Orwell and Watson

FAMILY COURT OF AUSTRALIA

Orwell & Watson

[2007] FamCA 150

FAMILY LAW - CHILD ABUSE - Emotional abuse - Sexual Abuse - Supervised contact

Family Law Act 1975 (Cth)

M&M (1988)FLC91-979
Briginshaw & Briginshaw (1938) 60 CLR 336
S&R (1999) FLC 92-834
Napier & Hepburn [2006]FamCA 1316

APPLICANT:

Mr Orwell

RESPONDENT:

Ms Watson

INDEPENDENT CHILDREN’S LAWYER:

Lalita Fulford

FILE NUMBER:

MLF

780

2005

DATE DELIVERED:

6 March 2007

PLACE DELIVERED:

Melbourne

JUDGMENT OF:

Dessau J

HEARING DATE:

18-25 January 2007, 29-31 January 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Whitchurch

SOLICITOR FOR THE APPLICANT:

Horak Frankovich Rose & Cross

COUNSEL FOR THE RESPONDENT:

Ms Nikou SC and Mr Mort

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Eidelson

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

McCluskys

Orders

That the mother shall have sole parental responsibility for the child J born in August 2001.
That the child shall live with the mother.
That the father shall spend time with the child as follows:
(a)On one Sunday in each three week period from 10.00am until 3.00pm;
(b)On the third Monday at the start of each school term from the conclusion of school until 8.00pm;
(c)On Father’s Day from 10.00am until 3.00pm;
(d)On the child’s birthday and the father’s birthday from 4.00pm until 6.00pm; and
(e)On Christmas Day from 2.00pm until 7.00pm;
provided that in the event that the father’s time falls on Mother’s Day or the mother’s birthday such time shall be postponed to the following Sunday.
That all face to face contact shall be subject to supervision by an independent professional supervisor at all times, and:
(a)The father shall meet all costs of supervision;
(b)The supervisor or supervising agency shall be selected by the Family Consultant pursuant to the s 65L order below;
(c)The supervisor shall be requested to arrange the child’s collection and delivery so that the parents are not brought into contact with each-other at the start or end of face to face contact times; and
(d)If the child is too unwell to attend the mother shall provide the supervisor with a medical certificate.

4A.That the father shall be and is hereby restrained by himself, his servants or agents from forwarding any letters, cards, gifts or communications of any kind to the child save for:
(a)A gift on the child’s birthday and Christmas Day given in the presence of the paid supervisor and with his or her prior approval; and
(b)A gift purchased in the course of time with the child provided it is first approved by the paid supervisor.

The father shall be permitted:
(a)To attend any parent-teacher meeting normally available to parents to discuss the child’s progress provided that it is specifically arranged at a time when neither the child nor the mother is present; and
(b)To receive copies of any printed material and photographs at his expense, if any, which the school would normally produce in relation to the child’s social and academic progress;
and for these purposes:
(i) the mother shall ensure that a copy of these orders is forwarded to the child’s kindergarten or school; and
(ii) The mother shall provide all necessary authorities to the school to supply the material to the father as ordered.
That pursuant to s 65L of the Family Law Act 1975 these orders shall be supervised by a Family Consultant for three years in relation to the selection of a paid professional supervisor on an on-going basis, such Family Consultant being at liberty to report to the court at the request of the court or any party in any future proceedings, and that such Family Consultant is requested to ensure that any supervisor and/or supervising agency shall have and be requested to read the Reasons for Judgment given by me this day.
That the father and mother shall be restrained from:
(a)Denigrating the other or any member of their respective family to the child, or within his hearing;
(b)Discussing these proceedings with or within the hearing of the child;
(c)Communicating directly with each-other; and
(d)By themselves or their servants or agents, removing or attempting to remove the child from the Commonwealth of Australia and for this purpose the child’s name shall be placed on the WATCH LIST at international airports in Australia and the Marshal of the Family Court of Australia and all officers of the Australian Federal Police shall forthwith be advised of these orders by and shall receive a sealed copy from the mother’s solicitors.
That the Independent Children’s Lawyer shall be discharged after forwarding a copy of these Reasons for Judgment to counsellor, Mr K, if he continues to counsel the child.
That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation.
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 pursuant to the Family Law Rules this matter reasonably required the attendance of Counsel and Senior Counsel.
That the Independent Children’s Lawyer’s application for costs against both parents shall be and is hereby dismissed.
That the husband shall pay the wife’s costs thrown away on 15 January 2007 at a sum to be agreed within 14 days from this date and failing agreement to be taxed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Dessau delivered this day will for all publication and reporting purposes be referred to as ORWELL & WATSON

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 780 of 2005

Mr Orwell

Applicant

And

Ms Watson

Respondent

REASONS FOR JUDGMENT

The child J is 5½ and has not seen his father, Mr Orwell for a year. The father wants his time with him to resume. His mother, Ms Watson wants an order for no contact at all.

The mother alleges that the father has sexually abused the child, and that the child faces an unacceptable risk of sexual abuse, as well as psychological abuse in his care. She says the father is manipulative, overbearing, and over-steps boundaries, and she says that she will not cope with the risks she perceives for the child, even if his father’s time with him is fully supervised.

The father vehemently denies he is a risk to the child. He says he is a caring and loving father, and that the mother has maliciously set out to destroy his relationship with his son.

The Independent Children’s Lawyer (the ICL) submits that the evidence overall should lead to a finding of unacceptable risk of abuse in the father’s care, but in line with the Family Report writer’s opinion, the child should spend time with his father, fully supervised for at least the next three years.

The complexities of each personality, the parents’ tumultuous and unconventional relationship, and differing expert opinions, have made the facts in this case hard to unravel. I am grateful that I have had the benefit of listening to and observing the lengthy and rigorous cross-examination of each parent, and the witnesses, in the course of the nine day hearing. Unfortunately, a broad-brush approach to the evidence is not possible. The detail is important.

BACKGROUND

The father is Mr Orwell. He is a 59-year-old health professional. He is engaged to 27-year-old Y (referred to throughout the case as “[the father’s partner]”) with whom he lives in a de-facto relationship.

The father has a biological daughter, S, who was adopted out at birth. He had never met her until she sought out her birth parents. He was 44 and she was 25 at the time. Within 72 hours they commenced a sexual relationship that lasted nearly five years. Together they have a 12-year-old son X who lives with S in England. X returned to live with her at the end of 2006, having lived with the father in Melbourne from July 2005.

The mother is Ms Watson. She is a health worker at a large organisation. She is aged 37. She has a 10½-year-old son, C from a previous relationship. C rarely sees his father who lives in far northern Queensland.

The parties’ relationship started in March 1999. They lived together between about May and November 2001. Their turbulent relationship continued beyond that for several years. The child of the parties was born in August 2001.

The child has at all times lived with his mother. The parties’ versions vary as to how much time he spent with his father up until late 2004, but on any view they saw each-other frequently. In late 2004, the parties agreed to start overnight contact. Difficulties arose. The father started proceedings in this court on 7 February 2005.

In early 2005 interim orders were made for the child to be with his father each Tuesday and Thursday from 7.45am until 11.00am, and each alternate Saturday from 10.00am until 6.00pm. In May 2005 the alternate week-end time was extended to be from 10.00am Saturday to 6.00pm Sunday on alternate week-ends. The orders also provided for the child to spend two one-week periods each year with his father, starting after 1 January 2006.

The father last saw the child on 24 January 2006. At that time the mother stopped contact, claiming the child had disclosed sexual abuse. She also commenced proceedings to stop contact altogether. The father responded, seeking increased time with the child. It was agreed to obtain a Family Report from psychologist, Ms L.

Through several appearances at court, no orders were made for the contact to resume. Senior Registrar FitzGibbon dismissed all interim applications for contact on 17 October 2006. The father filed an application to review those orders. The review came before Mushin J in late-November 2006 and after several days’ of interim hearing, his Honour dismissed the interim applications and arranged for the case to be prepared for this priority hearing.

To complete the litigation history I note that the mother brought intervention order proceedings against the father in April 2004. On 5 May 2004, he made an undertaking (without admission) not to assault, harass, threaten, intimidate or approach the mother, nor to contact her, save in relation to contact with the child (and a few other specified topics). She later obtained an ex-parte interim intervention order on 27 January 2006, then an intervention order on 9 February 2006 which the father consented to, effective until 9 November 2006.

MATERIAL RELIED UPON

The father relied upon:
·His amended application filed 18 December 2006
·His affidavit filed 18 December 2006
·The affidavit of psychiatrist Dr B filed 8 January 2007
·The affidavit of Ms R filed 8 January 2007
·The affidavit of psychiatrist Dr S filed 8 January 2007
·The affidavit of psychologist Ms E filed 28 June 2006 (not cross-examined)
·The affidavits of the father’s partner filed 27 February 2006 and 18 January 2007
·The evidence of psychologist Ms O and her report dated 27 September 2006.
The mother relied upon:
·Her Form 1A response filed 8 January 2007
·Her affidavit filed 8 January 2007
·The affidavits of the maternal grandmother filed 31 January 2006 and 15 March 2006
·The affidavit of psychologist Ms M filed 23 May 2005
·The affidavit of psychiatrist Associate Professor H filed 4 October 2006
·The affidavit of psychologist Ms G filed 9 November 2006 (not cross-examined).
The ICL called the Family Report writer Ms L (who filed affidavits on 28 June and 27 September 2006) and Mr K from The Children’s Protection Society (whose report is dated 29 September 2006).

RELEVANT LEGAL PRINCIPLES
The Legislation

In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA).

Section 60B(1) of the Family Law Act 1975 (as amended) sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
“(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.”

Section 60B(2) sets out the principles underlying the objects. They are that (except when it is or would be contrary to a child’s best interests):
“(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).”
Section 60CC(2) sets out the primary considerations for the court in determining the child’s best interests. They are:
“(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
In making those considerations the primary ones for the court, the legislature has reflected the objects of this part of the Act, emphasising joint parental responsibility and the associated practical involvement of parents in their children’s lives, and the need to protect children from abuse. The Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005, noted (at para 48):
“The safety of the child is not intended to be subordinate to the child’s meaningful relationship with both parents...”
Section 60CC(3) sets out the additional considerations for the court in determining what is in a child’s best interests, and I shall return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).

There is a presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. It does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child or another child in the family, or family violence. Otherwise, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility.

If there is an order for shared parental responsibility, then the court must consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and whether it is reasonably practicable (s 65DAA (1)(b)), and then to consider an order for equal time (s 65DAA (1)(c)).

If the court does not make an order for equal time, it must consider whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)), and whether it is reasonably practicable (s 65DAA (2)(d) ), and then consider an order for substantial and significant time (s 65DAA (2)(e)).

In Goode and Goode [2006] FamCa 1346, an unreported decision of Bryant CJ, Finn and Boland JJ, delivered on 15 December 2006, the Full Court noted (at para 72) that there is a legislative intent:
“… evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable.”

The Full Court said that when the presumption of equal shared parental responsibility is not applied:
“…The Court is at large to consider what arrangements will best promote the child’s best interests, including, if the court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents….”

The Case-Law in relation to Abuse Allegations

As this case revolves around allegations of abuse, I need to consider the existing case law, and any impact of the legislative amendments.

The approach in cases involving an allegation of sexual abuse (also applicable to other allegations of abuse) has been well settled. The High Court in M and M (1988) FLC 91-979, said that:
“… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.”
In M and M it was also emphasised that a judge should not make a positive finding that the allegation is true unless satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw and Briginshaw (1938) 60 CLR 336. It quoted Dixon J (at p.362):
1.“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

The High Court acknowledged there will be many cases in which it is not possible for a judge to make a positive finding that sexual abuse has taken place. A judge must then determine if there is a risk of sexual abuse, and assess the magnitude of that risk. The Court considered the magnitude of risk that would justify a judge in denying a parent access to a child, and concluded that the test was best expressed by saying that a court will not grant custody or access to a parent, if it would expose the child to “an unacceptable risk” of sexual abuse.

In B and B (1993) FLC 92-357 the Full Court of the Family Court referred to the High Court’s authoritative test of “an unacceptable risk” in M and M and added (at p. 79,778):
“The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access.’ In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.”

In S and R (1999) FLC 92-834, the Full Court warned that to establish a serious allegation such as sexual abuse, the “utmost caution” needs to be taken, given the maker of the statement is a child who is not subjected to cross-examination, and whose statement is incapable of being properly tested. Although that observation sounds a fair warning, it could not be intended to alter the Briginshaw approach to the standard of proof, authoritatively adopted by the High court in M and M.
There is nothing in the recent legislative amendments to suggest that the “unacceptable risk” test is no longer the appropriate one. That position was supported by the Full Court in Napier and Hepburn [2006] FamCa 1316, an unreported decision delivered on 5 December 2006. Warnick J dissented from the majority judgment of Bryant CJ and Kay J. However, there was no disagreement about the unacceptable risk test still applying in cases in which there are allegations of abuse for the court to consider.

THE ISSUES

I cannot consider the matters in s 60CC of the Act until I have analysed the evidence to arrive at findings in relation to the dual issues of sexual and/or psychological abuse of the child. They cast the longest shadow over this case. I will deal first with the allegation of sexual abuse, although there is a significant overlap.

THE ISSUES: SEXUAL ABUSE

As is often the case, there are no independent eye-witnesses to any sexual abuse and no medical or other forensic proof. There are factors that point towards the probability of a risk of abuse, and those that point against. I need to weigh those probabilities to decide if there is a risk, and if so, its magnitude.

In an effort to harness the extensive evidence, I will consider it under the following headings:
·The allegations/disclosures
   Late 2004 to the start of 2006 – the child’s Sexualised Behaviour
   12 January 2006 – The Mother’s Complaint to DHS
   24 January 2006 – The child’s First Disclosure
   25 January 2006 – The child’s First Police Interview
   February 2006 – The child’s Second Police Interview
   From March 2006 – The child’s Disclosures to Mr K at CPS
·The Evidence of the Maternal Grandmother
·The Opportunity for Abuse
·The mother’s Questioning of the child
·The mother’s Own Abuse as a Child
·The father’s Relationship with S
·The father’s Approach to Boundaries
·The father and Pregnancy Terminations
·The father’s Current Relationship
·The father’s Relationship with C and X
·The Parents’ Conduct and Attitude to Each-other
·The Experts’ Reports
·Ms L’s Two Family Reports
·Conclusions re: Sexual Abuse

The allegations/disclosures
From late 2004 to the start of 2006 – The child’s Sexualised Behaviour

The mother says that as early as around October 2004, she observed what she described as “sexualised behaviour” in the child. She said she noticed “suck marks” on his neck in October 2004 when he retuned from his father’s. She asked him who had done it and he replied “Daddy and [X]”.

In paragraph 56 of her affidavit she swore that:
“…[the child] has gradually been exhibiting increasingly aggressive and arrogant behaviours, and overtly sexualised behaviour. Behaviour entirely inappropriate for a child of his age. For example, at first he would come home from spending time with [the father] and want to kiss me on the lips and stroke my hair. This moved to [the child] trying to kiss me and on occasions he even attempted to touch me on the breast. …”
The mother said at first she thought it was just part of his early development and learning (he was three years’ old when she said it started), but she became concerned that he had seen his father and his partner being intimate together.

In a combination of her affidavit and her evidence in court, the mother described the child’s behaviour as persisting and worsening throughout 2005. She described it dramatically in the course of her evidence, to the effect that the child was repeatedly trying to force himself on her, trying to kiss her or touch her breasts inappropriately, and that he was behaving inappropriately with friends’ little daughters in much the same way, in late 2005. At various times she reported that it replicated the father’s behaviour towards her.

The mother’s words and her demeanour conveyed what had been a desperate and long-term concern on her part. Despite that, throughout 2005, in the course of proceedings in which the father was seeking formalised contact orders in this court, there was no mention in any of her affidavit material of such a concern. And although there was continuing and significant SMS traffic between the parties, she conceded that she sent no message at all to the father referring to such behaviour. Nor did her solicitor write any letters about it to the father’s solicitor.

It was only in January 2006 that the mother’s allegations about on-going concerns were raised with the father. It was by way of a letter between solicitors on 20 January 2006. The letter advised that the mother wanted to suspend overnight contact, and that she had noticed the sexualised behaviour “over the last three to four months”. That was not consistent with her evidence that the problem had existed since October 2004, and had been escalating and worrying her deeply throughout 2005. She blamed her solicitor for that.

I find the mother has exaggerated her concerns, at least as to the length of time they existed. It may be she has done so in order to found some justification for how events then unfolded in January 2006. It is important I turn to that chronology. There are strong co-incidences in the timing of the complaints.

12 January 2006 – The mother’s Complaint to DHS

In a telephone call on 11 January 2006, the father’s mother told the mother that the father had become engaged to his partner.

At 16.54 on 11 January 2006 (it was unclear whether that was English or Australian time but from events that followed, it seems most likely Australian) the mother sent the father an SMS message:
“Just heard your news of impending marriage to 25-year-old […] houskeeper and pregnant to boot. Not at all surprised. Does she realise you were two-timing her?”
At 5.31am (Australian time) on 12 January 2006 she sent another message to him:
“Just quoting you. You always said if you were not married by 60 you’d find yourself a mail-order bride.”
And at 5.42am:
“I don’t care and find it hilarious. Will be dining out on this one for a while.”

At 6.39am the father sent the mother an SMS message:
“Glad to hear I occupy your thoughts at 6.00am and I love you too. But your loss of common decencies and poisoned delusions does demand care. Please confine SMS to [the child].”

At 8.00am on 12 January, the father’s receptionist, Ms R, received a phone call as soon as the office opened. A female caller said she “was ringing to congratulate the [father’s partner] on her pregnancy and engagement to [the father].” She then introduced herself as the mother. The mother agreed that she made the call. When challenged that the father’s mother had never said the father’s partner was pregnant (and she was not), the mother said that she had “understood” the father’s mother to be saying she was. That did not ring true.

The mother conceded her SMS messages and her telephone call to the father’s office were “cheeky”, and that she was being “a smart alec”. In my view they were mischievous. They showed jealousy, anger, and her incapacity even at that point to fully disengage from her relationship with the father. I will return to that.

On that same day, 12 January 2006, the mother contacted the Department of Human Services (DHS) about the child’s sexualised behaviour. She said that her call to them had nothing to do with what she had heard about the father and his partner. She had known of their relationship since it started and it “meant nothing” to her. As noted, her actions were to the contrary. When questioned further as to why she rang DHS in relation to long-standing concerns, but only on the day after she found that the father had become engaged to his partner, the mother said it was simply that she had spoken to a friend, a social worker, who told her she should take some action in relation to the child’s behaviour.

On 12 January she also spoke to the crèche and asked if they had noticed any unusual behaviours in the child. They had not.

On 19 January 2006 the father had contact with the child for a few hours, having just returned from his overseas trip.

On 20 January 2006, the mother’s solicitor wrote to the father’s solicitor complaining of the mother’s concerns about the child’s sexualised behaviour. The mother agreed that this was the first time the father had been notified of the issue in any way, save that DHS had interviewed him by telephone when he returned to Australia on 18 January 2006.

24 January 2006 – The child’s First Disclosure

The day of 24 January 2006 is significant in the chronology. At about 10.00am the mother received a telephone call from DHS telling her that they were closing their investigation in relation to her notification. She was upset and concerned that they had only interviewed the father by telephone. She was told by the DHS worker that should the child make any disclosures, she should contact DHS again. She was advised in the meantime that he could have counselling at either the Gatehouse Centre or at Altona House, run by the Children’s Protection Society (CPS).

The mother immediately contacted the Gatehouse Centre and was referred to the CPS at Altona House. According to the CPS Intake notes, she reported that on the Saturday before, being 21 January 2006:
“[The child] jumped on top of [C] on the couch and put his hand down his pants and touched his penis. [The mother] asked where he had learned this from, and [the child] replied ‘[X] does this to me.’”

It is notable that the mother did not tell DHS about that during the call earlier that morning. On the mother’s account, it was the child’s first disclosure. DHS had told her that on the strength of the available material, they were closing their file, but she should notify them of any disclosures. She said that disclosure did not spring to mind. That is implausible.

On the afternoon of 24 January 2006 the mother went to collect the child from crèche at about 4.40pm. She said the child ran towards her with two little friends and said “[G] and [A] are coming to stay at our house. We’re going to sneak up on you and suck your boobies and suck you down there” pointing towards her crotch. She said she was extremely embarrassed and concerned, and although he said it in front of a crèche staff member, the staff member did not seem to take it seriously, simply asking the mother “What have you been letting him watch on TV?”

The mother said that on the way to the car they ran into a friend and the child said “Do you know what? I’m going to suck mummy’s boobies and I’m going to suck her down there” again pointing to the crotch area. She said that the friend/colleague had convinced her to follow the matter up with the crèche staff.

In her affidavit, she described (at para 71):
“…I asked [the child] to wait outside while I went into the staffroom to explain the situation and sought information as to [the child’s] recent behaviour at the crèche. [The child] then came into the room and repeated his comments and gestures again in the front [sic] of the staff. I insisted the staff report this matter under the mandatory reporting code. …”

The crèche staff member’s notes put a slightly different gloss on what occurred. They are as follows:
“4.40 signed out – returned.
5.05 – [The mother] came in with [the child]. We went to staff room. She asked [the child] to tell me what he had told her, [the child] smiling said that he (and [his two friends] been talking about a sleepover) were going to go to mummy’s house and they would kiss her boobies.
[The mother] said and what else [J], you tell [the lady] what you told me, [the child] smiled (in a mischievous way). [The mother] asked him again what else [J] what else. He said – suck her (or me) here, (holding his genitals).”
On the evening of 24 January 2006 the mother contacted the parents of the little boys, G and A. They said they had never heard their children talk like that before, but A’s mother apparently told her that during dinner that evening A had motioned towards her crotch and said “Can I suck you down there?”

The mother swore in her affidavit that at bedtime that evening, she was reading the child a story when he said “I wish you would let me suck you down there”. She said she asked him “Has anyone done this to you?” According to her affidavit (para 72):
“He said yes. He said “Someone” had put his willy in their mouth and they had sucked it. He said he had accidentally weed but didn’t mean to and had got into a lot of trouble for it. I asked “Who is the someone?” He said “Daddy”. He said Daddy would go to gaol. He told me that his daddy told him it was natural for people who love each other to do these things….”
As soon as the child was asleep the mother rang the local police and spoke to a police officer who gave her the E SOCAU Unit number to ring. She was told they opened at 8.00am the following day. She rang them first thing.

I note that in court the mother gave an account of the child asking about his father going to jail, rather than saying or asserting that it would occur. More importantly than that small inconsistency, from what she told the police, it seems there was a significant passage missing from the account in her affidavit.

According to police notes of the mother’s telephone call early on the morning of 25 January 2006, The mother had referred to some-one called “[M]” as follows:
“Over the course of last night mother tried to explore reasons why he had said this. She asked him if anyone else had done this to him and he said ‘[M] put my willy in her mouth’, but as night progressed, this changed to subj disclosing that [M] was dead and it was dad who had ‘sucked his willy’ and that ‘dad should go to jail’. Then the subj started talking about a scary house, but it appeared subj was having some transference between a scary book he was reading and what he was telling his mother.
The mother has no idea who ‘[M]’ could be. The subj has not made any further disclosure.”
The mother did not agree that it was an entirely accurate reflection of what she told police. She said the child had never said that “[M]” had put his willy in her mouth, but she seemed to agree with the rest of the police notes about M, including that the child said she was dead.

The mother gave me a detailed account of what the child told her about M, one that was repeated a number of times in her evidence. It was to the effect that the child said he was at the house of someone called M. He was locked in the bathroom and was very frightened. He climbed out the bathroom window, ran down the side pathway of the house, and tried to escape through a hole in a fence.

The mother has a close friend called M. She has two children, W who is nearly 16, and a younger daughter, B. Just shortly before these disclosures, M and her children had been staying with the mother and the child at the maternal grandparents’ farm. When challenged about this part of the story – to the effect that the child may have been referring to her friend M – The mother said that she had asked the child about M and he had said “Daddy’s [M], not your [M]. Not [W] and [B’s] [M].” She said the child told her that M had children, “[F] and [N]”. The child’s purported details about M, her house, the locked bathroom, and his escape, were simply missing from her affidavit. She said she had told her solicitors about it but they said it was too long to include in the affidavit. The notes of her initial complaint to CPS also do not refer to it.

25 January 2006 - The child’s First Police Interview

During the next day, 25 January 2006, the mother and her mother took the child to be interviewed by the police. He made no disclosures to them. As he was leaving the police station he said to a police officer “I think she didn’t tell the truth but she does.” It is unclear what he meant.

The mother said that the child was tired and cranky and was awoken from a sleep in the car when he arrived at the police station. He was uncertain and nervous going off with police officers (one of whom was very tall) and that is why he made no disclosures.

At 9.04pm on 25 January 2006 the mother rang the DHS after-hours service. She reported that the child had said to her after the police interview “I didn’t tell those people what happened as someone would go to jail.”

The child’s Second Police Interview in February 2006

It seems that in February there was a further police interview with the child. It was referred to in the course of the evidence. There was no recording. I note a reference in Ms L’s first report (at page 3) that the child said to police “I want to tell you the truth to some people.” When asked “What truth?” he said “About Daddy sucking my willy.” When asked “Did Daddy really do that?” he replied “Yes, of course.” That is as far as that evidence went.

From March 2006 - The child’s Disclosures to Mr K at CPS

The child was seen for the first time at Altona House CPS in March 2006. He has now had around 26 sessions with a counsellor, Mr K.

On 19 April 2006 Mr K was conducting “directed play” with the child. He showed him a card with a figure called P. The child smiled and said “I have a dad called […]”. The report goes on:
“[The child] then began to talk about why he was coming here; that he didn’t want to come; he said he is here ‘Because dad sucked my bottom and willy’. [The child] added that his father had ‘vomited’. The writer asked where he had vomited? [The child] said ‘Vomited on my balls, all over me.’ The writer asked if he could remember any smell. He responded ‘I could smell like vomit…disgusting.’ The writer asked if he could recall what his dad was wearing. [The child] replied ‘A green and eh. Yellow t-shirt.’ The writer asked if [the child] could recall anything else about the t-shirt and he replied ‘And white’. [The child] went on to say ‘That’s all he (dad) was wearing.’ [The child] then went on to say ‘That’s the only thing that has happened to me.’”
Mr K then told the child that dads are not supposed to do that to children, and he asked the child how he felt. The child replied “Sad”. Mr K tried to prompt him to disclose other feelings but the child then continued to play and said “I’ll tell you after the game.”

On 10 May 2006 the child said something to the effect “[X] got sucked in my big brother’s room.”

On 17 May 2006 the child told Mr K that he had spoken to the police. In that context Mr K asked the child about his father. The child said “My dad did something wrong that I didn’t want him to do”. He was asked if he wished to see his dad and he said “Yes”.

On 17 May 2006 the child made it obvious to Mr K that he was bored and did not want to be there. Mr K brought the mother into the room with the child. In front of the child, she spoke about her worries if he were to see his dad. Mr K reported “…During this discussion [the child] became very agitated. He hit his head repeatedly with a punch ball; he then busied himself in the cupboard getting a sheet of paper and then proceeded to cover himself with the paper. He then moved to his mum and relaxed into her lap.”

Mr K says that on 24 May 2006:
“…[The child] began to talk about their dad sucking [X]. [The child] was moving around the room. [The child] spoke of his dad sucking him. He pointed and said at the same time ‘he sucked the middle of my willy and here (pointing to his bottom)’. The writer asked how his dad sucked [X]. He said ‘With his mouth’. The writer asked where were the clothes, [the child] said ‘[X] had just got out of the shower’. [The child] referring to his dad, said ‘I guess he’s still out there doing it to other people’. The writer asked how many times it happened. [The child] said ‘One’.”

At the session on 14 June 2006 the child asked the writer if he would see his dad before he dies. The child showed he had some understanding of the influence of the court in this matter. He told Mr K “My big brother [X] got sucked too”. The writer asked “Did he say anything to you?” The child replied “I forgot, I forgot everything.”

On 5 July 2006 Mr K reported that the child said of his dad “He sucked my bum…he will say sorry I think if I see him. He asked Mr K “Is it ok what he did?” On 6 July 2006 the child seemed concerned he would have to attend counselling for a long time “because of the awful things done to me”. He said that he missed his dad and that his dad “promised me after doing it last time not to do it again.”

Mr K’s opinion was that any contact between the child and his father should be supervised. He noted on the one hand the child’s persistent stated wish to see his father. On the other hand, he noted the child’s consistent comments indicating sexual abuse by his father.

In cross-examination Mr K conceded that it is CPS policy not to engage a child in therapy if he has any contact at all with an alleged perpetrator. The agency’s starting position is an acceptance that abuse has occurred. It is not perceived as the counsellor’s role to search for facts. Significant weight is given to what a parent reports, with an assumption that the presenting parent is acting in the child’s best interests. Despite all that, Mr K was adamant that he does keep an open mind, and does not just blindly go along with what he has been told.

Mr K concluded that whatever contamination had occurred in the version given by the child, “in the final wash-up” he believed that “something untoward had happened” and that the father was the perpetrator.

Mr K said that on 19 April 2006 the child had given a clear account with very little emotion, a more detailed account than previously, and with a sense of experience that Mr K had not seen before, when he gave the account about his father vomiting, and the smell of the vomit. It seems that Mr K’s view that it was likely that the child had been abused by his father crystallised then.

It is important to note that throughout the therapy, the child talked a great deal about death. Mr K said it was “a strong theme” throughout much of his play and his talk in relation to his father. Mr K “gut feeling” was that the child was grieving for his father. Throughout his therapy, the child was adamant that he wanted to see his father. But he was more settled generally in the second half of 2006.

I must give careful consideration to Mr K’s opinion. He is an experienced counsellor. But in assessing his conclusion that it was likely that the child was abused by his father, I cannot overlook his agency’s starting position, and that Mr K was not privy to the detailed information I received, hearing and watching all parties being cross-examined. I am concerned that the child made some comments of a peculiarly adult nature. I am concerned that the contamination was likely to have been more substantial than Mr K was able to appreciate from his involvement with part of this family. And in later assessing what the child told Ms L, I am concerned that Mr K not only permitted, but had invited the mother to talk of these issues in front of the child. That in itself could have contaminated or further contaminated the child’s account before he saw Ms L.

The Evidence of the Maternal Grandmother

The maternal grandmother corroborates the mother as to aspects of the child’s disclosures. However, there is no doubt that the grandmother is strongly aligned with her daughter. There is also no doubt that she has an extremely low opinion of the father. She has good reason for that, in that she and her husband have been the recipients of an inappropriate letter and intrusive telephone calls from him. I will return to the detail. In addition, no doubt they have been unimpressed by their daughter’s relationship with him, given his history, and the heartache for their daughter that they have observed. All that said, the maternal grandmother can only see her daughter’s point of view, and I did not find much of her evidence to be “independent”. An example was her claim that on 25 January 2006, some time after the police interview, she heard the child say “Someone’s going to jail”, and when asked “Who?” he said “Daddy”. That accorded precisely with her daughter’s account. She agreed it was very important. But it had not appeared in her affidavit.

It was obvious that the maternal grandmother was also defensive of her daughter. For example, she said that after a violent incident with the father at Christmas in 2003, her daughter “only wanted to get on with her life”, and to be rid of the father. To illustrate the point, the grandmother said that he was not even invited to a family wedding in January 2004. What she had to concede later in cross-examination was that on that day, at her daughter’s request, the father had taken photographs of her and her sister before the wedding. The grandmother then said that her daughter was just “trying to keep it cordial”. These pieces of evidence did not hang together.

The final illustration that the maternal grandmother’s evidence was so partisan that it is of little assistance to me, was her description in her affidavit of 15 March 2006, of an incident on 27 February 2006. She described sitting in a canvas director’s chair with the child playing nearby on the floor when he started to poke the bottom of the chair. When admonished by her he said “I won’t poke you up the bottom.” She said “Has someone done that to you?” and he said “Yes, Daddy poked his finger up my bottom but I was very brave.” The grandmother saw absolutely no possibility of an innocent explanation for a four-year-old boy playing under a chair in that way, and why her questioning may have been misplaced or ill-conceived. I cannot be satisfied that she has not over-reacted to or misinterpreted his game, or that the questions and answers about it transpired just as she said or without prompting or at least unwitting suggestion by her.

The Opportunity For Abuse

Before the disclosures, the father was seeing the child regularly, and overnight. In that sense the opportunity for the alleged offending behaviour existed. I cannot put it higher than that, save to note that he has given inconsistent answers about the sleeping arrangements. In evidence he said the child shared his bed only once, when the house was overcrowded. He told the police that the child shared his bed “occasionally”. Such inconsistency can contribute to the possibility of risk, but in itself it is a small point.

The mother’s Questioning of the child

It seems that the mother repeatedly questioned the child about these issues. In her letter to DHS on 22 January 2006, she wrote:
“I had questioned [the child] over and over for the past few months asking where he had witnessed people doing these things and what his sleeping arrangements were at Daddy’s. I had also questioned him about Daddy’s and his house-mates’ relationship as I believed this knowledge relevant. [The child] has always denied any involvement between them. However, I have learnt there is a relationship between [the father] and [his partner], from a family member of [the father’s] in England. I again questioned [the child], who first denied a relationship, then he looked very guilty and upset and he said ‘Okay, I will tell you the truth, they are getting married, Daddy told me not to tell you because you will take me away’. [The child] also admitted he sleeps in Daddy’s room with Daddy and [his partner] and often in their bed. Again because of the personality and behaviour of [the father] as I have described above, I conclude that [the child] is copying the sexual act between these two.”

This letter is significant because it is written two days before the purported disclosures. It gives me a window into the sort of questioning that the child was enduring. The mother admits that in other respects too, telling me about having sat C and the child down and spoken with them about these issues on the evening of 25 January 2006.

It is important to consider what had been suggested to the child, directly or indirectly, before the purported disclosure. The mother claimed she was very careful not to speak about adult issues in front of him. Her claim was undermined when a message left by her on the father’s message machine in around mid-2004 was played. It was as follows:
“[Your partner is] going to have to find somewhere to live, because you know that you are going to be in jail. You, [the partner], and [the partner is] just as bad, you know, participating in all your letter-writing and typing up your letters. Don’t think she’s going to avoid copping it as well. You and her. Especially you though, because you’re the deviant. You’re finished … and I hope you use this in court.”
During that message, the child’s voice could be heard in the background. The mother said that she was in the toilet behind a sliding door in the hope that the children would not hear her. She had to concede that given the child’s voice on the tape, he may have overheard something. I find that is probable, and given the maternal grandmother’s close involvement with the family, the probability is that there were conversations between the women within the child’s ear-shot.

I note too that the child has made references to his father going to jail. On the mother’s account there was such a reference in his apparently spontaneous disclosure on the night of 24 January 2006. I cannot be confident that his talk of jail was entirely spontaneous. I note his mother’s talk of it in the taped message.

The mother’s Own Abuse as a Child

There was a suggestion that as the mother had been sexually abused herself as a small child by a young family friend, that it was interfering with her judgment on this issue. It clearly had been a difficulty for her, as sworn by Ms M who counselled her in relation to it in 2003/2004. But I accept the evidence of psychiatrist, Professor H that the mother has worked through it, and it is unlikely to be the explanation for these allegations, although it may have contributed to her vigilance or suspicion. I am satisfied that she was particularly vigilant about the child in his father’s care, but that seems to have stemmed more from her concerns about the father, and her experiences of him, than from her own unpleasant childhood experience.

The Father’s Relationship with S

It is impossible to leave out of the equation the father’s relationship with his daughter S. As noted, he met her for the first time when she was 25 and he was 44. He said their mutual attraction was “overwhelming”. Despite the taboos of which he was well aware, their sexual relationship started within 72 hours of meeting. It continued on and off for nearly five years. After two earlier pregnancies and terminations, they decided to parent a child together when S had her third unplanned pregnancy with her father. That does not paint a pretty picture.

I have heard differing professional opinions assessing that incestuous relationship and its relevance to the allegations that the father has sexually assaulted his son.

The father’s treating psychiatrist, Dr S, acknowledged that in his relationship with S, the father violated the incest taboo, but said it did not have the same implications as if there had been a traditional father-child relationship.

Forensic psychiatrist, Dr B, wrote in his report:
“Now this does not have the normal connotations that incest would have. After all, she was biologically his daughter but he had no contact with her from before birth right up until the age of 25. That of course means that the normal elements that contribute to the incest taboo would not be present, so that this relationship doesn’t have the same implications from an emotional and psychological point of view as any other incest would, where there was a continuing relationship with [the child].”
The Family Report writer’s opinion, to the contrary, was that the relationship was a serious crossing of boundaries and a serious breach of the incest taboo. Unlike the doctors and a psychologist Ms E, who emphasised the differences, Ms L emphasised the similarities in the father’s previous conduct with S, and the current allegations in relation to the child.

I agree with the assessments of Dr S and Dr K that although incest, and indefensible, the father’s relationship with S can be viewed differently from a relationship in which a parent has raised a child and then commenced a sexual relationship. That said, Ms L’s observations that the father’s behaviour with S clearly crosses acceptable boundaries, and that it is a matter of social taboo, potentially contrary to law, and a reflection of the father’s poor judgment and control, is correct.

Although the relationship occurred between two consenting adults, the father, with his maturity and professional experience, must have been able to appreciate the power imbalance, and S’s vulnerability having sought out her birth father. The fact of the relationship reflects very poorly on him, but it is his insight about it that is particularly important to me in my overall assessment of his parenting capacity, and in relation to these allegations.

I am satisfied on the basis of his evidence, supported by the evidence of Drs S and K, both experienced psychiatrists but assessing him from different perspectives, one as treater and one as forensic assessor, that the father does understand the incest taboo.

I am satisfied that although clever enough not to simply excuse his aberrant behaviour, at least to the experts, the father has tried to justify it and his on-going “love affair” with S. He has consistently raised the explanation of “Genetic Sexual Attraction”. No expert confirmed it as a scientifically proven and accepted theory. I am left wondering, even if that helped explain the overwhelming attraction when they first met, why it was that the father could not conquer and curb it in nearly five years with S. Ms L observed that as the father has offered “Genetic Sexual Attraction” as part of the explanation for his attraction to S, arguably it could also give rise to an attraction to the child, no-one having said that it only explains heterosexual attraction to off-spring.

Although there have been many ups and downs in the relationship between S and the father, and times when she has not permitted him access to X, as recently as from mid 2005 to late 2006 she allowed X to live with him in Australia. That suggests her confidence that X was not at risk of abuse. Indeed there is no independent evidence to suggest that the father has been abusive to X, apart from what the child has said. X denied that.

The father was criticised for not allowing X to return to live with S in England in the latter part of 2006. X was expressing a clear desire to do so. It is irresistible to conclude that he was at least partly motivated for X to remain because it helped his case if at this hearing he could be seen to be entrusted with X’s care. That is unimpressive, but ultimately he did permit X to return.

The father initially indicated that S would be called as a witness. She was not. Without adequate explanation, the inference is open that she would not have helped his case. It seems that their relationship has been a volatile one. It is complicated, and within all the complexity, I can observe that she has neither supported his case, nor detracted from it. But in the context of the father’s evidence that she was “very keen” to help, had “a lot to say”, and was “keen to be supportive of my parenting”, a lack of any adequate explanation for not calling her undermines his own evidence, and leads me to infer that in fact she would not have supported his case.

I cannot overlook that although the mother knew of the father’s relationship with S, she nevertheless remained with and had a child with him. She not only knew about S, but there were times when S was living in Australia and the mother maintained a friendship with her. By then S had a child from another relationship. He is much the same age as the child. The intricacy and complexity of these relationships is reflected in the evidence that the father enlisted the mother’s help in arranging for S to see a psychiatrist in Melbourne, when S needed to discuss issues surrounding her relationship with her father. The mother then baby-sat S’s child for that purpose.

It seems that the mother has in the past supported the father’s contact with X. On 27 November 2002, at a time when S would not allow the father to see X, she wrote a letter to S’s partner W, supporting the father. In it, she stressed that S was as responsible as the father for “this whole terrible mess”. She wrote supportively about the father’s role in the relationship with S and urged W to allow the father to see the child.

The mother told me she was over-borne by the father in writing that letter. It is likely that he did exert influence. He conceded he had “urged” her to write it. But her evidence did not persuade me that he wrote or dictated the letter. It is not that it was beyond him. I will return to that, but in this context, I would be surprised if they were his words, which tend to be more pompous and convoluted. And judging from the mother’s commitment to their relationship at that point in 2002, she was likely to have been a willing supporter of the father.

The Father’s Approach to Boundaries

The mother alleges that the father has shown that he disrespects boundaries, not only by his incestuous relationship with his daughter, but also in other respects. She pointed to the way in which he has involved other people in his private relationships to suit his own ends.

The letter the father wrote to the mother’s parents on 20 June 2004 provides an example. He said that he sent it because he was devastated that the mother had taken intervention order proceedings and he was concerned that she was trying to interfere with his relationship with the child. Although the letter contained some self-justification, he did also admit fault on his part, and did formally apologise to them for the stress and the worry they had suffered. But the father went well beyond appropriately pleading his case to the mother’s parents, to the needless disclosure of personal information that was likely to embarrass their daughter. For example, he informed them that as recently as two weeks before the order the mother was telling him that she wanted to become pregnant to him. He reported various other transgressions of the mother's. It was inappropriate.

A more stark example of the father over-stepping boundaries, and putting his needs for vindication ahead of the needs of others, was the evidence about secretly taped telephone conversations between himself and S. He taped at least 50 of their calls in around 2001 and 2002. He then sent copies of the tapes to S’s adoptive parents, to her partner W, and to his brother and sister, in England. He said that he did so to try to protect his access to X at a time when S was “unwell” and changing her mind, constantly breaking agreements. Although he claimed that he wanted to support S in every way, and particularly in relation to her troubled relationship with W, his actions were to the contrary. Far from supporting her, he was, as it was put to him in cross-examination, “poisoning the ground” for her, effectively undermining the only supports she had available to her.

To support her claim that the father was manipulative, and would do what was necessary to get his own way, the mother produced a “Where’s Wally” book sent by the father for the child’s birthday in August 2006. Throughout the book, containing intricate drawings in which the reader must find the small “Wally” character, the father had pasted tiny, very carefully placed and hard to detect pictures of himself, his partner and X. The mother said he was “surreptitiously” trying to reach the child. He conceded that, but said it was at a time when he had not seen the child for about seven months, he wanted to keep the memories alive for the child, and he was not confident that the mother would pass on his cards or messages.

The father’s concerns were well founded. I was shown an appropriate five-year-old birthday card amongst the parcel of gifts and cards forwarded to the child via the mother’s solicitor. It was not passed on by the mother, not because the experts had advised her against it, but because, in her own words, after keeping it aside for Ms L to approve it, she had “put it in a cupboard and forgotten about it.” That reflects poorly on her.

But the “Where’s Wally” book reflects poorly on the father. Granted, the fun of a “Where’s Wally” book is to find a hidden character. But that is no excuse for “surreptitiously” hiding characters at a time when contact was stopped. He made no effort first to send photographs through proper channels.

When counsel for the mother described this part of the evidence to Ms L, the psychologist was concerned that any supervision of contact would need to be very careful. In my view, the father’s conduct in this regard gives me an insight into his inclination and capacity to do what he needs to achieve his ends, but is more particularly relevant when I assess the risk of psychological/emotional abuse to the child and his mother’s capacity to cope if there is contact.

The Father and Pregnancy Terminations

Throughout the hearing, the issue as to whether or not the father took appropriate responsibility for his actions was raised. He gave evidence that he had experienced up to 11 or 12 unplanned pregnancies with various partners (including several with each of S and the mother). His explanation was that he believed that each partner in each instance was on the contraceptive pill and that it was efficacious.

Ms L’s professional opinion was that the father’s attitude to these terminations shows a disturbance of thinking, is not logical or rational, and suggests a cognitive distortion to suit himself. Importantly, at the time of forming their opinions about the father, psychiatrists Drs S and K, and psychologists Ms E and Ms O, did not know of this history. I will return to their assessments.

In my view, it defies belief that a mature adult, let alone a health professional would not learn from earlier lessons and take appropriate action to avoid unwanted pregnancies. I was not impressed. I do not believe he has acted responsibly. That is to his discredit. It gives me insight into the man, but not necessarily the sexual abuse allegations.

The Father’s Current Relationship

The father’s partner was born in Tashkent and is now aged 27. She arrived in Australia in 2003 from New Zealand where she lived for four years. She started work for the father in October 2003. They became engaged at the start of 2006. Her answers about a wedding date make it sound as though marriage plans are uncertain.

There was a fight between the parents at Christmas 2003, when the mother was enraged, having found pictures of the father’s partner, semi-naked, on the father’s camera. The father’s partner was less than credible when she denied that the father had already started his sexual relationship with her. She tried to explain away the photographs, saying they were taken by the father at her request, because she was unhappy with professional photographs that had been taken for an exhibition.

The father’s partner had only commenced work as the father’s live-in PA/housekeeper in October 2003. She was about 23. He was 55. Some time between then and December 2003, she was photographed in his bed, wearing only a bra. It was improbable that they were not sharing an intimate relationship when these photographs were taken.

The mother conceded in cross-examination that the father’s partner seemed to be “nice”, although that did not strike me as a genuine answer, given the tenor of the mother’s communications with and about her.

I note that the various experts who met the father’s partner were either impressed, or expressed no particular disquiet about her. She has no children of her own, but the child appeared to get on well enough with her at the time that he was seeing her before contact stopped. I will consider her role further, below.

The Father’s Relationship with C and X

The mother complains that the father was harsh and even violent to her son C. I did not hear sufficient evidence about it to make any definitive findings. Certainly though, C made serious allegations when interviewdd by Ms L. He was 10 at the time. He reported that the father used to pinch and hit him, that he “bit him on the arm teasing him” and he reported that “he’d take me to the park, but then come home and do bad stuff.” He did not expand upon that. For present purposes I note there has not been any consistent complaint that the father has been similarly harsh or violent with the child.

The mother has claimed that she gets on well with C’s father, but C has little contact with him because he lives in far northern Queensland. He was not called to give evidence. That, coupled with the fact that when she was angry with the father after the fight at Christmas 2003, her first threat was “to put a spanner in the works” of him spending time with X in England, at least raises the concern to be weighed in the mix, that she may not value the father-son relationship as much as she claims.

I heard tangential evidence in relation to X, and although part of that material is inevitably relevant to this case, I was careful not to be too far diverted from the difficult and specific task at hand in relation to the child.

In summary, it seems that the father has been consistent in his desire to be a part of X's life. There have been ups and downs reflecting the profoundly difficult issues of X’s parents’ relationship. However, X was sent to live with his father in the middle of 2005. He chose to return to his mother at the end of 2006.

The father’s account was that X had been very disappointed that whilst in Australia he could not see the child and C to whom he had been very close. X was spoken to by some experts in this case and seemed to impress, although there were suggestions of him being pale and withdrawn at school in the last part of 2006 shortly before he returned to England. Again I note that S was not called, and there was no explanation for that. If the current relationship were good I would expect to hear about that and I did not. Beyond that I cannot make definitive findings about what has occurred for X, why he wanted to leave Australia, or how he now feels about his father/grandfather.

What is important for my present purposes is that X apparently rejected any allegation that he was involved in these sexual abuse allegations, either as perpetrator or victim. The child said that he was, but there is no evidence of an independent nature to support that.

The Parents’ Conduct and Attitude to Each-Other

The mother complained that the father was sexually, physically and verbally abusive to her. I note that when she saw Ms M late in 2003, she reported “physical sexual and verbal abuse” from her partner. Importantly, that was well before this litigation was envisaged.

In the course of the case, any complaints as to sexual abuse were general, without specifics. From the communications between the mother and the father that were tendered before me, it seems that she did not complain of sexual abuse. In fact, at times, she was lamenting the down-fall of the relationship and showing that she wanted it to continue. I am conscious that in itself does not mean there was no sexual abuse. I accept Ms L’s evidence that victims of abuse can and do remain enmeshed in abusive relationships.

I cannot make a definitive finding about the mother’s claim that she was sexually abused by the father, but I cannot overlook her complaint to Ms M, her own counsellor, well before litigation. It gives some insight at least into how she was feeling and her view of the father at that point.

As to physical abuse, there was a fight at Christmas 2002, and then another at Christmas 2003. The latter is the one I heard most about. The mother confronted him over the photographs she found of his partner. They fought. She broke his camera. He broke her TV, a table lamp and a clock-radio. He admits to being ashamed that he lost his temper. He admits that he struck her. He says that she struck him. I cannot get to the bottom of that, although the maternal grandmother said she saw bruises on her daughter after the fight. Otherwise he admits to pulling her hair on another occasion.

There is no other independent evidence of the mother’s complaints of violence. In cross-examination she was vague. She said she “could not describe all the incidents”. That did not ring true. However, again it was part of what she complained about in late 2003 when she saw Ms M. That does raise the spectre of physically abusive behaviour, but the evidence does not support that it was on the scale the mother claimed before me.

Verbal and emotional abuse are significant issues. I must return to them below, but they are relevant for present purposes in assessing the context in which these allegations arose, and the parties’ respective attitudes, motivation, and credibility.

There are hundreds of SMS messages that have passed between the parties. They provide only a snapshot of the way the parties related at different times, and their attitude to each other. But each parent relied on them to support their respective positions. The mother said they proved the father’s harassment of her, by the number and nature of messages. The father relied on them to show the vile messages The mother sent to him, and that she was lying about the nature of their relationship in early 2004, claiming to others that he was harassing her and that she needed an intervention order to stop him, when in fact she was pursuing the relationship and even wanting to have another baby with him.

I had records purporting to be:
·Five SMS messages from the mother to the father on 9 February 2004, 27 February 2004 and 1 March 2004 (Exhibit ICL1)
·SMS messages from the mother to the father between 17 January 2004 and 1 June 2004 (Exhibit F5)
·SMS messages between the parents from 14 January 2004 to 26 January 2006, excluding mid-2004 to mid-2005 (Exhibit M9)
·SMS messages from the father to the mother from 5 September 2004 to 26 January 2006 (Exhibit M10).
There were difficulties in the way these SMS messages were produced in court. The evidence was disorderly. The various records and documents were not discovered. They were not produced in any logical sequence. Some were produced after cross-examination of one or other of the parties, and there were several recalls of parties in relation to them. It was not clear in the way some documents were tendered as to whether or not they purported to cover every message between the parties in various periods. Nevertheless, overall they give me a flavour of communications at various times and can be dealt with reasonably broadly, save for Exhibit ICL1, to which I will return in more detail.

There is support for the mother’s claim that the father sent many more messages than she did, at least during the period when both parties’ messages are represented (in Exhibit M9).

There was conjecture as to what these various exhibits represented. I can say that Exhibit M9 contains only a sample of messages between the parties from 14 January 2004 to 26 January 2006, in fact quite a small sample. Although both lists were prepared by the father, many messages that appear in Exhibit F5 are not included in Exhibit M9 even though the timing overlaps. For example, Exhibit M9 shows 10 messages from the mother to the father between 17 January 2004 and 1 June 2004. Exhibit F5 shows 65 messages to him (and only a few are disputed by her) in that same period. Exhibit M10 also contains messages that are not in Exhibit M9.

There are many messages that reflect poorly on both parents. I will return to consider whether or not they are “evenly matched” for other purposes below. In analysing these calls to help me assess the risk of sexual abuse I note two things. First, each wrote vile messages. Secondly, the relationship in some form (I will also assess this further later) was continuing at least some months into 2004, although the mother claimed to the contrary that she just wanted out of the relationship and the father harassed her into continuing.

The tenor of messages from the father to the mother is at its worst in a series of messages sent on 22 December 2005, a sample of which is as follows:
“18.29: You eloquently professed to understand love and GSA [Genetic Sexual Attraction] but gruesomely did a Judas when it suited u! The act of a cowardly hypocritical DOG, that all see through! Just sad!”
18.49: [Mother] we ALL have pathology. The ONLY Heavy-Duty and very insidious path in MY life has been you! I pray for you every day! I feel sorry for [C], and for [your parents], who are your dupes!
19.45: When you with no care deprive [the child] to spite me and repeat your foul chants, one reflects that I’ve done NIL with INTENT to hurt ANYONE, including you, while you schemed your damnable Rot!
20.55: Through all the foul taunts you thrill to, and all your shameless false witness and back stab, at least I can say I NEVER descended to your level! All I DID was for love. All you’ve done, for hate!

On 11 January 2006, although provoked by the mother’s messages about his impending marriage to his partner, written in disparaging terms, the father wrote at 23.15:
“Just read your poisonous rubbish SMS. If you repeat a word of your vindictive sewage, your long suffering parents will be funding legal defence again. Cease your cowardly acid.”

The following morning at 6.39 in response to another message about him taking “a mail-order bride” he wrote:
“Glad to hear I occupy your thoughts at 6.00am and I love you too, but your loss of common decency and poisoned delusions does demand care. Please confine SMS 2 [the child].”

Examples of the mother’s messages to the father are also important. On 18 January 2004 at 15.58 she wrote:
“I have cum to HATE U SO DEEPLY I WISH U WERE DEAD”
and later that day, at 17.08:
“SLEAZE BAG U THINK U R SO FUNNY. U R JUST A SAD INSECURE OLD MAN.”
On 19 January 2004 at 9.09 she wrote:
“Shoot urself save someone the trouble”
On 24 January 2004 at 20.56 she wrote:
“I HATE U SO MUCH I UNDERSTAND HOLE HEARTEDLY HOW [S] FEELS ABOUT YOU SICK PRICK DO EVERYONE A FAVOUR N JUST DIE.”
And two minutes later:
“I hate every living thing about U sick daughter screwing prick.”
She also wrote vindictive messages to the father’s partner. For example, at 21.06 on 24 January 2004:
“Did U happen to know […] that [the father] n [S], [X’s] mum are father and daughter. That’s right good old [father] had a sexual relationship with his own biological daughter n he makes me out to b the nut. [X] is his grandson as well as his son.”
The father relied on five messages he said the mother sent to him in early 2004, expressing her ardent wish to have another baby with him. He relied on the messages to show her dishonesty in seeking an intervention order against him in late April 2004. It was submitted for the mother that the father had changed the dates of the messages to suit his case, and this was another example of his manipulation to meet his own ends.

The relevant five messages and the dates of them were copied by the Independent Children’s Lawyer from the father’s mobile telephone and became Exhibit ICL1. The messages were as follows:
9 February 2004 at 4.07pm: “What should I do? Are we going 2 have another babe or should I find someone else I need 2 no asap. Please. My time is running out.”
9 February 2004 at 4.45pm: “I’m expected to respond 2 all ur needs I don’t get the same in return its always about u. Why didn’t u answer me before?”
27 February 2004 at 4.46pm: “Don’t send me anymore SMS like that there is quite a bit more 2 it ur not having anymore kids then bye bye im moving on so much time wasted already.”
1 March 2004 at 5.30pm: “I have received no answer on baby issue. I can only guess what ur answer is u say I’m bad at communicating.”
1 March 2004 at 5.34pm: “If the answer was no why don’t u have the guts 2 say so i met some great guys on the we ”
At first in her evidence the mother said she believed those messages were sent in 2003. When shown Exhibit ICL1, she conceded that the messages were sent in February/March 2004. She subsequently retracted that and claimed that the messages were wrongly dated. Senior Counsel for the mother pointed to the fact that those messages did not appear amongst the messages in Exhibit M9, a list prepared by the father and given by him to Ms L in the course of the preparation of her Family Report. It is reasonable to assume that had the Exhibit ICL1 messages been timed as the father claimed, he would have wanted Ms L to see them, to show the mother’s dishonesty and unreliability. However, there were references in the evidence to the father having had difficulty retrieving some messages. That may explain why they were not produced at that time to Ms L, and anyway Exhibit M9 was missing a huge number of messages.

There are surrounding features that point to the dates of these “baby messages” as accurate. The ambivalence in the mother’s relationship with the father (and it may have been because of the manipulation he exercised, as claimed by her, but I will return to that) was evident in an affectionate message she sent to him proximate to the baby messages, at 21.12 on 19 February 2004:
“Good night good night sweet noodle, my bitsy bitsy boo. Go to sleep my noodle I love u. Sorry iv got this little song in my head I sing it 2 [the child] over n over. Gnite kiss kiss.”
The mother’s explanation that she was conveying a song that she sang to send the child to sleep, did not ring true at all, particularly in the context of another affectionate message the next night:
“Hi darlkink how u thought id say hi im having a drink with friends in city going home soon. Kiss kiss M”
And on 28 February 2004
“Good night P im off 2 bed kiss kiss M”

Messages that the mother conceded she sent to the father on 6 March 2004 also give credence to the dates of the baby messages. It is apparent that by then she was disappointed and fed up, with messages such as one at 11.30:
“Who needs u anyway?”
And at 17.52:
“I have supported in every way until [S] came out her at ur request and hope. I developed a friendship at ur request only 2 find out you’d discussed me even laughed about me with her n u wonder why I’m empathetic 2ward her sometimes. I’d love 2 walk away and pretend I’d never heard of [the father].”

And on 7 March 2004 at 6.19:
“I don’t love you any more you are on ur own. I hate selfish people and ur one of them.”

Finally, I note that in his letter to the mother’s parents dated 20 June 2004, well before litigation and these allegations, the father wrote:
“Please consider this: [the mother] has been suggesting that she’d like to get pregnant and have another child since well before Christmas and most recently, a mere two weeks before the order and also the month before that, she informed me in advance of which days she expected to ovulate!...”

The totality of that evidence persuades me that the baby messages are correctly dated. That is important because I do not find that the messages were “doctored” by the father as submitted on behalf of the mother. Her evidence on this point was not reliable. It is also important because it shows an on-going relationship, at least in part, shortly before the intervention order.

That raises the question of the mother’s sincerity in seeking the intervention order in April 2004. Her genuine need for it is supported by the Optus records that were in evidence. At various times the father placed many calls to the mother’s telephone (or to her parents’ telephone). In late March and April 2004 there were several days where there were three or four calls in close succession. And there was a very high number of SMS messages, particularly on some days, and again in close succession. For example, on 24 January 2004, he sent 14 messages to her, and another 17 messages over the next few days. On 10 February 2004 he sent 9 messages, on 16 February 2004 he sent 15 messages, many more through March, 13 on 5 April 2004 and 12 between 25 and 27 April. I note that the SMS exhibits, without the Optus accounts, did not give me a sense of that volume. I also note how the contacts escalated prior to the mother seeking each intervention order, which gives support to her account that she was bombarded with calls when she tried to extricate herself from the relationship, and that she genuinely required the sanction of a court order.

At another point in cross-examination, the father said he did not know that incest between two consenting adults was criminal conduct. Later he said that he knew, but “we were confused and in a different world with each-other.”

In another part of his evidence, in explaining his and S’s decision to have a child together, the father made it sound as though termination was not an option. Then it emerged that S had already had two unplanned pregnancies and terminations to him. The next day he said that maybe it was one termination and one blighted ovum. Any unwanted pregnancy with his own daughter, and any termination, must be something that he, a doctor, is unlikely to forget, or to be confused or mistaken about. His evidence changed when he rightly sensed it sounded unfavourable to him. These examples undermine his claim of contrition, or insight into his conduct.

Ms L’s evidence about how she found the father was important. She is an experienced and well-qualified psychologist. Ms L admitted that she found the father extremely difficult to curb and control. He directed and manipulated the conversation so that she simply could not conduct her usual and preferred questions and answers. She felt overwhelmed and bombarded by the material he sent her after the interview. I gave some consideration to a pure personality clash as the explanation, but if I consider the telephone messages and calls to the mother and her parents, the letter to the maternal grandparents, and his conduct towards and treatment of S, as well as the manner in which he gave his evidence, I accept Ms L’s observations and opinion in this regard.

For the purposes of considering the sexual abuse allegations I have already referred to the various SMS messages between the parties. I have noted they reflect poorly on the mother as well as the father. I find the mother’s evidence was exaggerated when she referred to the father’s “constant harassment” through messages and calls, and that she distanced herself from her contribution at the level it appears in those messages. I think the relationship was far more complicated than she conceded, primarily laying the blame on the father and taking less responsibility than she should. She presented a black-and-white picture, of herself virtually always struggling against him, and of the father never letting her go. Relationships generally are complicated, and this one particularly so. I am satisfied that the mother was not simply or always a defenceless victim. Having said that, I am satisfied that the parties are not evenly matched and of the two of them, the father is the more culpable.

When this relationship commenced, the mother was just over thirty, the father in his early-fifties. He was a health professional, she was a health worker. From the psychiatric and psychological evidence it seems that she was the more fragile of the two, particularly in light of her abuse in the past, and given her less assertive personality.

The SMS messages show that the mother was part of the battle. However, without needing to repeat the messages here, I note that the mother was dealing with a formidable foe with a more sophisticated intellect than her own. There was a more simple or infantile nature to her string of “I hate you” or “I wish you were dead” type messages, than the father’s more sophisticatedly worded lashings. In addition, the messages support the mother’s case of feeling over-borne by the father. Although he may argue that some repeated calls and messages were appropriate as a concerned father pressing to spend more time with his son, it is not unreasonable that she experienced his sustained insistence as over-bearing and draining, when she was already ensuring he was seeing the child, or she was complying with court orders.

I accept the mother’s version that prior to the first intervention order proceedings, she had been trying to end the relationship but simply could not get away. There was no litigation on foot when the mother commenced those proceedings, and no tactical advantage to her in seeking that order. I accept, from her complaints to Ms M in late 2003, she was anxious and distressed about the relationship and wanted to end it. I accept that she did not succeed. Her weakness was exemplified by “the baby messages” in February/March 2004. But she was provoked by the father. I note in his letter to her parents in June 2004 he admitted having commented in early 2004 “how nice it would be to have a little sister for [the child]”. At the time he was living with his partner and I am satisfied he was having a sexual relationship with her, but still stringing the mother along. I accept her evidence, supported by messages that were in evidence, that she then truly tried to extricate herself from the relationship. I accept she was struggling emotionally, and could not cope with the particularly heavy email and telephone traffic from the father. I accept on the balance of probabilities that he harassed her when she tried to break free emotionally, and she remained enmeshed in this unhealthy relationship.

The father is immensely persuasive. He managed to have S’s support at various times, even after their relationship. He managed to have the support of the mother, although she knew of his aberrant behaviour. He now has what appears to be unstinting support from his partner, another woman significantly younger than him, who seems quickly to have adopted his bidding.

I make no moral judgment about the father’s serial relationships with younger women. It is the dynamics about which I am concerned, and his capacity to enlist and engage their support, when objectively it might not be expected. When combined with all the other evidence, it raises the concern, underlined by Ms L, that he could very easily enlist, manipulate and overwhelm the child. And I accept Ms L’s evidence that it would be very difficult indeed for the child to withstand his father’s manipulative and overbearing behaviour.

I am satisfied that early criticisms made by the mother that the father was speaking disrespectfully about her in front of the child are plausible, in the light of the tenor of his messages to her. I accept that was a genuine concern she harboured about the child’s time with his father, well before the sexual abuse allegations arose.

I am satisfied too that the mother’s capacity to cope, at least with unsupervised contact and direct contact between her and the father, is limited. Part of the conundrum in this case is that at times she has been feisty in her responses to him. As I have observed, she is not just a victim. But the evidence of Ms M, Dr H and Ms L, coupled with my assessment of her evidence and demeanour in court, satisfies me that she is no match for the father, intellectually or emotionally. In the push/pull of their complex relationship she was still sufficiently enmeshed in early 2006 to react jealously to his engagement with his partner. Yet, she had sought help for what she was experiencing as an abusive relationship as early as November 2003. The demise of this relationship was profoundly protracted and painful for her and I accept Dr H’s evidence as to the likely negative impact on the mother of on-going contact, with the caveat that I will return to whether or not she will cope if it is supervised.

Both Mr K and Ms L have commented on how unsettled the child was when they first saw him, and how settled he has now become. That was one feature that influenced Ms L in her conclusion as to the risk of abuse. Both experts noted that even though the child misses his father, he has become settled in himself after not spending time with him. I cannot be certain as to why he has settled. It is likely that he has settled away from the abuse and emotional pressure in his father’s household. That is the likelihood apparently favoured by the Family Report writer. It is also likely that his mother is herself more settled, not worrying about the child in his father’s care, and herself having no contact with him. It is most likely a combination of both that has enabled him to settle down.

It is the entirety of the evidence that satisfies me that the father’s manipulative and over-bearing behaviour, his disrespect for boundaries, his preparedness to do whatever it takes to get his own way goes beyond just being problematic for the mother in dealing with him. I am satisfied that his behaviour has impinged on his close personal relationships and it poses an unacceptable risk of psychological abuse to the child. The risk to the mother’s peace of mind and the impact of her distress is a consideration to which I will return.

I will turn to the primary considerations under s 60CC(2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

Generally there is a benefit to a child in having a meaningful relationship with both of his parents. In this case, the child has consistently said how much he misses his father. Ms L’s evidence was that the child does need a relationship with his father. To decide whether it is possible, or how it needs to be structured, I need to weigh all the relevant factors.

(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;

The need to protect the child from an unacceptable of risk of abuse is at the heart of whether the child will spend time with his father, and if so, whether and how it will be supervised.

I must now consider the additional considerations.

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

The child misses his father. He says he wants to see him but he wants “supervision”. It was Ms L’s opinion that although supervision is an adult concept that was most likely introduced to the child before she raised it with him, he appeared to show a genuine level of comfort in it. Given the child’s age, and the complex circumstances in which he is caught, his views need to be considered, but in light of all the evidence.

(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);

There is no doubt that both parents love the child.

The child is close to his mother, and has the benefit of close maternal relatives. I cannot overlook the child’s dependency on his mother and the potential impact on him of his mother’s anxiety, when over the last year she seems to have found increased equilibrium, having fully broken free of her relationship with the father, and the child has also settled.

The fact that the child misses his father suggests that he shared a fond relationship with him when he last saw him more than 12 months ago. It seems he had a close relationship with X but X is no longer in the country and there was no evidence to assist me as to whether, when, or where the father will see him again. Otherwise, the father claims that the child had a good relationship with the father’s partner.

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

I must question whether the mother has been pre-disposed to cutting the father out of the child’s life, given that there were already issues between them about contact and moving to overnight contact throughout 2005, before the allegations in this case arose.

I note that C sees little of his father. And I note that when the mother was angry with The father after the assault at Christmas 2003, her first move was to threaten him about his upcoming time with X, and she did report him to S. Those things raise a concern as to her attitude to contact. But there are factors strongly militating against that concern.

For years the parents made their own arrangements for the child, arrangements that enabled the father to spend substantial time with him, even in very difficult times in their own relationship such as late 2003 and early 2004. And in 2005 she substantially followed court orders, although she had been concerned about the deterioration in the child’s behaviour when overnight contact started.

The most impressive part of the evidence in the mother’s favour is that the child has freely told both Mr K and Ms L that he misses his father and wants to see him. It is clear that his mother has not brain-washed or coached him to the contrary, or curbed his freedom to express those feelings, although she has had ample opportunity.

I am satisfied that she was genuine in her concern for the child in 2005, when she was resistant to the father having overnight contact, as she had observed unsettled behaviour, some sexualised behaviour (although not as much or for as long as she said in evidence), and rude behaviour to her that she felt mirrored The father’s disrespect for her.

I fear for the child that the father will not have the willingness or ability to encourage the child’s relationship with his mother. He is very deeply aggrieved by all the criticisms and allegations in this case, and given his personality and conduct, I accept Senior Counsel for the wife’s submission that it is probable that in the father’s care there would be enormous pressure on the child to recant any allegations, and enormous pressure to see things from his father’s and contrary to his mother’s point of view.

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

If I order no contact at all with his father, and potentially the relatives on his father’s side, including his half-brother/nephew, X, the child will not know his father and that side of his heritage.

If I permit unsupervised time with his father, I am persuaded that the child’s welfare would be compromised with an unacceptable risk of abuse.

If I order supervised time, I am aware that it cannot fully replicate unregulated time between father and son.

If I order time between father and son, I need to consider any impact on the mother and in turn on the child.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

This is not an issue in this case. Even if there is to be supervised time, there is no suggestion that the father is unable to pay for a supervisor. The ICL has suggested that he meet the expense. That is logical. He earns more than the mother and she is already significantly committed, working to support her children, although she also receives child support from the father.

(f)         the capacity of:
(i)     each of the child’s parents; and
(ii)   any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

Each parent can provide for the child’s day to day needs, and his intellectual needs. It is his emotional needs that lie at the heart of the case. I have already considered that aspect in detail.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
I have already referred to the desirability of a child knowing his family and background on both sides. A complication for the child on his father’s side, is the truth about X's parentage. Again I accept the submission of Senior Counsel for the mother that given the father’s attitude, it is hard to be confident that the child will receive other than a distorted version of his father’s relationship with S and how X came into being, based on his father’s self-justification.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant in this case.
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
I have already made my findings in this regard in my discussion of the unacceptable risk.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is an important consideration for me that so far as possible the child needs to be free from the rigours of further litigation. I need to structure orders with that in mind.

CONCLUSION

In this case the s 61DA presumption in favour of equal shared parental responsibility is rebutted. In any event, I am satisfied that it would be contrary to the child’s best interests. The circumstances, and the chasm between the parents, means it is simply not feasible. I accept the ICL’s and the mother’s proposed orders in that regard. Beyond that, I must decide what arrangements will best promote the child’s interests.

In light of the unacceptable risk of psychological abuse in his father’s care, with the back-drop of a risk of sexual abuse, and the concern as to the effect of contact on his primary care-giver’s well-being and equilibrium, I am satisfied that it is not in the child’s best interests to spend unsupervised time with his father. The question becomes whether it is in his best interests to spend supervised time with his father.

Counsel for the mother submitted that if the father faces criminal charges of incest with S and he is found guilty and goes to jail, there will again be an interruption to the child’s relationship with his father, and his stability should not be put at risk by re-introducing any contact amidst that uncertainty.

The father has not been charged. I cannot speculate as to whether or not he will be. In any event, Ms L acknowledged the possibility, referred to it as something that may become part of the reality of the child’s life, and concluded that his relationship with his father should not now be terminated on that basis. I accept that.

I am persuaded by Ms L’s evidence that in this child’s young life, as complicated as it has been, the answer now cannot be simple or black and white. On the one hand this little boy needs protection, but on the other hand he shows a need to know and see his father. I accept Ms L’s recommendation that the child should see his father under strict and professional supervision. I agree that it is not appropriate for the father’s partner or any other close relative or friend of the father to supervise. They cannot help but be aligned with his position, and given the father’s personality, and the “Where’s Wally” book incident, the time that The child spends with his father needs to be rigorously supervised.

Logic, as well as case-law, tells me that long-term supervision orders have inherent draw-backs, so that they should be carefully and cautiously considered. That was emphasised in the closing submissions on the mother’s behalf. But in C and J (1996) FLC 92-697, Fogarty and May JJ observed, that to say supervised time is never an appropriate measure in relation to final orders, is unduly restrictive of a judge’s discretion.

In W and W (Abuse allegations; expert evidence) (2001) FLC 93-085 the Full Court said at para 115:
“…We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run Contact Centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.”
Counsel for the mother urged that there should be no contact because the father would over-bear and overwhelm any supervisor. I considered time at a Contact Centre, but even if it were available long-term, its inherent limitations could be potentially harmful to the child, or at least not as positive as more varied social activities beyond a Centre. I propose that there should be a professional supervisor. Any effort on the father’s part to overwhelm, circumvent, or ignore the supervisor would not be sensible. That in itself, if proven, is likely to be a new fact and circumstance that would warrant the strongest consideration of no contact at all.

I am satisfied that the mother will cope. I am conscious of Professor H’s evidence that contact between father and son is likely to be a very significant stress for her. I am not dismissive of that. But I note it in the context of Professor H’s particularly sympathetic stance to her patient. It was not the subject of detailed analysis in her written report, rather in answer to several questions by the mother’s Counsel. I must consider it in the light of all the evidence. The mother is a resilient woman who has coped, working full-time in a high-powered health care role, and single-handedly raising two boys. She has faced demons and difficulties. She has sought appropriate help from time to time. And to Ms L she seemed accepting of the likelihood of the child spending supervised time with his father.

Importantly, professional supervision will not only provide the mother with comfort as to the child’s well-being, but it will also place a layer between her and the father so that there is no need to overlap or communicate. That is an important protection to her, and therefore a protection to the child from exposure to hostility between his parents, and protection from his mother’s inevitable stress and tension if again forced to deal directly with his father.

The ICL proposed supervision to lapse when the child attains the age of eight, or upon further order of the court, or written agreement of the parties. Counsel submitted that by then the child would be older and better able to protect himself.

I am grateful to the ICL and her counsel who were particularly helpful in testing both parents’ evidence and the evidence of all the witnesses on behalf of the child. I appreciate that the ICL was also attempting to avoid future litigation in proposing a specific time when supervision should cease.

I acknowledge that it might be helpful to limit the period of supervision, to offer the father an opportunity for change, and to move forward in his relationship with his son. But with the child’s interest to the fore, I cannot guess as to whether and when that should occur. Ms L’s final opinion was that supervision would be needed for a substantial time into the future - as she put it - “open-ended”.

I have considered an order structured around a specific time-frame for the child to be further interviewed by a psychologist. But that runs the risk of keeping the parties in a litigation mode, with potential pressure on the child. And by no more than speculation or guess-work, I may be ordering an assessment of the child and a fresh round of interviews, when there may be cogent reasons why that process in itself would at that time be against his best interests.

This child is so very young. These orders will enable him to maintain a relationship with his father, albeit not in free and unregulated circumstances. As he grows, there may well be changes in circumstances. As he becomes more mature, he is likely to be more robust, and to be able to articulate what it is that he feels and he wants. Ultimately, it might become clear to both parents that a change to the arrangements is warranted. If they are capable of agreeing by then, that would be ideal for the child. If not, and there is no other option, if one or other can prove the requisite change in the circumstances, then this court can reconsider the position.

The ICL’s reference to the age of eight has a resonance with me in the sense that even if supervised time with the father goes exceedingly well, I do not expect that in itself will constitute a new fact or circumstance before then. The child will simply be too young to fully protect himself from his father’s over-bearing and manipulative nature, impulsivity and boundary-crossing.

Otherwise I agree overall with the ICL’s proposed orders including that there be a Family Consultant supervising these orders, although I have made it for three years instead of 12 months. That is a longer than usual order but it is specifically for the parents to have recourse to assistance with the implementation of these orders, most specifically the selection by the Family Consultant of the paid supervisor, and then any changes to the supervisor if required in future. Any involvement by the Family Consultant will be reportable.

I have not adopted the ICL’s proposals for the father to communicate with the child by letter once per week, for him to have time with the child “on such other occasions as may be agreed in writing”, or for make-up contact. I must not leave fertile ground for the very sorts of communications to or around the child that lie at the heart of the ugly history that has led me to conclude that there is an unacceptable risk to his well-being. By necessity the orders need to be strict in their regimentation.

I have also ordered that before the ICL is discharged, a copy of these Reasons for Judgment should be served on Mr K if he is continuing to counsel the child, and that the Family Consultant be permitted to provide them to any supervising agency and individual supervisor(s).

THE ORDERS

The orders I propose, subject to submissions as to form, are as follows:
14.That the mother shall have sole parental responsibility for the child born in August 2001.
15.That the child shall live with the mother.
16.That the father shall spend time with the child as follows:
(a)    On one Sunday in each three week period from 10.00am until 3.00pm;
(b)    On the third Monday at the start of each school term from the conclusion of school until 8.00pm;
(c)    On Father’s Day from 10.00am until 3.00pm;
(d)    On the child’s birthday and the father’s birthday from 4.00pm until 6.00pm; and
(e)    On Christmas Day from 2.00pm until 7.00pm.
17.That all face to face contact shall be subject to supervision by an independent professional supervisor at all times, and:
(a)    The father shall meet all costs of supervision;
(b) The supervisor or supervising agency shall be selected by the Family Consultant pursuant to the s 65L order below;
(c)    The supervisor shall be requested to arrange the child’s collection and delivery so that the parents are not brought into contact with each-other at the start or end of face to face contact times; and
(d)    If the child is too unwell to attend the mother shall provide the supervisor with a medical certificate.

18.The father shall be permitted:
(c) To attend any parent-teacher meeting normally available to parents to discuss the child’s progress provided that it is specifically arranged at a time when neither the child nor the mother is present; and
(d) To receive copies of any printed material and photographs at his expense, if any, which the school would normally produce in relation to the child’s social and academic progress;
and for these purposes:
(i)the mother shall ensure that a copy of these orders is forwarded to the child’s kindergarten or school; and
(ii)The mother shall provide all necessary authorities to the school to supply the material to the father as ordered.

19.That pursuant to s 65L of the Family Law Act 1975 these orders shall be supervised by a Family Consultant for three years in relation to the selection of a paid professional supervisor on an on-going basis, such Family Consultant being at liberty to report to the court at the request of the court or any party in any future proceedings.
20.That the father and mother shall be restrained from:
(a)    Denigrating the other or any member of their respective family to the child, or within his hearing;
(b)    Discussing these proceedings with or within the hearing of the child;
(c)    Communicating directly with each-other; and
(d)    By themselves or their servants or agents, removing or attempting to remove the child from the Commonwealth of Australia and for this purpose the child’s name shall be placed on the WATCH LIST at international airports in Australia and the Marshal of the Family Court of Australia and all officers of the Australian Federal Police shall forthwith be advised of these orders by and shall receive a sealed copy from the mother’s solicitors.
21.That the Independent Children’s Lawyer shall be discharged after forwarding a copy of these Reasons for Judgment to counsellor, Mr K, if he continues to counsel the child.
22.That all existing applications shall be otherwise dismissed and the case removed from the list of cases awaiting finalisation.
23.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.
24.That pursuant to the Family Law Rules this matter reasonably required the attendance of Counsel and Senior Counsel.

I certify that the preceding three hundred and one (301) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau

Associate:

Date: 6 March 2007

[2007] FamCA 150

6 March 2007

Key Legal Topics

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Family Law

Civil Procedure

Legal Concepts

Costs

Injunction

Jurisdiction

Remedies

Procedural Fairness