NIKOLAKIS & NIKOLAKIS

FAMILY COURT OF AUSTRALIA

NIKOLAKIS & NIKOLAKIS

[2007] FamCA 1738

FAMILY LAW – CHILDREN - With whom a child lives – Child's views

Family Law Act 1975 (Cth)

Napier v Hepburn [2006] FamCA 1316
N v S (1996) FLC 92-655
B & B Family Law Reform Act 1995 (1997) 21 Fam LR 676
A & A (Relocation Approach) (2000) FLC 93-035

APPLICANT:

Mr Nikolakis

RESPONDENT:

Ms Nikolakis

INDEPENDENT CHILDREN’S LAWYER:

Champion Legal

FILE NUMBER:

PAF

219

2005

DATE DELIVERED:

19 March 2007

PLACE DELIVERED:

Parramatta

JUDGMENT OF:

FLOHM J.

HEARING DATE:

27.11.2006 to 1.12.2006, 18.12.2006 and 22.12.2006

REPRESENTATION:

COUNSEL FOR THE APPLICANT:

Ms E Lawson

SOLICITOR FOR THE APPLICANT:

Levy Partners

COUNSEL FOR THE RESPONDENT:

Ms M Gillies

SOLICITOR FOR THE RESPONDENT:

Adams & Partners

INDEPENDENT CHILDREN’S LAWYER

COUNSEL:

Mr G Clarke

INDEPENDENT CHILDREN’S LAWYER

SOLICITOR:

Ms C Hafey

Orders

That all previous parenting orders in relation to A born … June 1995, B born … January 1998, C born … June 2000 and D born … August 2002 (“the children”) be vacated.
That the children are to live with Ms Nikolakis (“the mother”) who is to have sole parental responsibility for decisions as to the children’s daily care and sole parental responsibility for decisions as to all major long-term issues in relation to the children.
That the mother may move the children’s permanent address from New South Wales to the Gold Coast in Queensland.
That Mr Nikolakis (“the father”) is to spend time with the children for a period of two hours on four occasions each year, such periods are to coincide with each Queensland school holiday period, and the first such period is to be during the 2007 Easter school holidays if that can be arranged by that time pursuant to Orders 6 and 7 hereof.
That the father may be accompanied by the children’s paternal grandmother, Mrs Nikolakis Snr, when he spends time with the children.
That the time the father spends with the children pursuant to Order 4 hereof is to be supervised by the … Children’s Contact Service, (“the Contact Service”) at times nominated by that Contact Centre and the Court requests that the first period occur during the 2007 Easter school holidays if possible.
That on each occasion the father spends time with the children at the Contact Service the mother or her nominee is to transport the children to and from the Contact Service.
That the mother and the father are to:
(a)Contact the Contact Service within seven (7) days of today’s date to arrange an assessment of their suitability to use the facilities of the Contact Service.
(b)Comply with any appointments made by the Contact Service for supervision of the time the children spend with the father.
(c)Comply with all reasonable rules of the Contact Service and all reasonable requests or directions of the staff of the Contact Service.
That following the first period of time the father spends with the children pursuant to Order 4 hereof the father and the paternal grandmother may send letters, cards, gifts etc. to the children on each of the children’s birthdays and other special occasions, and those items may be read/inspected by the mother prior to being handed to the children for the purpose of ascertaining whether those items are appropriate for the children.
That the mother is to keep the father informed at all times of a postal address where those items can be sent.
That following the first period of time the father spends with the children pursuant to Order 4 hereof the father and the children are to have telephone communication on one occasion each week, at either 8.00am Saturday or 8.00am Sunday Queensland time, and the mother is to initiate the telephone call to the father’s landline telephone number.
That from 1 January 2008 the telephone communication referred to in Order 11 hereof is to be replaced by webcam communication, and for that purpose both parents are to install a webcam in their respective homes by that date.
That for the purpose of Orders 11 and 12 hereof the father is to forthwith provide to the mother any contact details required to implement those Orders, including his current landline telephone number, and is to keep the mother advised at all times of those contact details.
That the mother is to sign all documents and do all acts necessary to authorise the school at which the children may from time to time attend:
(a)to furnish the father with copies of all school reports, notices and advices concerning the children and any activity involving the children;
(b)to make available to the father order forms for school photographs of the children.
That the father is to keep the mother informed at all times of a postal address.
That the father is restrained from attending or contacting the school which any of the children may from time to time attend.
That the mother is to provide to the father details of any illness or injury to any of the children requiring hospitalisation as soon as possible after such occurrence.
That each parent is restrained from denigrating the other parent or their family to or in the presence or hearing of the children, and from causing or permitting any other person to so denigrate to or in the presence or hearing of the children.
That pursuant to S.65DA(2) and S.62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all documents produced to the Court in response to subpoena or tendered as an exhibit in the proceedings be returned at the expiration of fifty-six (56) days from today’s date.
That all outstanding applications are dismissed and removed from the Pending Cases List.

IT IS NOTED that publication of this judgment under the pseudonym Nikolakis & Nikolakis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAF 219 of 2005

MR NIKOLAKIS

Applicant

And

MS NIKOLAKIS

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Nikolakis (“the father”) and Ms Nikolakis (“the mother”) are the parents of four children A born in June 1995, B born in January 1998, C born in June 2000 and D born in August 2002.
Each parent seeks orders which reflect their opposing views of what is in the best interests of their four children. The father seeks orders that the children reside between each of their parent’s households in Sydney on an equally or close to equally shared basis. The mother seeks orders that the children reside with her, that she and the children be able to relocate their permanent residence from Sydney to the Gold Coast in Queensland and that there be no order which provides for the father to spend any time with the children in the future. The mother’s position is supported by the Independent Children’s Lawyer.
It is argued on behalf of the mother, and also by the Independent Children’s Lawyer, that there is an unacceptable risk of sexual abuse of the children and/or an unacceptable risk of emotional abuse of the children if they spend time with the father in the future. It is argued on behalf of the father that there is no such risk.
There are many factual matters in dispute between these parents and these will be addressed in the course of the judgment. What is not disputed is that as a result of interim consent orders made on 9 September 2005 the father has spent no time at all with the children since that date, a period now in excess of 17 months, apart from limited time for the purpose of an assessment by the court appointed expert, Dr RN.

The Parties’ Applications

The father’s original Application filed on 10 January 2005 and his Amended Application filed on 2 March 2005 include the paternal grandmother Ms Nikolakis Snr (“the grandmother”) as an applicant. Those Applications sought orders that the four children live with the father and that he have sole day to day and long term responsibility for all decisions relating to the children. He proposed that the mother have contact, under the supervision of a person nominated by the father or the Court, on each week day and on special occasions, and the orders sought set out a mechanism by which the mother could obtain information about the children’s medical treatment and school progress.
At the commencement of this hearing, in a Minute of Orders set out in the Case Outline Document submitted to the Court on behalf of the father, the father was maintaining his position that the four children live with him and that he be responsible for the day to day and long term decisions in relation to matters concerning the children. The Minute of Orders sought that the issue of the time the children spent with the mother be reserved.
At the conclusion of the hearing the father’s counsel spoke to written submissions which had been provided in advance to the Court. I note that the written submissions contain what is said to be the father’s ultimate proposal, ie. that the children remain in Sydney and live with each parent on a three day/four day rotating basis. I note however that the precise configuration of the shared arrangement proposed by the father is different to that proposed in Exhibit F8 which is styled Minute of Orders Proposed by the Father, which was tendered on the day on which final submissions were made. Exhibit F8 consists of two sets of orders, one being a proposal in the event that relocation is granted to the mother but no finding of unacceptable risk is made against the father and the second is the father’s proposal if there is no finding of unacceptable risk and the mother’s application to relocate is refused. Clearly the second proposal is the father’s preferred proposal. I note that his preferred proposal is that the children live with each parent for five days in one week and two days in the other, on a rotating basis. As I have said, somewhat different to a three/four day rotation but in any event nothing turns on that apparent discrepancy. The Court understands clearly that the father is proposing an equally shared arrangement or as close to an equally shared arrangement as the Court thinks appropriate.
On 16 February 2005 the mother filed a Response which is styled an Amended Response, although I am unaware of there being an original Response filed. In any event, that document sought orders that the children live with the mother, that she have sole responsibility for the day to day and long term decisions relating to the children and that the issue of the father’s contact with the children be reserved. Any reference to property orders sought in that document, or in the Amended Application filed by the father on 2 March 2005, are not relevant to the issues before me.
Although it is clear that prior to this hearing the mother formed an intention to relocate with the children to the Gold Coast, my attention has not been drawn to any Further Amended Response or similar document in which the mother formally sought a relocation order. But nothing turns on that in circumstances where that intention was clearly known to the father prior to this hearing, where his case has been run on that basis and where the court expert has addressed that issue.
At the commencement of this hearing the mother, in a Case Outline Document filed on her behalf, sought orders that the children live with her and spend no time with the father. The Case Outline Document refers to the mother’s intention to relocate with the children to the Gold Coast.
In final submissions the mother’s counsel also spoke to written submissions which had been provided to the Court in advance. That document confirms that the mother’s proposal at the end of the hearing remained unchanged, ie. that she be able to relocate with the children to the Gold Coast in Queensland and that there be no order made that the father spend time with the children.
In final submissions counsel for the Independent Children’s Lawyer also spoke to written submissions which had been provided to the Court in advance. The Independent Children’s Lawyer supported the mother’s proposal, adding that the father be permitted to send letters, cards and presents etc. to the children on special occasions, and that the mother ensure the children received those items provided that they were considered appropriate by the mother.

Summary of Proposals

Given the orders ultimately proposed by each parent and the Independent Children’s Lawyer, and taking into account:
(i)The mother’s clear evidence that if she is unable to relocate with the children she would remain in Sydney with the children; and
(ii)The absence of any evidence that the father would also relocate to the Gold Coast (or an area approximate to the Gold Coast) if the children are residing there with the mother,
I identify the options for the Court’s consideration to be the following options:
A.The children to live with the mother on the Gold Coast and to spend no time at all with the father and have no communication with the father.
B.The children to live with the mother on the Gold Coast and communicate with the father only by letters, cards etc.
C.The children to live with the mother on the Gold Coast and to spend supervised time with the father at a Contact Centre on the Gold Coast.
D.The children to live with the mother on the Gold Coast and to have unsupervised time with the father at a location and with a frequency and duration that is consistent with the distance between the two households and children’s school commitments.
E.The children to live with the mother within or near to the Sydney Metropolitan Area and to spend no time at all with the father.
F.The children to live with the mother within or near to the Sydney Metropolitan Area and communicate with the father only by letters, cards etc.
G.The children to live with the mother within or near to the Sydney Metropolitan Area and to spend supervised time with the father at a Contact Centre in Sydney.
H.The children to live with the mother within or near to the Sydney Metropolitan Area and to spend regular unsupervised time with the father.
I.The children to live on an equally shared basis, or close thereto, with each parent, requiring the parents to remain living in the area where they both currently live and where the children currently attend school in order to facilitate an equal shared parenting arrangement.
The reasons for identifying each general proposal will become clear when I refer later in the judgment to the legal principles which govern my decision in this case, including reference to A & A (Relocation Approach) (2002) FLC 93-035. To the extent that I have included in the above proposals options which have not been specifically sought by the parties, that is consistent with the approach of the Full Court of the Family Court in Bolitho & Cohen (2005) FLC 92-224.

A Brief Chronology of Events

The background facts to this matter, briefly stated, are as follows:
(i)The father was born in 1965 and is now aged 41.
(ii)The mother was born in 1975 and is now aged 31.
(iii)In 1995 the parties married.
(iv)In June 1995 A was born and she is now aged 11 years and 7 months.
(v)In January 1998 B was born and she has just had her ninth birthday.
(vi)In June 2000 C was born and she is now aged 6 years and 7 months.
(vii)In June 2002 it is said by the father that the parties separated.
(viii)In August 2002 C was born and he is now aged 4 years and 5 months.
(ix)On 16 August 2004 the mother was admitted to a psychiatric unit after a suicide attempt and it is said by the mother that on or about that date the parties separated.
(x)In mid 2005 the father was convicted of indecent assault of a child aged, I believe, 7 at the time of the offence. That conviction was later overturned on appeal.
(xi)On 9 September 2005 the parties agreed to interim parenting orders whereby the children lived with the mother and had no contact at all with the father. That arrangement has continued up until the time of the hearing. The only contact that has occurred between the father and the children has been for the purpose of the preparation of the expert’s reports.

The Father’s Case

The father provided affidavit evidence and was cross-examined, as was the paternal grandmother, who supports her son and the orders he seeks. The father’s case, as it unfolded, contends that the orders he seeks are in the children’s best interests because:
(i)He has been very involved in the children’s care in the past, having assumed the role (with the paternal grandmother’s assistance) of primary carer of the children for most of their lives whilst the mother worked. The father contends that he is an experienced parent who has the proven capacity to provide for all the children’s needs and although he would be assisted by the paternal grandmother, he is not reliant upon that assistance.
(ii)The children are not at any risk of harm, including emotional harm, from the father and that any specific allegations against him in relation to sexual abuse of other children/young persons are unsubstantiated and, in any event, denied.
(iii)Each of the children has a close relationship with himself and with the grandmother and he wishes to maintain and develop those relationships.
(iv)If the children are permitted to relocate to Queensland they will be:
(a)Unable to maintain and develop their relationship with the father and the paternal grandmother;
(b)Uprooted from schools, and an area, and friendships with which they are familiar and from which they derive security, support and pleasure;
(c)Subjected to an unfamiliar, and untested, social, academic and domestic environment, the latter including the mother’s partner Mr F who has never been a permanent member of the mother’s, and children’s, household.
(v)The mother’s relationship with Mr F, being the primary reason for the mother’s move north, is a relationship untested by cohabitation, the inclusion of four young children and the tensions associated with the “settling in” process. It may be further tested by the need to “blend” two families if Mr F’s children become a part of the household on either a permanent or intermittent basis.
(vi)The mother does not have the emotional resources to deal with a situation which does not run smoothly, be it from any of the children’s failure to settle in successfully or the relationship with Mr F not living up to expectations and failing. In this regard the father points to the mother’s fragile mental health and her demonstrated failure to seek recommended professional support, either for herself or for A.
(vii)Irrespective of any relocation to Queensland, the father contends that the mother’s capacity to provide for the children’s needs is inferior to his capacity, she being a harsh disciplinarian who has on occasions been physically abusive of A.
(viii)It is also part of the father’s case that the children’s relationship with the mother is not as close and loving as the relationship between the children and the father, due in part to the mother’s lack of day to day involvement with the children since the birth of the first child and due to the mother’s inability to “connect” with the children emotionally in the way that the father can.

The Mother’s Case

The mother provided affidavit material and was cross-examined as was Mr F who supports the orders sought by the mother. A Ms H provided an affidavit in support of the mother but was not required for cross-examination. As the mother’s case unfolded before me, it became clear that she contends that:
(i)The father has a manipulative and coercive personality, consistent with Dr RN’s diagnosis that he has a personality disorder, which has manifested itself in the following conduct:
(a)His dealings with various persons outside the family, characterised by grandiosity and deception which on occasions has amounted to criminal dealings;
(b)Prior to separation he sought to manipulate the children’s feelings by undermining their relationship with the mother; even since court orders have precluded him spending any time with the children he has sought to usurp the mother’s authority by conduct designed to remind the mother and the children that he is still aware of events occurring in their lives and is still able to take deliberate action to alter the course of those events;
(c)Since separation the father has sought to manipulate the outcome of the parenting proceedings by surreptitiously obtaining information about the mother, seeking by his conduct to erode both the mother’s confidence and mental stability then opportunistically seeking to use the mother’s weakened position to his forensic advantage.
(ii)If the father is provided with an opportunity in the future to spend any time at all with the children he will seek to manipulate their feelings towards the mother and her parenting authority with a view to aligning the children with him. Even professional supervision of those periods is vulnerable to the father’s manipulation of supervisors at a contact centre.
(iii)During cohabitation, and since, the father has devalued the children’s relationship with the mother, neither acknowledging any genuine emotional attachment between them nor giving the mother any credit for any positive parenting contribution to the children’s past and current development; this will continue if the father is again provided with the opportunity to spend time with the children.
(iv)The father’s conduct referred to in the above paragraphs amounts to emotional abuse of the children and although the father has continued to “make his presence felt” by using others to provide information about the family, his physical absence from the mother’s and children’s lives has given the mother confidence as a parent and her capacities as a parent have strengthened: the children are now doing very well socially and academically, and are coping emotionally, although missing their father.
(v)There have been two separate complaints of inappropriate sexual, or possibly sexual, conduct by the father, one in relation to a teenage girl of 16 and one in relation to a young girl aged, I believe, about 7. Whilst one complaint did not result in criminal charges and the other resulted in a criminal conviction which did not survive the appeal process, common elements of the two complaints, together with the father’s demonstrated ability to cause these children to keep secrets from the mother, would lead the Court to a finding that there is an unacceptable risk of sexual abuse of these children if the father was to spend unsupervised time with them.
(vi)The mother is now in a new relationship and wishes to live with Mr F in Queensland. She contends that the advantages of that move are:
(a)To allow her to move on with her own life by pursuing a relationship to which she is genuinely committed;
(b)The move is not inconsistent with the children’s welfare in terms of the suitable domestic, social and academic environment that she and Mr F can provide for them in Queensland.
(c)By virtue of the mother’s past experience of the father’s conduct towards her, including manipulation of the children themselves to undermine her as a parent, the mother contends for an advantage in distancing herself from the father geographically, an advantage both to herself and by extension to the children who would be parented by a happy, confident parent who is not being undermined.

Those are the matters in issue between these parents. I turn now to the evidence before me which is relevant to those issues and relevant to my ultimate determination. However, something should initially be said in this case about the witnesses and the reliability of their evidence.

Witnesses’ Credit

The father provides written and oral evidence on a number of issues which, although not relevant per se to the parenting issues and the ultimate determination I must make, demonstrated to the Court that he has been dishonest in his dealings with others and with this Court. That, of course, must influence the reliability I place on the father’s version of events which are relevant to my determination. The evidence which, in my view, reflected very poorly on the father’s honesty includes the following:
The father has been convicted of criminal offences of dishonesty, see Exhibit M1, the contents of which are not denied by the father. That document evidences convictions for disposal of stolen property, obtain benefit by deception, dishonestly obtain financial benefit by deception, make a false and misleading statement and use a misleading title.
The father has furnished information to PP Finance Company which provided the funds for his purchase of the property at L Street in mid 2005. The father concedes that he borrowed approximately $210,000 from PP Finance and $63,000 from his friend Mr S, $26,000 of the latter amount being used to pay the deposit on the L Street home at auction in May 2005
The father concedes that when he obtained the loan from PP Finance, following an application made on or about 24 June 2005 and approved on or about 27 June 2005, he “could have” declared an annual income of at least $90,000. In other evidence the father says his annual income at that time could have been as high as $120,000. That appears to be fictitious – the father’s only income in monetary form at the time was the Disability Pension, and that pension is the only source of income declared by the father in his Financial Statement sworn on 2 July 2005 in this Court in relation to his and the mother’s property proceedings.
I am satisfied that the father overstated his income to the finance company to obtain the loan and when confronted in this Court with the false statement, and unable to verify such a large income, has sought to deny any deception on the finance company by what, in my view, was a further deception on this Court: he says that in calculating that sum he took into account his bartering activity from which he received goods and services, not cash. Although he may have received some goods and services in return for services in the period leading up to June 2005 I do not believe that the father has received goods and services from bartering that could explain the discrepancy. The father says he kept records of bartering “income”, which he declared to the Taxation Commissioner. Those records are not in evidence: the father says the computer storing them was accidentally damaged. I have seen no taxation returns which include income from bartering. It seems to me an unlikely contention by the father that bartering “income” is income for the purposes of taxation and not, as he contends, income for the purpose of child support liability, but he insists that he is not required to report bartering income to the Child Support Agency.
I have no difficulty in coming to the view that the father dishonestly, and to his knowledge dishonestly, overstated his income to PP Finance for the purpose of obtaining a loan. I note that within about 8 months of obtaining the loan he ceased paying the mortgage instalments because he was not in a position to do so and the L Street property is, as I understand the evidence, currently in the possession of the mortgagee.
Further, the father concedes that he did not disclose to the finance company that the sum with which he had paid the deposit on the L Street property at auction was a loan from Mr S, although that liability to Mr S, which the father concedes was part of a total liability to that person of $63,000, is included as a liability in the father’s Financial Statement already referred to, sworn on 2 July 2005 at paragraph 54. Further, that Financial Statement makes no reference to the L Street property as an asset in which the father had an interest, and whilst it is true that the settlement date on the property post-dated the swearing of the Financial Statement, the father did have an interest in that property the equivalent of the deposit he had paid. Again, the father sought to explain his apparent lack of honesty with PP Finance by saying that “[Mr S] didn’t think of it as a loan”, but the father’s evidence is clear that he considered it a loan and indeed, as I have said, the amount of $63,000 was set out as a liability in his document of 2 July 2005. Mr S did not give evidence in these proceedings.
There is a discrepancy in the father’s evidence as to when he stopped doing accountancy work. In his oral evidence he says that he had not worked as an accountant since the end of 2004, but also stated that in May 2005 he did not have an hourly rate but charged $15,000 to prepare the annual taxation returns of various companies, a sum which was paid by those companies by way of the provision of goods and services. I note that Dr RS states in a report of 24 February 2005 that “Mr [Nikolakis] is an accountant and is currently working in that field”. Presumably that employment history was provided to the psychiatrist by the father.
One of the father’s criminal convictions is said to arise from an incident whereby the father posed as a doctor, administered services to a woman and took money for that service. The father challenges only that he administered any treatment, although it is clear on the evidence that the father was convicted of assault in relation to that incident. The father also insists that business cards in his possession when he was charged, which identified him as Dr Nikolakis, were not his idea but that “a friend” had them made up and gave them to him. He denies he passed them out to members of the public.
I do not accept the father’s evidence, not only because it is inherently unbelievable but also because, although the father has never studied medicine nor obtained medical qualifications, such experience and qualifications have been the subject of continuing deception by the father. That deception includes the incident just referred to and the undisputed evidence that the father has in the past registered a business as Dr Nikolakis which was listed in the telephone directory. The father agrees that may have implied he was a doctor. The father agrees that he may have provided a history to a Probation and Parole Officer in 1995 which included that he commenced a medical internship at Westmead Hospital but did not complete it. The father denies that he has ever told anyone he completed his medical degree at Sydney University but has said he has studied to be a doctor. He agrees that he may have been using the title “Doctor” when the Probation and Parole Officer interviewed him in 1995. Having regard to that evidence, and the contents of Exhibit M7 which include a report prepared by a Probation and Parole Officer on 13 February 1995, I do not accept the father’s denial in relation to claiming that he studied medicine at Sydney University and despite the father’s stated ignorance of such a proposition, that report strongly suggests the father’s own medical practitioner thinks the father is a medical doctor. The father agrees that his parents and his solicitor thought, incorrectly, that he had had some medical training. Further, there is reference in Exhibit M7 to the father discussing his experience as a medical student with female employees at employment at which he was placed by the Probation and Parole Service, an incident that the father does not deny.
The father is evasive in his evidence about the accommodation available for the children at the Y Street property, continuing to imply that his reference to two extra bedrooms was not a reference to two rooms which had been built in the garage. He ultimately concedes they were one and the same.
The father was questioned about why he obtained a driver’s licence in Queensland in the surname of …. He explains the name change in terms of there having been a threat to his life, providing no further details of that. He says that he was living in Queensland at the time he obtained the Queensland licence and that he signed a Declaration to that effect in order to obtain it. Exhibit M4 includes that Declaration, and I note that that document, signed by the father in 1994, includes that he does not usually live outside Queensland and is not visiting Queensland on a temporary basis.
The father’s contention that he was ordinarily a resident of Queensland at the relevant time was not supported by either the mother or the grandmother who both gave oral evidence to the contrary, both stating he and the mother visited Queensland on a number of occasions about that time. In support of his version the father tenders Exhibit F3 which is a Statement of Claim filed in Queensland on 15 January 1997 in which it is claimed, and damages sought for, the removal without authority of goods belonging to the mother and father from an address in Queensland by four nominated persons. There is nothing on the face of that document which would support the father’s contention that he resided permanently in Queensland at that time, and I accept the mother’s evidence that although named as a plaintiff in the proceedings she was unaware that she had been included by the father in those proceedings. There is nothing on the face of the document which would suggest otherwise.
I do not accept that the father was ordinarily resident in Queensland at the time he signed the Declaration and I am satisfied that he swore a false Declaration.
The father has been misleading in his reporting of the extent of the mother’s psychiatric problems. I note that in a history provided to Dr RS, included in that doctor’s report of 24 February 2005, the father says that the mother had been under psychiatric treatment for a long time and that she had been hospitalised several times in psychiatric units. That is an exaggeration of the evidence before me. In Dr RS’s report of 7 September 2005 it is concluded, presumably on the history provided by the father, that the father’s marriage only started to breakdown when his wife became psychiatrically ill and needed regular hospitalisations and medications. That does not accord with the evidence generally in relation to the extent of the mother’s mental health issues in circumstances where the father insists that separation occurred in 2002.
I am also satisfied that the father has not been honest with the grandmother. It is clear that she does not know that he has not been paying the mortgage on the L Street property, which she apparently thinks is up-to-date. Yet the father seems to have been able to obtain her agreement to refinance her own home for the purpose of paying out the outstanding amount owing on the L Street property. It is clear that the grandmother is unaware of the extent or details of the father’s criminal convictions, and unaware that he has ever impersonated a doctor. It is clear that the father has not advised the grandmother that her action against the mother in the Local Court for recovery of monies was dismissed, and a costs order made against the grandmother: the grandmother says that she believes the mother must pay her money as a result of those proceedings. I am also concerned, as was Dr RN, that the grandmother appeared unaware that following the interim consent orders in September 2005 a formal proposal had been made by the mother to the father that the grandmother have some contact with the children at school. I am satisfied that the father was aware of that proposal but the grandmother was not, and that contact has not taken place.
There are further examples of the father providing misleading evidence to the Court and of his deceptive conduct towards others, but these are discussed later when relevant to particular issues between the parents.
The mother’s credit has not been the subject of strong criticism. It is submitted on behalf of the mother and the Independent Children’s Lawyer that the mother provided an open and honest account of the various incidents leading to these proceedings, and I accept that that is so. She does not seek to hide, either from Dr RN or from the Court, the difficulty she initially faced in August 2005 when the four children came into her full time care and she had to settle them into a domestic situation that did not include the father and the paternal grandmother. The mother is candid in her concession that the children, particularly A, were missing their father and grandmother and that they did not want to live with her on a full time basis. The mother does not pretend that the transition was easy from hers or the children’s point of view.
The mother is candid in the way in which she describes to the Court the steps she has taken, including promises she has made to the children, in order to attract them to the idea of a move to Queensland. It is the mother herself who described this as “bribery”. Overall, in the giving of her oral evidence, she provided appropriate concessions and explanations. The reliability and truthfulness of the mother contrasted sharply with that of the father.
I formed the view that the mother was doing her best to provide a truthful account to the Court at all times. The one criticism I would make of the mother is that, in my view, she attempts to underplay somewhat her failure to explain to the children the nature of the criminal charges the father was facing as sensitively as she might have done, and to underplay her name-calling at the school during an angry incident involving the grandmother and A.
Accordingly, given that the father has demonstrated himself to be capable of very dishonest behaviour and was generally a very unimpressive witness from the point of view of his credit, and that the mother has demonstrated herself to be generally an honest person and a truthful witness, it follows that I would more readily accept the mother’s version than the father’s version on those issues in which there are factual disputes between the parents.
The grandmother’s evidence was given in a way which reflected that she is very heavily influenced by the father, to whom she is clearly devoted. It is clear that she believes everything that he tells her, and, as I have already found, the father is no more honest with his own mother than he is with others. The grandmother rejects any wrongdoing on her son’s part, attributing his trouble with the law to the conniving of others. It is also clear that she has a very negative view of the mother, about whom she could say nothing positive and to whom she could attribute no parenting skills whatsoever. She believes that the mother conspired with Ms M in relation to the recent allegations of indecent assault against Ms M’s daughter X, with a view to discrediting the father in order to have the four Nikolakis children live with her.
It has been submitted on behalf of the mother that the grandmother’s malevolence towards the mother is further demonstrated by the fact that she and the father brought a private prosecution against the mother for assault, which was ultimately dismissed, and that the grandmother sought to recover monies from the mother which she alleged had been loaned for the original purchase of the L Street property. The extraordinary thing about the latter proceedings is that they were brought after the mother and father had resolved the financial proceedings between them in this Court, the main subject of which was clearly that very property. I have come to the view that the grandmother’s role in the assault proceedings and the recovery of debt proceedings is more likely to have been taken at the urging of the father rather than on the grandmother’s own initiative. She is likely, as in all things, to have just gone along with him. I do not think that the grandmother is sufficiently informed to have instigated those proceedings in circumstances where she has been misinformed by the father, but obviously accepts, that she has been successful in relation to the claim for debt recovery against the mother, and that the mother must pay her a sum of money.
Like the father, the grandmother does not acknowledge that it was the father’s own conduct, or alleged conduct, which led to the cessation of his contact with the children.
In summary, whilst the grandmother is devoted to her son and to her grandchildren, and I have no doubt she wants what she considers is the best outcome for the children, the weight that the Court can place upon her evidence is influenced by the fact that she is completely influenced by the father. It is clear that she knows little about her son and about his life other than what he has told her. She is, on the father’s own evidence, not a commercially sophisticated woman and it is clear that her role in the Nikolakis Trust and her willingness to refinance her present home to provide funds for the father’s benefit are all driven by the father. I am satisfied that she does anything that is asked of her by the father, and without question. Although I believe the mother has done her best to assist the Court with her version of the truth, it is little more than the father’s version of the truth which she has adopted. For that reason her evidence has been of little assistance to the ultimate determination I must make, other than to demonstrate that if the father is to spend time with the children in the future, the grandmother would not provide any restraint on any inappropriate or insensitive conversations the father may have with the children about the mother.
Mr F gave evidence in the mother’s case. Cross-examination of this witness elicited evidence which was, in my view, open and truthful. No doubt was cast upon the genuineness of his description of his difficulties in his relationship with his former wife which have resulted in him having extremely limited contact with his own children, and I accept his evidence that that is not related to any lack of commitment on his part to his children but appears to be related to an over-protective attitude by his former wife. I accept his evidence that he has been quite debilitated emotionally by his lack of contact with his own children. He spoke of his relationship with the mother and their plans for the future with sincerity and optimism but with a lack of an exaggerated “rose coloured glasses” view of their future. I accept Mr F’s evidence, including that his wish not to relocate to Sydney is based on genuine professional, social and family exigencies.

The Evidence

I certainly do not intend to set out all the evidence in this case but there are a number of issues which requires the Court’s examination and determination. These are:
(i)The nature of the informal parenting arrangement from the children’s birth to separation;
(ii)The date and circumstances of the parent’s separation and the circumstances of the obtaining of a divorce;
(iii)The mother’s mental health;
(iv)The father’s mental health;
(v)The mother’s alleged physical abuse of the children;
(vi)The allegations in relation to sexual abuse by the father;
(vii)The father’s harassment of the mother since separation, including the period since the children came into her exclusive care;
(viii)The father’s attitude to the children’s relationship with the mother;
(ix)The mother’s attitude to the children’s relationship with the father;
(x)The alleged emotional abuse of the children by the father;
(xi)The alleged emotional abuse of the children by the mother;
(xii)The mother’s proposal for relocation.
Some of the evidence is relevant to more than one issue, so inevitably there is some overlap.

In relation to the issue of the parenting arrangements in place prior to any court orders being made, each of the parents contend that they provided the primary care of the children and the paternal grandmother asserts that she “brought the children up”. The father’s evidence on this issue is that the family were living in the home of the paternal grandparents at the time of A’s birth and for a number of years thereafter, and that within a year of A’s birth the mother had returned to work, leaving the day to day hands-on care of that child, and indeed the children who were born subsequently whilst the parents resided in the grandparent’s home, to be carried out by the father and the paternal grandmother. The father was on a Disability Pension, but did some clerical work from home. The mother, for her part, says that she worked close to home doing split shifts and that although the grandmother and father cared for the child/children when she was at work, she was available to, and did, provide the primary care of each of the children outside her working hours.
I am unable to reach a sensible conclusion about the precise division of labour whilst the parents were living in the grandparent’s home, but I am satisfied that each of them had a great deal of involvement in the children’s day to day care in circumstances where the father is likely to have been the primary carer whilst the mother was at work and the mother assuming that role outside working hours. I have no doubt that the paternal grandmother was also greatly involved in the children’s care at that time.
A home was purchased in L Street in the same suburb and not far from the grandparent’s home, by the parents and they moved on a date which is a little unclear other than that by then the parents had, or almost had, three children. It seems that the mother had returned to employment after the birth of each child and it is the father’s own evidence that it was the mother who was working to provide the growing family with an income and who was responsible for paying the mortgage on the new property. There seems to be general consensus that, after the move to the L Street property, the mother was working and the father took the children on most days to the grandmother’s home nearby where he was assisted by her with their care. It seems generally to be agreed that the children often stayed overnight with the grandmother: what is not agreed is the frequency with which that occurred and where the children’s primary residence was being established.
The mother contends that at all times and continuing up to August 2004, which she says is the month of the parent’s separation, she remained very involved with the children’s care, with a great deal of assistance from both the father and the grandmother as she working and they were not. She challenges the father’s and grandmother’s version of the frequency and duration of the periods the children spent in the grandparent’s home.
The father says that in this period the children were predominantly at the grandparent’s home, that the mother saw them every few days but that there would be a number of consecutive days each week when the mother wouldn’t see the children at all. He does agree however that the mother generally saw the youngest two children, and they stayed overnight with the mother, more often than the elder children. The elder children, he says, stayed less frequently because they did not want to stay with the mother. The father says that after he started travelling to regional NSW he frequently took all the children with him on weekends but if not they, and particularly D, stayed with the grandmother. It should be remembered, of course, that on the father’s case he separated from the mother in 2002, so the picture he paints includes that he too spent more and more time at the grandparent’s home and indeed he says he had moved there permanently by October 2002. The grandmother’s evidence is to the effect that “we would allow” the mother to have the children overnight but mainly she was the one looking after the children, the mother was working and the grandmother “was bringing them up”.
Like the earlier period, I am unable to conclude the precise division of parenting responsibility after the parent’s move to L Street, but in circumstances where I have found the mother to be a more reliable witness than the father, and the grandmother to be far too aligned with the father to be of much assistance to the Court, I accept the mother’s evidence in relation to that period. Accordingly, I am satisfied that after the parents moved to the L Street property, but particularly in the period between 2002 and 2004, each of the parents and the grandmother remained involved in the children’s care, but that a pattern was emerging, as the mother continued to work, where the father was dictating the time that the children spent with each of the adults. By that I mean that the children were “allowed”, as the grandmother said, to spend time with the mother at the L Street property when it suited the grandmother and father rather than when it suited the mother. I have no doubt that, taking into account the evidence of Dr RN to which reference will be made later, that the father has devalued the importance to the children of their relationship with their mother and that there was a lack of equality in the parent’s own relationship, that the father “called the shots” as to where the children spent their time. An example of that, to which further reference will be made, is the mother’s evidence, which I accept, of her continual requests to accompany the father and children to regional NSW. Those requests were refused by the father.
In many respects this issue has become a non-issue as water has passed under the bridge. The amount of time the children were in the care of each parent and/or the grandmother prior to August 2004 now seems somewhat irrelevant. It has never been the mother’s case that the father is other than an experienced parent who has been very involved in the hands-on care of the children, and although the father has sought to paint the mother as peripheral to the children’s upbringing prior to August 2004 and then continuing until September 2005, that can hardly be part of his case now. The mother has provided the sole care of the children, as a full time parent, since August or September 2005 when they came into her care as a result of consent orders. The relevance of the issue as to who provided the care of the children in the past is that it provides a background or understanding of the important role that the father and paternal grandmother have played in the children’s lives and the difficulty that must have been faced, not just by the children but also the mother, trying to adjust to what was virtually an overnight change, in September 2005, from the hitherto existing arrangement, a change in which they could no longer even see their father, which was very distressing for each of them, but particularly A.
The next issue to be dealt with is the circumstances and date of the parent’s separation and the circumstances in which they obtained a divorce. The parties give very different versions. The father says that they separated under the same roof before D was born, which I note was August 2002, and that he had moved out of the home to the grandparent’s home by October 2002. He says that thereafter he sometimes stayed over in the family home to mind the children when the mother was on nightshift. Although originally stating in his affidavit that he moved into a de facto relationship with Ms M in regional NSW, he later conceded that that was an inaccurate description of that relationship but that from some time in 2003 he began a romantic relationship with Ms M and “tried to spend as much time with her as I could”. The father says, and it is not disputed, that he travelled regularly to regional NSW and, particularly in 2004, frequently took the children with him. He says that he wanted to get the children used to Ms M as they intended to move in together. When in regional NSW with the children he shared a bedroom with Ms M.
The paternal grandmother corroborated, in general terms the father’s version, stating that the parents separated before D was born.
The mother provides a quite different version. She says that in the period between 2002 to 2004 the children often stayed at the grandmother’s home when the mother was working nightshift, and that on some occasions the father accompanied the children. In other words, the mother describes an arrangement that had been in place since the parents moved into the L Street property. She denies that the father had moved his belongings out of the L Street home by October 2002 and says that it was not until her return home from her second hospitalisation at the end of 2004 that she became aware that during her absence the father had moved his personal effects and clothing, including the children’s toys, clothing and bedding from the L Street property. The mother says that she was aware the father was travelling to regional NSW as he told her he was attending markets there. He often took the children. He told the mother that he and the children stayed with Mr M and Ms M who had become great friends, and they had two children X and Y. The mother assumed that Mr M and Ms M were a couple. She later learned that Mr M had been Ms M’s partner who had committed suicide prior to Ms M meeting the father.
The mother says that in the period leading up to August 2004 she asked the father on a number of occasions whether he was having an affair. She says she did this because she had repeatedly invited herself to accompany the father and the children to regional NSW on weekends but on each occasion the father declined, saying that it was important that she worked to minimise the financial strain on the family. She had also found some incriminating evidence in the form of medication associated with sexual activity in the father’s wetpack, but he had also reassured her in relation to that medication’s use. She says that her suspicions had led her to confide in the family’s local GP who provided reassurance that her suspicions were unlikely to be true.
The mother says that about the middle of August 2004 she again asked to accompany the father and children to regional NSW the following weekend; again the father refused and angry words were exchanged. The mother says that this, for her, was the turning point and she realised the marriage was over. She says that until that point she and the father were still living together and raising the children together, that they were still attending social functions together, that she was assisting him by catering for functions in which he was involved, that the children’s birthday parties were organised by the father at the family home, that they were pooling financial resources and sharing a motor vehicle, and that the mother was providing nursing care for the paternal grandfather who died in mid 2004. I accept as genuine the mother’s belief that until that point the marriage was still on foot.
I accept the mother’s version of the separation date and accordingly reject the father’s version of the same event. The fact that the father’s evidence is corroborated by the paternal grandmother does nothing to alter my view in circumstances where I have already made reference to the influence the father has upon the grandmother, including that she clearly accepts without question anything the father tells her. Quite apart from the fact that the father has demonstrated himself to be an untruthful person, and an untruthful witness in these proceedings, the Court’s attention has been drawn to the domestic circumstances of the Nikolakis family during the relevant period. There is no dispute that the parties shared the social activities referred to by the mother. There is no dispute that until late 2004 the parents shared joint bank accounts, shared a motor vehicle, and that both parent’s names remained on household bills for the L Street property. There is no dispute that the parents attended school functions together, and the father says, quite specifically, that in that period of time both parents cared for the children at the L Street home. The father says that the children’s routine was kept stable and that from the children’s point of view there was nothing about their family life that would cause them to think that their parents had separated. The father says that he did have a conversation with the older two children to the effect that, although things are just the same, their mother and he had separated. The oldest, A, was about 9½ at the time, and the father says that he “thinks she understood”.
Those matters are inconsistent with actual separation, and, most tellingly, it was not until August 2004 that the mother, consistent with her learning that the marriage was over, attempted suicide.
I am satisfied that the most likely explanation of events in that period is that the father was leading a double life, travelling regularly to regional NSW to spend time with his girlfriend but not wishing to initiate separation from the mother. He deliberately hid from the mother his true relationship with Ms M and, extraordinarily, the children did not reveal what was going on behind the mother’s back. I am satisfied to the requisite standard that the father either expressly or implicitly convinced the children not to disclose to the mother the nature of his relationship with Ms M and not to disclose to the mother details of their activities in regional NSW which might have revealed, for instance, that Ms M did not have a partner. No other explanation is logical in circumstances where the father took the children frequently to regional NSW and the mother’s suspicions were, on her evidence which I accept, not aroused by anything the children said. I remarked during the course of the hearing, and I repeat, that I did find it extraordinary, in circumstances where the mother apparently thought the father was taking the children to visit a couple with two children, ie. an innocent situation, that she would not have made reference to those people and their activities in a normal way, enquiring about the children’s weekend activities, not to interrogate them but simply out of maternal interest as to how they had spent their time. Even in those circumstances the children revealed nothing. The relevance of the father’s role in that secretive behaviour of the children is discussed in more detail later.
I am satisfied that these parents did not separate until the mother’s attempted suicide in late August 2004. In making this finding I take into account that, in a document marked Exhibit F5, the mother apparently made a statement to the police in relation to an Apprehended Violence Order she was seeking. There is some inconsistency in that statement and the mother’s version to this Court in relation to when the father moved out of the family home. I accept the mother’s evidence that that information was either mistakenly recorded by the police or that she inadvertently provided inaccurate information.
In a Divorce Application brought by the father, and not contested by the mother, the separation date was cited as that now contended by the father. The father says that the fact the mother signed that document, on 30 October 2004, supports his version of this issue. Once again, the mother gives quite a different version: she says that after her discharge from the psychiatric unit following her suicide attempt in August 2004 and before her readmission to the psychiatric unit in November 2004, the father came to the family home with divorce papers and demanded she sign them. She says that he threatened her with extremely unpleasant consequences if she refused to do so, including that she would not see the children again. The mother says that although initially refusing, at the time of the father’s second demand which was also accompanied by threats she would not see the children again, she signed the documents without reading them, unaware of the alleged separation date contained therein.
The father denies that he pressured the mother and says that the mother read the documents and willingly signed the documents. He denies that any threats were made.
In preferring the mother’s version, the Court has no difficulty understanding the mother’s action at that time. Her distress at learning the marriage was over had manifested itself in dramatic and self-destructive course of action. She had been discharged from a psychiatric hospital, in what one would assume was an emotionally vulnerable state. For a parent who had just attempted suicide, one could well understand that a threat of not seeing the children again would be a very real prospect, and one which the mother would readily believe. I also take into account Dr RN’s evidence that the mother had never been an equal partner in the parent’s relationship.
I am satisfied that the father dishonestly cited a separation date in the Divorce Application thinking that he would simply get away with it, at a time that he had decided to move on with his own life. I am satisfied that in order to avoid a finding that he (and indeed the mother) provided false information to this Court in their Divorce Application, he has reconstructed the 2002 to 2004 period to now suggest that the parents had in fact separated much earlier.
The findings I have made on this issue of course reflect very poorly on the father’s credit but also have relevance to other issues in the case, including the father’s involvement of the children, over a substantial period of time, in his double life. That will be referred to in greater detail later in the judgment, and will include Dr RN’s evidence in relation to the impact this is likely to have had on the children at the time.
I turn now to the issue of the mother’s mental health. About 2001 the mother suffered from an episode of depression and consulted a psychiatrist in the context of the father being questioned by police about complaints of inappropriate behaviour made against him by the teenage daughter of a family friend. The mother had supported the father and accepted his denial at the time, and it seems that both parents consulted the same psychiatrist, Dr PA. The mother was prescribed medication, but was not hospitalised and indeed she continued in employment throughout that period. Despite hospital records created in August 2004, which include in the mother’s past psychiatric history a reference to an earlier suicide attempt, the mother denies such an incident. Taking all the evidence into account I am satisfied that whilst August 2004 and November 2005 were not the only episodes of the mother’s mental health declining into depression as a result of stressful circumstances, I am satisfied that August 2004 was the only occasion in which that decline was accompanied by an attempt to take her own life.
In her evidence the mother describes how she was feeling for a couple of months prior to the August 2004 admission to hospital, a period characterised by unhappiness, forgetfulness and confusion as her suspicions about the father’s unfaithfulness grew. The family’s General Practitioner, in whom she confided, reassured her that her suspicions were likely to be unfounded. She was not referred to a psychiatrist or any mental health professional. She did not seek any counselling and the General Practitioner did not prescribe any anti-depressants. The mother describes her sense of betrayal by the father and that those feelings precipitated her swallowing what I assume to be a substantial quantity of medication, including pain killers. She was admitted to the Hospital’s psychiatric unit for two days, then discharged under the supervision of the local mental health team. The mother also attended appointments as an outpatient at the Hospital. She resumed employment about a month after her August 2004 hospitalisation.

A couple of weeks after she had signed the divorce papers and after discovering a telephone listening device attached to her phone the mother says that the pre-August 2004 feelings returned. She contacted her local mental health team, and she was readmitted to the psychiatric unit for seven days. Upon her discharge the mother remained under the care of a psychiatrist and the local mental health team until she moved out of the area to her current address. She has not established mental health supports in the new area.
In her report dated 28 September 2005 Dr RN states that the mother’s 2004 psychiatric illness of Major Depression had occurred in the context of significant psycho-social stressors. Dr RN notes the past history of less severe untreated depression which had also arisen in the context of psycho-social stress. It is noted that the mother’s vulnerability to developing depression indicates that she should engage in ongoing psychological work, particularly while she is parenting dependent children. I accept Dr RN’s evidence on this issue.
The mother addresses the issue of her current mental health at paragraphs 163 to 173 of her affidavit. She says that she is in excellent health, that she has a good support network comprising friends and family. She says that she is eating regularly, her weight is remaining stable, she sleeps well, she manages the household and attends school activities, including special occasions at school, as well as regular attendance at the school to assist in the classroom. She says that in the period since November 2004 she has been upset by the circumstances surrounding the father’s charge and conviction of indecent assault against a young child and that these proceedings have been unsettling, but at no stage has she felt like she did in August or November 2004 when she was hospitalised. I accept that evidence, and there is no doubt in my mind that the mother is currently in a positive frame of mind about the future, much of which is no doubt attributable in large part to her relationship with Mr F.
In her oral evidence Dr RN observes that in the period between her two assessments of the mother she had become more confident and self-assured and more a parent in charge of her children, certainly less anxious and even at times expressing anger and frustration that her plans to move could not be instantly fulfilled.
In her report of 15 November 2006 Dr RN says that the move to Queensland will benefit the mother and hence the children as she parents them from a happier position. Whilst raising concerns that in the period since her second discharge from hospital the mother has not availed herself of ongoing professional help, Dr RN points out that the excitement of the new relationship, having the total care of the children without contact with their father, and support from her friends has resulted in the mother being depression free. I accept Dr RN’s evidence.
In her oral evidence Dr RN confirms the mother’s vulnerability to depression in certain circumstances and says that the relocation she seeks will further enhance her current stable mental health and positive outlook. Dr RN counsels the mother to be wary of future psycho-social stressors, such as would be brought about if her relationship with Mr F fails. Dr RN says that because that risk of depression remains, supports are important for the mother wherever she is living and that she needs to set up a both a social support system and a health support system which would monitor her functioning. Dr RN says that whilst she has identified as a future potential stressor the failure of the mother’s relationship with Mr F, it will also be stressful, albeit less stressful, if the mother is obliged to remain in Sydney and face a future with a less fulfilling relationship with Mr F, accompanied as that would be by the practical difficulties involved in maintaining that relationship. I accept all of Dr RN’s evidence, both written and oral, on the issue of the mother’s mental health, and I am satisfied that if the mother relocates with the children to Queensland it will be important that she builds an alternative support system in that area to assist her through any stressful situations. I am reassured by the mother’s evidence that she now recognises the physical and psychological indicators of an impending bout of depression, as demonstrated in November 2004 when she herself initiated professional intervention.
As to the issue of the father’s mental health, the father provides evidence that he was treated for depression in 1995 when he was serving periodic detention. He consulted psychiatrist Dr RS in early 2005, and was diagnosed as suffering from an adjustment order with depressed mood. The father asserts in his affidavit of 27 November 2006 that there has been no need for him to address any issue relating to his mental health over the previous 12 months and he asserts that he is mentally well. Whilst Dr RN’s report of 28 September 2005 confirms the absence of a current clinical psychiatric disorder, it does raise the issue of what she describes as the father’s significant character pathology. Dr RN writes:
[The father] presented as having no current clinical psychiatric disorder, although a somatization disorder and dependency on prescription drugs could not be excluded without further objective evidence of [the father] having a diagnosable medical condition. Historically, [the father] has had significant difficulties in several domains of his life: repeated significant criminal transgressions, poor occupational functioning, significant misrepresentation of the facts, repeated failure to reflect on his actions and to learn from them. He would appear to have been overly intrusive with his ex-wife (monitoring all monetary transactions closely when they were together, monitoring her mail and telephone calls since their separation) and overly indulgent with [A] (buying her material goods, failing to ensure her personal care was of a good standard) while now being convicted of another boundary violation – child molestation. I would diagnose him with significant character pathology. He falls into what the Diagnostic and Statistical Manual of Mental Disorder, 4^th Edition (DSM-IV) describes as Cluster B personality disorders, with antisocial and narcissistic personality traits. With no insight into his disordered functioning, his prognosis is poor, ie. change is unlikely. I have great concerns that he has actively devalued [the mother] to the children, which over time could lead to them becoming alienated from her.
In her oral evidence Dr RN confirms that her view remains that the father suffers from a personality disorder, that disorder including a mixture of anti-social and narcissistic traits which Dr RN has identified in the father: superiority, haughtiness, grandiosity, a sense of himself, and a worrying lack of empathy with his children. Dr RN adopts the proposition that his manipulative behaviour is part of the concern she has about the father, not just because of the conviction for using a misleading title but also because of the apparently misleading history the father provided to Dr RS. In the context of Dr RN’s discussion of narcissistic personality traits, including the father’s apparent manipulation of adults, Dr RN adopts the proposition that the father is capable of manipulating his children, as most parents are whose children look to them for guidance, but in the father’s case she has little confidence in the father’s ability to censor himself in the children’s presence.
Dr RN’s identification of the father’s anti-social personality traits are described in her oral evidence as related to his criminal activities which she understands are in the past but would be concerning if they were continuing, as such activities by parents have a negative impact on children.
I accept all of Dr RN’s evidence in relation to the father’s character and personality, and in particular the explanation it provides to the Court for aspects of his conduct, many of which are the subject of criticism in these proceedings. Of particular significance, in my view, is Dr RN’s written evidence that she has great concerns that the father has actively devalued the mother to the children which over time could lead them to becoming alienated from her, and Dr RN’s oral evidence that amongst the father’s character traits which she associated with narcissism is his concerning lack of empathy with his children. The impact of this upon the children will be covered in greater detail in the later discussion of the father’s alleged emotional abuse of the children, which is a significant issue in these proceedings.
I turn now to the issue of the mother’s alleged physical abuse of A. In oral evidence the grandmother says that in September 2004 the mother hit A so hard that the grandmother felt obliged to intervene, and was so concerned that she immediately telephoned the father in regional NSW. The mother recalls the incident, describes A’s conduct which led to the physical discipline and denies using excessive force on that occasion. However, the mother concedes that she had told the Department of Community Services that she had used excessive force and that she had left a mark.
Whilst that incident does not reflect well upon the mother I am satisfied that it was aberrant behaviour on her part, and certainly not typical of the manner in which she disciplined the children. In reaching that finding I take into account the fact that the incident occurred between the mother’s discharge from the psychiatric unit and her readmission in 2004 and one would have no difficulty in understanding that the mother would hardly have been feeling “herself” at that time. Further reason to view that incident as aberrant, rather than typical, of the mother’s conduct is the fact that the father, when notified of the incident, did not return from regional NSW until some days later, and there is no suggestion on the evidence before me that following that incident the father ensured that the children were not left alone in the mother’s care.
In oral evidence Dr RN says that in circumstances where the father told her that the children were reporting that the mother smacked them, she deliberately “did a double check” with the children, expressly exploring with them whether or not the mother physically disciplined them. She said nothing of concern was reported to her by any of the children. I accept that evidence.
On all of the evidence before me I am not satisfied that the mother is a physically abusive parent and I am not satisfied that the children are at risk of any harm of such abuse if they were to be in the mother’s unsupervised care. In any event, there is no proposal before the Court that the mother’s care of the children be supervised.
The next issue to be dealt with is the allegation of the risk of sexual abuse. It is not said that the father has acted sexually inappropriately to these children and indeed there is oral evidence from Dr RN, which I accept, that whilst talking to the children she was “keeping an ear out” for sexual abuse and that she elicited responses from the children which didn’t cause her concern in this regard. The mother’s case, supported by the Independent Children’s Lawyer, is that the father’s conduct towards a teenage girl in 2001 and towards a 7 year old girl in 2004 was predatory sexual behaviour and accordingly the Nikolakis children are at risk of similar abuse if they spend unsupervised time with the father.
The facts, as I understand them, are that in 2001 a teenage year old girl named Z, the daughter of family friends of the Nikolakises, accompanied the father and two of his own children on a camping trip. The father was the only adult present. It is reported that on arrival at the camp site the father made Z a cup of tea which she thought tasted bitter and which she poured out. The father then made her a second cup and, although Z thought that cup also tasted bitter, she drank it. It is reported that thereafter Z had no memory of the ensuing days, her first memory being of returning in the car to Sydney two days later. Z told her mother of the events and a medical examination, including blood tests, was arranged. Z tested positive for the drug Benzodiazepine, and a general medical examination noted that Z’s throat was ulcerated. Her mother took Z to the Sexual Assault Unit at Hospital but no examination was carried out because of the time that had elapsed. The matter was referred to the Joint Investigation Response Team. That information is contained in a statement recorded by the police in Exhibit M14 but it is not clear on the face of that document whether that information was provided direct to the police by Z or by her mother. In either case, the inference is clearly to be drawn that it was suspected by Z’s family that the father drugged Z and may have sexually assaulted her in some manner whilst she was asleep.
The father denies any improper conduct. His evidence is that he was interviewed by the police about that incident but no charges were laid. The only explanation from the father of which I am aware is that he told the mother that at the time Z was in with “a bad crowd”. I do not know whether that is the father’s own explanation for the incident or whether that was information provided to the father. I do not know whether that is an explanation for Z fabricating events or an explanation for Z’s positive drug test. The evidence is that the family friendship between the Nikolakises and Z’s family was permanently severed at that time.
The next incident occurred in October 2004. The father was in regional NSW with his three daughters, staying in the home of Ms M, the woman with whom he was in a romantic relationship. It appears that Ms M went to the movies and the father babysat his three children and her two children, being Y aged 8 and X aged 7. Y reported to the police that the father gave the children a drink of soft drink which tasted “funny” and that after they drank the soft drink they all felt sleepy, although it is clear from that child’s statement that the children did not fall asleep at that time. X complained the following day to her mother that when the other children had fallen asleep the father carried her from one bedroom to another and touched her on her genital area and put his tongue in her mouth. In relation to the inappropriate touching X said that it happened more than once. X’s mother reported the matter to the police. Records of the M children’s police interviews are before me as part of Exhibit M13.
The father’s version to the police, which is also contained in Exhibit M13, was that all the children were asleep, and that X walked into the lounge room where he was sitting. He said that she did not appear to hear his request that she return to bed so he picked her up and put her back into bed. He thought she may have been sleepwalking and that is what he told the mother when she returned from the movies. He denies any improper conduct.
The father was charged and later convicted of indecent assault of a child under the age of 10. It was the conviction on that offence which caused the mother in these proceedings, apparently on the advice of the Department of Community Services, to take the Nikolakis children into her fulltime care. In September 2005 interim consent orders were made in this Court whereby the father was not to have any contact with the children and that has continued to the present time. In May 2006 the father’s conviction was overturned on appeal.
It is acknowledged by both the mother and the Independent Children’s Lawyer that, on the evidence before this Court, no finding to the requisite standard could be made that sexual abuse, or inappropriate conduct of any kind, did occur in relation to the father’s conduct towards either Z or X. However it is argued that the father’s involvement on both occasions, in circumstances where there are common threads to both incidents, must cause this Court to conclude that there is an unacceptable risk of sexual abuse by the father of his own children if they were to spend time with him on an unsupervised basis.
It is argued that the 2001 incident with Z and the 2004 incident with X have the following similarities:
(i)On both occasions the father was the only adult present;
(ii)On both occasions there is a report by a child/teenager present that the father prepared a drink, in Z’s case tea and in X’s case soft drink, which was reported to have tasted bitter or “funny” but was in any event consumed by the two alleged victims;
(iii)In 2001 Z had no memory of the ensuing 48 hours after drinking the tea and tested positive for Benzodiazepine which, it is not disputed, is an ingredient in Rohypnol which in turn is associated with significant periods of memory loss. In 2004 it was reported by another child present that after drinking the soft drink all the children, including the alleged victim, started to feel sleepy. There is no evidence before me that any drugs were found in the little girl’s system.
(iv)In both cases the father was an adult trusted by the girls’ families to babysit, and on the father’s own evidence, he had a close relationship with both the teenager and the little girl involved and he could think of no reason why either Z or X would fabricate complaints against him.
(v)Both Z’s family, to whom he had been very close and I believe there may have been a godparent connection, and X’s mother to whom he says he was engaged to marry, have severed their relationship with the father since the incidents.
On the versions given to the police in 2001 and 2004 it is the case that both incidents did involve the father and there are similarities between the two incidents which are prima facie very disturbing. Further, the evidence is undisputed that there is no way that the two families involved have had any contact with each other such that the facts involving the first incident would have been known to another family three years later. There is no evidence to suggest that a person other than Z’s family, such as the mother, who was aware of the facts surrounding the first incident, was in a position to pass those facts on to X’s family: the mother had had no contact with Ms M prior to statements being made by the M children.
Whilst it is true that there are some details which link the two events, how tenuous is that link? Does it mean, as is being suggested here, that the father’s modus operandi is to drug children and then, when they are asleep, to touch them inappropriately or worse? Is it enough that one child (or teenager) has been reported as saying that she drank a cup of tea prepared by the father that tasted bitter and that was the last thing she remembered for about 48 hours and that a blood test arranged by her medical practitioner produced evidence of Benzodiazepine, and that, three or so years later a young boy, who could have known nothing of 2001 incident, has been reported as saying that the father gave all the children in his care a drink of soft drink which tasted “funny” and that after they finished the soft drink “they all felt sleepy”? It is that link, together with the fact that although there was no clear evidence of sexual activity in the first case there was evidence of a drug, and although no evidence of a drug in the second case there was an explicit disclosure from the child herself of sexual activity, which is primarily relied on, together with the other similarities referred to above, by those in this case who assert an unacceptable risk.
It has been argued on behalf of the mother that the father’s denial of any inappropriate conduct towards Z is an unsatisfactory denial in circumstances where he has offered no alternate version to that of the teenager in relation to her having no memory of the two days. It is said that his denial may have been more convincing if it had been accompanied by a version, for instance, that Z’s conduct and activities during the two days was inconsistent with the conduct and activities of someone who was not conscious of what was going on around her. It is argued that if the father does not dispute that in fact Z did sleep for that entire period, where is his explanation that this concerned him and caused him to alert her family or other persons? Whilst accepting that the father provided no alternate version of those two days, it seems to me the situation is simply that that evidence is not before the Court because the matter was simply never explored. There was, in my view, no reason why the father could not have been asked about that in cross-examination, if not by the mother’s counsel perhaps because forensic advantage could be taken of his lack of an alternate version, then by counsel for the Independent Children’s Lawyer. In fairness to counsel for the Independent Children’s Lawyer, he does not join the mother’s counsel in submitting that the Court would draw an adverse inference from the father’s silence on this issue. Whilst it is true that the father’s story about X sleepwalking seems fanciful, and it would appear that the little girl’s graphic account was accepted by her mother and later accepted by a jury in circumstances where the father was convicted of an act of indecency against X, that conviction has been overturned on appeal.

Overall, I am satisfied that the mother has a superior capacity to that of the father to meet the children’s needs as a resident parent by virtue of the risk of emotional and sexual abuse the father poses to the children.
For the same reasons I am not satisfied that the father has the capacity to meet the children’s needs as a parent with whom the children should spend unsupervised time. I make that finding notwithstanding that the father may well be accompanied by the paternal grandmother at these times. That is a situation which may change in the future, when the children are much older and better equipped to cope with the father devaluing the mother and undermining her parenting, which I have found is likely to continue, and better equipped to protect themselves from the risk of sexual abuse.
I am satisfied that the father should spend time with the children in circumstances where that time is closely supervised and also precludes the opportunity for the father to make remarks designed to undermine the children’s relationship with the mother and thus destabilise her household. Even close monitoring poses some risk, as Dr RN’s presence did not deter the father, but there are benefits to the children, identified by Dr RN, by providing the children with an opportunity to spend some time with the father.
Accordingly, in terms of this factor, the residence of the children with the mother holds greater advantages to the children’s best interests than any other residence proposal before the Court. It must follow that I conclude that the father’s preferred residence proposal holds corresponding disadvantages to the children’s best interests in terms of this factor. For the same reasons, I conclude that any time the children are to spend with the father on an unsupervised basis holds disadvantages to the children’s best interests. I am also satisfied that supervised time holds greater advantages to the children’s best interests than the preferred proposal of the mother and the Independent Children’s Lawyer that the children spend no time with the father.
S.60C(3)(g) – Issues relevant to cultural and lifestyle background of the children and the parents.
These children have a mixed Australian/Greek heritage and it is clear that whilst under the father’s and grandmother’s influence, particularly when they were spending so much time with them, the children have been a part of the Greek community in Sydney, attending religious and other celebrations associated with that community. This issue was certainly not raised by either party during the course of the proceedings other than in the form of one question to Dr RN as to whether she is concerned that the Greek aspect of their heritage would be lost if the mother relocates to Queensland. Dr RN’s evidence is that she hoped the Greek heritage would be maintained in some way, and that there is no reason why the children shouldn’t communicate with their Greek godparents. Dr RN also tells the Court that even though the mother reported that she wished to go to Queensland and “leave all this behind”, she also said that “when the children are older they can go back and find out”. Dr RN says that in the mother’s responses there was no sense of “that will be it”, rather the mother expected that at some point the children would recontact family members and she wouldn’t stand in the way of allowing that to happen. I accept that evidence.
There is no evidence at all before me as to what the mother has or has not done to encourage that important cultural link in the period since September 2005 when the children have been in her care, or as to her intentions when they move to Queensland. I am satisfied that it is likely that the children’s Greek heritage will form a part of their future education and upbringing, albeit a lesser part than in the past. I make this finding not on any evidence as to the mother’s current proposal but on my findings on her general capacity to identify and meet the children’s needs. Accordingly, whilst the father’s proposal envisages greater exposure to the children’s cultural heritage than the mother’s proposals in terms of this factor, none of the proposal disadvantage the children significantly.
S.60CC(3)(h) – Aboriginal or Torres Strait Islander heritage.
This issue is not relevant to these proceedings.
S.60CC(3)(i) – The attitude of each parent to the responsibilities of parenthood.
The mother’s and father’s respective attitudes to the responsibilities of parenthood have already been discussed pursuant to s.60CC(2)(b) and s.60CC(3)(c) and (f) above. The findings I have made in relation to the father posing an unacceptable risk of sexually abusing the children and emotionally abusing the children, reflect poorly upon his attitude to the responsibilities of parenthood. Whilst it is true that the mother has been emotionally insensitive, if not abusive, on occasions, there is a very definite distinction made by Dr RN, whose evidence I accept, about the extent of and the nature of each parent’s insensitivities.
I am satisfied that, overall, the mother has demonstrated an appropriate attitude to the responsibilities of parenthood. I expressly find that whilst the reasons for the mother’s desire to relocate to Queensland includes a desire to remove herself and the children from the father’s sphere of influence, that does not reflect poorly on her attitude to the responsibilities of parenthood in the circumstances of this case.
Accordingly, in terms of this factor, the residence of the children with the mother holds greater advantages to the children’s best interests than any other residence proposal before the Court. It must follow that I conclude that the father’s preferred residence proposal holds corresponding disadvantages to the children’s best interests in terms of this factor. For the same reasons, I conclude that any time the children are to spend with the father on an unsupervised basis holds disadvantages to the children’s best interests. I am also satisfied that supervised time holds greater advantages to the children’s best interests than the preferred proposal of the mother and the Independent Children’s Lawyer that the children spend no time with the father.
S.60CC(3)(j) – Family violence involving the child or child’s family member.
This is not a relevant issue in these proceedings, given the finding I have made at paragraph 82 above.
S.60CC(3)(k) – Any family violence order that applies to a child or family member.
The evidence is that in March 2005 the mother obtained an AVO for her protection from the father. I think that related to interference with her mail. In late 2005 the father obtained an AVO order against the mother after he received several SMS messages alleged to have come from her. Neither order is current.
S.60CC(3)(l) – Order to avoid further litigation.
I am of the view that if an order is made that the children live with the mother, any order which provides the father with an opportunity to spend unsupervised time with the children is likely to expose them to pressure and coercion by the father to express a view to either live with him or spend more time with him in different circumstances. That is likely to cause him to bring a further application for parenting orders. In fact, given the father’s highly litigious nature and what has been described in submissions from the mother’s counsel as a “win at any cost” approach to issues between himself and the mother, I do not think there is any order I could make in these proceedings that will avoid future litigation in relation to parenting orders except perhaps an order that the father has no contact whatsoever with the children. The advantages of such an order to the best interests of the children outweigh the disadvantages in terms of this factor.
S.60CC(3)(m) – Any further relevant factors or circumstances.
Something should be said here about the vulnerability of these children, and especially A. Her special emotional needs have been the focus of much of the expert evidence. In her first report in September 2005 Dr RN assesses all the children as follows:
[A] is a distressed ten year old, both acutely, from the recent changes in the family, but probably also chronically – at least from last year when her parents separated and mother was hospitalised. Her father’s extramarital relationship would also have been disturbing to her.
I suspect [A] has had a special bond with her paternal grandmother – the first grandchild, who got presented to her grandmother before her mother by her father. However she used her mother during the assessment as an attachment figure (to give her security and comfort), which suggests she does not have an estrangement from her mother, at least in the absence of her father and PGM. She appears to have been an indulged child by her father and PGM, both materially and emotionally, to her detriment as her poor grooming is a clear indication of how she is too young to be in charge of herself. She has felt free to be verbally abusive and rejecting to her mother, which is probably more about her acting out something for her father than her real feelings for her mother.
[B] is a pleasant girl, who seemed to be anxious about letting an adult be totally in charge, as if she had to know it all. Her description of how she, [A] and PGM attended to her father was very concerning – the girls were not being protected from their father’s emotional outburst and his subsequent physical “collapse”. He, and PGM, allowed them to attend to him in a way which will only encourage the girls into a precocious caregiving role and has consequences for their emotional development.
As is age appropriate, [B’s] drawings show she is well aware of the family dynamic and how her survival is dependent on being able to access both parents. However she keeps them separate, a reality, but probably also reflecting her anxiety about Dad hurting Mum.
[C] is a bright girl, who seemed the child most concerned about her mother’s tears. [The mother] will need to be careful [C] does not become excessively solicitous towards her.
[D’s] behaviour was age appropriate and he showed good attachment to his mother. His language delay is a concern: with three big sisters and a bilingual background it is not surprising but a speech pathology assessment would be useful to ascertain if active intervention is warranted.
I accept that evidence.
In that report Dr RN recommends that the mother seek some professional help for A. It is also clear on the mother’s own evidence that the Department of Community Services also recommended counselling for A. The mother says that A has absolutely refused to go to counselling, either alone or with the mother. The mother says she has tried unsuccessfully to get A to even see the school counsellor. The mother says that all she has been able to do is to provide A with the number for the DOCS Kids Helpline and told her that there are teachers available for her to talk to, and that she will take her any time she wants to go for counselling. The mother says it was very difficult to get A to agree to see Dr RN. I accept the mother’s evidence.
In oral evidence Dr RN says that A did not appear to be a willing participant in her own assessments and said little, so she wasn’t surprised to hear, and would have expected to hear, that A has refused to talk to anyone, and not surprised the mother hasn’t forced her into counselling given earlier experiences. Dr RN says that forcing children into counselling is not helpful in any event. I accept that evidence.
I am satisfied that the mother’s failure to obtain the recommended professional assistance for A, no matter how much it may have been needed when the children stopped seeing their father in September 2005, is not a reflection of the mother’s indifference to the child’s needs but rather a pragmatic response to a distressed child’s refusal to attend such counselling. I am satisfied that in the period since September 2005 the mother has, without professional assistance, managed to provide a stable and settled environment not only for A but for all the children. As Dr RN has pointed out, that has enabled each of them to attain developmental milestones, and in A’s case in particular, to excel at school. That is not to say that the children are not grieving the loss of their father. I have expressly found that they are.
In her report of 15 November 2006 Dr RN says:
All the children have a marked need for stability, predictability and parents who are as well functioning as these parents can be.
I accept that evidence, as I accept Dr RN’s oral evidence that if the parents continue to fight, if more legal matters continue, if either parent has contact with the children and aren’t parenting them properly she thinks these children would not make a good life adjustment as adults.
I am satisfied that these children do have special needs – they are vulnerable children with a need for stability and predictability which has been missing from their lives since their parent’s separation in August 2004, and if the conflict between their parents continues their future psychological development is at risk.
The benefits of a meaningful relationship with each parent.
As I observed at paragraph 197 above, reaching a conclusion in relation to how, if at all, an outcome might be achieved whereby the children are able to benefit from a meaningful relationship with each of their parents should be a conclusion which flows from findings pursuant to s.60CC(2)(b) and s.60CC(3)(a) to (i). Taking into account the findings I have made, I am satisfied that unless the time which the children spend with the father is restricted in frequency and duration, and the time itself is closely monitored, these children will not have the benefit of a meaningful relationship with their mother. I am satisfied that that relationship is likely to be undermined and devalued by the father and the mother’s efforts to continue to provide stability and predictability are likely to be sabotaged. The benefits to the children of stability and predictability are included in the reasons why Dr RN is supporting the relocation by the mother and children to Queensland and I am satisfied on all of the evidence, including that of Dr RN, that the father will seek to disrupt the mother’s household if he has unfettered access to the children. On the other hand, of course, if the father’s time with the children is so restricted, the children will not have the benefit of a meaningful relationship with their father. Accordingly, and with regret, I must conclude that for these children it must be a meaningful relationship with one parent at the expense of a meaningful relationship with the other, and I have made findings that it is the mother who has the superior capacity to meet the children’s needs, including their emotional needs, and who has demonstrated a superior attitude to the responsibilities of parenting. Although the mother, supported by the Independent Children’s Lawyer, both propose orders whereby there is no face to face contact in the future between the children and the father, arguing that that is the only way in which the children’s relationship with their mother can be protected from the father’s manipulative, yet subtle, efforts to undermine that relationship, the evidence of Dr RN is that that is not an outcome that would assist the children in the long term.
S.60CC(4) – Consideration of the extent of each parent’s fulfilment of their respective responsibilities as a parent.
Again, I take into account the evidence and findings I have made pursuant to s.60CC(2)(b) and s.60CC(3)(c), (f) and (i) above. In relation to the matters specifically referred to in this section to which I must give consideration, there is no doubt that both the mother and the father have taken any opportunity available to each of them to participate in major long term issues in relation to the children, and have taken any opportunity available to each of them to spend time with the children and to communicate with the children. There is no evidence before me on which I could find that either parent has inappropriately sought to exclude the other parent from participating in major long term issues in relation to the children. Notwithstanding the very serious criticisms I have made of the father’s undermining of the children’s relationship with their mother and devaluing the importance of that relationship, until September 2005 when the father consented to orders that he spend no time with the children pending the final outcome of the criminal proceedings, neither parent had sought to keep the children away from the other parent. As I have found, the father’s undermining of the relationship was more subtle: an example being that following the March 2005 parenting agreement the father would be at the school when the mother went to collect the children and his mere presence there would cause A to elect to go with him instead of the mother.
Since the children have been in the sole care of the mother since August/September 2005 the evidence appears to be that the father has contributed little, if anything, towards the children’s financial support. I know little of the reason for this although there is evidence that he is on a Disability Pension.
S.60CC(4A) – The circumstances since separation.
The evidence relevant to this section is that the reason the children have spent no time with their father since September 2005 is that the father agreed to that arrangement in circumstances where he had been convicted of indecent assault of a 7 year old child.
I turn now to consider s.61DA of the Act, which deals with the presumption of equal shared parental responsibility when parenting orders are made.
It is argued by the mother and the Independent Children’s Lawyer that the presumption of equal shared parental responsibility should not apply in this case. In determining that issue the Court must decide whether:
(i)There are reasonable grounds to believe that a parent (or their partner) has abused the child or another relevant child; or
(ii)There are reasonable grounds to believe that a parent (or their partner) has engaged in domestic violence.
In paragraph 103 above I have made a finding that there is an unacceptable risk of sexual abuse of the children by the father. Accordingly the presumption of equal shared parental responsibility does not apply. However that is not the end of the matter: in circumstances where the father seeks an order for equal shared parental responsibility he is, in my view, entitled to have that matter determined notwithstanding the absence of a presumption in favour of the orders he seeks.
I do not intend to repeat the evidence, but have made findings that the father poses an unacceptable risk of both sexual and emotional abuse of his children. I have also found that there is a high level of conflict between the parents which impacts negatively on these children who each in their own way have special needs. I have found that there is perceived inequality in the relationship between the parents and that the father devalues and undermines the mother’s parenting. Finally, I have concluded that for these children it must be a meaningful relationship with one parent at the expense of a meaningful relationship with the other parent. Accordingly, this is not a case where there should be equal parental responsibility: decisions relating to the children’s major long-term issues should be the exclusive responsibility of the mother.
If there is no presumption of equal shared parental responsibility then there is no requirement for the Court to consider whether or not the parenting orders should provide for the children to spend equal time with each parent or substantial and significant time with each parent. But that doesn’t mean a Court should not consider whether such an outcome is in the best interests of the children, in circumstances where, as in this case, one of the parties seeks orders that the children spend equal time with each parent. I turn now to consider the outcome sought by the father.

In considering whether to make an order for the children to spend equal time with each of their parents I must consider whether that is in the best interests of the children and whether it is reasonably practicable that they do so. I have concluded that the father poses an unacceptable risk of sexually abusing the children and an unacceptable risk of emotionally abusing the children, including continuing to undermine the mother’s parenting of the children. I have concluded that it is not possible, in the circumstances of this case, to achieve an outcome that would provide the children with an opportunity to have a meaningful relationship with both the mother and the father. Accordingly, I am satisfied that it is not in the children’s best interests to spend any unsupervised time with the father. For that reason I am satisfied that it is not in the best interests of the children to spend equal or substantial and significant time with the father.
Having reached that conclusion there is no need for me to determine whether or not equal or substantial and significant time with the father would be reasonably practical as defined by the Act.
It will be clear from the foregoing analysis that, in the Court’s view, the four children’s best interests will be served by making orders which allow the mother to move to reside permanently on the Queensland Gold Coast with the children. In reaching that conclusion I have placed considerable weight on the benefits to both mother and children to be derived from being physically removed from the father and his sphere of influence, which in turn will remove them from ongoing conflict and instability and unpredictability. I have also placed considerable weight on the unacceptable risk of both sexual and emotional abuse of the children by the father, a risk that must be reflected in orders for supervised time restricted in frequency and duration wherever the children are living. Accordingly, relocation will not be the cause of the children’s lessened opportunity to spend time with the father.
In fact orders have already been made to allow the mother to move to Queensland with the children in time for the children to start the 2007 academic year in Queensland, but those orders were made at a time when I had not completed this judgment. At the time that I took the unusual step of making orders in relation to some but not all of the issues before me for determination, without providing reasons for those orders, I explained that step in a short judgment.
The next question to be asked is this: will the children’s best interests be reflected in orders which provide for, or restrict, or prevent the children spending time with the father. It is submitted by the mother and the Independent Children’s Lawyer that if the Court is satisfied either that there is an unacceptable risk of sexual abuse or an unacceptable risk of emotional abuse of the children by the father then there should be no orders made which enable the father to spend any time at all with the children. It is argued in support of that submission that, given the fact that the father is unlikely to accept, or come to terms with, an order that the children live with their mother, his demonstrated determination to win at any cost, no matter the extent of the litigation, his proven propensity and ability to deceive and manipulate others and his demonstrated capacity to swear the children to secrecy in relation to what goes on between them, even supervised contact in a contact centre would expose the children to risk of further emotional abuse. Those risks are acknowledged by Dr RN, however, she says to the Court that the detriment to the children being exposed to such risks must be balanced against the detriment to the children of not seeing their father at all in the future. Dr RN says:
“…… It certainly is a matter of weighing up the disadvantages for the children of not seeing their father and the disadvantages of problematic interaction on contact. That would have to be weighed up against the advantages of seeing their father and of knowing their father, of having an experience of the father caring for them and him being interested in them. Because these children, for all that I have agreed and that there are many aspects of him that concern me, he has also made these children feel loved and I think that’s important that they don’t have that – they don’t be deprived of that experience without good reason”.
I accept that evidence.
Dr RN’s recommendation, in the very first report prepared in September 2005, is that the children reside with the mother but have contact with the father and the paternal grandmother at a contact centre each month until the outcome of his criminal proceedings is known. It should also be borne in mind that at that stage the issue of relocation was not an issue. In her report of November 2005 Dr RN says her recommendations remain unchanged and in her report of November 2006, whilst maintaining her recommendation for residency to the mother, a recommendation which includes support for the mother’s plan to relocate to the Gold Coast, Dr RN makes it clear that she cannot support the mother’s application for no contact. I accept that evidence.
During the course of her oral evidence, notwithstanding that Dr RN acknowledges a number of risks to the children associated with spending time with the father, at no stage did she adopt a proposition that there should be no face to face time with the father in the future. Dr RN agrees, however, that the frequency, duration and nature of any future time with the father must be governed by the Court’s findings in relation to unacceptable risk of abuse of either a sexual or emotional nature. Accordingly, it can be seen that Dr RN has maintained the view over a considerable period of time, during which there has been a number of incidents which reflect very poorly on the father and his abusive conduct, that the children should spend some face to face time with the father. I accept Dr RN’s evidence.
Dr RN recommends, in the event that there is a finding of unacceptable risk and the children are living in Queensland, that the father could travel to Queensland and see the children at a predictable time about two or three times a year in a contact centre or other safe setting. He could also send them cards and presents on special occasions. That would reassure the children that they have a parent who remains interested in them, and it would give their father an opportunity to express that he cares about them in a way that is safe for the children. I accept that evidence.
Dr RN adopts the proposition that if the father is to send cards and gifts etc. then it is vital that the mother should be able to inspect those items first to ensure that they contain nothing inappropriate for the children. Dr RN says that she has seen evidence in her own office of the father not able to censor himself and that would be an appropriate gatekeeper role for the mother. I accept that evidence.
In oral evidence Dr RN says that if personal contact is allowed then phone contact would be a reasonable extension. It should be quite regulated in that it should be at a certain time on a certain day, and the children would no doubt enjoy being able to see their father if a webcam could be set up. I accept that evidence.
In oral evidence Dr RN says, when asked about the children maintaining their relationship with the paternal grandmother:
“That is certainly ideal but if it becomes too disruptive – again it’s the balancing act of while I would like to see that relationship resumed and nurtured, if it is too disruptive to set up that sort of contact then I think it’s – one has to be pragmatic about it in the sense that it if something regular, and is suiting their development, is occurring and to go and visit grandma requires a huge disruption for them I don’t know that it would be in their best interests. But if it could be done without disrupting their development.”
I accept that evidence.
Dr RN expressly rejects the proposition that any time spent with the father could be extended at the request of the children, expressing concern that there would be pressures put on the children to start saying that they want more time. I take that to be a reference to the father. When it was suggested that there should be that flexibility if the children wanted it in the future, and Dr RN says:
“Should they want it in the future after they’re 16, that would be my answer to that. To suggest that things might change between now and when they’re 16 for instance, it just creates the potential for people who are very invested in the legal system to be making a case”.
I accept that evidence which again I take to be a reference to the father.
I must say that I have found the issue of the children’s future time with the father a very difficult issue to decide. I am satisfied on the evidence before me that whatever time the father spends with the children is likely to be used by him to fulfil his needs rather than the children’s needs, and I am satisfied that he is so invested in the legal system, as Dr RN has observed, that he is likely to take every opportunity available to him to destabilise the mother’s household, through the children, more determined to win the ultimate war than concerned about the impact on the children in the meantime. I am satisfied that the father is unable to censor himself on this issue and I am satisfied that the paternal grandmother will not provide any voice of restraint. I do share the concerns raised by the mother and the Independent Children’s Lawyer that, given the father’s demonstrated propensity to deceive and manipulate, that he may be able to persuade to his point of view any supervisors at a contact centre. I do share the concerns raised that any pressure placed by the father on the children, or criticisms made by the father of the mother, or questions asked by the father about the mother’s life and lifestyle, may well be kept secret from the mother by the children, given the Ms M experience in regional NSW. All of those matters strongly support an order for no contact at all.
However, balanced against that is the evidence of the benefits to the children, clearly set out by Dr RN, of being able to actually see their father’s face and touch their father, to know he is alive, to know that he has travelled to Queensland in order to see them and that amongst the possible detriments to the children of never being able to see their father is that they may blame the mother for that situation. The other long term detriments have been referred to above.
On balance, I have determined that I will include in my orders an opportunity for the children to reassure themselves that their father remains in their lives, albeit that the orders will restrict that contact to four times a year at a contact centre in Queensland. I have chosen that number because it coincides with the number of school holidays each year, which will provide the children with the predictability of knowing they will see their father each school holidays. Cards and gifts etc. can be sent by the father to the children on special occasions and I think it is appropriate that they be sent care of the mother so that she has an opportunity to inspect them first. I have determined that telephone communication and webcam communication is not something that should occur in the immediate future, to provide the mother with the opportunity to get the children well settled in to their home and school and community on the Gold Coast.
Taking into account all of the evidence before me, including the evidence to which I have specifically referred, I have come to the view that the following orders are in the children’s best interests:

I certify that the preceding three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Flohm.

Associate:

Date: 19 March 2007

[2007] FamCA 1738

19 March 2007

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