in substitution for or in addition to their dancing pursuits) are appropriate and hopefully set some parameters.

5. Certainly, the concept of “my time” or “her/his time” has no place in child focused parenting. If a child has an interest in an activity then most parents, within their financial means, try to facilitate such attendances.  It can be character building for children to be part of a team or to commit to an activity.  Children who have reached a level of interest such that they wish to attend an activity should be supported in doing so – but this is not an absolute, and sometimes other family commitments impact.  Each parent, having agreed to an extra-curricular activity, should support it however it would rarely be appropriate, certainly at this age, for the children’s time with a parent to be significantly limited or interrupted by demands imposed by the other parent – even if a child does not see the need for balance to be observed.

Form of orders

1. The orders at the commencement of these Reasons are, in the Court’s considered assessment, in the children’s best interests.

2. Even though an order for equal shared parental responsibility is not made, I have considered the father’s proposal for an equal time order, but do not believe it is in the best interests of the children at this time nor is it reasonably practicable.

3. Both children, but particularly Y, would not cope with such a significant change to her primary care arrangements, which have met the needs of the children since separation.  Furthermore, the ineffective communication between the parents, coupled with the quite different parenting styles, would make an equal time regime not reasonably practicable.

4. As the Court sought to explain to the father, and as Ms C opined, equal time would simply be unworkable.  Further, the orders I pronounce today achieve ultimately a regime where the father has significant and substantial time with the children spread over school days, weekends, special occasions and school holidays.

5. If observed by the parents, and provided no undermining of the other parent’s role occurs, I am satisfied the orders will be in the best interests of the children.

6. In respect of some of the issues that were in dispute as to the form of orders, I record these following findings:

   a)I regard the mother’s proposal for graduating unsupervised time to eventually reach a position where the children spend alternate weekends overnight with the father as too slow, save that whilst preferring the ICL’s proposals in some respects, I agree with the mother that to develop some momentum, time should occur initially every weekend on a Saturday, concluding at 4.00pm, but for three weeks not four weeks;

   b)I regard it as appropriate for the children’s time with the father to increase to each alternate weekend concluding on a Monday from the start of the 2020 school year, to coincide with the likely beginning of Y’s school commencement.  In this way all weekend changeovers will then generally occur at the children’s school;

   c)Considering the frequency of physical interaction, I find it is more appropriate for the children to communicate with the father mid-week and each non-contact Sunday.  In this way the children will have some contact with the father every four days or so;

   d)Considering a period of least four months of regular overnight time will have occurred before the commencement of X’s school holidays in December 2019, I have decided that the children should spend time with the father as follows:

   i)For a continuous period of five nights during January 2020 as agreed, incorporating a usual weekend visit to occur at that time.  This should occur in mid-January 2020, save for this block period (and arrangements for Christmas) I propose the regime of alternate weekends continue during the 2019/2020 Christmas/New Year school holidays;

   ii)Thereafter, with both children at school from the beginning of 2020, the children should spend half of the end of term one, two and three holidays with each parent as the ICL proposes;

   iii)Considering the age of the children, I believe the best arrangement for the end of term four 2020 school holidays (the Christmas/New Year holidays), is that the children spend half of the holidays with each parent week about, with the intention that the first week be spent with the father so that for the last week the children will be in the mother’s care enabling her to prepare the children for the 2021 school year;

   iv)Thereafter for the 2021 school year, holidays shall be shared equally with the Christmas/New Year school holidays commencing in December 2021, being in blocks of approximately three weeks.  The father shall have the second half of the 2021 school holidays and in odd numbered years thereafter;

   e)The mother seeks an order in the following terms:

   “14.     That the Father ensures the children attend their dance lessons and dance concerts, exams and any other ancillary event connected to their dancing.”

   The parents should agree on the extra-curricular activities the children are enrolled in (especially if it requires weekend travel) and without details of the level of commitment currently required, I am not prepared to make the order in the broad terms that the mother seeks.  The orders provide a requirement for the parents to agree upon extra-curricular activities.  The court has no power to impose upon the parents in the current application, a departure of child support compelling a parent to contribute to the costs of these extra activities.  Hopefully, moving forward, the father will see the modest child support he is compelled to pay by administrative assessment, as simply insufficient to cover an equitable share of the extra activities the children apparently enjoy and wish to continue to participate in, like dancing.  The parents are invited to take on board the comments made by the Court at paragraph [72] above.

7. Otherwise, I regard the orders now pronounced and appearing at the commencement of these Reasons as in the best interests of Y and X.

I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 12 June 2019.

Associate: 

Date:  12 June 2019

APPENDIX ONE

1. All previous parenting orders be discharged.

2. The mother shall have sole parental responsibility for all major long-term issues (as that is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of X born 2012 and Y born … 2014 (“the children”).

1. The children shall live with the mother.

2. The children shall spend no time with the father.

3. The Independent Children’s Lawyer is discharged.

If the Court finds that the father does not pose an unacceptable risk to the children:

1. All previous parenting orders be discharged.

2. The mother shall have sole parental responsibility for all major long-term issues (as that is defined in the Family Law Act 1975 (Cth) (“the Act”)) in respect of X born … 2012 and Y born … 2014 ('”the children”).

3. That the children live with the Mother.

4. The children shall spend time and communicate with the father, at all times as may be agreed between the mother and the father in writing and failing agreement as follows:

   a)From the date of these Orders and for a period of three (3) fortnightly cycles, each alternate weekend on Saturday from 9:00am to 3:00 pm;

   a)Following completion of three (3) fortnightly cycles pursuant to Order 4(a) each alternate weekend from 9:00am to 3:00pm on both Saturday and Sunday;

   b)Following completion of three (3) fortnightly cycles pursuant to Order 4(b) each alternate weekend from 9:00am Saturday until 3:00pm Sunday;

   c)Following completion of three (3) fortnightly cycles pursuant to Order 4(c) and thereafter, each alternate weekend from after school Friday (or 3:00pm if a non-school day) until before school ( or 9:00am if a non-school day) the following Monday.

5. That the children communicate with their parents as agreed between the parties and failing agreement as follows:

   a)With the Father by telephone/Facetime on one occasion per week in the evening to be agreed.

6. That the children shall live with their parents for school holiday periods as follows:

   a)the first half of the gazetted Queensland school holidays in even numbered years with one parent and in odd numbered years with the other parent and;

   a)the second half of the gazetted Queensland school holidays in odd numbered years with one parent and in even numbered years with the other parent.

7. That notwithstanding any previous orders, the children shall spend time with their parents on special occasions as follows:

   a)Christmas day between times such that the day is shared.

   b)Easter such that the Easter weekend is shared.

   c)On the birthday of each child with the parent they are not living with on the day for a few hours if it is a school day and for a half day should the birthday fall on a day the child would otherwise be with the other parent

   d)On the Mother’s birthday when they are not living with the Mother on that day.

   e)On the Father’s birthday when they are not living with the Father on that day.

8. That during the time the children are with either parent, that parent shall:

   a)Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

   b)Speak of the other parent respectfully; and

   c)Not denigrate or insult the other parent in the presence or hearing of the children; and

   d)Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

9. The parties shall keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority.

10. Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children's medical information to the other parent.

11. That each parent keep the other parent informed at all times of their residential address and contact telephone number

12. Subject to the conditions imposed by the children’s schools, these orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interviews.

13. The Independent Children’s Lawyer is discharged.

APPENDIX TWO

If the Father is found to be an unacceptable risk to the children, then as follows:

1. The children, Y born … 2014 and X born … 2012 (“the children”) live with the Mother.

2. The Mother have sole parental responsibility for the children.

3. The children spend no time with the Father.

If the Father is found not to be an unacceptable risk to the children, then as follows:

1. The Mother have sole parental responsibility for the children.

2. That the children live with the Mother.

3. That the children spend time with the Father as follows:

   A.For the (1) first calendar month

   (i)Each Saturday from 9.00am to 4.00pm

   B.For the (2) second and (3) third calendar month

   (i)Each Saturday and Sunday from 9.00am to 4.00pm, each alternate weekend.

   C.For the (4) fourth and (5) fifth calendar month

   (i)From 9.00am Saturday to 4.00pm Sunday each alternate weekend

   D.For the (6) sixth calendar month to continue thereafter;

   (i)From after school Friday to 4.00pm Sunday each alternate weekend.

4. That the children commence spending school holidays with the Father, once Orders 3 D. (i) has been in place for three (3) calendar months, with the children to spend one half of all school holidays with the father but for no more than seven (7) nights at any one time.

5. That notwithstanding any previous Orders, the children shall spend time with their parents on special occasions as follows:

   A.With the Mother, in 2019 and each alternate year thereafter from 9.00am Christmas Eve to 11.00am Christmas Day;

   B.With the Mother, in 2020 and each alternate year thereafter from 11.00am Christmas Day to 11.00am Boxing Day;

   C.With the Father, in 2019 and each alternate year thereafter from 11.00am Christmas Day to 11.00am Boxing Day;

   D.With the Father, in 2020 and each alternate year thereafter from 9.00am Christmas Eve to 11.00am Christmas Day;

   E.With the Mother in 2019 and each alternate year thereafter from 9.00am Good Friday to 4.00pm Easter Monday;

   F.With the Father in 2020 and each alternate year thereafter from 9.00am Good Friday to 4.00pm Easter Monday;

   G.On Mother’s Day when they are not living with the Mother on that day;

   H.On Father’s Day when they are not living with the Father on that day.

6. On the birthday of each child, the parent they are not living with or spending time with may telephone the children, and the other parent will ensure that the child is available to take the call from 6.00pm to 6.30pm on that day.

7. That during the time the children are with either parent, that parent shall:

   A.Respect the privacy of the other parent and not question the children about the personal life of the other parent; and

   B.Speak of the other parent respectfully; and

   C.Not denigrate or insult the other parent in the presence or haring of the children; and

   D.Use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

8. The parties shall keep the other informed of the children's doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such Authority.

9. Each party shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children's medical information to the other parent.

10. That each parent keep the other parent informed at all times of their residential address and contact telephone number.

11. Subject to the conditions imposed by the children's schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/ teacher interviews.

12. That the father engages and participates in a course of psychological therapy and be directed by the therapist as to when that therapy can be discontinued.

13. That the father is to provide evidence to the Mother, at her request, that he has participated and engaged in a course of psychological therapy.

14. That the Father ensures the children attend their dance lessons and dance concerts, exams and any other ancillary event connected to their dancing.