Nevins & Urwin (No 4)
[2023] FedCFamC1F 228
FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)Nevins & Urwin (No 4) [2023] FedCFamC1F 228
File number(s): BRC 5254 of 2018 Judgment of: HOGAN J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – CHILDREN – Whether the children would be at an unacceptable risk of harm if they spent unsupervised time with the father – Where the children live with the mother and spend supervised time with the father and the paternal grandmother – Where the father was charged with sexual offences against the mother’s daughter – Where the father was acquitted of those charges in criminal proceedings – Where that finding does not axiomatically result in a conclusion that the father does not present an unacceptable risk – Whether the children would be at an unacceptable risk of psychological harm through exposure to the mother’s views of the father as a sexual abuser – Where nothing in the evidence suggests that the mother has exposed the children to her negative views of the father – Where the children will continue to live with the mother and spend supervised time with the father – Where the children will spend unsupervised time with the father in the future. Legislation: Family Law Act 1975 (Cth) Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Cox & Pedrana (2013) FLC 93-537; [2013] FamCAFC 48
Eastley & Eastely (2022) FLC 94-094; [2022] FedCFamC1A 101
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
McCall v Clark (2009) FLC 93-405; [2009] FamCAFC 92
Vigano & Desmond (2012) FLC 93-509; [2012] FamCAFC 79
Division: First Instance Number of paragraphs: 330 Date of hearing: 29, 30 & 31 July 2019; 1, 2, 16 August 2019; 28, 29 March 2022; 26 April 2022; 30 & 31 May 2022; 1 June 2022 and 23 February 2023 Place: Brisbane Counsel for the Applicant: Mr Dodd on 29, 30 & 31 July 2019; 1, 2, 16 August 2019 Mr McGregor on 28, 29 March 2022;
Mr Jones 30 & 31 May 2022; 1 June 2022Solicitor for the Applicant: Federov Family Lawyers on 29, 30 & 31 July 2019; 1, 2, 16 August 2019
Hofstee Lawyers on 28 & 29 March 2022; 30 & 31 May 2022; 1 June 2022 and 23 February 2023Counsel for the Respondent: Mr Waterman Solicitor for the Respondent: Amanda Fawaz Solicitor Counsel for the Independent Children's Lawyer: Ms Downes on 29, 30 & 31 July 2019; 1, 2, 16 August 2019
Ms Chesterman on 28 & 29 March 2022; 30 & 31 May 2022; 1 June 2022 and 23 February 2023Solicitor for the Independent Children's Lawyer: Legal Aid Queensland ORDERS
BRC 5254 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS NEVINS
Applicant
AND: MR URWIN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HOGAN J
DATE OF ORDER:
31 MARCH 2023
IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children X, born 2014, and Y, born 2016, live with the mother.
3.The mother have sole parental responsibility in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth).
4.The father shall have sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in his care.
5.The mother shall have the sole responsibility for making decisions about the children’s day to day care, welfare and development whilst they are in her care.
6.The children shall spend time with and communicate with the father at all times as agreed between their parents in writing and, failing agreement, as follows:
(a)until 30 June 2026: each Saturday for a period of two (2) hours or such longer time as may be agreed between the parents in writing, with such time to be supervised at D Contact Centre or, at the supervisor’s discretion, to occur at a public park, shopping centre or playground or such other public places as agreed between the parents in writing; and thereafter
(b)on the first three (3) Sundays of every month: between 9.00 am and 5.00 pm.
7.The children’s paternal grandmother is at liberty to attend at any of the supervised time the children spend with the father pursuant to Order 6.
8.Unless otherwise provided for in this Order or agreed between the parties in writing, all changeovers shall occur at a public place as agreed between the parties in writing or, failing agreement, at McDonald’s Restaurant Suburb K in the State of Queensland.
9.Each parent is at liberty to arrange for another person to collect the children at the commencement of their time with that parent, or to return them at the conclusion of such time, provided that any such person is known to the children.
10.In the event that D Contact Centre is unable to continue to supervise the children’s time with the father:
(a)the father shall provide the mother with a list of three (3) other Contact Centres available to supervise the time; and
(b)the mother shall select a Contact Centre from the list provided and notify the father of her selection within seven (7) days of the provision of the list; and
(c)each party shall, within seven (7) days of the date on which the mother notifies the father of the selected Contact Centre, arrange to attend the first available intake session at that Centre and do all things necessary to ensure that the children’s time with the father at that Centre commences as soon as possible.
11.The parents shall share equally in the costs charged by the Contact Centre to supervise the children’s time with their father.
12.Notwithstanding any previous orders, the children shall spend time with their father on special occasions as follows:
(a)at Christmas:
(i)for Christmas Day 2026 and in alternate years thereafter: from 9.00 am to 5.00 pm; and
(ii)for Boxing Day 2027 and in alternate years thereafter: from 9.00 am to 5.00 pm; and
(b)at Easter:
(i)for Easter Sunday 2026 and in alternate years thereafter: from 9.00 am to 5.00 pm; and
(ii)for Easter Friday 2027 and in alternate years thereafter: from 9.00 am to 5.00 pm; and
(c)Father’s Day: from 9.00 am to 5.00 pm on Father’s Day.
13.The operation of Order 6 is suspended for two (2) weeks during the school holidays at the end of each year on the proviso that the mother gives the father at least 30 days of notice in writing of the dates during which the children will be unavailable to spend time with him.
14.Notwithstanding any previous orders, the children shall spend time with the mother on Mother’s Day each year and if they would otherwise be spending time with the father on that day as a consequence of the operation of Order 6(b), they shall remain in the mother’s care.
15.During the times the children are in their care, the parents shall not:
(a)denigrate the other party in the presence of the children; or
(b)denigrate each other or the children’s extended family to or in the presence of the children; or
(c)discuss these proceedings or permit any other person to discuss these proceedings with or in the presence of the children unless such discussion occurs within a professionally conducted therapy session.
16.Each parent shall immediately notify the other of any medical emergency relating to the children and shall provide all details and information necessary to enable the other parent to attend upon the children forthwith.
17.The parents shall:
(a)keep each other informed at all times of a mobile telephone number on which they can be contacted in the case of an emergency; and
(b)keep each other informed at all times of an email address via which they can be contacted; and
(c)inform each other as soon as reasonably practicable about any significant injury suffered by the children or significant illness which necessitates them receiving medical or hospital attention.
18.Other than in emergency situations, the parents shall communicate about significant issues relating to the children via a Parenting App with such App to be selected in the following manner:
(a)the mother shall, within fourteen (14) days of the making of these Order, provide the father with a written list of two (2) Parenting Apps that she considers appropriate to be used to facilitate parental communication about the children; and
(b)the father shall, within fourteen (14) days of receiving the list from the mother, select the Parenting App that is to be used and advise the mother in writing of his selection.
19.In the event that they have not already participated in the same, the mother shall ensure that the children attend a protective behaviours program within six (6) months of the date of these Orders.
20.The father shall, within six (6) months of the date of these Orders, attend a face-to-face Triple P parenting course or, in the alternative, a Circle of Security parenting program and shall provide the mother with written confirmation of his completion of such course within seven (7) days of such completion.
AND IT IS FURTHER ORDERED THAT
21.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 31 March 2023, the Reasons for Judgment published in support of the same and the family reports authored by Ms L to the school at which the children attend, to any therapist upon whom the parents and/or the children attend for the purpose of therapy and to the Department of Children, Youth Justice and Multicultural Affairs, Family and Community Services (New South Wales), the authority of any State or Territory responsible for child protection and, if necessary, to any member of the Queensland Police Service, the police service of another State or Territory and the Australian Federal Police.
22.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than this proceeding or any appeal in respect of these Orders.
23.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.
AND IT IS FURTHER ORDERED THAT
24.All outstanding parenting applications are otherwise dismissed and removed from the list of cases requiring finalisation.
25.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nevins & Urwin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HOGAN J
These proceedings require the determination of those parenting orders which are in the best interests of eight year old X (who was born in 2014) and six year old Y (who was born in 2016).[1]
[1] Whom I will refer to as “the children” in these Reasons.
X and Y are their father’s only children. They are their mother’s youngest children and have always lived primarily with her and her children from a previous marriage (their siblings for all intents and purposes): nearly 16 year old Z, who was born in 2007 and 14 year old W, who was born in 2009.
The parents met in mid 2012 and commenced a relationship soon after.. When they married and started to live together in late 2012, Z was five years of age and W was three years of age.
X was about three and a half years of age and Y was 14 months old when the parents separated one night in early February 2018. This was the night on which I accept that:
(a)after nearly eleven year old Z called her into the bathroom to show her some black-looking discharge on her underpants, the mother asked her if anyone had touched her private areas and if someone had touched her – to which Z responded by saying: “yes, daddy”; and
(b)the mother then asked Z if she meant “that daddy” (at which time she pointed to the door outside which the father was standing) – to which Z responded by saying “yes” and that she should have told her and that it had been happening since she was eight; and
(c)after which, when the mother asked Z questions such as how and when that had been happening, Z told her that, when she (the mother) went out, he (the father) touches her “china” [a term the mother took to be a reference to her ‘vagina’] with his hands and his ‘tiddle’ [a word the mother took to be a reference to his penis].
I accept that, after Z’s complaint to her, the mother took the child to hospital; I accept that the father was subsequently removed from the home by police early the next morning, after which the mother changed the locks to the home.
I accept that X and Y did not spend time with the father from February 2018 until an interim parenting order was made on 8 August 2018. After that, as provided by the August 2018 order, X and Y continued to live with the mother and their siblings and spent supervised time with their father and the paternal grandmother (whom had been accorded liberty to attend each fortnight) for two hours each week at D Contact Centre.
This was the parenting regime in place when the trial of this matter first began on 29 July 2019.
When the trial started, the mother sought[2] orders for sole parental responsibility for the major long-term issues relating to the children, that they live with her and that, on an indefinite basis, they spend supervised time with the father for two hours per week at D Contact Centre. The father proposed[3] that orders be made for, amongst other things, the children to live with him, that he be accorded sole parental responsibility for the major long-term issues relating to them and that they should spend only supervised time with their mother for two hours per week.
[2] Amended Initiating Application filed 21 June 2019.
[3] Case Outline filed 25 July 2019.
Each parent’s proposal was consistent with the positions expressed to Ms L when she interviewed them for the first time in January 2019: the mother had said that she wanted the father to demonstrate, over a two year period, that he was not a risk to the children before she would consider them spending unsupervised time with him and that she wanted him to take responsibly and exhibit remorse for his behaviour and participate in counselling and courses to address the same[4]; the father said he wanted the children to live with him and, whilst he did not particularise his proposal for their time with their mother, he told Ms L that he wanted the children to be “safe so she [the mother] does not brainwash them.”[5]
[4] Exhibit 17, paragraph 45.
[5] Exhibit 17, paragraph 12.
During the first tranche of the hearing[6], which continued until 2 August 2019, each of the parents and the paternal grandmother[7] were cross-examined; the various police interviews of Z, W, X and the father were played and tendered[8]; a recording of a conversation between the father and a Ms E (previously a friend of both of the parents but, as at the start of the trial, a close friend of only the mother) was also played and tendered[9] and she was cross-examined; recordings of telephone calls between the parents were played and tendered[10]; a diary kept by the mother was tendered[11], as was the first Family Report, prepared by Ms L (a Family Consultant) after interviews conducted in January 2019.[12] When the evidence closed on 2 August 2019, the matter was ordered to resume on 16 August 2019 for submissions to be received.
[6]At which the Court received the evidence outlined by each of the parents and the Independent Children’s Lawyer in the various case outline documents filed in their respective cases, those persons required for cross-examination – namely, Ms N (from D Contact Centre), Dr O (to whom the mother had taken X), Ms P (a support worker, employed by the Q Health Service, who had provided support to Z during her first police interview in February 2018) – were cross-examined and documents tendered were received.
[7] Amongst other witnesses.
[8] Exhibits 2, 3, 4, 6, 7 and 8.
[9] Exhibit 16.
[10] Exhibits 5A and 5B.
[11] Exhibits 14A and 14B.
[12] Exhibit 17.
However, shortly before 16 August 2019, the father was arrested and charged (and remanded in custody until October 2019, at which time he was granted bail) with a number of offences, which included a number of sexual offences against Z and an offence of assaulting W; as a consequence, these proceedings were adjourned and the operation of that aspect of the August 2018 order which provided for the father to spend supervised time with X and Y at the Contact Centre was suspended; an order was made for those children to spend time with the paternal grandmother at the Contact Centre.
Whilst the charge against the father which asserted he had, in essence, assaulted W was ultimately discontinued by the New South Wales Director of Public Prosecutions, the charges in which Z was the complainant proceeded. The prosecution of those charges – being multiple counts relating to sexual assault [13] – proceeded to trial in late 2021.
[13] Exhibit 19.
Z, W, Ms E and the mother were all witnesses for the Crown in the criminal proceedings and all were cross-examined. The father also gave evidence and was cross-examined.
In late 2021, for the reasons expressed in the published Judgment,[14] the father was acquitted of all charges.
[14] Exhibit 21.
The father’s acquittal has not changed the mother’s mind about his guilt – I accept that she continues to believe that he sexually abused Z and assaulted W and that, as a consequence, he currently poses an unacceptable risk of harm to X and Y. I also accept (even despite some reservations about the accuracy of certain aspects of the mother’s evidence) that, as she recounted to Ms L in February 2022:
(a)Z has extremely negative views about the father and has said that she hates hearing his name and that she hates it when her sisters speak about him; and
(b)W becomes angry and yells at his sisters to “shut up about your stupid dad”.[15]
[15] Exhibit 22, paragraphs 36 and 37.
I accept that, whilst the District Court Judge who presided over the father’s criminal trial was not persuaded that the representations he made to Ms E when he telephoned her on 11 February 2018 (about which more is said later), even taken together, amounted to admissions of sexual touching of Z or any other form of sexual misconduct as alleged[16], her Honour also:
(a)accepted that some of the representations he made during that conversation, when taken together, raised suspicion that, on some occasion when Z was “positioned in a particular way” he had been reminded of pornographic images he had seen;[17] and
(b)accepted that some of his representations during the conversation raised a degree of suspicion about whether, on those occasions, he had been sexualising Z;[18] and
(c)said that, taken at their highest, the representations gave rise to a suspicion that on some occasions, with his thinking “distorted by pornography”, the father had sexualised Z.[19]
[16] Exhibit 21 at [326].
[17] Exhibit 21 at [314].
[18] Exhibit 21 at [314].
[19] Exhibit 21 at [326].
Of course, the task which I am required to undertake in these proceedings differs from that which a judge hearing a criminal proceeding is required to undertake; as discussed with Counsel during the trial, in determining whether a person poses an unacceptable risk to a child, the Court looks through a lens that is very different to that used when, in discharging obligations in criminal law, a judge assesses whether comments amount to admissions to, for example, the elements of an offence which the Crown bears the onus of establishing beyond reasonable doubt. A judge exercising jurisdiction in parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”) is not required to decide whether a comment made by a parent amounts to an admission that a parent did a specified act on a specified day and that that act was unlawful; rather, the judge must consider whether such comment, when seen in the context in which it is made and when considered with all of the other relevant evidence, persuades of, or contributes to the persuasion of, the conclusion that a child would be at an unacceptable risk of suffering harm if required to spend, here, unsupervised time[20] with that parent.[21]
[20]Given that the mother’s proposal included that the children’s time with the father remain supervised – at least for a period of time.
[21]M v M (1988) 166 CLR 69 and the numerous authorities which have been decided after it was delivered, including Isles & Nelissen (2022) FLC 94-092.
I accept that, in late March 2022, the mother agreed that X and Y could resume spending supervised time with the father at the Contact Centre. Whilst the children had continued to spend time there with the paternal grandmother since August 2019 (apart from between 14 July 2020 and November 2020, save for a one hour interaction for X’s birthday), their first visit with the father happened in April 2022 – this was the first time they had seen him or spent time with him since February 2018.
The children have continued to spend supervised time with the father and the paternal grandmother on an approximately fortnightly basis since April 2022.[22]
[22] Allowing for matters such as ill-health.
It is accepted, including by the mother, that the observations of the children’s interactions with the father and the paternal grandmother at the Contact Centre and during off-site supervised visits support the conclusion that they are excited to see them, enjoy their time, and have relationships, with both of these people. This was the mother’s position when she spoke with Ms L in January 2019[23] and she reiterated it when interviewed more recently in February 2022.[24]
[23] Exhibit 17, paragraph 63.
[24]Exhibit 22, paragraph 58.
Whilst the father maintained the contention that the children would be at an unacceptable risk of psychological harm through exposure to the mother’s views of him as a sexual abuser of Z if they continue to live with her, the children’s observed reaction to him when their time with him resumed persuades me that such risk does not exist – either at all or to the extent as to render it unacceptable.
I consider it clear that, had she wished, the mother could, in the period from February 2018 to April 2022, have exposed the children to her views of the father in such a way as to render them fearful of him; I consider it clear that, had she wished, the mother could have communicated with the children about the father in such a manner as to cause them to believe he had offended against them and that they were victims of sexual abuse perpetrated by him. There is nothing in the evidence to suggest that this has occurred. I consider it clear that the mother has not acted toward the children in such a way.
The observations made by the Contact Centre supervisors and by Ms L when she interviewed the children in February 2022 make it abundantly clear that, despite believing Z’s complaints to her and consequently determining that the father sexually abused her oldest daughter, the mother has refrained from exposing her youngest daughters to that view.
When the trial resumed, each of the parents proposed that orders be made to accord them sole parental responsibility for the major long-term issues relating to the children; that the children live with that parent and spend supervised time with the other parent. The mother’s position was that the father’s time with the children should be supervised indefinitely, whilst the father proposed that the mother’s time with the children be supervised until there were no “concerns” about her time with them or it was “appropriate” that the time occur on an unsupervised basis – an occurrence which it was asserted would require the mother to demonstrate that she had changed her belief that the father constituted a risk to the children.
As the mother freely admitted, and as I accept, there is nothing that can be done to change her view that the father sexually assaulted Z and physically assaulted W. Given that the criminal proceedings went to trial and Z maintained, including during her cross-examination in those proceedings, the allegations made about the father’s conduct toward her, a requirement that the mother demonstrate she had changed her belief about the father and the risk she considers him to pose to the children would, in essence, require her to stop believing her oldest daughter – I accept that this is something that she will never do.
During the second tranche of the hearing, the Court received further evidence from both parents and the paternal grandmother – all were cross-examined about that; the Court also received an updated Family Report prepared by Ms L following interviews conducted in February 2022[25] and certain extracts of the evidence given by Z, W, the mother, Ms E and Dr R[26] in the criminal proceedings.[27] Additional documents detailing matters such as: X’s progress at school; the children’s interactions with the paternal grandmother and the father at the Contact Centre; a complaint made in August 2021 about possible sexual abuse of Y by a male neighbour; and Z’s father’s report to police in mid-March 2022 of his assertions about the circumstances in which Z went to stay with him, were also tendered.[28]
[25] Exhibit 22.
[26] From whom evidence had already been received during the first tranche of the hearing in mid-2019.
[27] Exhibits 23, 24, 25, 26 and 27.
[28] Exhibit 28.
Once the evidence closed, the Independent Children’s Lawyer provided the Court and the parents with a Minute setting out those orders which she submitted were in the children’s best interests and should be made.[29] By way of broad summary, the orders then proposed by the Independent Children's Lawyer[30] included that the parents should have equal shared parental responsibility for the major long-term issues relating to the children (except as limited in the manner outlined in the Minute); that the children should live with the mother and that the children’s time with the father should progress, after three further months of supervised time at the Contact Centre, to unsupervised time – commencing with a very short period of unsupervised time, before progressing in a graduated manner until the children are spending each alternate weekend (from after school Friday until before school Monday) and half of each school holidays with the father. The Independent Children’s Lawyer also proposed that the children communicate each Thursday during school holidays with the parent with whom they were not then living but that there not otherwise be any specific provision for them to communicate with the father.
[29] Which I marked with “Handed up by Counsel for the Independent Children's Lawyer 1/6/2022”.
[30]Albeit that some of these changed during the course of submissions made by Counsel for the Independent Children's Lawyer.
Whilst the father’s position remained unchanged despite the orders sought by the Independent Children’s Lawyer, the mother’s position did not. Counsel who appeared for the mother informed the Court that her proposal had changed to the extent that she proposed that orders be made for the children to spend unsupervised time with the father, with such time to start in mid-2024 (at which time X will be 10 years old) and to occur between 9.00 am and 5.00 pm on the first and third Saturdays of each month, with changeovers to occur at McDonald’s Restaurant, Suburb K. Her proposal was that, until mid-2024: the children continue to spend supervised time with the father as they have to date; she was agreeable to that time occurring on a weekly basis; the time could happen away from the Contact Centre itself, at a local park (provided that it was supervised by the same supervisors); she was prepared to pay half of the costs of the children’s supervised time with the father.
Whilst the mother and children live at an address in the ZZ Region that she does not want the father to know and the father lives with the paternal grandmother at S Town, the father’s evidence about his attitude to driving means that there are no practical considerations to prevent changeovers occurring as the mother proposes if orders are made in the terms most recently sought by her.
As I appreciated it, the mother’s position was that, by mid-2024, X will be old enough to, in essence, be capable of guarding against any inappropriate behaviours by the father and old enough to be able to contact someone like a teacher and tell them about any such behaviour. Counsel who appeared for the mother made it very clear that, whilst her proposal about the orders to be made had changed, her belief that the father had sexually abused Z had not (albeit that she accepted that the evidence was insufficient to support a finding that he had) and she continued to press for a finding that the children would be at an unacceptable risk of harm if their time with him was now unsupervised – although it was also submitted that the risk would be sufficiently ameliorated by making the orders she proposed.
As noted by Counsel for the Independent Children's Lawyer, whilst X will be 10 years old in mid-2024, Y will not then be eight years of age.
APPLICABLE PRINCIPLES
In these proceedings, being proceedings for a parenting order[31] in relation to the children, I may, subject to s 61DA[32] and s 65DAB[33] and Division 6 of Part VII of the Act, make such parenting order as I think proper.[34] I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects.[35] In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration.[36] The matters to which regard must be had in determining those parenting orders which are in the children’s best interests are found in s 60CC of the Act. The requirement to “consider” each of these matters does not necessarily mean that each must be the subject of any particular discussion, particularly where the evidence leads inexorably to a particular conclusion.[37]
The benefit to the children of a meaningful relationship with both parents[38]
[31] Family Law Act 1975 (Cth) s 64B.
[32] Presumption of equal shared parental responsibility.
[33] Parenting plans.
[34] Family Law Act 1975 (Cth) s 65D.
[35] Family Law Act 1975 (Cth) s 60B.
[36] Family Law Act 1975 (Cth) s 60CA and s 65AA.
[37]See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
[38] Family Law Act 1975 (Cth) s 60CC(2)(a).
The Act does not define the term meaningful relationship, nor does it prescribe criteria on which the Court should rely to assess how a child’s parents have, or should have, a meaningful involvement in that child’s life.
In McCall v Clark,[39] the Full Court concluded that the preferred interpretation of ‘benefit to a child of a meaningful relationship’ is the prospective approach. That is, the Court must consider and determine whether there is a benefit to the children in having a meaningful relationship with each of their parents, such finding not being dependent simply on a lack of danger of physical or psychological harm arising from time and/or communication with each parent. [40] If I determine that such benefit exists, then I must consider whether the benefit needs to give way to the requirement to protect the children from physical or psychological harm.[41]
[39] (2009) FLC 93-405.
[40]Vigano & Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
[41]Vigano v Desmond (2012) FLC 93-509, [128]-[129] per Bryant CJ, Strickland & Murphy JJ; Family Law Act 1975 (Cth) s 60CC(2A).
Neither parent advances that the children’s best interests will be met by ensuring that they do not have the opportunity to develop and have a meaningful relationship with both of their parents. Both parents positively advance that the children’s best interests will be met by them having the opportunity to spend time with the parent with whom they are not living – albeit that such time should, on their respective contentions, occur under supervision.
The mother said that X and Y should spend time with their father, provided that such time occurs safely. When he was interviewed by Ms L in January 2019, the father told her that he wanted the mother to continue to be in the children’s lives – he described her as an “amazing mother when she’s in the right mood.”[42]
[42] Exhibit 17, paragraph 21.
When she spoke with Ms L in February 2022, the mother said she thought it was important for the children to have the opportunity to have a meaningful relationship with their father – for their identity and sense of belonging.[43]
[43] Exhibit 22, paragraph 42.
Given this and the assessments made by Ms L of the children’s relationships with each of their parents, I consider that there is a benefit to the children in having the opportunity to have meaningful relationships with both of their parents, provided that such relationships can develop in circumstances in which the children are protected from harm.
The imperative of protecting the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence[44]
[44] Family Law Act 1975 (Cth) ss 60CC(2)(b) and 60CC(2A).
Authority makes it clear that the resolution of allegations of sexual and other abuse are “subservient and ancillary” to this Court’s determination of that parenting order which is in the children’s best interests.[45] However, an assessment of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[46] Even in undertaking such assessment, this Court is not compelled to make a determination about whether the father sexually abused Z or X; however, orders which would place the children at an unacceptable risk of harm clearly could not be seen as being in their best interests.
[45] M v M (1988) 166 CLR 69 and the numerous authorities which have followed it.
[46] Family Law Act 1975 (Cth) s 60CC(2)(b).
Counsel for the Independent Children's Lawyer submitted that the evidence was such that it was not open to the Court to make a positive finding that the father had sexually abused either Z or X. No such finding was sought by the mother, whose Counsel submitted that she accepted that the evidence would not support such a positive finding.
However, as noted earlier, the mother sought that the Court find that spending unsupervised time with the father – initially, at any time in the future, or, later, before August 2024 – would place X and Y at an unacceptable risk of harm because, by virtue of the father’s alleged conduct toward Z, W (and X), they would be at an unacceptable risk of suffering harm consequent on being subjected to sexual abuse or physical abuse perpetrated by him. Counsel for the Independent Children's Lawyer, with whom Counsel for the father joined, submitted that the Court would not be persuaded, on the evidence before it, that spending unsupervised time with the father would place the children at an unacceptable risk of suffering such harm.
In determining whether children will be at an unacceptable risk of harm if their time with a parent is unsupervised, the Court undertakes a predictive exercise that requires the determination of whether, based on the evidence before it, it considers there to be a risk to those children in the future – the predictive exercise involves an assessment of the magnitude of the risk and the harm that would be caused to the subject children if the risk was manifest and the consideration of whether matters can be put in place to adequately mitigate that risk becoming manifest. It is unnecessary for a risk to be assessed as being “probable” before it is unacceptable; depending on the magnitude of the risk and the harm which the subject children would suffer if it eventuates, the possibility of its occurrence may suffice for it to be regarded as “unacceptable”. A conclusion that an unacceptable risk of harm exists may be based on matters such as: plausible but unproven allegations of abuse made by a subject child against the parent alleged to pose the unacceptable risk of harm; evidence of that parent’s sexual interest in children other than the subject children; evidence of that parent’s interest in material that demonstrates the sexual exploitation of children. Whilst conjecture about the future is based on historical facts and circumstances, only the relevant historical facts need to be proven on the balance of probabilities.[47] An accumulation or coalescence of factors, not individually proven on the balance of probabilities, can still be sufficient to demonstrate the existence of an unacceptable risk of harm to children.[48]
[47] Isles & Nelissen (supra).
[48]Eastley & Eastely (2022) FLC 94-094 and the inferential reference at [31] to Johnson & Page (2007) FLC 93-344 at [68]–[71].
As Ms L noted in her most recent Family Report, the mother’s position remains that the father sexually abused Z, physically assaulted W and that W saw him sexually harming Z; she is also worried that he may have sexually abused or behaved in an inappropriate sexualised manner with X.[49] In contrast, the father’s position remains that the mother has emotionally harmed the children by manipulating Z and W and, to some extent, X’s construct of him to the point where they believe he sexually harmed Z and possibly X; he also believe she encouraged or “coached” Z and W to make the disclosures they did to police.[50]
[49] Exhibit 22, paragraph 19.
[50] Exhibit 22, Paragraph 20.
The allegations that the father sexually abused Z and X
The mother said that, in late 2015, she noticed that Z was not herself – she was withdrawn and struggling at school; she thought something was wrong but did not know what it was; she sent text messages to a cousin in Sydney telling her that Z had anxiety and panic attacks.[51]
[51] Exhibit 12.
February 2018: an alleged disclosure is made
The mother said that, at about 9.00 pm in early February 2018, Z was in the bathroom and called out to her; she said she went and asked through the closed door whether the child was okay. Z asked her to come into the bathroom and showed her her underpants, which had a black discharge on them. The mother said that, when she asked Z what had happened, the child grabbed another pair of underpants from the laundry basket and said “yesterday”; when the mother asked her what she meant and said “you were at your friend’s house yesterday, did anyone touch your private areas? Has someone touched you?”, Z said: “yes daddy”. The mother said that, when Z said “daddy”, she automatically thought of the child’s biological father but, as that did not make sense given the absence of contact between them, she asked her “when you say ‘daddy’ do you mean that daddy?” whilst pointing to the door, on the other side of which the father was standing and asking what they were saying and what they were doing in there and telling them to hurry up. The mother said that Z said “yes” and told her that she was sorry and should have told her and that it had been happening since she was eight years old. The mother also said that when she then asked Z “how” and “when” (as she could not understand what her daughter was telling her, Z told her that “when you go out mummy he touches my china [which the mother understood to be a reference to her vagina] with his hands and his tiddle” [which the mother understood to be a reference to his penis].
I accept that the mother then went into her own bathroom and, having turned the shower on to prevent the father from knowing what she was doing, called a friend (Ms T) to ask her what she should do; I accept that after she was told to take Z straight to the hospital (and that they would call the police), she told the father that she needed to go and get Z some pads as she thought she had her period and that she would take her with her.
I accept that the mother then took Z to the local hospital. Whilst it was suggested that, when the father (who had never given any of the children any money) gave Z $5.00 and told her to buy herself something, he had done so because he had been attempting to ensure that she did not tell her mother about what he had allegedly done to her, I am not persuaded that this is likely; I think it more likely that he accepted what the mother had told him about Z possibly having her periods and that it was in this context that he gave the child the money and told her to buy herself something nice.
I accept that, after the mother and Z did not return in a time that would have been expected had they just gone to the shop to buy some sanitary products, the father expressed his concern about their absence; I accept that the mother messaged him to say that Z had collapsed in the mall and she was at the hospital and that the doctors were doing tests – none of this was true.
February 2018: the hospital records[52]
[52] Tender Bundle filed 22 July 2019, p.12–15.
According to documents provided by the U Hospital, when the mother presented there with Z at about 9.20 pm that night, a referral to the Q Health Service (“the Service”) was almost immediately made; it was noted that the mother advised that, at about 8.45 pm that evening, Z had disclosed to her that her step-father had sexually touched her for a long time. According to the notes, the mother and Z were both distressed and crying.
I accept that, as a result of the referral, Ms P from the Service met up with the mother and Z; I accept her evidence to the effect that, in creating the “Children & Adult – Hospital Presentation” document[53], she summarised information provided to her by the mother and noted, in essence, that the mother had reported that Z had disclosed that night that the father had sexually touched her for a very long time. I accept Ms P’s evidence to the effect that she made the notes in the terms that she did because they were sufficient for her purposes and for the purpose of the Service providing the support that it did to the mother and Z; I also accept her evidence to the effect that, as the Service is not an investigative agency, the summary she made was authored to enable the provision of services – and, I infer, without a focus on ensuring a word-for-word recording of the comments made by the mother that night.
[53] Tender Bundle filed 22 July 2019, p.13.
I accept that Ms P subsequently contacted the Joint Investigation Response Team (“JIRT”) that night. Whilst the document provided by New South Wales Health[54] contains details of information recorded as having been provided by Ms P to JIRT (namely, that: the mother had advised that Z had disclosed being sexually abused by her step-father; the assaults consisted of digital and penile penetration; it had been occurring for the past couple of years and the most recent time was about a week ago), Ms P’s evidence included that she did not recall her exact words to the author of the note. In the circumstances, it is impossible to determine whether Ms P provided the information that is recorded in the document in exactly the terms recorded or whether the author of the same summarised what was said by Ms P in the way that was recorded.
[54] Tender Bundle filed 22 July 2019, p.16.
I also note that the content of documents produced by Family and Community Service (“the Department”),[55] includes the assertions that: Z disclosed to her mother at about 8.45 pm that her step-father, Mr Urwin, had been touching her with his fingers and with his penis; she disclosed it had been happening for two years and the last time was the day before school went back (Monday, 29 January 2018); the mother found out because Z had black stains (which was said to appear to be dried blood according to the mother, who was also recorded as having said that she thought it might be from Z’s periods but she did not know) on her underpants (unknown cause) and this was when Z made the disclosure; the mother still had the underwear and had been asked not to wash them; Z disclosed that there was penetration. The Departmental report asserted that all of this information had been relayed to her mother. It was also noted that Z confirmed that she came to the hospital because of some stuff that her step-father (Mr Urwin) had done to her – she told the author of the document that “I want mum to tell you what I told her” and was distressed and crying but okay. The document notes that the mother would not be allowing contact with the step-father.
[55] Tender Bundle filed 22 July 2019, p.20.
I accept that the relevant authorities decided not to interview Z that evening in February 2018 because of the time and that arrangements were made for her to attend for an interview the next day.[56]
[56] Tender Bundle filed 22 July 2019, p.16.
I accept that arrangements were also made for Z to stay with her maternal grandmother at her home, whilst the mother waited at the hospital for the police to contact her so she could go home to the other children whom had been left there in the father’s care when she took Z to the hospital. I accept that the police Child Abuse Unit subsequently applied for and was granted an Apprehended Violence Order to protect Z from the father; I accept he was served with the same and removed from the former matrimonial home in the early hours of the following day. I accept that once the police told the mother that the father was gone, she returned to the home and arranged for a locksmith to change the locks to the home.
February 2018: what happened after the disclosure was made?
I accept that the Department received two Risk of Sexual Harm (“ROSH”) reports outlining concerns of sexual abuse; the content of these included that Z had been sexually abused by the father, that this had occurred over two years and that the most recent incident was alleged to have occurred approximately one week before the report.
According to notes provided by New South Wales Health,[57] when the mother was contacted the next morning, she said she had had little sleep, was distressed and confused and anxious; she was crying and saying that she just wanted to do what was best for Z; she also asked whether the sexual assault counsellor would attend the interview as Z was asking her whether this would happen. I accept that Ms P subsequently attended when Z was interviewed by police.
[57] Tender Bundle filed 22 July 2019, p.41.
February 2018: the mother tells Ms E
I accept Ms E’s evidence that, when she spoke to the mother at about 8:00 am that morning, the mother told her that Z had told her that the father had sexually abused her.
February 2018: Z is interviewed by police[58]
[58] See Exhibit 9: Magellan Report dated 8 October 2018.
I accept that, when the mother took Z to the V Community Centre to be interviewed, she gave the police the two pairs of Z’s underpants that had dried blood on them.
I accept that when Z was interviewed by officer BB (a female police officer) and, initially, officer EE (a male police officer), Ms AA (a Departmental caseworker) and Ms P were also present; the interview was recorded.[59]
[59] Exhibit 2.
Documents provided by New South Wales Health[60] and New South Wales Police[61] include summaries of the interview. In effect, the police considered that she did not engage well with the investigators, she was visibly upset and crying during the initial greeting and appeared to be reliant on Ms P whom she asked remain in the room during the interview; police considered that, whilst she initially had some trouble explaining the difference between truth and lies, she was subsequently able to demonstrate some understanding of the concepts using a scenario. It was noted that she was initially unable to verbalise why she was speaking with investigators; whilst she wrote “because my daddy has been hurting me for a long time”[62], she was unable to verbalise what she meant by “hurting me” and what actions had been done; she said the father was the person who had been hurting her and, when asked to explain the last time she was hurt, she said it was the day before she went back to school and she was labelling her schoolbooks at home – she said he had grabbed her by the hips and pulled her onto the lounge in the lounge room, where the wrestling was on television and her two youngest siblings were; however, she was unable to explain what happened and said that she did not want to talk about it. It was noted that when Z was asked to make a female ‘body chart’ and indicate the areas of her body hurt by the father she was “unable to do so” (although it is entirely unclear to me from the document why that was the conclusion that was reached, as opposed to simply recording that she did not respond to the request); when asked to identify various parts of the body on the chart shown to her, she said that she did not want to talk about it when taken to the chest and genital areas and was said to have been unable to identify names she used for those areas.
[60] Tender Bundle filed 22 July 2019, p.45 and 46.
[61] Tender Bundle filed 22 July 2019, pp.179–180.
[62] Tender Bundle filed 22 July 2019, p.49.
Z was then given a short break. I accept the evidence given by both the mother and Ms P about what happened during this break. I am not persuaded that Z was told by either the mother or Ms P what she was to say when she returned to the interview. I accept that the mother’s comments to her daughter were limited to telling her things like she was brave and that she was proud of her.
I accept that the male police officer did not return to interview Z after the break. I also note that, according to the summaries of what happened after she returned to the interview, Z appeared more confident and willing to speak about what had happened. During the second part of the interview she said that she would just say what had happened – she then said that the father had been hurting her by touching her with his hands and fingers on her private parts and using his private part to hurt her; she said that the last time this happened was on the lounge and that he had put his hand up the leg of her shorts and touched her private parts outside of her underpants. When she was asked when he hurt her with his private part, she was unable to particularise any detail about what had happened; she said that she thought she was asleep at the time but then woke up and it hurt. Z also said that “daddy” had also touched her on her private parts in her bedroom when she was lying on the top bunk bed and he was tucking her into bed. She said she was threatened not to tell anyone or her “daddy” would hurt her more and would not talk to her or “mummy”.
When Z was asked to detail what she had told her mother, she said she could not remember but that she had told her everything: she said she had called her mother into the bathroom because she had some blood on her underpants and her mother asked her if someone had been touching her; she said that she initially told her mother ‘no’ but then, when pressed further by her mother, had told her the truth.
The fact that Z told the interviewing officers more after she had a break does not persuade me to conclude that she was somehow influenced by either her mother or Ms P when she saw them during the break; it does not strike me as unusual that a child of Z’s age, when first confronted by an interview room containing four adults (three of whom were complete strangers to her and the fourth – Ms P – whom she had only met the previous night), might initially be reticent and unwilling to speak – particularly about the matters of the kind she subsequently spoke about; it does not strike me as unusual or in any way sinister that, after having experienced what being interviewed was like and having a break (during which she received some support and reassurance), she was more confident and assured and willing to speak up.
February 2018: the mother makes a statement to police[63]
[63] Tender Bundle filed 22 July 2019, pp.37–40.
I accept that, whilst Z was being interviewed, the mother was also speaking with police in another room. I accept that, in the statement she gave to police that day, the mother outlined that Z had called her into the bathroom, at 9.00 pm the night before; she said that, when she walked into the room, Z was standing there naked and holding her underpants, which she saw had dried blood on them; she said that she asked “when did this happen?” and was told it happened the day before; Z then retrieved another pair of underpants from the dirty clothes basket and these also had dried blood on them.
The mother also said the following happened: she asked Z “has anyone ever touched you. Has anyone ever touched your private areas?”; Z said “yes daddy”; she asked “what do you mean? Who?” “what? That daddy?” (whilst she was pointing out of the bathroom indicating the father) and Z said “yes”. The mother said that, whilst this was all happening, the father was outside the bathroom yelling things like, “what are you doing in there? What is taking so long?”. She said she told Z to wait and walked out and told the father that she thought the child had her period and that she needed to speak to her and then walked back into the bathroom and locked the door. The mother said she then whispered questions to Z – “what do you mean? How has he touched you?” and Z said “with his hands and his tiddle” (which she said was the word Z used to refer to a penis); the mother said she asked “where? In there?” and pointed to the child’s vagina, to which Z said “yes, in there; I’m so sorry mummy I should have told you”. The mother said that she then asked “when, how, how long”, to which Z responded by saying words similar to “every time you go out mum and at night time. It has been happening for a couple of years. I think I was seven”. The mother said she asked Z “does he kiss you?” and Z said “yes”; when she asked her “where?”, Z said “on my neck and it tickles”.
I accept that, in the statement she gave to the police, the mother said that during the course of that day, she had spoken with Z about what the father had done; she said she had asked her daughter to show her where it had happened and that Z had walked her to the lounge room and said it happened on the lounge; the child pointed to a recliner that was up against the window and, when the mother asked her what happened, Z said “he told me to sit down and he put his fingers into my ‘china’ [which term the mother explained the child used to refer to her vagina]. He put them high up and it really hurt. I pushed him and told him to stop. I went into my room and waited for you to come home”. The mother said that, when she asked Z when this happened, the child said “when you went out to the shops with W”; when the mother asked “what, when I went out to get W’s school things?”, Z said “yes”. The mother said that she had gone to the shops to get the school things on 29 January 2018, the day before school went back for the new year.
In her police statement, the mother also said that Z walked her to her bedroom and said “he has not used his tiddle in a long time but when he did it would be on the trundle. When I am in the top bunk he only uses his fingers but they hurt both the same”; when she asked “does he say anything to you?”, Z said, “no he is just quiet when he is doing it he pushes me at the end and says “don’t tell anyone or I will hurt you more than this”’. She said Z showed her how the father held her down – she faced her and said “he lays on top of me and grabs me like this” using both her hands to grab her mother’s upper arms and hold them firmly. The mother said that when she asked “has he only touched you in this house or has it been in other houses or on holidays?”, Z said, “no, only in this house and most of the time in my room.”
I accept that the mother also said in her police statement that, given what she said Z had told her, she had reflected and, having done so, recalled that: she had woken on numerous occasions to find the father in Z’s bedroom (late at night and early in the morning) and when she asked him what he was doing, he had told her that he was just tucking her in; whilst she had found him in Z’s bedroom on at least five occasions in the previous 12 months (and had told him to get out and go to bed and he had), she had never found him in any of the other children’s bedrooms. She also said that she and the father had fought in the previous six months about giving Z some privacy: she said he constantly told Z not to lock the bathroom door when she was showering and would always walk in and tell her to hurry up; she said he would follow her from the bathroom to her bedroom and would walk in on her, before she had the chance to get dressed, to tell her to hurry her up; she said she had told him on numerous occasions to leave Z alone and that he did not do this with the other children. She also said that she had even “joked” with him that he was a paedophile, but had not meant that comment at the time.
February 2018: the mother contacts the school to advise the children will not be present[64]
[64] Tender Bundle filed 22 July 2019, p.63.
I accept that, as set out in notes produced by CC School, the mother left a message with the office to advise that the children would not attend school that day; I accept she reported there had been a family incident the night before at 2.00 am that required the police to be called and for them to put an Apprehended Violence Order in place. I accept she advised the school that the father was the Respondent to the Apprehended Violence Order and that she and the children were the protected people and that she intended to keep them home.
February 2018: police interview the father[65]
[65] Exhibit 4.
I accept that the father was interviewed by police in February 2018. According to the police summary of this interview[66], he told police that: about six months to a year ago, the mother had started to make accusatory statements toward him about him being a paedophile (a “pedo”) in reference to him being in Z’s room; it was usual for all of Z, W and X to sleep in Z’s room at night and that Z slept on the top bunk, W slept on the bottom bunk and X slept on a trundle bed in the same room; he usually put the children to bed and tucked them in, said a prayer and kissed them goodnight; as Z played some relaxation music to help her fall asleep, he would go into the bedroom to turn this off and pull the blind down and that the mother had made the accusatory statements he said she had made when he was either in the bedroom or coming out of it; he believed the mother had been making accusatory comments to and about him since Z started to develop breasts and commenced puberty – he said the mother had been upset once because she could see pubic hair when Z was wearing swimmers and had spoken about taking her to get it removed by laser.
[66] Tender Bundle filed 22 July 2019, pp.176–177.
The father also told police that he recalled that, on 29 January 2018, W and the mother went out to get football gear and he was home with the other children; he said he had watched wrestling on television in the lounge room. He also said that he did not recall Z coming into the lounge room or being on the lounge at all with him on that occasion: he denied touching her on her vagina or under her shorts.[67]
[67] Tender Bundle filed 22 July 2019, p.177.
The father’s assertion that he did not remember Z coming into the lounge room or being on the lounge at all with him needs to be contrasted with what he told the Department in March 2018 (outlined below) which included that he remembered a situation with Z where he had picked her up and put her on the lounge and that she sat next to him and put her legs over his lap. That is, he told police that he did not remember her being in the lounge room or being on the lounge with him whereas he told the Department that he actually picked her up and put her onto the lounge, that she sat next to him and that she had put her legs over his lap.
The father told police that he recalled the mother came to him that evening in February 2018, holding some of Z’s underpants; she showed him some brownish stains, complained to him that Z had her period and said she should not have this yet because she was too young. He said the mother then suggested to him that perhaps the father of one of Z’s friends may have touched Z at a recent sleepover because he was a bit creepy looking; he said he told the mother that he did not think so because Z had been pretty happy since the sleepover and there did not appear to be anything wrong. He said the mother had appeared to be upset by Z having her period so young and that she then went into the bathroom with the child for a long time; later that night, the mother and Z went out to get some pads and he gave the child $5.00 to buy a chocolate to make her feel better. The father denied having ever touched Z in any inappropriate way and denied all of the allegations that she had made against him; he said he believed the mother was paranoid and accusatory toward him about touching the child.
According to the police documents, the interviewing officers concluded that the father had provided plausible reasons in his interview for being in Z’s bedroom; whilst they also said that he had been “consistent in his answers”, it is difficult to know how they arrived at this conclusion unless it is limited to their assessment of consistency within the interview itself.
6 February 2018: The mother alleges that Z made further disclosures to her
The mother said that, on 6 February 2018, Z told her where in the house the father abused her and how.
February 2018: the mother contacts Officer BB by telephone
I accept, as is set out in documents produced by New South Wales Police,[68] that the mother telephoned Officer BB to report that the father had sent her a SMS which she believed was in breach of the Apprehended Violence Order. The police document records that the terms of the Apprehended Violence Order do not prevent contact between the father and the mother; I accept that the outcome of the investigation about the alleged indecent assault was discussed with the mother and she was told that there was insufficient evidence to proceed with any criminal charges due to there being inconsistencies and a lack of detail in the disclosure made by Z during her interview.
[68] Tender Bundle filed 22 July 2019, p.182.
I accept, as noted in the police documents, that the mother was very upset with this outcome and that she said “So he is going to get away with it and no one will believe us. What else can we do? Can you do another interview with her and I’ll talk to her”. She then said “Well I’ll just get my ex-husband to kill him”; she also said “I’ll just rip up that AVO and take him back. Then I’ll set up some hidden cameras and wait until he cums inside her. Then we’ll have some evidence.”
I accept the mother was advised by the police officer not to do any of these things as she needed to act protectively toward the children.
Whilst, as the mother accepted, the comments she made to the police officer may be regarded as highly inappropriate, it is, I think, important to remember the context within which they were made. It is also clear from them that the mother believed completely what Z had said to her about the father’s conduct toward her; the words she spoke demonstrate the vehemence with which she believed – and, I think probably continues to believe – that the father sexually abused her eldest daughter. I am not persuaded that the mother had any intention of acting as she spoke.
I accept, as the police documents record, the mother contacted the police officer again after a relatively short space of time and asked if the Apprehended Violence Order prevented her from contacting the father; I accept she asked the officer if she thought the father had done “it” and whether she should still keep Z’s upcoming medical appointment with the paediatrician since the father was not going to be charged. I accept she was told that she should keep the appointment.
I think it highly likely that having received the information she did about the operation of the Apprehended Violence Order, the mother decided that she would see if, in communications with the father, he might say something that would be relevant to the police decision not to proceed further with Z’s complaint.
6 February 2018: the parents communicate
It is, I think, accepted that the father telephoned the mother at 4:39 pm on 6 February 2018 and that they spoke for one hour and 39 minutes. The mother’s evidence included that, while she recorded some of the conversation, she was subsequently unable to retrieve this recording. Her evidence is that, during their conversation, the father admitted to her that he had touched Z’s vagina and did not realise while they were on the couch.
The father denied making any admission to the mother during their conversation and, in a text he sent at 6:11 pm, said “all lies”.
It seems that, at 6:51 pm that night, the mother sent the father a text message purporting to organise for them to meet. In this text she asserted, amongst other things, that “you told me you touched Z’s vagina and then you didn’t realised when you were on the coach. You told me what I asked had happened and you told me.” I have taken the word “coach” to be a spelling error and that what the mother was referring to was “couch”.
It seems that, during the course of the evening, the mother and father continued to text each other; the content of some of the mother’s texts included that she wanted the father to know that he was her world and he had destroyed that; she repeatedly urged him to be “honest” and to be accountable for his actions; she also told him that she thought Z’s father knew what had happened and that he would be “safer” if he confessed to the police. In some of his texts, the father asked the mother why she wanted him to go to prison so badly and he spoke of going to the police to confess.
The text communication between the parents continued overnight and into the next morning. I accept that, in texts sent the next morning, the mother asked the father, in essence, why he was so scared if he had not put anything inside Z; I accept that his response included that it was because he did not know what “they” thought was bad or illegal. I accept that the father continued to press the mother to meet with him and that he also sent her a text in terms which certainly suggested that she would not see him again.
February 2018: the U Hospital follows the mother up
I accept, as set out in the hospital notes,[69] that when the mother was contacted in February 2018, she advised the hospital that police were not proceeding with the investigation. I accept she told the hospital that she had spoken to her “ex-partner” yesterday and that he had admitted doing sexual things to Z; I accept she said she taped this conversation and had told police about it, but had been told it was inadmissible because she taped it without his knowledge. I accept the mother said she was having a family meeting that night with her family and telling them what had happened to Z. I accept she was told to document any new information that Z might disclose so it could be reported to the Helpline.
[69] Tender Bundle filed 22 July 2019, p.42.
I accept the mother’s evidence to the effect that, when she spoke of having a family meeting and telling her family what had happened to Z she was talking about meeting with members of her extended family and not the children who formed part of her immediate family.
As noted earlier, the recording spoken of is not in evidence before me – the mother’s evidence was, in essence, that her ability to retrieve the recording ceased after the passage of time and that friends to whom she had sent it had also deleted it from their devices.
7 February 2018: email from Ms DD[70] to Dr R[71]
[70] JIRT, Violence, Abuse & Neglect Services.
[71] Tender Bundle filed 22 July 2019, pp.55–56.
I accept that Ms DD summarised the information known to JIRT at that time in an email sent to Dr R, the paediatrician who had been asked to examine Z to attempt to determine whether the blood on her underpants was likely to have been caused by menstruation or an injury consistent with the history provided (presumably penetration) or other sources. I accept that the email contained information consistent with that outlined above, save for the following: after advising Dr R that, during her interview, Z had said that the father had told her that he would hurt her if she told someone and that he would never speak to her again, Ms DD added the phrase “and take her away”. It remains unclear as to the source of this assertion. Whilst Ms DD also advised Dr R that Z had said that the father had said “this” a long time ago, it is impossible to know from the content of the document itself whether this is a reference to the entirety of the paragraph in which this assertions is found or only the last statement.
February 2018: the mother consents to Z undergoing a complete medical examination (including genital examination)[72]
[72] Tender Bundle filed 22 July 2019, pp.58–62.
I accept, as recounted in documents produced by New South Wales Health, that, when the mother was spoken to in the presence of Ms P, she outlined that Z had showed her her underpants with some old bloodstains that evening in February 2018 and that this was when she told her what had been happening. I accept the mother said that she did not want to detail Z’s disclosures again. I also accept she said that Z had been complaining of itchiness to her private parts “inside” for a few weeks[73] and that she had not yet experienced menarche. I accept that, when she was spoken to, Z said she felt well, had no pain on urination or defecation but had been itchy in her private parts (but not for several days).[74]
[73] Tender Bundle filed 22 July 2019, p.60.
[74] Tender Bundle filed 22 July 2019, p.62.
February 2018: Dr R (paediatrician) examines Z
I accept, as recounted in her report dated 22 March 2018,[75] that when Dr R examined Z in February 2018 she was well, smiling and interacted appropriately for her age. I accept she told the doctor that she had been itchy in her private parts and had been scratching, but not for several days; I also accept that she did not make any disclosures during the examination process.[76]
[75] Tender Bundle filed 22 July 2019, pp.95–97.
[76] Tender Bundle filed 22 July 2019, p.96.
I accept Dr R’s assessment that Z was Tanner Stage II for genital development (that is: entering puberty); I accept that her examinations revealed that the external skin of the labia majora was red and excoriated and that the labia minora, introitus, posterior fourchette, urethra and clitoris appeared within normal limits. I accept she was unable to visualise Z’s hymen because of her discomfort.[77]
[77] Tender Bundle filed 22 July 2019, p.96.
I accept, as outlined in the documents,[78] that Dr R’s findings were that Z’s genital area was red and inflamed and this could be non-specific vaginitis, which she thought was the likely cause of the blood on her underpants; I accept her assessment that Z had not commenced menstruation and it was likely to be some time until that commenced and, consequently, the blood on her underpants – the testing of which had revealed a female profile – was not due to her having a menstrual period. I also accept, as noted by police, that the forensic testing of the underpants did not detect the presence of semen.
8 February 2018: the mother emails Officer BB with two video attachments forwarded to her by Ms FF [79]
[78] Tender Bundle filed 22 July 2019, p.178.
[79] Tender Bundle filed 22 July 2019, p.57.
I accept that, in February 2018, the mother emailed Officer BB to advise that she “had six videos of recorded phone calls but the main one that he admits was accidentally deleted and came through the iCloud and we can’t open it. It was 1hr long it was really hard to send to me and then I thought I did save it. I am not sure if these can help in any way I just wanted to send to you just in case it can help in anyway.”
I accept the assertions in the New South Wales Police documents[80] that the two audio files attached did not contain any admissions of guilt by the father in relation to the allegations made by Z. I accept that the mother attached a screenshot of a SMS message to her email and that she said the message was from the father:
Yes I have been in contact with someone which is going to help me tell the truth. I’ll never lie to u again I won’t to feel clean with nothing to hide I’m goin to do my best and if I gotta go to prison I’ll get the treatment u said if I need it which will make me better then I am and I’ll do everything I can right so when I get out I can see and be part of [X’s] and [Y’]s life I will be doing what you want so I hope you will let gran be a huge part of there life and I hope you don’t Trash talk about me to my babies as you’ve never said a bad word abut [Mr GG] to big kids so I hope you do the same with me.
[80] Tender Bundle filed 22 July 2019, p.181.
When cross-examined about this text, the father’s evidence included that he had lied to the mother when he wrote that she had “never said a bad word abut [Mr GG] to big kids”. “[Mr GG]” is a reference to Z and W’s biological father.
February 2018: police attended on the father[81]
[81] Tender Bundle filed 22 July 2019, p.181.
I accept, as recorded in documents produced by New South Wales Police, that when police attended on the father at the paternal grandmother’s address in February 2018, he told them (in essence) that, having taken legal advice, he did not want to be interviewed further about the allegations. I accept he said he had considered suicide but no longer had an intention to take his life. According to the documents, he told police he was hopeful he could have a relationship with the mother and his children if he went to jail and did his time; he also asked them if they thought the mother had ever loved him or if the last six years had been a lie.
I accept that police documents include the following recounting:
Police believe [Mr Urwin] is focused on wanting his relationship with [Ms Nevins] back and may be willing to do whatever [Ms Nevins] wants to have her back
Police are of the opinion that [Mr Urwin] may make admissions to the allegations of [Z] in order to keep his wife, [Ms Nevins] happy so that she will allow him and his mother to have a relationship with his children. [Mr Urwin] indicated he may have touched [Z] on the bottom when carrying her from the car to her bed on some occasions. Police explained to him that these actions did not constitute an offence.
The assertion by police of an opinion that the father would, in essence, do or say anything so that the mother would return to their relationship – including, it seems, admitting to sexually abusing her eldest child – was certainly taken up as part of the father’s defence in the criminal proceedings, where it was also considered favourably.[82]
[82]Exhibit 21 at [304].
That this was the case does not, in my view, require that I assess the father’s comments (written or spoken) in the same way or arrive at the same conclusions about them in my determination of whether the children will be at an unacceptable risk of harm if their time with the father now occurs on an unsupervised basis or they move to live with him.
February 2018: Dr R interviews the mother[83]
[83] Tender Bundle filed 22 July 2019, p.96.
I accept, as Dr R recounted in her report, that when she interviewed the mother in February 2018 in the presence of Ms P, the mother did not want to repeat any specific details of the disclosures made by Z; she did say that, on that evening in February 2018, her daughter had shown her some underpants with old, dark bloodstains on them and this was when she told her “what had been happening”; she also said Z had been complaining of itchiness to “inside” her private parts for a few weeks.
February 2018: Departmental Helpline assessment report of events[84]
[84] Tender Bundle filed 22 July 2019, pp.64–68.
Documents produced by the Department relevantly include that the information provided on this occasion included the assertions that: the mother had often/every few days asked Z and W if they had been sexually abused as “you just don’t know who could be out there either at school or at a friend’s house”;[85] the mother had been told by police that they could not charge the father at that time and that there was nothing they could do as the investigation was ongoing; the reporter did not know if any of the other children in the home had been harmed (“Y reportedly showers with Mr Urwin”); the two younger children would not have the capacity to disclose such information; W laughs at his mother when she asks him if anyone has ever touched him inappropriately; the mother’s brother said that, last year, the maternal grandparents found someone had been searching pornography on the home computer and whilst the mother had asked the children who had done that, she believed it had to be some kind of mistake.
[85] Tender Bundle filed 22 July 2019, p.65.
The Department was also told that: “[Mr Urwin] reportedly admitted to the abuse of [Z] to [Ms Nevins] over the phone. [Ms Nevins] reportedly recorded this conversation but lost the recording. [Mr Urwin] reportedly admitted his sexual abuse of [Z] to his own mother as well.”[86]
[86] Tender Bundle filed 22 July 2019, p.65.
The Departmental notes also include the following:
[Mr Urwin] reportedly said his father’s cousin sexually abused him as a child (took him into a room and bent him over and pulled his pants down and raped him). [Mr Urwin] reportedly told [Ms Nevins] he thought this cousin was ‘a really cool cousin’. [Mr Urwin] reportedly told [Ms Nevins] that there was another time when he was a child when another boy at school played with penis (details are unknown).
When cross-examined, the father accepted that, when he spoke with the mother over the telephone on 6 February 2018, he told her that he had been sexually abused by an older cousin when he was about nine or 10 years of age; whilst he denied telling her that his cousin had put his penis in him, he said that his cousin had told him to lie face down and, after he did, had pulled his pants down and lay on top of him. He said that he had not felt anything and that his cousin had not touched his penis or made him touch his cousin’s penis.
The father also agreed that, during their telephone conversation on 6 February 2018, he told her that he had been sexually abused by a school friend when he was about eight, nine or 10 years of age; he accepted that he told her something along the lines that he had been abused: he said that when he and his friend had been playing a videogame, his friend put his hand down his pants and grabbed his penis (although he said he was unclear about that) and then squeezed it for a couple of seconds, although he also said he could not remember if his friend had put his hand down his pants or on top of them.
The Departmental notes also include the following:
[Mr Urwin] reportedly told [Ms Nevins] that ‘can’t help it’ ie sexually abusing [Z]. [Mr Urwin] reportedly told [Ms Nevins] he ‘blacks out and he doesn’t realise he’s doing it’. [Mr Urwin] reportedly told [Ms Nevins] that [Z] ‘touches him all the time’. [Mr Urwin] reportedly told [Ms Nevins] that ‘he blacks out and doesn’t realise that his hand is touching her and he freaks out and stops’.[87]
[87] Tender Bundle filed 22 July 2019, pp.65–66.
I note that Ms E’s evidence included that, when, at the end of 2012, she attended at the home, the mother told her that she and the father had fought, that she was shoved through the wall and that, unfortunately, W had seen the father pushing her and was scared. I am not persuaded that Ms E invented this incident and I accept her evidence in this respect.
I accept that, in the February 2019 Family Report, Ms L reported that the mother said that the father had perpetrated coercive, controlling domestic violence toward her during the course of their marriage – her recounting included describing a cyclic pattern of the father being physically abusive toward her, then apologetic and buying flowers and gifts and promising not to hurt her again; she said he had stalked her; caused her to become socially isolated, was possessive and jealous and had choked her; she alleged he had thrown objects at her; had made threats to kill himself and made derogatory and/or belittling comments to her in the presence of the children.[207]
[207] Exhibit 17, paragraph 25.
I accept that the mother also told Ms L that the children had been exposed to the violence perpetrated by the father against her: she said that the older children tried to intervene and would take X and Y into the bedroom so they would not see the violence; she also said that Z and W had told her that the father had told them “Don’t be like your mum. She’s crazy. She makes me do things like that.”
I accept that, when he spoke to Ms L in January 2019, the father denied the mother’s allegations of abusive behaviour; Ms L outlined that the account he provided to her consultant was consistent with moderately frequent coercive domestic violence perpetrated against him by the mother. I note that, when he was asked during his cross-examination whether he accepted he had been violent on any basis to the mother, the father’s response was “only in self-defence”; the tenor of his subsequent evidence was very much that everything that was tumultuous between the parents was the mother’s fault: for example, whilst he accepted that a wall in the house had been damaged, his account was that this happened because the mother had prevented him getting past her and it somehow just happened; whilst he accepted that he had held the mother down on occasions, he said that this was because she had been attacking him.
I note that the mother accepted that, on one occasion, she had ripped the father’s shirt when she was trying to push him off her; she also accepted that she had hidden keys from him, but said that she did so when he threatened to kill himself (for example, by saying that he could not live without her, so he would rather die).
I accept that, when nearly eleven year old Z spoke with Ms L in January 2019, she told her that the father “went crazy” when he was angry; she said she had seen him “grab W by the neck and pushed him to the ground” because he was annoyed W kept slurping his frozen Coke after being told to stop; whilst she first said she thought her mother had been there, she then said she was not sure about that.[208] I accept that Z also told Ms L that her mother and the father “sometimes had big arguments”; she said her mother had mostly told her and W to take the younger children to another room; she also said that the next day her mother would come out with “a big bruise”; she said she remembered a time when the father “grabbed mum by the neck (and) pushed her into a wall” and that she (Z) got really upset and told him “don’t touch my mum”. I accept that Z also told Ms L that she remembered that the father “threw” a vacuum cleaner at her mother when he was annoyed he could not fix it.[209] I accept Ms L’s recounting that Z also told her that her mother had become upset and cried when she and the father argued and that she had seen her mother “trying to defend herself”.[210]
[208] Exhibit 17, paragraph 71.
[209] Exhibit 17, paragraph 72.
[210] Exhibit 17, paragraph 73.
I accept that when nine year old W spoke with Ms L in January 2019, he told her that his mother and the father “always used to fight”; he said the father sometimes grabbed his keys and said he was leaving to live with “granny” (the paternal grandmother); he also said his mother had hidden the keys because she did not want the father to leave and that he had tried to defend the father to stop him going. I accept W told Ms L that he did not see the father and his mother arguing because she told them to “go into the room and stay there”; he said that he had not really heard the arguing because “we make a game in the room to calm us down. Sometimes X and Y cry because they’re scared”.[211] I accept that he also told Ms L that the father had become angry when he and Z were running around the house and being silly – he said that he remembered a time when the father told him to stop and he had not and the father “grabbed me by the neck and put me on the ground”.[212]
[211] Exhibit 17, paragraph 84.
[212] Exhibit 17, paragraph 81.
I am not persuaded that Z or W invented what they told Ms L they had seen and experienced or that they were mistaken or that they in some way misinterpreted the father’s behaviours; I am not persuaded that the mother “coached” them to tell her things that they did or that she coached them to lie to Ms L and tell her about incidents that had not happened. The statements which Z and W made to Ms L persuade me that they (and their siblings) were exposed to family violence perpetrated by the father against the mother and I note and accept Ms L’s evidence about the consequent deleterious impact on their sense of security, emotional development and on their general experience of parenting.[213]
[213] Exhibit 17, paragraph 124.
The mother’s allegations about the father’s behaviour toward her included that he had thrown his wedding ring at her. During his cross-examination, he agreed that he had thrown his wedding ring (which he said went toward a corner where the mother was standing) but did not agree that he had thrown it at the mother. He did, though, accept the mother’s account that he turned to Z and said “when you grow up, don’t be a psycho like your mum.” I consider that the father’s acceptance that he made this statement to Z supports the mother’s evidence that he was verbally abusive toward her during the relationship and constantly put her down. I prefer the mother’s account of this incident to the explanation given by the father and think it more likely than not that he in fact threw his wedding ring at the mother and not just in her direction.
Given the father’s admission that he told Z what is set out above, I accept the mother’s evidence that the father used to call her a “psycho”, tell her that she had a chemical imbalance and that she was crazy and say that she was the worst mum in the world; I think it more likely than not that he made comments that were derogatory and demeaning of the mother.
Where the accounts given by the mother and the father differ in relation to their respective allegations of conduct by each of them which amounted to family or domestic violence as defined in the Act, I prefer the account given by the mother. I reject the father’s evidence that his conduct toward the mother was only him acting in self-defence. I accept that: the father pushed or threw her against a wall with sufficient force to damage the plaster; he had grabbed her and thrown her to the ground; he held her wrists and held her down and that, on occasions, he put his hands around her throat. I also accept that he grabbed her mobile phone from her and threw it across the room and damaged it, that he threw a mobile phone at her and that it hit her and caused some bruising and that he threw the vacuum cleaner at her in a fit of pique. I also think it much more likely than not that the father sought to control the mother in the ways that she alleged.
The parental relationship
According to Ms L’s first report, the parents were then only communicating via their respective solicitors; she thought that their co-parenting relationship had been eroded by the allegations of abuse and its associated mutual mistrust.[214]
[214] Exhibit 17, paragraph 59.
After interviewing the parents in January 2019, for the preparation of the first Family Report, Ms L concluded that they had a highly conflicted relationship in which there had been allegations of family violence and in which each maintained a fixed position about the allegations of sexual abuse. Ms L then thought that neither parent had the capacity to foster and encourage the children to have a meaningful relationship with the other parent. She thought they did not have the capacity to engage in constructive communication with each other in the future and that, given the significant degree of parental conflict and the absence of parental communication, a shared parenting arrangement would not be in the children’s best interests.[215]
[215] Exhibit 17, paragraphs 140–141.
I accept that, when Ms L asked the father in February 2022 whether, if they lived with him, he would consult with the mother about what school the children should attend, he told her “I don’t want to have contact with her”.
I accept Ms L’s assessment, as expressed in the 23 March 2022 Family Report, that the parental relationship remains highly conflicted and undermined by the matters that have been discussed in these Reasons. I accept her account that the parents communicated with each other via their solicitors, although they were apparently open to communicating through an online parenting app. I also note the mother suggested they could use email to communicate, although the father when cross-examined, did not seem to me to want to take up that method of communicating, instead stating a preference that they use an online parenting app.
Despite the references in the second Family Report to what I will describe as “practical” ways of communicating with each other, I accept and join in Ms L’s assessment that the conflicted relationship between the parents in this case is entrenched and that their differences are irreconcilable. I am not remotely persuaded that they are capable of engaging in a constructive co-parenting relationship in which they could discuss and negotiate matters associated with the children’s parenting needs.
WHAT PARENTING ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
Allocation of parental responsibility
Given the findings I have made about the father’s violence toward the mother and W, (including those based on the father’s admitted conduct), the presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them[216] does not apply. Consequently, the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the children’s best interests being the paramount consideration[217]).[218]
[216] Family Law Act 1975 (Cth) ss 61DA and 61DA(2).
[217] Family Law Act 1975 (Cth) ss 60CA and s 65AA.
[218] Cox & Pedrana (2013) FLC 93-537 at [19].
If there is an order that the children’s parents are to share parental responsibility for them, and the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to them, such order requires the decision to be made jointly by their parents[219] and that each party consult the other in relation to the decision to be made about that issue and make a genuine effort to come to a joint decision about it. [220]
[219] Family Law Act 1975 (Cth) s 65DAC(2).
[220] Family Law Act 1975 (Cth) s 65DAC(3).
I am not remotely persuaded that these parents have the capacity or the desire to make decisions about the children jointly – the father does not want to have contact with the mother and the mother remains convinced that he harmed her two oldest children. The goodwill and trust required for effective parental communication and co-operation are completely absent here.
For these reasons, then, I consider an order for equal shared parental responsibility is not an order which is in the children’s best interests.
Living and time orders
As noted above, when each of Z and W first spoke with Ms L in January 2019, they told her about good things the father used to do with them and their siblings. I am not persuaded that they would have made such comments if, as the father contended, the mother had embarked on a deliberate course of coaching them to make the complaints about his behaviours toward them that they are recorded to have made.
The mother agreed, during the course of her cross-examination, that her denial (at paragraph 22 of her affidavit in reply) that she had ever hit the children was a lie. However, it seems to me that this lie needs to be seen in the context where, when she spoke with Ms L in January 2019, the mother told her that she had previously excessively physically disciplined the children – that is, that she had hit them and yelled at them. The existence of the mother’s admitted lie when seen in this context does not persuade me that every aspect of her evidence was untruthful or that she deliberately lied when she told the police and other authorities about the comments Z made to her.
There was no challenge during the proceedings before me to the prospect that, before the events of February 2018, the parental relationship was intact; whatever the father’s subsequent complaint about the mother’s behaviour, he had not taken any steps to separate from her.
Further, a pervasive aspect of his defence in the criminal proceedings was, in essence, that he would have said anything – including, if the mother had been successful in what the criminal trial judge clearly concluded to be attempts to pressure him into confessing, making purportedly false admissions to sexually abusing Z – in order to have the mother return to their relationship. The comments made by Z in February 2018 caused the mother to end the marriage. Given all of this, I am unpersuaded that, in acting as she did that day, the mother was somehow motivated by malice against the father.
Having regard to all of the evidence and even taking into account the submissions made about the inconsistencies in certain aspects of the mother’s accounts over time, I am not persuaded that the mother maliciously influenced Z to make the disclosures which I accept she made about the father touching her genitals.
Similarly, I am not persuaded that it is likely that the mother’s conduct, in asking the children on occasion whether anyone had touched them or in making it clear by her words and behaviours that she was concerned about the father being in Z’s bedroom or going into the bathroom whilst she was in that room, was the cause of Z making the complaint that she did about the father touching her genitals. After all, it appeared uncontested that, until the seminal night in February 2018, the children had answered their mother’s inquiries about them being touched by anyone in the negative. Given this, I am unpersuaded that the mother’s conduct in February 2018 in asking Z “how” she had been touched or “who” had touched her likely led or influenced the child to make the comments that she did.
Whilst the mother’s queries and conduct may well have created an environment in which the children were alert to her concerns about them being touched by someone in a way that was unacceptable or abusive of them, I am simply unpersuaded that such an environment caused Z to spontaneously accuse the father of touching her genitals (particularly given that she must have, by inference, previously responded to such queries in the negative) and, subsequently, to provide the details that she did when interviewed by police. As already noted, I do not accept that Z was in any way influenced by either the mother or Ms P during the break that occurred when she was first interviewed by police; I reject any suggestion that either of them told her what to say to the police upon her return to the interview.
I am not persuaded, as the father contended, that Z’s descriptions of his conduct toward her was the consequence of the mother coaching her. I am not persuaded that the mother positively pressured either Z or W to make the comments that they did when interviewed by police (or that she coached them to draw the drawings that they drew when interviewed) or when they spoke to others (such as Ms L). I am not persuaded, as the father contended, that it is likely that Z fabricated the allegations she made against him so that she could move to live with her biological father – especially given that, until 2022, she continued to live with the mother.
I am not persuaded that it is likely that the mother fabricated the allegations of child abuse in order to obtain single parenting payments, as the father said he continued to believe at trial. I am not persuaded that it is likely that the mother fabricated the allegations of child abuse and deliberately ensured that both Z and W were subjected to the rigours of participating in criminal proceedings in order to satisfy what the father described as her loving to be “the victim” or to obtain attention in some kind of manifestation of attention-seeking behaviour. I note that, when the father was asked whether he seriously suggested the mother had raised the allegations to get attention for herself, he said “no” – before then saying “that’s just a possibility”: before then asserting that it was not what he believed, but he was just saying it was “a possibility.”
Whilst there must, I consider, be some doubts about the accuracy of Ms E’s recitation of Z’s reported comments to her in October 2018 (given the absence of contemporaneous notes of what has been recounted as very detailed conversations), I am not persuaded that Ms E invented the content of the conversation.
Whilst others may disagree, I find the father’s comments to Ms E on 11 February 2018 to be significantly troubling. They very much seem to me to suggest that the father touched Z in a way that was sexual; they very much suggest to me that, at times, he viewed her in a sexual manner and, using the term used by the judge who determined the criminal proceedings, “sexualised” her. Such conclusions are buttressed by comments he made to police when interviewed in February 2018: for example, in describing an occasion when Z had been wearing a dress or a short top that exposed her stomach, he said she “looked hot or sexy”. I consider his evidence when cross-examined about this comment (namely, that what he had been talking about was an outfit and not Z) to be disingenuous, particularly noting that Z was ten years of age when he said he made the comment in late 2017. I also note that, in denying the contention that, at the time, he had thought Z looked “sexy”, he explained that he thought her outfit looked like a hooker or a prostitute: when asked whether that was what he was thinking (namely, that she looked like a prostitute), his answer was in the affirmative, before he referred to movies where “girls on the corners and stuff” wear that kind of stuff.
I am not persuaded by the father’s attempts to explain away the comments that he made to Ms E. I am not persuaded by the submissions that suggest that being “unsophisticated” axiomatically means that a person is confused or unclear about their actions and conduct. The father’s evidence included, in essence, that at the time he told Ms E of his researches into the duration of incarceration, he did not understand anything, did not appreciate whether he had done anything wrong or not and did not know whether however he had touched Z was unlawful. I hold significant reservations about the father’s evidence in attempting to explain his actions in “googling” the duration of incarceration that he spoke of to Ms E. Similarly, I am significantly sceptical about the father’s assertions, when cross-examined, that in making comments such as “I’m sure that there are parts that definitely were inappropriate” to Ms E, he did not know exactly what he was saying at the time.
I also note that, after the father was asked, during his cross-examination, to proffer an explanation for his comment to Ms E that “I see Z bent over me and I’m, like, “Whoa, that looks like porn shit”, the following exchange occurred (for clarity I have used “F” to denote the father’s evidence and “Q” to denote the question asked of him):
F: Because when I watch porn, sometimes, like, the day after or a couple of days after, it will be, like, someone would wear the same bikini colour or something like that. It was, like, a familiar thing or – I think that’s what it was with her, like, the same colour bikini or underwear or something I saw. You know, something like that. Or then someone walking past the shop, my work, and they would have the same coloured hair or just, yes, stupid things like that. And it was kind of, like, reminds, “That’s like – the way that that chick looked or dressed in that film clip” kind of stuff. Not film, like, porn – I don’t know – video thing.
Q: But how is an eight, nine, 10 year old child bending down in front of you going to remind you of porn in any other? F: Just because it’s just
Q: Just wait? F: Sorry
Q: Doesn’t that objectify her as a sexual object?
F: Probably. That’s probably why straightaway I thought, “This is – you know, I hate this. This is weird. I hate porn” because that’s what I was thinking. It’s when I don’t watch porn, I have a clear, focused mind and you don’t think like that. That’s what I was thinking at that time. Like, at the […] phone call time...
Q: So do I take from that that if you watch porn, X and Y are at risk of you objectifying them as a sexual object if you had them in your care?
F: No. I never objectify...I just, like...once. I remember just – I remember once, maybe twice, but I remember it once with [Z]. Like, it’s just – it was just a one-off thing…
In discharging the obligation cast on this Court, as opposed to the obligation borne by the Court which determined the criminal proceedings and even bearing in mind the primacy of the obligation to determine parenting orders (as opposed to making findings which resolve allegations of sexual and other abuse):
(a)Z’s complaints that the father touched her genitals; and
(b)the father’s comments to Ms E during their telephone conversation on 11 February 2018; and
(c)the aspects of the father’s evidence, when cross-examined, to which I have specifically referred,
combine to persuade me of the existence of an unacceptable risk of harm if the supervision of the children’s time with the father is immediately removed.
Ms L initially thought, following the January 2019 interviews of the parents, that neither had the capacity to foster and encourage the children to have a meaningful relationship with the other parent. However, the description of the children’s interactions with the father between January 2019 and August 2019 and after their time with him recommenced in March 2022 (following the mother’s agreement that this occur) dispels this concern insofar as the mother is concerned – Ms L’s later assessment, as recorded in the most recent Family Report, makes this clear and I concur.
I am not persuaded that the evidence persuades of a finding that the mother has created false and damaging beliefs about the father as a child abuser or that any beliefs she and the children’s older siblings hold about him have negatively impacted the children’s relationship with their biological father or their self-identity.
I accept Ms L’s evidence to the effect that X and Y require stability, routine and consistency as well as appropriately nurturing and responsive parenting.[221] I consider that continuing to live with their mother will best meet these needs. I consider that moving to live with the father would require the children to deal with very significant changes – in fact, their entire lives would be upturned as they would be required to deal with a change of residence, a change of primary caregiver and a change of school. In addition, I accept, as Ms L noted, that the father’s relationship with the children and his parenting of them after the February 2018 separation is significantly untested. I also accept Ms L’s assessment that the father demonstrated a lack of insight into the potential impact on the children of moving to live with him – I consider the extent of his absence of insight to be significant. I also consider he lacked insight about how best to support the children if they no longer lived with their mother, who has parented them for all of their lives: again, I consider the extent of this absence of insight to be significant.
[221] Exhibit 22, paragraph 82.
I accept Ms L’s assessment that, if required to live away from, in particular, their mother and also their siblings, the children would likely experience significant grief and loss as well as confusion, rejection, abandonment and anger. I accept her evidence to the effect that such a move would also likely effect their behaviour, emotional well-being, self-esteem and their relationships with their parents and peers. I am completely unpersuaded that being required to cope with the consequences associated with no longer living with their historical primary care provider is in the children’s best interests.
Given my conclusion that the children’s best interests will be met by them remaining living with their mother and siblings (at the very least, W only), I am also satisfied that it is in their best interests for their mother to have sole parental responsibility for major long-term issues relating to them. Whilst the imposition of a requirement to consult with the parent to whom sole parental responsibility is not accorded often accompanies such a determination, I am not persuaded in the circumstances of this case, as discussed during these Reasons, that such an order would be in these children’s best interests.
In the event that I am wrong in arriving at the conclusion expressed in paragraph 320, I am easily satisfied that it is not in the children’s best interests for their time with the father to proceed immediately to occurring on an unsupervised basis. I arrive at this conclusion because of what I consider would be the inevitable deleterious impact on the mother’s household – by which I mean her parenting of the children and her relationship with them and their relationships with each of their siblings – of an order which required the children to spend unsupervised time with the father immediately or in the very near future.
Whilst the mother proposed that the children commence spending unsupervised time with the father from August 2024, Y will still only be seven years old at that time. Given the mother’s evidence about Y’s potential vulnerability, the incident in August 2021 and what I regard as the likely impact of that event on the mother’s assessment of Y’s vulnerability, I consider that the children’s best interests will be better met by affording them the opportunity to spend unsupervised time with their father from June 2026, at which time Y will be about 9 and a half years of age. I also consider that the maintenance of supervision over the children’s time with their father until then will be more likely to support the mother to support the children continuing to have an ongoing relationship with the father and paternal grandmother; it will enable both children to continue to mature and it will, I think, support the continued existence of their relationships with Z and W.
Whilst others may disagree, I also consider that it is in the children’s best interests, assessed within the complex situation in which they find themselves, for their time with their father, once it occurs on an unsupervised basis, to take place between 9.00 am and 5.00 pm on each of the first three Sundays in every month. In that way, the children will be afforded the opportunity to have an entire weekend once a month with their mother and siblings and their engagement in sporting activities can occur unimpeded. Unless otherwise agreed between the parents, such time should continue during all school holidays other than for a period of two consecutive weeks during the school holidays at the end of each year.
To the extent that the orders made do not reflect the orders sought by either of the parents or the Independent Children’s Lawyer, that is because I have not been persuaded on the evidence before me that such orders are currently in the children’s best interests. To the extent that aspects of the orders made have not otherwise been the subject of specific explanation in these Reasons, they are made because I have concluded that they are in the children’s best interests.
For the reasons expressed, I consider that the orders set out at the commencement of these Reasons are the orders which, on the evidence before me, are orders which are in the children’s best interests and proper.
I certify that the preceding three hundred and thirty (330) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 31 March 2023
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