NEWARKE & LATHWELL

[2015] FamCA 1121

FAMILY COURT OF AUSTRALIA

NEWARKE & LATHWELL [2015] FamCA 1121

FAMILY LAW – CHILDREN – Best Interests – Where both children have meaningful relationships with both parents – Where the father does not pose any unacceptable risk of harm to the children by their subjection or exposure to sexual abuse or neglect – Where the father’s belief that the mother conducted herself in a way that, either by design or inadvertence, damaged the children’s relationships with him was not objectively borne out by the evidence – Where the children still enjoy deep, loving relationships with the father – Where the evidence does not warrant reversal of the children’s residence – Children to remain living with the mother – Where, in the absence of any need to protect the children from harm posed by the father, the children should spend substantial amounts of unsupervised time with him – Children to spend graduating, unsupervised time with the father, over a period of 10 months, culminating in a regime of four consecutive nights each alternate weekend and half of school holidays

FAMILY LAW - -CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility is rebutted by the evidence which proves the best interests of the children would not be promoted by such an order – Where the hostility between the parties is too pronounced and the bitterness between them seems irreparable – Where the party with whom the child lives should have exclusive parental responsibility – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B, 114AB

APPLICANT: Mr Newarke

RESPONDENT: Ms Lathwell

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Sydney

FILE NUMBER: SYC 5103 of 2012

DATE DELIVERED: 15 December 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Justice Austin

HEARING DATE: 30 November 2015 & 1, 2 & 3 December 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Kyle Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Millar

SOLICITOR FOR THE RESPONDENT: Fox & Staniland Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Eldershaw

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW, Sydney

Orders

1. All former orders relating to the following children (“the children”) are discharged:

   (a)C, born … 2009; and

   (b)D, born … 2010.

2. The mother shall have sole parental responsibility for decisions about all major long-term issues related to the children.

3. The children shall live with the mother.

4. Each party shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   (a)

   Up to and including Saturday 30 January 2016, each Saturday from

   
   

   9.00 am until 5.00 pm.

   (b)Thereafter, up to and including Sunday 24 April 2016, each alternate weekend from 9.00 am Saturday until 5.00 pm Sunday, commencing on the first Saturday after the last visit pursuant to Order 4(a) hereof.

   (c)Thereafter, up to and including Sunday 17 July 2016, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the second Friday after the last visit pursuant to Order 4(b) hereof.

   (d)Thereafter, up to and including Monday 10 October 2016, each alternate weekend from 5.00 pm Friday until 8.00 am Monday, commencing on the second Friday after the last visit pursuant to Order 4(c) hereof.

   (e)Thereafter:

   (i)During school terms, each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday (or Tuesday if Monday is a public holiday), commencing on the first Thursday of each term;

   (ii)For the first half of the Autumn, Winter, and Spring school holidays; and

   (iii)During the Summer school holidays, for the first half of the holidays when they begin in an even numbered year and for the second half of the holidays when they begin in an odd numbered year.

5. For the purpose of implementation of Order 4(e) hereof, the school holidays are deemed to commence at the conclusion of school on the last day of term, the holidays are deemed to end at the commencement of school on the first day of the new term, and the mid-point is midday on the day halfway between those first and last days.

6. Order 4 hereof is suspended during the following periods:

   (a)From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the mother from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the father from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in odd numbered years, with the same arrangements in reverse in even numbered years; and

(b)Between 5.00 pm Saturday and 5.00 pm Sunday on each Mother’s Day and Father’s Day weekends, during which periods the children shall spend time with the mother on the Mother’s Day weekend and with the father on the Father’s Day weekend.

1. For the purposes of implementing Orders 3, 4, and 6 hereof, the parties shall respectively ensure the children’s:

   (a)Collection from school, whenever the children’s residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;

   (b)Return to school, whenever the children’s residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise

   (c)Collection from and return to H Street, I Town, NSW.

2. Unless otherwise agreed, the parties shall take all reasonable steps to ensure that the children communicate privately by telephone with:

   (a)The father each Wednesday at 6.00 pm, when the children are living with the mother, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother and the mother shall ensure that the children are able to receive the father’s calls on that number at that time;

   (b)The mother each Wednesday at 6.00 pm, when the children are spending time with the father, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father and the father shall ensure that the children are able to receive the mother’s calls on that number at that time; and

   (c)The parent with whom they are not then staying, on the children’s birthdays at 6.00 pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent for that purpose and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls on that number at that time.

3. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

4. Each party is restrained from discussing with any person any aspect of these proceedings or the former criminal proceedings concerning the father and the mother’s older son (E) in the presence or hearing of the children.

5. Each party is restrained from causing or permitting the children to be known by any surname other than “Lathwell-Newarke”.

6. Each party is restrained from entering upon or approaching within 100 metres of the other’s residence.

7. Each party shall forthwith notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

8. The mother, in so far as it is known to her, shall keep the father informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.

9. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

10. Each party shall forthwith inform the other, and keep the other informed, in writing, of their respective current residential address and mobile telephone number.

11. Leave is granted to the mother to provide to any therapist engaged to provide therapy to her older son (E) copies of:

    (a)       These orders;

    (b)       These reasons for judgment; and

    (c)       The single expert report of Dr B dated 5 February 2015.

12. In the event of either party notifying either the police or a prescribed child welfare authority that the children have been or are the subject of actual or potential abuse, the notifying party shall simultaneously, or as soon as possible thereafter, provide to the person to whom the notification is made copies of:

    (a)       These orders;

    (b)       These reasons for judgment; and

    (c)       The single expert report of Dr B dated 5 February 2015.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The Independent Children’s Lawyer is discharged upon the expiration of any applicable appeal period.

15. Costs are reserved for 28 days.

16. Any and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5103 of 2012

Mr Newarke

Applicant

And

Ms Lathwell

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern parenting orders for the two young children of the applicant father and respondent mother. All aspects of their parental responsibility, residence, and subsidiary care were in dispute.

2. The defining issues for the mother were the children’s exposure to the risk of harm through sexual abuse and neglect by the father, which they were not.

3. The defining issue for the father was the need for the children to live with him because the mother was intent on the destruction, or at least impairment, of the children’s relationships with him, which she was not.

4. The children should continue to live with the mother but spend much more unsupervised time with the father. The antipathy between the parties meant they could not share parental responsibility and so, as the residential parent, the mother should have exclusive parental responsibility for them.

History

1. The parties first met in about 2004 when the father taught music to two of the mother’s older children, but they did not develop a relationship until 2007. The parties’ first child was born in 2009, they began cohabitation in about June 2009, and their second child was born in 2010.

2. Both parties have other children to prior relationships, but only one of them is relevant to these proceedings. The father has two adult sons. The mother has three older children, all of whom lived with the parties during their relationship. The eldest two are now adults, but the youngest (“E”) is 17 years of age and still lives with the mother and the parties’ children. The father taught E music from a young age and he was about nine years of age when the parties commenced cohabitation.

3. The parties separated in September 2010, only a few months after the youngest child was born. The separation occurred shortly following the mother being told the father had tickled E’s genitals.

4. The father vacated the mother’s home at her request, but the mother allowed him to visit her home several times each week to visit the children – usually on Sundays during the day and on several evenings during the week – at which times he participated in the children’s household routine of meals, bathing, and bedtime. That consensual arrangement endured for two years until August 2012, when the mother took the two children and E to J Town. The parties disputed whether the mother intended to remain there permanently, but in fear she might, the father commenced these proceedings.

5. Shortly after the proceedings were commenced, interim parenting orders were made in August 2012 requiring the mother to return with the children from J Town to Sydney by November 2012. The orders provided for the children to spend time with the father in J Town in the meantime.

6. Almost immediately after those orders were made, E repeated to the mother his allegation that the father had tickled his genitals and he demanded that he be permitted to make a complaint to police, which did not occur when the allegations first emerged in September 2010. With the mother’s assistance, E reported the allegations to Queensland police and then also to NSW police on their return to Sydney. The father was later charged with E’s sexual abuse. Despite his defence of the prosecution, he was convicted in February 2014, but he successfully appealed and the conviction was quashed in September 2014.

7. As a consequence of E’s allegations to police about the father, amendments were made to the interim parenting orders. In December 2012, the orders were varied to require the children to be supervised by another adult when spending time with the father.

8. The mother later lost confidence in the adult supervisors used by the father and so, in October 2013, the interim orders were varied again to require staff of G Group to supervise the children’s visits with the father. Other minor adjustments were made to the interim orders in February 2014 and June 2014.

9. The mother still lives with the children and E. She has not re-partnered.

10. The father is now engaged to Ms F. She has known the father for about 10 years and she acted as his supervisor in late 2012 and in 2013. She is well known to the children.

Proposals

1. The father resiled from the minute of orders he tendered at a directions hearing shortly before trial,[1] and he instead pressed for the orders set out in a revised minute of orders he tendered at the commencement of the trial.[2] He proposed the reversal of the children’s residence so that, over a transition period of about seven weeks, the children would live primarily with him. He proposed they then live with the mother each alternate weekend for three nights during school terms, for half of school holiday periods, and on other special occasions. He wanted sole parental responsibility for all major long-term decisions related to the children.

   [1] Exhibit F1

   [2] Exhibit F2

2. The mother sought the orders set out in the minute of orders she tendered at the directions hearing shortly before trial.[3] Her proposal was for the children to live with her, for her to have sole parental responsibility for them, and for them to spend time with the father on the first and third weekends of each month, but only during day-time hours and always subject to professional supervision until the youngest child attained 12 years of age in about seven years time. She also wanted injunctions restraining the nature of the father’s physical interaction with the children.

   [3] Exhibit M1

3. The Independent Children’s Lawyer pressed for the orders set out in her minute of orders tendered during the course of the trial.[4] Her proposal was to split parental responsibility between the parties in respect of different issues – some shared between the parties and some reserved to the mother. She proposed the children continue to live with the mother, but spend much more time with the father. She proposed a regime which graduated over about nine months and culminated in the children spending time with the father each alternate weekend for four nights during school terms, for half of school holiday periods, and on other special occasions. She also proposed some more moderate injunctions to restrain the nature of the father’s physical interaction with the children and, until the youngest child attains 12 years of age, a requirement for the father to try and ensure the presence of Ms F or the paternal grandmother in his home when the children stay overnight.

   [4] Exhibit ICL1

Evidence

1. The father relied upon:

   (a)His affidavit filed on 23 November 2015;

   (b)The affidavit of Ms F, filed on 19 November 2015; and

   (c)

   The affidavit of the paternal grandmother, Ms Newarke, filed on

   
   

   19 November 2015.

2. The mother relied upon:

   (a)Her affidavit filed on 19 November 2015;

   (b)The affidavit of her adult daughter, Ms K, filed on 19 November 2015 (subject to the deletion of some parts, which will be apparent from the transcript of the proceedings);

   (c)The affidavit of Mr Lathwell sworn on 16 January 2013; and

   (d)The affidavit of Mr L sworn on 16 January 2013.

3. The parties’ own affidavits both referred to voluminous exhibits which were not filed with the affidavits. Counsel for both parties sensibly agreed to cull the exhibited material, much of which was unnecessary, and only those documents which were relevant to, and carried some probative weight in respect of, a significant controversial issue were tendered as individual exhibits.

4. The parties also relied upon:

   (a)The report of Dr B, the single expert psychiatrist, dated 5 February 2015; and

   (b)An agreed statement of facts.[5]

   [5] Exhibit A

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act 1975 (“the Act”). The Act defines the meaning of a “parenting order”

   
   

   (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

1. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. One of the few uncontroversial facts in this litigation was that both children have meaningful relationships with both parents from which they do and should continue to derive benefit.

2. The single expert saw how the children were content in the mother’s presence and relate to her in a warm way.[6] The mother knows the children love the father and they enjoy spending time with him.[7] The single expert witnessed their excitement at doing so on both occasions he met with them and all supervisors confirmed positive interaction between the children and the father.[8]

   [6] Single expert report, page 13

   [7] Single expert report, page 12

   [8] Single expert report, pages 31, 32, 33

3. The single expert concluded the children have contented and secure relationships with each parent, as they approach them both with affection and enthusiasm.[9] He was not challenged about the validity of those opinions.

   [9] Single expert report, page 44

4. The orders should therefore provide for both parents to have a substantial involvement in the children’s lives, provided they are safe from any undue risk of harm in the care of both.

Section 60CC(2)(b)

Family violence

1. Both parties adduced evidence of family violence allegedly committed by the other, but neither sought to use the evidence to prove any need to protect the children from harm that might be caused by their subjection or exposure to it. Consequently, the evidence was not relevant as a “primary consideration” under s 60CC(2)(b) of the Act.

2. The wife only sought to prove the husband’s commission of family violence to render the presumption of equal shared parental responsibility inapplicable

   
   

   (s 61DA(2)(b)) and the husband did not seek to use the evidence in any way at all. For that reason, the evidence about family violence is only evaluated as an “additional consideration” pursuant to s 60CC(3)(j) of the Act.

Risk of sexual abuse

1. The central plank of the mother’s case was the father’s alleged sexual abuse of E. She submitted for, preferably, a positive factual finding to that effect, but alternatively, a finding that the father constitutes an unacceptable risk of harm to the children by his subjection of them to sexual abuse.

2. The father denied all allegations of abuse and both he and the Independent Children’s Lawyer opposed the findings sought by the mother.

3. E’s allegations against the father spilled out progressively between 2010 and 2013.

4. In September 2010 he told two of the mother’s friends the father had touched him “inappropriately” on a few occasions when tickling him in bed at night after reading him a story. Those friends told the mother of his allegation.[10] The mother then approached E for an explanation and he told her the father had touched his “private parts when he was tickling” him.[11] The mother then confronted the father about the allegation and he admitted “maybe [he] took things too far” when he was tickling E,[12] by which the father deposed he meant he had gone too far by continuing to tickle E after being asked to stop; not by acting improperly. He maintained any contact with E’s genitals was entirely accidental and asserted E did not say anything to him about it, either at the time or later.[13]

   [10] Affidavit of Mr L; Mother’s affidavit, paras 28, 59, 104, 108, 113

   [11] Mother’s affidavit, para 110

   [12] Mother’s affidavit, para 114; Father’s affidavit, para 113

   [13] Father’s affidavit, paras 116, 119

5. The mother was apparently satisfied with the father’s explanation at the time. She told the single expert she did not want to report the matter to police because she understood it was really just E’s word against the father’s and she did not want the “drama”.[14] It would have been a remarkable dereliction of parental duty if she truly believed in the allegation but purposefully chose not to act on it, which suggests she did not truly believe it, even though her mind may not have been entirely at rest. She is an intelligent woman and would have acted protectively if she perceived the need.

   [14] Single expert report, page 8

6. Her decision to separate from the father at about that time was not based on E’s allegations alone. She admitted there were a variety of reasons.[15] After separation, she continued to allow the father to attend her home and to spend time with the children without any supervision because, as she said in cross-examination, “inappropriate touching” was not her concern at that time. She merely considered the father was not careful enough with the children. Consequently, the mother permitted the father to take the eldest child to and from his Montessori pre-school and on visits to the paternal grandmother’s home in the Region M. The mother even permitted the father to accompany her and the children on summer holidays in 2010 and 2011.

   [15] Mother’s affidavit, para 28

7. In August 2012, on the same night the father successfully secured interim parenting orders compelling the mother’s return from J Town to Sydney, E repeated his allegation against the father to the mother. The timing of his renewed allegation seems more than coincidental, particularly since he revealed nothing new to the mother. He could hardly have done so, because he had not been alone with the father for the preceding two years.

8. The mother considered E raised the issue again out of genuine concern he would again be exposed to the father but, since he had no contact with the father over the preceding two years in Sydney anyway, there is a much stronger inference he raised it again in the hope of influencing the litigation to help the mother and his half-siblings remain in J Town.

9. Within the next few days, E was interviewed by Queensland police and he made an identical allegation to them. His allegation was still confined to “inappropriate” touching on the “private parts” on “several occasions” when the father tickled him in bed.[16] He was covered by the bedclothes, so there was no direct contact between the father’s hand and his body.[17] The mother also made a police statement.[18]

   [16] Mother’s affidavit, paras 55-58

   [17] Single expert report, pages 16, 50

   [18] Mother’s affidavit, paras 62-67; Exhibit F4; Single expert report, page 25

10. E also told the mother he had seen the father’s penis several times in their bathroom or in public change-rooms, but that was unremarkable because the father and E, although not related, had an ordinary parent/child relationship during the parties’ cohabitation.[19] The mother admitted E and her older son had “idolised” the father.[20]

    [19] Father’s affidavit, para 94

    [20] Mother’s affidavit, para 104

11. The interim orders made in these proceedings on 31 August 2012, permitting the children to spend unsupervised time with the father in J Town, were made with the mother’s consent. She made no application to revoke or vary the orders consequent upon E’s renewed allegation and so the father and children then spent unsupervised time together in J Town pursuant to those orders. The father was oblivious to E’s renewed allegation against him.

12. The mother, the children, and E returned to Sydney from J Town in November 2012. Some weeks later, in December 2012, the mother sent an email to the father explaining she “shut him out” because he commenced these proceedings against her, not because of E’s allegations.[21]

    [21] Father’s affidavit, para 211

13. It was not until January 2013 that E made another allegation against the father. He told the mother that some three to five years before, when the father was teaching him to play the oboe, the father cupped E’s naked testicles in his hand when explaining how to breathe properly while playing the instrument. The mother made inquiries and now asserts the father’s instruction to E was a ruse to excuse the fondling of his testicles.[22] The father admitted teaching that breathing technique to E during his tuition, but contended he only did so after procuring the mother’s permission, and he vehemently denied he actually touched E’s testicles.[23]

    [22] Mother’s affidavit, para 121

    [23] Single expert report, page 22; Father’s affidavit, paras 77-79

14. E did not make that particular allegation against the father to Queensland police only months before in September 2012.[24] While victims of sexual molestation do not always reveal their abuse at the first available opportunity, by January 2013, E was 14 years of age and it seems extraordinary that, when he summoned the courage to go to police and make his complaint of sexual abuse against the father, he omitted to make the gravest complaint of all. The single expert was similarly bemused by that omission.[25] It is unlikely E only recalled that most serious instance of abuse after his complaint to the Queensland police, leaving only two reasonable inferences: either his omission to mention it earlier was deliberate, which seems pointless, or his later report of it was a fabrication, motivated by his desire to help the mother. The allegation related to the fondling of his testicles was not reported to police until he was re-interviewed by NSW police in March 2013.

    [24] Single expert report, page 25

    [25] Single expert report, pages 50-51

15. The criminal charge against the father related to his alleged fondling of E’s testicles was proven at trial, but all other charges related to his tickling of E were dismissed.[26] The father’s appeal against the single conviction succeeded because the presiding judge found E’s account lacked credit. E could not adequately explain why he did not reveal the allegation to police when first interviewed in September 2012, there being no doubt it allegedly occurred well beforehand. The presiding judge also noted the parallel between the deterioration of E’s relationship with the father and the deterioration of the mother’s relationship with the father,[27] and found the inconsistencies in his accounts implied fabrication rather than embarrassment.[28]

    [26] Mother’s affidavit, para 129

    [27] Single expert report, page 26

    [28] Single expert report, page 50

16. E fared little better when he discussed the matter with the single expert. He was not able to “provide very much detail” to the single expert, who remarked there was a “striking lack of detail” and he “did not have a clear recollection of how things unfolded”.[29] Following consultation with E and the observation of his audio/visual police interview, the single expert was similarly circumspect about E’s account and concluded he “did not have a clear view in his head of [the father’s conduct] as sexually motivated and genitally directed”.[30] Logic suggests E would be hateful of the father if he really was sexually abused by him, but E told the single expert the children needed to spend time with the father.[31] It is unlikely E could have been so magnanimous if his allegations against the father were true. If they were true, he would likely have railed against any suggestion his younger half-siblings could be exposed to a predator like the father.

    [29] Single expert report, pages 16, 50, 51

    [30] Single expert report, page 50

    [31] Single expert report, page 16

17. The mother and E both know he was not regarded as a credible witness.[32] The mother told the single expert she could not understand why E was “so consumed by (the appeal result)”.[33] Most probably, she understands E’s credit was found wanting for good reason and she is less sympathetic to him than would otherwise be the case because she thinks he should also know his allegations were unmeritorious. Significantly, she told the single expert she did not believe the father’s conduct towards E was “primarily sexual”, but rather just reflected his lack of appreciation of personal boundaries.[34] She said the same thing in cross-examination. Her admissions to the single expert and in cross-examination contradict her evidence-in-chief about her professed belief in the truth of E’s allegations.[35]

    [32] Mother’s affidavit, para 136

    [33] Single expert report, page 7

    [34] Single expert report, pages 12, 49

    [35] Mother’s affidavit, para 303(e)

18. The father’s exoneration on the criminal charges does not, of course, preclude factual findings on the civil standard of proof that he acted as alleged, but the evidence fell well short of proof on the balance of probabilities that he sexually molested E.

19. The subsidiary question as to whether the children are at unacceptable risk of sexual abuse by the father was connected to other evidence about the physicality of his personal interaction with them. He is inclined to hug, pat, and kiss them frequently, about which the mother is suspicious.

20. The single expert remarked in his report:[36]

    …[the father] has difficulty respecting personal boundaries with children. For that reason I am concerned that intimacy may flow into inappropriate behaviour even if there is not necessarily sexual gratification present.

    [36] Single expert report, page 49

21. The mother reacted to that observation with alarm, but her reaction should be seen in context. Her demeanour is the opposite of the father’s. She is cool, reserved, and controlled. Under the observation of the single expert, the children were less effusive with her than with the father, notwithstanding they have always been primarily resident with her.

22. The single expert described her as:[37]

    …quite pragmatic and rather more emotionally self-sufficient and dispassionate than most people.

    [37] Single expert report, page 15

23. In cross-examination, the single expert re-affirmed his opinion of her dispassion and observed she did not really seem to empathise with E.

24. The father could hardly be more different. He tends to interact with other people physically, not merely verbally. The single expert described him in cross-examination as “an incredibly touchy, feely person”.

25. Along a spectrum of ordinary personal intercourse, the parties are polar opposites. The mother is suspicious of the father’s inclination to close physical contact and he regards her cool reserve as prudish.

26. Other than for bare speculation, there is no evidentiary basis to infer any sexual overtones in the father’s fondness for close physical contact – either with the children or anyone else. The concern mentioned by the single expert in his report about the father’s transgression of personal boundaries possibly leading to intimacy evaporated like a puddle on a hot day when he was cross-examined. He squarely repudiated any uncertainty about the father posing any risk to the children. He was quite satisfied he did not. He made comments such as:

    I don’t think the tickling was sexual. That’s what [E] told me.

    He is thoughtless, not erotic.

    He was probably the same [tactile] with his older boys and they’re fine.

    I don’t think he will harm the children in any way.

27. The evidence about the father’s past reprimands by senior staff at two schools where he was formerly employed in 2005 and 2007 for his physical interaction with music pupils did not add any weight to the mother’s quest to establish he is a sexual danger to the children. The first complaint was about an incident which occurred in the presence of the pupil’s father, when he pressed the child’s fingers onto piano keys and then, in attempt to lighten the child’s mood, squeezed or tickled his knee. The second complaint was about him holding a pencil horizontally behind the backs of two pupils to prevent them slouching into their chairs while playing woodwind instruments. He was not dismissed from either school and neither incident was imbued with sexual connotation. The most that could be said is that he did not respect the personal space of his pupils.[38]

    [38] Single expert reports, pages 23, 25, 26; Exhibit M7

28. The single expert observed in his report:[39]

    … I do not feel I can calibrate where the level of risk lies in relation to the Court’s unacceptable risk standard.

    But in cross-examination, he said:

    It’s not my job to interpret what unacceptable risk is.

    [39] Single expert report, page 51

29. Of course, his concession in cross-examination was perfectly correct. It was not for him to make any finding about the existence of any unacceptable risk. Findings about any risks of harm that confront a child are reserved to the Court. The single expert witness, just like any other witness, simply offers evidence that may influence the Court’s findings.

30. The father does not pose any unacceptable risk of harm to the children by their sexual abuse. Such a conclusion accords with the submissions of the father and Independent Children’s Lawyer and also the opinion of the single expert. The father’s tactility with the children is not a reasonable basis for the mother’s apprehension of their abuse.

31. Before leaving the issue, it is necessary to address other pieces of evidence that were mentioned only in passing by the parties.

32. In April 2014, the eldest child told the mother the father tickled his “willy”,[40] which conduct the father denied.[41] No other representation of that sort was made by the eldest child – either before or since. The mother was apparently worried it was evidence of more impropriety by the father, but there are good reasons to dismiss the incident as meaningless.

    [40] Mother’s affidavit, para 189

    [41] Father’s affidavit, paras 314-315

33. Significantly, all interaction between the children and the father for more than the preceding 12 months had occurred under supervision, and for the preceding six months the supervision was afforded by a commercial supervisor. The mother conceded none of the supervision reports contained any reference to the father tickling the eldest child on or about the genitals. Given the father’s alleged tickling of E on the genitals was the reason why interim supervision was imposed, it is highly unlikely a supervisor would have deliberately or accidentally omitted to mention the father tickling the eldest child on the genitals, if it had occurred. Most probably it did not and the eldest child’s report to the mother was false.

34. Just as significantly, the representation made by the eldest child to the mother occurred at a time just after the father’s conviction for sexual abuse of E. The mother admitted she and E discussed his allegations against the father in their household and, while they might not have intentionally included the children in those discussions, the children may have overheard them. It is almost inconceivable the children would not have had some kind of basic knowledge about the conflict between the father on the one hand and the mother and E on the other. It was the only reason for the tumult in their home at that time. It is not, therefore, so surprising the eldest child made some reference to being tickled by the father on his “willy” in conversation with the mother.

35. Other evidence was adduced in the father’s case about the behaviour of both children that was interpreted as sexualised.[42] In late 2014, the father believed the youngest child “rubbed herself” against him, which he discussed with Ms F. In early 2015, the eldest child jumped on and grabbed at the genitals of his young cousin. In June 2015, Ms F had the children in a bath together and observed what she believed to be an attempt by the youngest child to put the eldest child’s penis in her mouth.

    [42] Affidavit of Ms F, paras 77-86

36. The mother said in cross-examination she thought the last of those incidents was just “an innocent act taken out of proportion”, which also seems an apt way to interpret the episode when the eldest child told her the father had tickled him on the “willy”.

37. The perceptions of the father and Ms F about the children’s behaviour may have been accurate and not merely histrionic over-reactions, but even if so, such behaviour merely demonstrated young children often touch their own and other children’s genitals innocently in play. Such common behaviour does not necessarily connote sexual impropriety. Aside from adducing the evidence, the father did not submit that it did in this case.

Risk of physical abuse

1. The father was critical of the mother’s opportunistic reliance upon the literal truth of representations made to her by E and the eldest child, but he was prone to do the same thing.

2. In cross-examination he revealed for the first time that, in December 2014, the youngest child reported to her cousin that the mother tried to strangle her. The father said he believed in the truth of that report. He also said he believes everything he is told by the eldest child.

3. The father remained blind to the incongruence of, on the one hand, his belief the children were at risk of strangulation by the mother, and on the other, his proposal for them to spend substantial amounts of unsupervised time in her care. Such a contradiction was incapable of rational reconciliation. His position was either foolish or disingenuous.

4. There was no sound basis upon which to conclude the children are at risk of physical harm in the mother’s care. Indeed, no such submission was ever made, despite the father insisting upon the truth of the youngest child’s report.

Neglect

1. The mother’s other principal grievance about the father was that he was neglectful of the children, most notably through a want of his proper supervision of them. She contended his deficient supervision of the children led to their sufferance of injuries through preventable accidents in the past and, because he refused to accept responsibility, they would remain exposed to the risk of physical harm by his neglect in the future.

2. Generally, the mother was dissatisfied with the father’s level of supervision of the children. She described him to the single expert as “rather careless”, which she illustrated by him forgetting to lock child-proof gates around the home and pool.[43] Her fiercest criticism of the father was, however, reserved for accidents which occurred after their separation and resulted in injuries to the children.

   [43] Single expert report, page 9; Mother’s affidavit, para 298

3. In May 2013, the youngest child touched a hot pot and burned her fingers while in the father’s care, which led to the mother’s withdrawal of consent for the father’s adult children to act as supervisors and her temporary refusal to comply with existing interim orders.[44]

   [44] Mother’s affidavit, paras 150-151; Father’s affidavit, paras 237-242

4. In December 2013, while spending time with the father, the eldest child fell from some playground equipment and fractured his arm, which led to the mother again withholding the children from the father and objecting to Ms F’s role as a supervisor.[45] However, the mother did not object to the staff of G Group continuing to provide supervision, even though one of the staff members was also present at the time of the eldest child’s accident. The mother’s continued satisfaction with that supervisor made her dissatisfaction with Ms F curiously inconsistent.

   [45] Mother’s affidavit, para 157; Father’s affidavit, paras 273-285

5. In December 2014, while spending time with the father, the youngest child fell from a chair and fractured her clavicle, which led to the mother again withholding the children from the father. Again, a staff member of G Group was supervising when the accident occurred, but she had no objection to G Group staff continuing to provide supervision.[46]

   [46] Mother’s affidavit, paras 208-218; Father’s affidavit, paras 311-313

6. The mother complained to the single expert about those incidents, asserting they verified the father’s delinquent supervision of the children,[47] but her complaint was unreasonable for three reasons: she admitted accidents are part of children’s lives; she inconsistently blamed only the father and his own supervisors for such accidents, but not the commercial supervisors she was content to continue using; and similar accidents befell the children when they were in her care.

   [47] Single expert report, pages 3, 11

7. The mother deposed she understood how “childhood accidents can happen”,[48] and she said in cross-examination that “injuries are always going to happen – some are preventable and some are not”, but she still steadfastly refused to characterise the accidents as simple misadventure. Even so, when pressed, she was unable to explain how the father’s supervision of the children was deficient on those occasions.

   [48] Mother’s affidavit, para 171

8. The incoherence of the mother’s complaint about the father was compounded by her inability to explain why she continued to regard the staff of G Group as satisfactory supervisors, even though they were present and witnessed the accidents, but that the supervision of the children by the father and Ms F was lax.

9. The rank hypocrisy of the mother’s complaint was, however, exposed by the revelation the children had experienced similar misadventure when in her care. The eldest child fractured his leg in 2010 when he was only 20 months old and supervised by an au pair employed by the mother.[49] She admitted she did not sack the au pair for inferior supervision of the child. Then in August 2014, when aged only five years, the eldest child escaped the mother’s house and walked unaccompanied for about a kilometre through suburban Sydney to the father’s house.[50] That was, by far, the most dangerous incident of all. The child could have been run down by a car or abducted by a stranger. The mother conveniently omitted the first incident from her affidavit and, while she mentioned the second,[51] it was only a banal and neutral recitation of facts. The mother was also impelled to agree in cross-examination that the children return to her from school with bruises, about which she is unconcerned.

   [49] Single expert report, page 34; Father’s affidavit, paras 141-143

   [50] Single expert report, pages 35, 36, 37

   [51] Mother’s affidavit, paras 228-230

10. The single expert noted that the G Group supervision reports do not bear out any lack of supervision of the children by the father and that he gave the children appropriate safety warnings.[52]

    [52] Single expert report, page 48

11. The conclusion reached by the single expert about the children’s accidents when with the father was as follows:[53]

    In my view the accidents that have befallen the children all seem to be of a fairly normal childhood variety, although they have involved injuries that have required significant treatment. On both occasions when a fractured bone was sustained, there does not seem to be an issue about [the father] or another responsible adult being close enough to the child, but rather that things happened so fast that there was no chance to intervene. This is often the nature with children’s accidents.

    [53] Single expert report, page 49

12. The single expert’s assessment of the situation is correct. There is no reasonable evidentiary basis to conclude the children remain at risk of physical harm through their subjection to neglect by the father.

Best interests of children – additional considerations

1. The father had no real criticism to make of the mother about her physical care of the children. He conceded the children had been well looked after by the mother. The single expert said, and I accept, the children were “progressing well” and there was no “persuasive evidence of a parenting failure” by the mother.[54] 

   [54] Single expert report, page 46

2. The few criticisms the father did make about the mother’s physical care of the children were fatuous and unconvincing. He complained about her not taking the children to the doctor when they had colds during winter, not attending quickly enough to a vaginal irritation suffered by the youngest child, and not letting the children play outside enough.

3. The mother works long hours and receives help caring for the children from au pairs.[55] Although the father pejoratively referred to her use of such help as “outsourcing” parental duties,[56] he did not contend her work commitments precluded her proper provision for the children’s physical needs.

   [55] Single expert report, pages 5, 9, 11

   [56] Single expert report, page 21

4. The principal theme of the father’s complaint against the mother was that she conducted herself in a way that, either by design or inadvertence, damaged the children’s relationships with him.

5. He was able to point to some instances where the mother exercised poor parental judgment, but they were not demonstrative of a continuing course of conduct that would damage the children’s relationships with him. The father’s belief in the mother’s mischief may be honest, but it was not objectively borne out by the evidence. More than five years have passed since the parties’ separation, during which time the children have lived with the mother. Since December 2012 the children have not spent any overnight time with the father and a supervisor has always been present. The mother has therefore had plenty of unfettered opportunity to destroy – not merely damage – the children’s relationships with him, but that has not occurred. On the contrary, they still enjoy deep, loving relationships with him.

6. Small, but significant examples of the mother’s willingness to support the children’s relationships with the father are the display in her home of photographs of the father for the children to enjoy,[57] her buying gifts for the children to give to the father and paternal grandmother, and her ensuring the father receives all of the reports and newsletters from the children’s school.

   [57] Single expert report, page 7; Mother’s affidavit, para 238

7. The single expert said of the mother,[58] which I accept to be correct:

   [The mother] has noted at a number of points that the children have an important relationship with their father which she wishes to encourage. In my view under the circumstances she has broadly done so over a long period, including probably tolerating [the father] intruding on her home life rather more than she would have liked between the separation and about mid 2012, [E’s] 2010 complaints about touching by [the father] not withstanding …

   From this I formed the view that [the mother’s] willingness to support the children’s continuing relationship with their father is at a generally acceptable level, particularly under the unusual circumstances of this case.

   [58] Single expert report, pages 44-45

8. The father told the single expert of the eldest child’s reluctance to display affection at changeovers and the youngest child’s oppositional behaviour, implying some fault for that on the mother’s part, but the single expert explained to him such behaviour by the children was “developmental or expected in the circumstances”, dispelling any suggestion the mother was to blame.[59] The father was forced to concede that was most probably correct.

   [59] Single expert report, page 46

9. It became evident during the father’s cross-examination that his opinion of the mother changed in 2013. He agreed he blamed her for the allegations made against him by E and the criminal prosecution that then resulted, about which he was voluble, intense, and indignant.[60] He admitted it affected his opinion about her fitness for parenthood. It caused him to file an Amended Application in October 2013, seeking that the children live with him instead, when before he had only sought for the children to spend substantial amounts of time with him. He now regards the mother as “manipulative and deceitful” and he is distrustful of her, which views are reciprocated.[61]

   [60] Single expert report, page 33

   [61] Single expert report, pages 33, 44

10. Her judgment of the father is just as clouded as his judgment of her. She has difficulty accepting he has any good qualities and looks for opportunities to criticise him. She criticised the father for driving whilst suspended which, even though unlawful, was different from criticising his manner of driving.[62] She also criticised him for seeking psychological therapy,[63] not filing tax returns, and not living a healthy lifestyle.[64] The mother was acutely critical of the delay in her notification about the eldest child’s arm fracture in December 2013, but there was a perfectly reasonable explanation. The father then had just as much parental responsibility for the eldest child as her, he was busy attending to the eldest child’s care in the hospital, and he and Ms F were anxious to avoid any unseemly scene with the mother at the hospital, so they entreated the hospital social worker to call the mother.[65] The delay was not egregious.

    [62] Mother’s affidavit, para 297; Exhibit M9

    [63] Mother’s affidavit, para 264

    [64] Mother’s affidavit, paras 227, 299

    [65] Exhibits M15, M18

11. The principal deficiency in the mother’s parental attitude was her inclination to exclude the father from important decisions about the children, notwithstanding he had just as much parental responsibility for them. She did not consult the father about the psychological therapy she arranged for the youngest child.[66] The mother admitted in cross-examination her decisions in that regard were unilateral because she did not want the father’s interference.

    [66] Father’s affidavit, paras 34, 40, 48

12. The father’s attitude to the children and the responsibilities of parenthood were found wanting in some respects, but not to the point where his involvement in the children’s lives should be curtailed.

13. The worst example of the father’s lack of insight as a parent was his repeated statements to the children about how he was fighting to see more of them, despite being thwarted by the mother.[67] The single expert said the supervisor’s reports seemed to prove the father sought to influence the children’s loyalties.[68] The father rather foolishly explained himself, both to the single expert[69] and in cross-examination, saying he could not lie to the children. Obviously he could have explained to the children, in a manner commensurate with their maturity, why he was not seeing so much of them without blaming the mother. If he could not, it is confirmation of his impaired parenting capacity. Ms F scolded him for his foolishness. She said he was “quite chagrined” and altered his conduct accordingly, which implied his attempt to justify such behaviour was insincere. As the single expert correctly observed, the father’s tactless attempts to re-assure the children how hard he was trying to see more of them demonstrated poor judgment by him.[70] His disavowal of any poor judgment in cross-examination only compounded it.

    [67] Single expert report, page 31; Mother’s affidavit, paras 221-226

    [68] Single expert report, page 44

    [69] Single expert report, page 37

    [70] Single expert report, page 46

14. Another legitimate criticism of the father was his failure to properly maintain the children. As at July 2015 he had a child support debt of $16,274.83,[71] though he cleared the arrears by November 2015.[72] He also accumulated arrears in the past.[73]

    [71] Exhibit M11

    [72] Exhibit M10

    [73] Father’s affidavit, para 153

15. The father previously used only his surname for the children, even though their proper surname is a hyphenated aggregation of the parties’ surnames. The father conceded he had done so “out of bad feelings towards [the mother]”.[74] In other words, knowing it caused the children confusion, he accorded priority to his contempt for the mother over the eradication of the children’s confusion.

    [74] Father’s affidavit, paras 9-10

16. The single expert did not seek to ascertain the children’s views because of their young age.[75] It was not suggested he should have done so. The parties accept the children’s immaturity prevents any weight being reposed in their views.

    [75] Single expert report, page 44

17. The parties live about one kilometre apart on the upper north shore of Sydney. There are no difficulties exchanging the children between them. The only practical impediment to implementation of parenting orders is the expense of supervision, which the mother wants to remain in place. The father complained to the single expert about the expense of supervision and the pressure it exerted on him and Ms F.[76] In fact, the continuing expense of supervision, which has amounted to nearly $6,000 per month,[77] caused the father to decide to cease allowing the children to spend time with him under the existing interim orders. Consequently, the children have not seen much of him throughout 2015.[78]

    [76] Single expert report, page 30

    [77] Father’s affidavit, para 294

    [78] Mother’s affidavit, paras 231-232; Father’s affidavit, paras 322-325; Exhibit A

18. One can sympathise with the father’s reluctance to continue incurring expense of that magnitude, but there are counteracting considerations. He deposed to raising a vast sum of money from Ms F to fund his legal representation at trial, a modicum of which could have been spent on some extra supervision. The mother did offer the use of alternative less-expensive supervisors, or reduced hours with the existing supervisor, but the father rejected her offers. Conversely, the mother rejected an alternate supervisor proposed by the father. Neither had any proper basis to reject the other’s proposals. The impasse between them was easily solved if they were both well-intentioned, but they were not. Now, the children are left to wonder about whether the father loves them and is committed to them.

19. Another issue of simmering resentment between the parties is their irreconcilable evidence about family violence. The mother alleged she was assaulted by the father, which he denied, and the father alleged he was assaulted by the mother, which she denied.

20. The father alleged he was assaulted by the mother in July 2012 during an argument over him seeing the children just before the mother’s departure with them for J Town.[79] The mother denied it.[80] Generally speaking, the evidence of both parties lacked veracity. The father admitted to errors in past affidavits he filed in these proceedings which, even if not lies, proved his wanton disregard for accuracy. He also misled the mother about the currency of his driver’s licence.[81] The mother admitted she lied to third parties on a couple of occasions about the father’s employment history and her move to J Town. It was submitted her evidence was more reliable than the father’s because, unlike him, she did not give any false evidence in this litigation and her admission of extraneous lies demonstrated her candour. That submission is rejected. An admission to lying does not boost a witness’ credit, it merely arrests the witness’ descent into more discredit. Neither party gave a more credible version than the other of the incident in July 2012 so, in the absence of corroboration, the assault allegation is not proven on the balance of probabilities.

    [79] Father’s affidavit, paras 165-169

    [80] Mother’s affidavit, paras 37-44

    [81] Exhibits M9, M16; Mother’s affidavit, para 140

21. The mother alleged the father assaulted her at a changeover of the children between them in April 2013, which she promptly reported to police. The father was charged with assault, but he successfully defended the prosecution .[82] In these proceedings, the mother stood by her evidence of the assault and the father stood by his denial of it.[83] The father was corroborated by the paternal grandmother, who also gave evidence in the criminal proceedings. The paternal grandmother was a credible witness and her corroboration of the father precluded any finding on the balance of probabilities that the father assaulted the mother.

    [82] Mother’s affidavit, paras 143-149; Exhibit M17

    [83] Father’s affidavit, paras 227-236

22. The mother seized on historical incidents as evidence of the father’s tendency to anger and hostility, but they were of little probative value, since her case was the only reason for curtailment of the time spent by the children with the father was their exposure to the risk of sexual abuse – not physical abuse or family violence.

23. About 10 years ago, the father had an argument with his former wife. She would not agree to his proposal about their children’s education so, in anger, he wrenched the windscreen wiper from her car.[84]

    [84] Single expert report, pages 23, 24

1. In 2007, the father had a dispute with one of his adult sons, to which incident the police were summoned.[85] The father clarified in cross-examination that, during their argument, in a pique of anger, he threw a butter knife onto the kitchen bench and it rebounded into his son.

   [85] Single expert report, pages 23-24, 24-25; Exhibit M19

2. In early 2010, the father used his size to deter E from leaving a music lesson, though there was no physical restraint involved.[86] The father admitted the incident in cross-examination. The mother seized on that also as an example of family violence.

   [86] Mother’s affidavit, para 27

3. The single expert did not regard the parties’ allegations of family violence to be of much significance.[87] The evidence is significant insofar as it has the potential to render the presumption of equal shared parental responsibility redundant (s 61DA(2)), but otherwise, in the circumstances of this case, the single expert’s assessment was correct.

Conclusions and orders

[87] Single expert report, page 48

Parental responsibility

1. The evidence does not permit of reasonable grounds to believe that either party engaged in abuse of the children or of E, or in family violence, so the presumption of equal shared parental responsibility still applies (s 61DA(2)). The mother’s submission that a finding should be made against the father under both ss 61DA(2)(a) and (b) is rejected, though such rejection is rendered otiose because of the application of s 61DA(4) of the Act.

2. The presumption of equal shared parental responsibility is rebutted by the evidence which proves the best interests of the children would not be promoted by an order of that sort (s 61DA(4)). The parties could not share parental responsibility for the children in the manner contemplated by the Act because their hostility is too pronounced (s 65DAC). The bitterness between them seems irreparable.

3. The father said in cross-examination the parties do not communicate by email or any other means, other than through their lawyers. The mother agreed.[88] The mother said in cross-examination she would always believe what the eldest child tells her in preference to what the father tells her, such is the extent of her distrust of him.

   [88] Mother’s affidavit, para 303

4. The parties realise they could not share parental responsibility for the children, which is why they both sought sole parental responsibility for them. The single expert agreed. He said in his report the parties had “virtually no communication” and, if there was to be any improvement, it would be painfully gradual.[89] In cross-examination he was moved to say his prognosis for improvement was worse now than it was then.

   [89] Single expert report, page 51

5. Only the Independent Children’s Lawyer proposed that parental responsibility be split between the parties. She proposed the mother have exclusive parental responsibility for some aspects of the children’s lives, but responsibility for other aspects of their lives be shared between the parties.[90] Her proposal is rejected. It was borne of hope for improved relations rather than rational assessment of probability. To avoid dispute and deadlock, one party must have exclusive parental responsibility for the children. That party must be the parent with whom the children live.

   [90] Exhibit ICL1, Orders 2-3

Residence with the mother

1. Since the parties are not allocated equal shared parental responsibility for the children it is unnecessary to consider the provisions of s 65DAA of the Act.

2. All of the children’s physical and intellectual needs have been well met in the mother’s residential care. The only real criticism made of her parenting capacity by the father was her alleged inability to meet the children’s emotional need to maintain healthy relationships with him, but his criticism was bereft of any convincing evidentiary basis. The children still love him and want to spend plenty of time with him. The only reason that has not happened is because the parties each preposterously failed to negotiate the use of a cheaper supervisor.

3. Historically, the parties have always been content with the children living with the mother. It was not until late 2013 that the father changed his mind and determined the children would be better off living with him. That decision was motivated by his infuriation at being falsely accused of, and then prosecuted for, sexual abuse of E.

4. The father said in cross-examination that, despite his proposal for an order that the children spend time with the mother, his genuine desire was for the children’s interaction with the mother to be “limited as much as possible”. There is a real risk that, left to his own devices, he would unreasonably try to reduce the mother’s involvement in the children’s lives

5. The evidence does not warrant reversal of the children’s residence, which, as the father conceded, would be a “huge change”. They should remain living with the mother.

Time with the father

1. The mother’s proposal for the children to never spend any overnight time with the father was flawed. It was based on the erroneous premise that the father posed a risk of harm to the children through their sexual abuse, which risk would be more pronounced in the evenings.

2. Since it is primarily important for the children to derive benefit from their meaningful relationships with the father (s 60CC(2)(a)), which objective is not impinged by any need to protect them against any risk of harm posed by him (s 60CC(2)(b)), the children should spend substantial amounts of time with him.

3. The single expert suggested in his report that the interaction between the children and the father should gradually expand over a period of 12 to 18 months, culminating in a regime of four or five nights per fortnight during school terms and half of school holidays.[91]

   [91] Single expert report, pages 47-48

4. The single expert slightly revised that proposal in cross-examination. He considered the graduation should be accelerated over a shorter period of about six to nine months, but should still culminate in a regime of about four nights per fortnight during school terms and for half of school holidays. Given the significant interruption of the children’s visits with the father over 2015, the single expert recommended that overnight visits not be introduced until after the 2015/2016 Summer school holidays

5. The orders impose a graduating regime that reaches its zenith in about 10 months, at the commencement of term 4 in the 2016 academic year. The orders gradually introduce more overnight time for the children with the father and, ultimately, the children will spend time with him for four consecutive nights each alternate weekend in school terms, for half of school holiday periods, and on other special occasions.

6. No provision is made for the children to spend more time with the father in the periods between alternate weekends in school terms. That would only complicate the regime, either because it would give the parties more opportunity for conflict at changeovers or, even if the changeovers occurred at school, introduce a little too much instability for such young children. Any extra time would be for the benefit of the father, not the children.

7. The parties and Independent Children’s Lawyer had slightly different proposals about special occasions, but no evidence and no submission was directed to that specific issue, which implied the differences between the proposals were relatively immaterial. The orders make adequate provision for the Christmas period and the Mother’s Day and Father’s Day weekends.

8. Wherever possible, changeovers of the children will occur at their school to avoid the chance of conflict between the parties. Otherwise, the changeover venue is the same local park the parties have used for some time. They both proposed its continued use.

Injunctions

1. Both the mother and Independent Children’s Lawyer proposed the imposition of an injunction to limit the extent of the father’s physical interaction with the children.

2. The mother proposed an injunction of extraordinary breadth, including prevention of the father from bathing the children, undressing them, kissing them on the lips, tickling them below the waist, and applying ointment to their genitals.[92] The Independent Children’s Lawyer’s proposal was not cast quite so widely, but it still restrained some conduct of that type.[93]

   [92] Exhibit M1, Order 22

   [93] Exhibit ICL1, Order 14

3. The single expert was open to the idea that the father’s physical interaction with the children could be restricted in some way, but that was only to allay the mother’s fears, not to reduce any chance of the children’s sexual abuse. The single expert considered that if the father did not moderate his behaviour with the children then they might be inclined to make more reports about him to the mother, even if she did not directly interrogate them about their treatment by him. The problem perceived by the single expert was the mother’s inclination to interpret any ambiguity about such reports against the father.

4. I reject the applications for injunctions in the terms proposed. I also reject the father’s implied suggestion that any such injunctive orders should bind both parties equally for consistency. Injunctions of the type proposed would probably cause more problems than they would solve for several reasons.

5. First, the injunctions would be an inducement to the mother to interrogate the children on their return from visits with the father about whether he physically handled them in a way that infringed the injunctions. That would foist the children into the unenviable position of having to report back to the mother about the father’s parenting performance, thereby undermining the trust in their filial relationships with the father. They would become anxious and stressed having to dedicate their allegiance to the mother.

6. Second, the injunctions would introduce an element of artificiality into the children’s relationships with the father. The children are still aged only six and five years respectively. What parent does not have the genuine need to see and touch their young children’s bodies when bathing, dressing, and medicating them? What is wrong with a parent lying on a bed with their young child to read a book, swap stories, or have a wrestle? When one accepts such conduct is not overlayed with the sinister intention of grooming the child for sexual abuse, it is completely normal parental behaviour. The children would come to think of the father as a frigid automaton if he could not interact with them in an ordinary physical way.

7. Third, the proposed injunctions really only aspire to eradicate opportunity for the father to sexually abuse the children, which potentiality only exists in the mind of the mother. The injunctions are incapable of sufficient prescription and are incapable of fulfilling their intended purpose. For example:

   (a)The mother proposed the father be restrained from “bathing/showering the children”, but would that prevent him from even being in the bathroom to supervise them, or would it merely prevent him from applying soap to their bodies?

   (b)The mother proposed the father be restrained from “undressing the children by removing their underclothes”, which presumably means it would be permissible for him to help remove at least their dresses, jeans, shorts, and shirts.

   (c)The mother proposed the father be restrained from “laying on the bed with [the children] and tickling, rubbing or patting [them]”, which would not prevent him doing exactly the same thing in some place other than on the bed.

   (d)The mother proposed the father be restrained from “us[ing] language that is not age appropriate with the children”, which is utterly incapable of enforcement because of legitimate differences of opinion about what is age-appropriate language for the children and because the concept would vary with the changing maturity of the children.

8. As an example of how such injunctions can work mischief, the father was forced to concede that when he towel-dried and changed the youngest child at the beach in June 2014 in the presence of a supervisor (when the child was still not even four years of age) he was in technical breach of the interim injunction.[94] His cross-examination on the issue by the mother at final trial in December 2015 demonstrates her intent to earnestly and rigorously enforce such injunctions.

   [94] Order 1.6 made on 10 June 2014

9. The mother also proposed a separate injunction precluding the father from approaching her, either at her residence or various other places, other than in the case of emergency.[95] While it is not unreasonable for the mother to want the father to stay away from her home, no issue was made by her of any unsolicited attendance by the father at her home after her return to Sydney from J Town in late 2012. It is not unreasonable for the father to expect the same courtesy. Neither has any reason to attend the home of the other. Therefore, an injunction is made precluding their attendance at the other’s home, but the remainder of the injunction sought by the mother is rejected. That would only import argument about which party approached the other and what amounts to a genuine emergency.

   [95] Exhibit M1, Order 14

10. The mother also proposed a separate injunction precluding the father from contacting E in any way.[96] While s 68B(2) empowers the Court to grant an injunction in relation to a child when deemed just or convenient to do so, the evidence did not establish the justice or convenience of such an order to protect E.

    [96] Exhibit M1, Order 21

11. The father said in cross-examination he would submit to an injunction that restrained his contact with E, but his willingness alone is not determinative. The apprehended violence order previously made by a State court for E’s protection from the father at the time of the father’s prosecution has long since expired.[97] So, while this Court is not precluded from making a further injunctive order (s 114AB), E has already had the benefit of personal protection for the period deemed necessary by the State court. In these proceedings, the evidence did not establish the father had been in contact with him since the apprehended violence order expired. In fact, the father said he did not want to contact him and had no intention of doing so. E attains his majority in October 2016 and will no longer be a “child” for the purpose of s 68B of the Act and, in any event, he is apparently departing for Japan indefinitely in February 2016, so any injunction would only have very limited operation.

    [97] Father’s affidavit, paras 246-247

Supervision

1. The mother proposed that the children be supervised when with the father until the youngest child reaches 12 years of age, some seven years hence.[98] The Independent Children’s Lawyer’s proposal was more diluted, to the effect that until the youngest child attains 12 years of age the father “use all reasonable efforts” to ensure that either Ms F or the paternal grandmother are present at his residence when the children stay with him overnight.[99]

   [98] Exhibit M1, Orders 4-5

   [99] Exhibit ICL1, Order 15

2. The Independent Children’s Lawyer did not clearly articulate why she proposed that the father simply be required to make an effort to have another adult within the same house, albeit not in the actual presence of he and the children, when they stay overnight with him. The reasons given by the mother for the need of the children’s supervision with the father were, first, her worry about the children’s sexual safety, second, her concern about the father’s recognition of personal boundaries, third, her concern about the father’s parenting capacity, and lastly, her worry the father would denigrate her to the children.[100]

   [100] Single expert report, page 12; Mother’s affidavit, paras 140, 291

3. The last of those concerns is hopefully cured by an injunction that was sought by both parties and the Independent Children’s Lawyer.

4. As to the first three of the mother’s expressed concerns, the evidence did not vindicate them. Having found the evidence did not establish the father posed a risk of harm to the children through their subjection to sexual abuse or neglect, there was no foundation for the imposition of supervision. That was similarly the view of the single expert in cross-examination.

5. It is doubtful that the mother’s subjective apprehension of such risk would be allayed by the imposition of supervision on the children’s interaction with the father. No matter how prudently or imprudently he acts in the future, she will not likely dispense with her worry about him. Nonetheless, the father’s foolhardy boast he would not moderate his behaviour at all to appease the mother will probably elevate rather than abate her concern. Unless there is some change, there is every chance another comment will be made by the children about the father that will cause the mother concern and litigation will again ensue. If so, next time, the outcomes will likely be limited to either severe restriction upon the father’s involvement in the children’s lives, or alternatively, their move to live with the father and severe restriction upon the mother’s involvement in their lives.

Other orders

1. The mother and Independent Children’s Lawyer sought an order that the mother’s solicitors surrender the children’s passports to her.[101] There is no need to make such an order. The orders discharge all previous orders relating to the children, which includes the past order about the children’s passports,[102] and the mother now has sole parental responsibility for them in respect of all “major long-term issues”, which would include the power to direct her solicitors to release the children’s passports to her.

   [101] Exhibit M1, Order 17; Exhibit ICL1, Order 17

   [102] Order 1.4 made on 31 August 2012

2. Nor is there any need to make the orders proposed by the mother regulating her international travel with the children,[103] or the schools the children should attend.[104] Her allocation of sole parental responsibility is enough to deal with those matters.

   [103] Exhibit M1, Order 18

   [104] Exhibit M1, Orders 10, 11

3. For the same reason, the Independent Children’s Lawyer’s proposal for an order compelling the mother to submit the children to “protective behaviours counselling” is rejected.[105] The single expert agreed with a proposition that the children should receive “protective behaviours counselling”, but that will be a matter for the mother. She now has sole parental responsibility for the children, so she should exercise it as she sees fit.

   [105] Exhibit ICL1, Order 16

4. The single expert did not foresee that E would try and sabotage the children’s visits with the father but, to the extent he might, that will be an eventuality for the mother and E’s current therapist (Dr N) to avert. An order is made permitting these orders, these reasons, and a copy of the single expert report to be provided to Dr N in case those documents will assist his therapeutic treatment of E. The mother invited the Court to make any further orders deemed appropriate.[106]

   [106] Exhibit M1, Order 24

5. The remaining orders either reflect miscellaneous orders sought by the parties and Independent Children’s Lawyer or are orders that could not attract reasonable complaint.

I certify that the preceding one hundred and fifty two (152) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 15 December 2015.

Associate: 

Date:  15 December 2015