OSCAR & AUSTEN

[2012] FamCA 220

FAMILY COURT OF AUSTRALIA

OSCAR & AUSTEN [2012] FamCA 220

FAMILY LAW - CHILDREN - Magellan proceedings – allegations of sexual abuse – allegations of family violence - allegations that child at risk of abuse in the care of the father – allegation that if father were to spend time with the child it would effect the mother’s capacity to parent the child - mother to have sole parental responsibility - order that father spend no time with the child – father to communicate with the child by cards and letters

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CC, 61C, 61DA, 64B(2)

Hartford and Ansilda [2009] FamCA 23
McCall & Clark (2009) 93- 405
B and B (1993) FLC 92-357

APPLICANT: Mr Oscar

RESPONDENT: Ms Austen

INDEPENDENT CHILDREN’S LAWYER: Rimmer Lawyers

FILE NUMBER: BRC 4069 of 2009

DATE DELIVERED: 5 April 2012

PLACE DELIVERED: Hobart

PLACE HEARD: Brisbane

JUDGMENT OF: Benjamin J

HEARING DATE: 22, 23, 24, 25, 26, & 29 August 2011, 16, 17, 18, 19 & 20 January 2012 & 13 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Barajaraj (Counsel on direct brief)

SOLICITOR FOR THE APPLICANT: Applicant in person

COUNSEL FOR THE RESPONDENT: Respondent in person

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Thiele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Rimmer Lawyers

Orders

1. All previous parenting orders in relation to Z Austen born January 2007 (“the child”) are vacated.

2. Ms Austen (“the mother”) have sole parental responsibility in respect of the child, including the exclusive parental reponsibility to determine where, within the Commonwealth of Austrtalia, the child resides.

3. The child live with the mother.

4. Mr Oscar (“the father”) and his family may communicate with the child as follows:-

   (a)By cards and letters addressed to the child care of the mother;

   (b)The mother shall be responsible for ensuring that, having regard to the age and maturity of the child, no inappropriate written material from the father is to be given to her;

   (c)The cards and letters may be sent at Christmas, Easter, Father’s Day, the father’s birthday and the child’s birthday;

   (d)The mother and father shall, within twenty one (21) days of the date of this order, provide each other with a postal address where each may communicate with the other and shall notify the other parent within fourteen (14) days of any change of postal address and residential address.

5. Other than the communication referred to above, or otherwise agreed to in writing between the parties, the father shall not spend time with the child or otherwise communicate with the child.

6. Except as specifically provided in these orders, or as otherwise agreed in writing between the parties, the father be and is restrained from approaching or meeting the child, communicating or spending time with the child or going to the home or school of the child or to the mother’s place of employment.

7. Each year until the child attains the age of 18 years the father is given permission to contact the child’s school (but not to attend the child’s schools) to obtain a school photograph of the child and a copy of the child’s school reports; such photograph and reports to be forwarded to the father at his expense.  After the child commences High School, such photographs and school reports may only be provided if the child consents.

8. 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.

9. The Court requests that the Australian Federal Police place the name of the child (Z Austen (“the child”) born January 2007) on the airport watch list at all points of international arrivals and departures in Australia for the purpose of preventing the removal of the child from Australia in breach of these orders.  This order will expire on 1 January 2018 and the child’s name will be removed from the watch list as and from that date.

10. Within fourteen (14) days from the date of this order the father shall provide in writing to Independent Children’s Lawyer the last known postal and/or residential addresses of each of his father, Mr Oscar Senior, his mother, Ms Oscar Senior, and his sisters Ms S Oscar and Ms M Oscar.

11. The Independent Children’s Lawyer shall forward a letter, by ordinary pre paid airmail, to each of Mr Oscar Senior, Ms Oscar Senior, Ms S Oscar and Ms M Oscar. Such letter to inform each of these members of the child’s family of the postal address of the mother and the invitation to each of them to send letters and cards to the child and providing each of them with a copy of this order. IT IS REQUESTED that Legal Aid Queensland fund a translation of the letter and orders to be sent to these members of the child’s paternal family.

12. This proceeding be removed from the list of cases requiring determination.

13. All subpoenaed documents are to be returned to the persons or institutions from which they emanated and all exhibits are to be returned to the person or persons who tendered the same.

    IT IS CERTIFIED

14. Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4069 of 2009

Mr Oscar

Applicant

And

Ms Austen

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

INTRODUCTION

1. This judgment relates to parenting disputes between Ms Austen (“the mother”) and Mr Oscar (“the father”) in relation to the arrangements for the parenting of their child, Z Austen (“Z”) who was born in January 2007 and was aged five at the conclusion of the hearing.

2. In his case outline the father says he wants equal shared parental responsibility for Z.  Further he seeks orders to enable him to spend time with Z, such time to be gradually introduced, initially limited supervised time and gradually developing in to unsupervised time.  Such times are to be harmonised with the time spent with Z’s sibling, B.  The father seeks orders that once Z reaches school age that time be each alternate weekend and for one half of the school holidays and other significant days.  He seeks other orders in relation to public changeovers, non-denigration and provision of information.

3. The mother seeks orders that she have the sole parental responsibility and that Z live with her.  She seeks further orders that Z have no contact with the father other than by way of cards and letters from the father and his family on special occasions. 

4. At the conclusion of the hearing the Independent Children’s Lawyer (“the ICL”) submitted that the mother should have sole parental responsibility of Z and that Z should live with her.  The ICL supports an order that both Z and B spend no time with their father and have limited communication with him and his family by way of cards and letters on special occasions.

5. These proceedings were heard concurrently with proceedings between the father and Ms Delware in relation to the child of their relationship, B born July 2008 (aged three years during the hearing).

6. The father and the ICL were represented by counsel and Ms Austen represented herself.  An ICL had been appointed and these proceedings were heard having regard to the Magellan protocols of the Family Court.

7. All parties consented to concurrent proceedings so that the hearing was conducted at one time with all evidence available in each of the proceedings.  I accepted and adopted that course.  However, it is necessary for me to consider each proceeding separately and make an individual determination in respect of each of the children.

BACKGROUND

1. Ms Austen and the father met in about 2005 and lived together until about mid January 2007.  Shortly after the birth of Z the parties separated.  The father spent some limited time with Z until May 2007; however, he has not spent any meaningful time with Z since then.  In or about April/May 2007, the father formed a relationship with Ms Delware.

2. In respect of this child, the father commenced parenting proceedings by application filed in the Federal Magistrates Court on 12 May 2009 (about two years after he last spent any meaningful time with the child).  He sought orders for unspecified ‘access’ to Z and that ‘my name to be included as the father’ on the child’s birth certificate. 

3. Ms Austen’s case is that the father was physically and sexually violent to her, physically and emotionally abusive of Z, and engaged in controlling behaviour.  She submits that he mishandled the then infant child, threatened to abduct Z, made threats against her (the mother) over public radio, abandoned the child, refused to take advice and ignored concerns about the safety of the then new born child.  Ms Austen claims the father did not financially support Z.  Her case is that the father is unable to provide a safe, stable and consistent environment and that the child is at risk of abuse in his care.  Ms Austen submits that she would be unable to cope if the child spent any meaningful time with the father.  It is Ms Austen’s case that she be permitted to relocate to Tasmania to live near Ms Delware, so that the sisters, Z and B can be close. .

4. Ms Austen asserts that the father has demonstrated a lack of regard for social rules and norms and that his behaviour is directed towards fulfilling his own ends.  She submits he has perpetrated violence against her and Ms Delware, has committed inappropriate non-sexual conduct towards his children, and has engaged in sexualised behaviour to or exposed the children or one of them to sexual abuse.

5. Ms Austen was concerned that the father has commenced these proceedings to facilitate his application for permanent residence to reside in Australia.

6. The father asserts that Ms Austen is intent on depriving Z of a father for no sound reasons.  He says that he does not present a risk to the child.  The father also asserts that the allegations of abuse and violence by the two mothers are false and concocted. 

7. Ms Delware and the father have one child, B, who as I said earlier was aged three at the time of the hearing.  Ms Delware and the father commenced a relationship in or around April or May 2007 (some short time after the end of the relationship between the father and Ms Austen) and Ms Delware fell pregnant later in 2007.  B was born in July 2008.

8. The relationship between the father and Ms Delware ended in February 2009, by which time B was aged about eight months.

9. In February 2009 Ms Delware and B left Queensland and moved to Tasmania to be close to Ms Delware’s family and where she previously lived.  Ms Delware and B have lived in Tasmania for the last three years.  Ms Delware says the father was aware of this move at the time and raised no objection to it.  The father says the move was without his knowledge and consent and that Ms Delware and B should return to South East Queensland.  The father has not seen B since February 2009.

10. Ms Delware raises serious issues regarding the father’s behaviour towards her child and towards her.  She asserts that the father physically abused her and was inappropriate in his contact with B.  She claims he sexually abused B and/or constituted a risk of abuse to B.  Ms Delware claimed that the father engaged in controlling behaviour and having regard to all of those matters, B is at risk of abuse, violence or neglect in the care of the father.  Like Ms Austen, Ms Delware asserts that these proceedings were brought about by the father’s desire to improve his position regarding his visa application.

11. Ms Delware submitted that it is not in B’s best interests to have a relationship with the father and that even if there was a relationship it would not be meaningful and would be dangerous to B.

12. Ms Delware accepts and adopts the submissions made on behalf of the ICL about her ability to parent B.  There is evidence that Ms Delware would not cope with B spending any time with the father, in particular having regard to the family report and the reports and evidence of Dr V.

13. The father’s position is that he wishes to have a relationship with B and that the mother return to live in the South East Queensland within 50 kilometres from where he presently lives.

14. As I indicated earlier Ms Delware and the father were represented by counsel.  As the father had prepared his own case and briefed counsel direct for the hearing I adopted an approach to enable that counsel to adduce evidence from the father in chief.  Counsel for the father set out material upon which he relied and all that material was allowed into evidence, subject to questions of weight.

15. The father was born in 1965 and was aged 46 at the hearing.  Ms Austen was born in 1966 and was aged 44 at the hearing.  Ms Delware was born in 1967 and was aged 43 at the time of the hearing.

16. Each of the mothers was born in Australia and English is their first language.  The father was born in Spain, lived for a significant period of his adult life in England and came to Australia in November 2004 on a visitor’s visa.  In 2005 the father and Ms Austen commenced a relationship.  Ms Austen had supported the father’s visa application but withdrew that support in February 2007, after they had separated.

17. When the relationship between the father and Ms Delware ended in February 2009 there followed domestic violence proceedings a history of which is as follows:-

    6 February 2009:        Domestic Family Violence order served on father

    17 February 2009:      Mother granted temporary care and protection order in Queensland

    17 March 2009  :        Protection order extended

    28 April 2009    :        Temporary order extended

    4 May 2009   :             Protection order registered in Tasmania

18. The father applied for a visa in Australia and that application was refused on 30 March 2009.  The father applied to review that decision and in October 2010 the Migration Review Tribunal affirmed the original administrative decision.

19. The father filed an appeal to change that decision and the appeal was heard by Federal Magistrate Burnett in May 2011.  That appeal was dismissed on 9 June 2011.

20. In those reasons Federal Magistrate Burnett sets out a background which provides:-[1]

    [1] Exhibit D1

    2. The [father] is a citizen of Spain.  On 21 November 2006 he lodged an application for a Class UK (Partner – Temporary) Sub Class 820 visa.  The sponsoring spouse for the application was [Ms Austen], an Australian citizen.  In order to lodge his application he successfully obtained a waiver from the Department of a condition on his visitor’s visa which prevented him from making any further visa applications in Australia on the basis that the sponsoring spouse was pregnant (due 3 January 2007) and that her pregnancy was high risk.

    3. On 12 February 2007 the Department advised the [father] in writing that it had received information that he was no longer living with the sponsoring spouse and that the relationship had ended.  It informed him of the circumstances in which a permanent visa could still be granted and invited him to submit appropriate evidence if one of those circumstances applied.  In particular, one of the circumstances identified to him was that he and his nominating spouse have certain shared rights and obligations in respect of the child.

    4. In the meantime on 23 September 2008 the [father] informed the Department that he had taken up with a new spouse, [Ms Delware] and on 18 November 2008 provided evidence to the Department of a certified copy of a birth certificate for B born [July 2008] which certificate named him as the father.

    5. In a conversation had between him and an officer of the Department on 16 February 2009 he advised that his relationship with [Ms Delware] had broken down.  He also advised he did not know if he was the father of the sponsor’s child. From that note the [father]’s dilemma was apparent.  The woman with whom he had had a relationship and fathered a child was by then estranged from him and one can infer not likely to sponsor a visa application on his behalf and the woman who was his original sponsor had bore a child in respect of whom there was uncertainty concerning the [father]’s parentage.

    6.On 17 February 2009 the Department informed the [father] in writing that since [B] was not a child of the relationship between he and the sponsoring spouse ([Ms Austen]) that child’s birth certificate was not relevant to the application.  It requested he provide a copy of a birth certificate for the child of the relationship between him and [Ms Austen], the sponsoring spouse.  Their written request was followed up by a telephone call where it was explained to him that he was required to provide a birth certificate to establish his paternity and that in the event that he failed to do so his visa application would be refused.

    7. On 25 February 2009 the [father] advised the Department in writing that the infant [Z] was a child of the relationship between he and [Ms Austen] but that he could not get a copy of her birth certificate as he was not named as the father in it.  He stated that [Ms Austen] did not want him to contact her and had not allowed him to see the child and that he was involved in court proceedings in relation to the other infant, [B].

    8. In the circumstances the delegate made a decision refusing to grant the [father] a Sub Class 820 visa on 30 March 2009.

    9. On 19 April 2009 the [father] applied to the Tribunal for a review of the delegate’s decision.  Between that time and the hearing of the application on 31 August 2010 the Tribunal’s disposition of the matter was delayed because of the [father]’s involvement in proceedings in the Family Court.  Those proceedings concerned the [father]’s pursuit for relevant orders in respect of the infant [Z].  In particular the [father] informed the Tribunal that he and the mother of the infant had applied to amend the birth certificate to include his name as her father.  However, when spoken to by an officer of the Department on 20 October 2009 he advised that the matter had been referred for a DNA test because the mother had stated on the birth certificate that she did not know who the father of the child was.  On 16 November 2009 the [father] informed an officer of the Tribunal that he could not afford to pay for a DNA test; he did not want to spend the money in the event that the child was not his; the mother, the Family Court or the Tribunal should pay if they want the evidence; and, that the court case concerning the child was being heard in “two weeks” and the Tribunal would have to await the outcome of that.

    10. The Tribunal conducted a hearing on 10 December 2009 where the matter of paternity was discussed.  It was suggested the [father] undertake a DNA test to prove his paternity.  The [father] did not avail himself of that opportunity.

    11. On 30 December 2009 the Tribunal wrote to the [father] inviting him to comment on information that it considered would be the reason or part of the reasons for affirming the Department’s decision.  It effectively summarised the information contained in the letter from the Registry of Births Deaths and Marriages of 21 December 2009 and informed the [father] that the information was relevant because the Tribunal required proof that the [father] was the father of the relevant child if he was to meet the requirements for a spouse visa.  The letter indicated that before the Registry of Births Deaths and Marriages could consider amending the birth record it would be necessary for a forensic report (DNA test result) to be submitted which would establish paternity.  Any parentage testing procedure had to comply with the provisions of the Family Law Act1975 (Cth) (FLA).

    12. Notwithstanding the Tribunal’s letter of 30 December 2009 the [father] continued in his failure to produce DNA evidence to it.

    13. Ultimately on 31 August 2010 the Tribunal proceeded to hear the matter.  During the hearing the [father] confirmed he was relying upon the birth of the child [Z] to meet the requirements for the grant of the visa.  He was informed by the Tribunal that he needed to satisfy it that he was either the biological father of the child or had orders under the FLA.  At that time no orders had issued from the Family Court and the [father] did not produce any evidence to confirm his assertion that he was the biological father of the child.  When asked if he would be willing to undertake a DNA test he indicated that the Tribunal ought to do it on his behalf.

    14. In the meantime the Tribunal was cognizant of the proceedings in the Family Court and afforded some time between the hearing of the application on 31 August 2010 and the delivery of its decision on 25 October 2010 to allow for proceedings then on foot in the Family Court.  However, by that time proceedings continued to be inconclusive and in the result the Tribunal determined to make its decision and publish its reasons as it did on 25 October 2010 wherein it refused to grant the [father] a Partner (Temporary) (Class UK) visa.

1. The father lodged an appeal against the orders and underlying decision of the Federal Magistrate and that appeal was heard by a Justice of the Federal Court of Australia.  On 11 December 2011 that appeal was heard and it was successful.  The Federal Court found errors in respect of the determination of the Migration Review Tribunal and as such the orders of the Federal Magistrate Court made on 9 June 2011 were set aside and the decision of the Tribunal was quashed. The matter was remitted to that Tribunal for hearing and determination according to law.

2. In these reasons any statement of fact is to be regarded as a finding of fact unless it is clearly otherwise from the context.

THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED

1. The provisions in the Family Law Act 1975 (Cth) (“the Act”) relating to children rest on the importance of a child having a meaningful relationship with his/her parents and the need to protect children from harm. These objects are contained in s 60B(1) of the Act, which provides:-

   (1) The objects of this Part are to ensure that 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.

   (2)The principles underlying these objects 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).

2. When determining parenting orders a court must put in place orders which will endeavour to be in the child’s best interests, as the paramount but not sole consideration. In undertaking this exercise the Court must consider the primary and additional considerations set out in s 60CC of the Act.

3. There is a rebuttable presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child.  If there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence the presumption does not apply.  

4. If there is an order for equal shared parental responsibility (by application of the presumption or otherwise), a court must consider whether equal time with each parent would be both in the child’s best interests and reasonably practicable.  Further, if an order for no equal time is made, a court must consider whether an order should be made providing that a child spends substantial and significant time with each parent if that is in the child’s best interests and is reasonably practicable.

5. As to alleged abuse, Brown J summarised the principles in such determinations in Hartford and Ansilda [2009] FamCA 23, where she said:-

   19 The core principles are those enunciated by the High Court in M and M (1988) 166 CLR 69. The High Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) made it clear that the ultimate and paramount issue to be decided in proceedings for what are now called parenting orders is whether the making of the orders sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation of sexual abuse by the parent who seeks residence or time with a child does not alter the paramount and ultimate issue which the court has to determine. The High Court found (at 76) that although findings on the disputed allegation of sexual abuse will have an important, and sometimes a decisive, impact on the resolution of that issue,

   …it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.  Proceedings for custody or access are not disputes inter parte in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318: McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.

   Viewed in this setting, 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.  The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a context between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

   20.In a joint judgment in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ) discussed the relevant principles, having regard to the High Court’s decision in M and M and at 79,778 said:

   The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   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.

   21.In Re W (Sex abuse:  standard of proof) (2004) FLC 93-192 the Full Court (Kay, Holden and O’Ryan JJ) examined the principles applicable in cases involving difficult questions of sexual abuse where the only witnesses to the alleged abuse are the alleged perpetrator and the alleged victim, noting the particular difficulties where the victim is young and does not give any direct testimony that can be the subject of forensic testing.

   22.The Full Court considered the relevance of the decision in WK v SR (1997) FLC 92 -787. In that case the trial judge had found that the father had sexually molested both his step-daughter and his own daughter. The Full Court said, at 84,691:

26.    However, the evidence of ZH was in fact the core evidence relied upon by his Honour in order to substantiate the allegations of abuse against the father. Given the gravity of the allegations raised by the evidence, and the Court's duty to apply a rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw (supra) and restated in s 140 of the Evidence Act 1995(Cth), her evidence needed to be very carefully evaluated.

[…]

46.It is clear therefore, that a finding that abuse has occurred can only be reached by a strict application of the onus of proof as set out in Briginshaw. Section 140 of the Evidence Act 1995 (Cth) has adopted this test as follows:

'140 (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.  

(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:  

(a)  the nature of the cause of action or defence; and  

(b) the nature of the subject matter of the proceeding; and

(c) the gravity of the matters alleged.

47. In children's matters under Part VII of the Family Law Act, where the issue is a child's contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s 140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

48. This is a matter which must be specifically borne in mind by a Court which is exercising jurisdiction under Part VII of the Family Law Act. When exercising its jurisdiction under this Part, the Court's paramount consideration must be the best interests of the child, in accordance with s 65E. The application of this overriding factor often allows the admission into evidence of material which would otherwise be excluded if a rigid application of the rules of civil evidence were followed. Furthermore, when deciding what orders are in the best interests of a child, a trial Judge may often be confronted with a multiplicity of issues and facts. In these circumstances, evidence which, for example, is relevant and probative in relation to the question of an unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incident of abuse has in fact occurred.

The Full Court found that the trial judge had not paid attention to these views, and that unless the rigorous approach set out in WK v SR is taken, in circumstances where the often inevitable result of a positive finding of abuse is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and the child the disastrous effects of a positive finding that is reached in error.  The Full Court found that the termination of a worthwhile relationship between the parent and child ought to in most cases be the course of last resort, noting (at 79,217-8):

The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial.  The truth does not always come out.  A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship.  The Court needs to remain conscious of this imperfection at all times.

23.     The Full Court then referred with approval to the dissenting judgment of Kay J. in K v B (1994) FLC 92-478 where his Honour said, at 80, 972:

In cases of alleged sexual abuse, there is a significant risk that the ultimate effect of orders to be made by the court, and of the proper operation of the legal system, will be overlooked in the court’s anxiety to ensure that the risks of sexual interference are minimised. Where the evidence of sexual abuse consists of ambiguous statements of a pre-kindergarten aged child coupled with perceived but possibly otherwise explicable behavioural changes, it is almost impossible for the party denying any impropriety to prove that party’s position.

In an article entitled 'Prediction, Prevention and Clinical Expertise in Child Custody Cases in Which Allegations of Child Sexual Abuse Have Been Made', appearing in Volume XXVI No 2 Summer 1992 Family Law Quarterly (Publication American Bar Association Section of Family Law), at p 170, it was observed:

'Unfortunately the magnetising force of the simple allegation of a heinous event such as child sexual abuse, which legitimately invokes consideration of the possibility of that event, draw the clinician — and perhaps even judges and jurors as well,... away from what ought always to be the starting point of her or his evaluation enquiries, which is that the event did not (or very highly probably did not) occur. Because the null hypothesis (and, correlatively the absence of an event) cannot be proved, in their testimonies concerning possibilities of alleged events, clinicians strongly resist exonerating the targets of their evaluation. Because it is always possible that a given individual — even one randomly drawn from the general or a specific population — has sexually molested a child, an inconvertible proof that the individual has not molested a child is impossible.' (Emphasis in original)

The article concerns itself with research carried out at the University of Michigan. Case notes concerning the possible sexual abuse of a three year old child were provided to 8 senior clinical psychologists, 23 graduate students undergoing clinical training in psychology and 50 members of staff of child guidance clinics including social workers, clinical psychologists and psychiatrists all specialising in child development in areas of child mental health. They were asked individually and then in groups to evaluate the probabilities that sexual abuse had occurred and then to recommend what if any ongoing child/father contact should take place.

The range of opinion on whether there had been abuse was so wide that the authors concluded as follows:

The most striking feature of these studies’ findings is the extremely large range across experienced and non-experienced clinicians of estimates concerning the likelihood that M was sexually abused by her father. When given all of the relevant facts of the case, child experts and trainees varied greatly in their individual judgment... These findings lend strong support for the view that individual experts can provide courts little if any assurance that they are able to provide even crudely reasonable (i.e. objective) estimates of likelihood that child sexual abuse has occurred or will occur, when they are confronted with the same set of ambiguities faced by the courts in these cases.

24.In Re W, the Full Court concluded its analysis of the relevant legal principles by remarking, at 79,218:

The lessons to be learned have not changed.  The risk that the Court will find heinous behaviour where none has occurred needs be borne in mind at all times.  The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.

25.As I have observed before, and with respect to the Full Court, one might as well say that the harm and injustice that flows to both parent and child from an erroneous negative finding is almost too horrible to contemplate, that harm including repeated sexual abuse of a child.  Nevertheless, I am bound by the exposition of principle in the judgment.

26.In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) examined principles relevant to child sexual abuse cases with particular emphasis on what is meant by unacceptable risk, the potential cessation of a significant or meaningful parent/child relationship and the appropriateness or otherwise of supervised contact. As a starting point the Full Court referred to the significant detrimental harm to a child who is sexually abused, noting (at 79,906) the discussion by Fogarty J in N and S and the Separate Representative (1996) FLC 92-655 where His Honour said, at 82,709:

The sexual abuse of a young child by a parent or care giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur.  Regrettably, the actuality is otherwise.

It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse.  Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development.  Its effects, both in the short and long term, can be devastating.

27.The Full Court also had regard to Fogarty J’s acknowledgement of the potential for false allegations.  Referring to Thomas J’s judgment in S v S [1993] NZFLR 657, Fogarty J said (at 82,711):

Courts must be aware that not all allegations of sexual abuse are true.  False allegations may be made either by parents acting in good faith, as a result of a misperception or information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings.  Ambiguous events often have an innocent explanation.

28.After considering a number of decisions in which the concept of unacceptable risk was considered, the Full Court in W v W (Abuse allegations: unacceptable risk) concluded (at 79,910):

In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred.  We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.  The High Court in M and M recognized the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. 

1. A court must assess and determine the relevant facts in issue and in the context of those facts and the non contentious relevant facts, the Court must then conclude whether abuse has or has not been established and/or whether an unacceptable risk of abuse exists into the future.

THE EVIDENCE

The father

1. The father relied upon a series of his affidavits in both sets of proceedings as well as oral evidence.  The affidavits being his affidavits filed in these (the Ms Austen) proceedings on 12 May 2009, 21 August 2009, 15 November 2010, 31 May 2011, 17 June 2011 and 30 June 2011 and 9 November 2011.  He also relied on his three affidavits filed in the Delware proceedings on 12 May 2009, 15 November 2010 and 14 June 2011.

2. In addition the father relied upon two affidavits of Ms A filed 31 May 2011 and 9 November 2011, two affidavits of Mr C filed 31 May 2011, affidavits of Ms D filed 30 June 2011, Mr E filed 31 May 2011, Ms F filed 31 May 2011, Mr G filed 31 May 2011 and Mr H filed 15 June 2011 and a statement of Mr E dated 15 March 2010.  Much of this supporting material was irrelevant and/or superficial.  Counsel for the father had only recently been briefed (directly) and was unsure of the full import of the material.  As the father had been previously unrepresented I allowed the material to be read, subject to weight.

1. The father claimed he needed an interpreter.  Counsel for the ICL asserted it was a ruse and the father clearly has a very good grasp of the English language.  However, to ensure procedural fairness, an interpreter was present for the whole of the hearing.

2. The family consultant expressed concern about the veracity of the father’s assertion that he had difficulties with English.  This is detailed in her reports.

3. I observed the father clearly hearing, understanding and answering some questions in English.  At other times he said he did not understand similar questions and required them to be translated and had the answers interpreted.  Perversely at one stage he was asked to read a document which was in English.  He did so but he translated the part of the document from English into Spanish so that the interpreter could then interpret his words back into English. Watching the father’s demeanour during the trial was instructive.  From time to time when giving evidence he would hear perfectly plain questions and stare with a blank confused look and turn to the interpreter with a quizzical expression and nod when the question was translated.  It had an air of artifice.

4. To some questions the father replied in English using complex language and expression. His evidence in this respect was bizarre and unconvincing.  The father lived in relationships with both mothers whose first language is not Spanish and who have little knowledge of Spanish.  He lived with his then partner in the United Kingdom for a number of years and lived in shared accommodation in Australia when he first arrived.  The mothers, his former partner from the United Kingdom and his former housemate all deposed to the father’s clear knowledge and use of the English language. 

5. In his application for a bridging visa[2] made December 2006, the father completed the form himself and certified that he did not receive assistance.  In the personal particulars supplied to the Department of Immigration he wrote that his present occupation was “freelance writer’.[3]  In his application made 22 November 2006[4] he claimed that he read, understood, spoke and wrote English fluently.  The father certified that he did not receive assistance with that long and complex document.  He initially represented himself in these proceedings, he prepared and filed affidavits, a case outline and draft orders and did not seek to have his affidavits interpreted and then sworn with an interpreter.  His fluency in English was the subject of cross examination and criticism of the father in August 2011, yet perversely on 9 November 2011 the father filed his complex six typed page affidavit sworn without an interpreter and certified that ‘this affidavit was prepared/settled by the [father] deponent.

   [2] Exhibit D2.

   [3] Exhibit D3.

   [4]Exhibit D4.

6. The evidence of Ms Austen, Ms Delware, Mr I, Ms J and others as to whether the father speaks fluent English was credible and convincing. 

7. The father’s assertion that he could not readily speak or communicate in English was mendacious.  Counsel for Ms Delware and the ICL asserted that this behaviour was a ruse, and I agree.

8. In general the father’s evidence was troubling.  At one stage early in his cross-examination by Mr Hanlon he asserted that he was an identical twin and then said that was a ‘joke’.  His memory in relation to where he lived and where he worked was problematic.  It is sometimes hard to recall things from some years ago but the father’s memory seemed to be ‘convenient’ from time to time.

9. The father lived in England from the early 1990’s after he left Spain in about 1992.  He worked and lived in England.

10. In respect of this evidence I was concerned about the veracity of some of the explanations such as his explanation of the nose kiss and the accommodation shared in England and another example was details of where he resided for a while with Ms Austen.

11. The father had a conversation with an Immigration departmental officer on 16 February 2009 in relation to his acceptance of Z as his child.[5]  The author of that note set out:-

    It was explained to [the father] that to continue with his current application he needs to provide evidence of the child of the relationship, that is, a child born to the relationship with [Ms Austen] the sponsor. [The father] claimed he did not know if he was the father if [sic] [Ms Austen’s] child, [Z].  He stated ‘I have never signed any paperwork for this child.

    [5] Exhibit A1.

12. I do not accept the father’s explained version of that conversation.

13. The father was asked whether he provided support for the child Z and prevaricated and obfuscated in relation to that issue.  I am satisfied he does not provide financial support for either child in any meaningful way.

14. It was asserted that the father made a threat to Ms Austen on radio on 24 October 2010 where he allegedly said:-[6]

    [6] Exhibit ICL 1A.

    I find it hard to believe

    All I have achieved

    In this stretch of the journey

    So far occurring

    Got a daughter

    Who is not mine

    Or to say it more poetically

    Got a daughter

    In the slaughter of her mother’s butchers shop

    A place with not a contra

    Where to live with my lover

    Who’s away and so and so I must keep happy in case I die without warning

15. The father admitted the context of the comment but said it was not a threat and then prevaricated about whether and what he remembered.  The father said in re-examination that the poem was about birds and was not a threat. 

16. The comment was bizarre and no doubt troubling for Ms Austen and gives support for the observations of the family consultant and the opinions of Dr V.  Ms Austen did seem to overreact to the poem.

17. From separation on either 19 or 27 January 2007 to 5 May 2007 the father spent time with Z.  He denied any anger or abuse.  His evidence in that regard was argumentative and obstructionist and I have serious concerns as to the veracity of that evidence.

18. During the course of the father’s evidence it was necessary for me to address him on a number of occasions and direct him to answer questions frankly. I warned him about his tendency to obfuscate.  

19. The father’s evidence about where he lived and lives was an example of obfuscation or plain untruth, I did not believe him.

20. When asked about the care provided to each of the children by their mothers he gave evasive evidence and was reluctant to acknowledge any positive aspect in those roles, despite being given opportunities to do so. The father seeks equal shared parental responsibility but his ability to communicate with either mother is poor to say the least.  His letter to Ms Austen on 4 June 2011 was troubling and the first words were ‘what game do you think you are playing’.

21. The father gave evidence that he did not have any criminal convictions. When presented with his police record[7] he noted that he was convicted in respect of a shoplifting charge in 2011 and a faced a previous charge in 2008 (as to the previous charge there was no conviction recorded).

    [7] Exhibit A3.

22. Time and language do not permit exact expression of every single unsatisfactory feature of the father’s evidence that has played a part in the impressions I have formed, and the consequent conclusions.

23. It seems that whenever the father perceived that a fair and direct answer to a question might not be in his interest, he resorted to his interpreter, together with denial, evasion and non-recollection.  His evidence was evasive, disingenuous, implausible and at times risible.

24. The consequence of this is that, if there is a particular issue of fact I would not accept the evidence of the father unless it was supported by other objective evidence.

Mr C

1. Mr C swore two affidavits both filed 31 May 2011 and the father relied on that material.  Mr C said he met the father about three years ago (although he cannot be certain about the date as he kept no records) through a men’s support group.  There is no evidence that he has met or spoken with the mothers.

2. Mr C gave evidence of the father’s concerns about the child and the father’s involvement with like minded people.  The father occasionally spends nights at Mr C’s home.

3. The affidavit material was admitted to enable evidence, via cross examination, that the father did not live at Mr C’s home.  I would have otherwise rejected the father’s use of that material.  

4. The affidavits provided by Mr C are unbalanced character references for the father.  Mr C has no disclosed academic or social science qualifications.  His material was also in the form of opinion.  He expressed views and came to conclusions without setting out any evidence upon which those views were based.  He was scathing about the mothers in circumstances where he has little or no contact with them.  He was overtly partisan and inflammatory in his comments.

5. Except insofar as the place of residence of the father, I give Mr C’s evidence no weight.

Mr E

1. Mr E provided evidence in a statement dated 15 March 2010.  He gave evidence and confirmed that his statement was true and correct.  It was in the form of a character reference and by way of support for the father.  It was of no forensic value in these proceedings.

2. Counsel for the father sought to adduce further evidence from Mr E orally.  I directed that he take a proof of evidence which was later tendered on behalf of the father.[8]

   [8] Exhibit O3.

3. Mr E said that Ms Austen had contacted him between six and twelve months ago and asked him to ‘retract the statement’.  On cross-examination Mr E confirmed that he had not made an appointment with the mother and that the mother was agitated because she thought that the statement had been made by the radio station.  Mr E said that his statement was made in his personal capacity.

4. The complaint seemed to be that Ms Austen was upset because she thought it was the view of the radio station.

5. It is only of value in support of the opinions of Dr V as to traits of hysteria and/or histrionics in Ms Austen's character.

Ms D

1. Ms D gave evidence in accordance with her affidavit filed 30 June 2011.  This was again a character reference type material.  Ms D has left her children for short times in the care of the father, a daughter now aged 18 and a son now aged 16.  She also had another relative aged 16 who came into contact with the father.

2. Ms D’s contact with the father was on a social and work basis and the relationship included her knowledge of the father practicing nudity. Ms D said she accompanied him to a nudist beach on one or two occasions.

3. Her evidence was more of a character reference and did not provide any significant impact in terms of the substantive issues.

Mr H

1. The affidavit of Mr H filed 15 June 2011 was read into evidence without controversy.  This was on the basis that he was not an expert.  His evidence was a character reference for the father, which was of little or no weight or relevance.

Ms A

1. The first affidavit of Ms A filed 31 May 2011 was initially read into evidence without controversy.  This was on the basis that she was not an expert.  Her evidence was a reference which was of little or no weight or relevance.

2. She swore a further affidavit filed 9 November 2011 in which she asserted that Ms Austen approached her and tried to persuade her to change her evidence.

3. This occurred on the train from the Sunshine Coast to Brisbane in the day or days leading up to the first hearing days in August 2011.

4. Ms Austen gave evidence that she and her parents and the child saw Ms A at the start of the train trip. Ms A was known to Ms Austen’s father.

5. Ms Austen said that after the train commenced its travel from the Sunshine Coast towards Brisbane (the day before the commencement of the hearing in August 2011) she walked up to Ms A, who had been smiling, and asked if she knew her.  Ms A identified herself and Ms Austen then becoming aware of whom she was and said words to the effect of ‘you have got that completely wrong’.  Ms Austen that she did not invite Ms A to change her affidavit.

6. Ms Austen says that Ms A went on to say that whatever happened to Z was karma and that if something had happened it was because of something in her previous life and this is why children were born in Africa.  This upset Ms Austen who said she felt like vomiting and left.

7. Ms Austen’s mother was standing behind Ms Austen during that discussion.  Ms Austen’ mother said to Ms A that she was born in Africa and that she misunderstood that circumstance.  Ms Austen's mother is a very quiet softly spoken woman who was concerned about these strange assertions.

8. I prefer the version of the events provided by Ms Austen and her parents.

9. The evidence of Ms A was unsatisfactory; she was an advocate for the father and his cause.

Mr G

1. Mr G swore an affidavit filed 31 May 2011 and the material in that affidavit was read into evidence.  This was again a ‘cheer squad’ type affidavit.  On cross-examination Mr G said he was aware that the father was a nudist but only whilst at his home where he did some sunbaking but said it was in the remote area of his property.

Mr I

1. Mr I gave evidence in accordance with his affidavits filed 31 May 2011 and 17 August 2011.  He is a youth worker who shared accommodation with the father in about 2005.  His affidavits were read into evidence without objection.

2. Mr I was a breath of fresh air, an impressive witness who described the difficult arrangements he had with the father some years ago.  He also gave cogent and clear evidence as to the father’s ability to speak English.  He had lived in the same house as the father for a number of months and had discussed topics with him including the reading and meaning of classical literature.

3. He formed the view, and I accept, that the father is fluent in English and understands the language very well. 

4. I accept the evidence from Mr I that the father was at times confrontational and difficult.  The father did not respect the privacy or the concerns of those with whom he shared accommodation. 

Ms J

1. Ms J gave evidence in accordance with her affidavit sworn 3 August 2010 and filed 31 May 2011.

2. Ms Delware had been cross-examined in relation to this evidence as to whether she had acted inappropriately in terms of this evidence, particularly having regard to an email sent by Ms Austen to her on 27 June 2010 where it was said she will ‘do whatever we wanted’.  Ms Austen said that Ms J had agreed to write an affidavit and provide information.  I accept the mother’s evidence in that regard.

3. As to the evidence of Ms J she asserted that she was in a relationship with the father for two or three years and that relationship ended in 2004.  She said that it was necessary for the intervention of police to have the father removed from her home.

4. Ms J said that the father did not work as a journalist in England but worked in a call centre but ceased paid employment soon after commencing his relationship with her and relied upon her for his financial support.

5. Ms J said that the father asserted he had been injured in a motor vehicle accident and needed walking sticks.  However, after he had been removed from her house he entered the home by climbing a wall.  This caused enormous fear and concern to Ms J and I accept her evidence in that regard.

6. Ms J was an impressive witness.  She spoke clearly and articulately in terms of her affidavit.  Her evidence was given by telephone from London.  In satisfaction of the concerns raised by the father Ms J’s evidence was given from the office of Mr L a Public Notary at K Street, London, England. 

7. At the commencement of the process (which was 8.00pm Thursday 19 January 2012) Mr L confirmed that he had satisfied himself as to the identity of Ms J. Ms J relied upon her affidavit sworn in England before Mr L.

8. Initially I was concerned as to the relevance of this material as Ms J had lived with the father many years ago.  However, in the context of the nature of the dispute I admitted the evidence (this was not contested by the father or the Independent Children’s Lawyer).

9. Ms J was an impressive witness.  She was challenged by counsel for the father as to about her ability to hear and speak. From my observations of her in response to the vigorous and, at times, challenging cross-examination, she clearly understood the questions and was clearly able to articulate answers. 

10. She said that the father claimed he was an author but that no work was completed or submitted by him.  She also said that the father also claimed that he had been involved in two near fatal collisions (as a pedestrian in Spain). 

11. Ms J said that the father claimed a genuine mobility disability saying he had limited use of his leg and stoically wore pain.  He explained to Ms J that this was his reason for not being able to retain a job or help with any demanding chores.

12. Ms J accompanied the father to his assessment to be eligible for benefits and he received benefits in the United Kingdom for his disability.  He had several walking sticks.

13. The relationship between Ms J and the father soured and she asked him to leave.  The father would either not listen or would not accommodate this request to leave Ms J’s home.

14. Eventually Ms J, with the help of her brother and two friends packed the father’s things while he was in Spain and informed him when he returned that he was not welcome to come back to the home.

15. Ms J said that she locked the house up at this time, but had seen the father loitering in the area.  The father climbed a twenty foot wall and managed to get into the house via an upstairs window.  This was terrifying for Ms J when she came into the house and saw he was present in the house.  Ms J had someone with her and the police were called and they required the father to leave.

16. I accept the evidence of Ms J.

Ms Delware

1. Ms Delware gave evidence in accordance with her four affidavits filed 25 November 2011, 20 May 2010, 31 May 2011 and 24 June 2011.  Ms Delware says she has kept diaries and had done so since she started working.  Ms Delware was cross-examined on her 2008 and 2009 diaries[9].

   [9] Exhibit ICL 4.

2. Ms Delware was criticised about there being more disclosures and more expansive disclosures over the development of her affidavit between November 2009 and June 2011.  Ms Delware maintained a diary and the 2008 and 2009 diaries were available to the Court and about which I have made comments elsewhere.

3. It seems that parts of the record and notes contained in those diaries have been deleted and/or changed at or after separation.  I am not confident with the evidence of Ms Delware that the changes took place before separation.  It is more likely to have occurred after separation.

4. In some areas (which I will allude to later in these reasons) there was some indication of histrionics in Ms Delware’s evidence and approach.  Clearly some of her evidence was taken from her own views of the father which are clearly negative. 

5. Ms Delware was criticised by counsel for the husband because she had not written everything into her diary, she had not bought a camera and photographed instances, had not reported matters to the police and had not collected evidence as if it were a court case.  I do not either accept or adopt all of the criticisms made against her by counsel for the father.  As the father’s behaviour became more difficult Ms Delware took more and more steps to protect B and eventually removed the child and herself from the father’s influence

6. There was criticism of Ms Delware in relation to the development of her evidence in respect of the various allegations over a number of affidavits. That is, that she only put part of the material and it developed in detail over a number of affidavits.  There is substance to that criticism and Ms Delware did not fully articulate her case until she was required to do so.  This was intended to gain some form of forensic advantage.  It also fell into the behaviour and approach of Ms Delware to which Dr V alluded, that is that she has a ‘highly absorptive capacity’ where her belief combined with that of Ms Austen leads her to believe her inaccurate or exaggerated version of events.

1. I do not find that Ms Delware has fabricated evidence, I am satisfied that she has harmonised her evidence with Ms Austen I am satisfied that her evidence needs to be treated with caution although not altogether rejected.  

2. Ms Delware took protective steps, initially somewhat tentatively but finally when she said she saw the father licking B’s face or kissing B when both the father and child were naked.  I do not know whether this was accurate or not, but at that time the relationship between Ms Delware and the father had ended.  

3. It is also significant that Ms Delware wrote about some but not all significant events in her diary and that within a month or two of separation she endeavoured to contact Ms Austen to warn her, of the concerns that Ms Delware had about the father. 

4. There are some troubling parts of her evidence, some facts seem exaggerated with reactions out of proportion and yet some seem based in truth.

5. Ms Delware was ordered to file further material once the existence of the emails between her and Ms Austen was discovered.  She filed a voluminous affidavit on 14 October 2011 (sworn 5 October 2011).  It contained a vast number of emails passing between her and Ms Austen.  She filed a shorter affidavit on the same day containing more material.

6. Ms Delware made a note of a number of telephone calls made by the father in December 2011 where he was trying to speak to B and in circumstances where Ms Delware would not permit the calls.  In answering those questions in relation to these calls Ms Delware initially complained that the father did not identify himself (although it was clear she knew who he was by recognising his voice and by the comments made).  Ms Delware did not permit B to speak to the father.

7. An example of her exaggeration surrounded the father sending B a Christmas card in December 2011, which she said had some writing ‘in Spanish’.  The card[10] was signed by the father addressed to B and the Spanish words were ‘de tu padre’.  It was not confrontational or threatening and Ms Delware’s reaction was out of proportion.  The mother opened the card and did not either show or read the card to B.

   [10] Exhibit ICL 2.

8. Ms Delware has not made any endeavours to enable B to interact with her Spanish family and was opposed to any such interaction.  She gave no satisfactory explanation as to that approach.

9. It is clear from her evidence that Ms Delware is absolutely of the belief that the father presents a risk to B in terms of any sort of communication whether that be face to face, oral, telephone, letter or otherwise.  She acknowledges that it is important for B to know her father but says it is far more important for the child to be protected against what she perceives as a dangerous person.  I am satisfied that her view in this regard is unlikely to change, and has been fixed since the time of separation.  

10. Such was its impact on Ms Delware she has removed any positive comments she had previously made about the father in her 2008 and 2009 diaries.

11. I have considered the interaction between Ms Delware and Ms Austen in relation to their evidence.  That evidence is troubling; however, it has not entirely impeached the evidence of Ms Delware.

12. Ms Delware complains that the father was verbally abusive to her throughout the relationship. I generally accept her evidence contained in paragraphs 13 to 24 of her affidavit[11] notwithstanding, as I have indicated, that there is a degree of exaggeration.  However, having regard to the evidence of Mr I, Ms P, and others such as Mr G Austen, I am satisfied that the father was angry, manipulative and controlling in his relationship with her. 

    [11]Affidavit of Ms Delware filed 31 May 2011. 

13. Apart from her determined and deep seated dislike and fear of the father it is clear that Ms Delware is otherwise a good mother to B.

14. I am generally satisfied that Ms Delware was at all relevant times the primary carer of B.  I am satisfied that the father undertook a minor parenting role.  He was, from time to time, inept, insensitive and careless in that role, including the changing of nappies and maintaining proper supervision.  In that respect I generally accept the evidence of Ms Delware set out in paragraphs 43 to 48 of her affidavit[12], although, there is an element of exaggeration.

    [12] Filed 31 May 2011.

Ms Austen

1. Ms Austen gave evidence in accordance with her affidavits filed 21 October 2010, 31 May 2011, 17 June 2011 and 18 October 2011.

2. Ms Austen met the father in July 2005; they commenced cohabiting in September 2005 and separated on 19 January 2007.  From the date of separation until 4 May 2007 she arranged for Z to see the father every day.  Since that time there have only been inadvertent meetings, primarily in the first year after separation.

3. Ms Austen deposed that on 8 January 2010, she, her mother and Z were at a market in a playground.  Ms Austen says that the father put his face next to her mother’s face, glaring and demanding information as to whether Ms Austen had a boyfriend.  He asked a series of questions and she said his behaviour was threatening.  Ms Austen, her mother and Z left the markets.

4. Ms Austen contemplated applying for an apprehended violence order but decided not to do so.  I am satisfied that something along those lines occurred but that it was exaggerated by Ms Austen.

5. The father has provided to Ms Austen presents and cards for the child which she set out.  They are of a limited number.  He made no efforts to see Z from May 2007 until May 2009.

6. The father had been made aware of the telephone numbers of both Ms Austen and Ms Delware in late 2011.  As a consequence of having those numbers the father endeavoured to ring the children.  He did so in a persistent manner over November/December 2011.

7. Strangely his counsel asserted that because there was no order he was entitled to make these calls (and there was no legal impediment in doing so) although this needs to be seen in the context that the father’s application to spend time and communicate with the children had been dismissed about a year before.  This is indicative of the concerns raised by the family consultant and Dr V.

8. In terms of relocation Ms Austen still proposes to move to Tasmania as soon as she is able to do so.  She has savings to facilitate that move and Ms Austen’s mother is likely to go with her.  There has been some limited contact between the two subject children. I do not intend to make a specific order to enable the relocation. 

9. Having regard to all of the findings and considerations, I intend to make an order enabling both mothers to determine where in Australia they wish to live with their respective child.  This must follow bearing in mind the type of orders I intend to make.

10. In terms of her evidence Ms Austen was at times confrontational, at other times rude and she exaggerated some of her evidence.  As such I have been very careful in assessing her evidence.  Her evidence was not entirely impeached. 

11. The father was critical of Ms Austen in terms of his name not appearing on the child’s birth certificate.  The mother’s evidence was that she was given an application for registration by the Court and the father initially objected to his name going on there and the parties were unable to agree on a name.  Having regard to the evidence of the Ms Austen and the father and the objective evidence from the visa application, on balance I prefer the evidence of Ms Austen on this issue.

12. In March 2011 Ms Austen applied for an apprehended violence order.  Her explanation about the delay in providing that was not satisfactory and I am satisfied, having regard to the material contained in the various emails which were evidence in these proceedings, that at least one of the factors in the findings of the domestic violence order was strategic in terms of these proceedings.

13. However, I do accept the evidence of Ms Austen that it was difficult to serve the father and that the application was dismissed when she did not attend court after she incorrectly diarised the Court date.

14. Ms Austen says that sometime between January 2008 and January 2009 she was driving and saw the father approach her car.  Ms Austen had the infant child Z in the car with her.  She ensured the windows were wound up and the doors locked.  She said the father approached her and angrily hit the roof of the car.  I do not accept her version of that event. I am satisfied that the father approached her car but that the incident has been greatly exaggerated by Ms Austen.

15. The mother was cross-examined about the emails and says that her use of the word ‘collusion’ was initially misconstrued.  She initially understood collusion to mean that she was working together with Ms Delware for a common cause that is to protect the children.  She later learned that it meant colluding to provide false evidence.  The evidence of Ms Austen was that she was endeavouring to facilitate the Court proceedings and give herself and Ms Delware the best opportunity possible to succeed in their respective applications but made it absolutely clear that she did not seek to nor had she attempted to persuade Ms Delware to falsify evidence nor were they trying to tell stories apart from their own.  From a legal practitioners point of view their interaction was unsatisfactory, however, from lay people who were focused on protecting children it is far less sinister.

16. I am not satisfied that Ms Austen and Ms Delware colluded to create false evidence, I am satisfied that at some levels they exaggerated their evidence and endeavoured to obtain forensic advantages.  I have had regard to this finding in assessing what weight to place on their evidence on contested issues.  Having regard to my findings on the quality of the evidence of the father, this task is not without problems.

17. Ms Austen was criticised for approaching witnesses.  In terms of Ms A, I am satisfied that the approach was not by Ms Austen and I have made findings on that issue earlier.  As to Mr E, I am satisfied that this was Ms Austen complaining about the use of the radio station not the evidence itself.  Ms Austen is a feisty character who was concerned about references given on behalf of the radio station and this was indicative of her tendency to overreact.  Ms Austen believed the affidavit was prevented by the rules of the radio station and she complained in that regard.

18. Ms Austen was criticised about providing limited information in her first affidavit of 20 November 2009.  That complaint is well founded.

19. In her final submission, Ms Austen, who was unrepresented, sought an order that there be no face to face time between the father and Z. During the hearing Ms Austen (albeit reluctantly but in response to the Family Report[13]) deposed that the time she could just cope with, provided she was allowed to live in Tasmania, was four times a year.  She said that she could cope in that way provided it was done gently as this would reduce her anxiety and consequently the anxiety of the child.  She was pressed on whether there should be more time.  Ms Austen became visibly upset and distressed and there was clearly an emotional impact on her at the thought of Z having regular time, let alone unsupervised time with the father.  Ms Austen was unable to adequately respond as to what she would do if she was not able to move away from the area in which the father lived other than to Tasmania.

    [13] It is significant that after an adverse family report came out Ms Austen wrote to the family reporter complaining about it and then withdrew that complaint.

20. Ms Austen is concerned that the father will harass her and be a danger to the safety of Z including the threats (that the mother perceives) as being inferred from the poem and from the previous threats to remove the child to Spain.  She said she would not cope and that she would become a ‘basket case’.  I accept her evidence in that regard, although this needs to be seen in the context of the views and opinions of the family consultant and Dr V.  Ms Austen’s response is out of proportion but I am satisfied that any face to face time would be resisted by Ms Austen and would cause significant anxiety in her.  This in turn is likely to impact upon her ability to parent.  Furthermore, this needs to be seen in the context that the father is not a realistic candidate to be a carer for Z.

21. Ms Austen and her mother have been talking about moving to Tasmania from about December 2010. 

Mr GAusten

1. Mr G Austen is Ms Austen’s brother who provided an affidavit filed 31 May 2011.  He was a ‘knock about’ but straightforward witness.  He was an impressive witness who endeavoured, from his own subjective point of view, to be frank.

2. He was concerned that the father had been exercising his interest in nudism in the backyard when neighbours were present and was worried that the father would take Z to a local nude beach which he described as ‘that seedy beach’ and gave cogent reason as to how he formed that view.

3. Mr G Austen gave evidence in relation to the father being pulled over by the police for a random breath test, where the father tried to change seats and was less than frank with police when enquires were made about his licence.  That observed behaviour of the father, in isolation, is not of great substance but in the context of all of the evidence is indicative of the substance of the assessments by the family consultant and Dr V.

4. Some evidence of Mr G Austen about the father and his behaviour was significant. Mr G Austen referred to the father, in a jocular fashion, as ‘a bastard’.  The father with his European background took great umbrage at this term.  Mr G Austen apologised and explained the different cultural responses to this term.  The father declined to accept the apology and formed a very negative view of Mr G Austen.  When G Austen went to the hospital to visit his sister and meet his niece after her birth there was a confrontation which is described by Mr G Austen in his affidavit. 

5. More concerning was an incident which occurred about two weeks later.  Mr G Austen attended at the home of Ms Austen and the father (it was Mr G Austen’s mother’s home).  The father asked Mr G Austen to come outside and had a steak knife in his hand and had been peeling an apple.  He pointed the knife at Mr G Austen and warned him not to visit his mother’s home because the baby could ‘understand his bad language’.  Prudently Mr G Austen left and later informed his mother and Ms Austen of the incident.  I accept the version provided by Mr G Austen and it is troubling behaviour on the part of the father.

Mr Austen Senior

1. Mr Austen Senior is Ms Austen’s father.  He gave evidence in accordance with his affidavit filed 31 May 2011.  Much of his affidavit I have ignored and given no weight as it is more of a nature of submission rather than evidence.

2. Clearly the father’s behaviour unsettled Mr Austen Senior.  Soon after Z was born (in the first two to three weeks of the child’s life) Mr Austen Senior, Ms Austen Senior and Ms Austen were installing a baby capsule in the car.  The father was left to look after the new born child.  He was walking around the lounge with Z on a cushion high above his head in an insecure way near a rotating ceiling fan.  I accept his evidence of the father being careless and unthinking in terms of the child. 

3. I accept his evidence of the meeting with Ms A on the train.

Ms Austen Senior

1. Ms Austen Senior is Ms Austen’s mother.  She gave evidence in accordance with her affidavit filed 31 May 2011.  Some of her affidavit contained hearsay and I ignored that material.

2. She described the father’s refusal to provide economically for the mother and for the child, which is not in issue.

3. Ms Austen Senior described the concerns she had when the father said, bizarrely, he would need to put pressure on the baby’s head to shape it properly as the baby did not have a vaginal birth.  The father debated with Ms Austen over the matter for quite some time. 

4. She also describes other behaviour in terms of a gentle touch by Ms Austen being treated as an abuse, objections about noise, etcetera, which were, in her view unusual.

5. Whilst Z was in hospital, Ms Austen Senior, who is medically qualified in caring for children, was concerned about the father’s rough handling of the child.  Ms Austen Senior subsequently spoke to the father and showed him the correct way to hold a baby using a doll.  The father paid no attention to that assistance offered to him.

6. When Z was in hospital there was an issue about the father not being careful when Z was bathed and letting the baby’s head go under water.  Ms Austen Senior then privately tried to teach the father how to bath the child.

7. She said the father was insensitive to the needs of the mother and the baby after the baby was born, including waking up the baby when she was soundly asleep.

8. Whilst Ms Austen Senior’s evidence is supportive of her daughter and subjective, I generally accept it to be accurate.

9. Ms Austen Senior was cross-examined about regular supervised time between the father and Z.  Her view was that this would adversely affect Ms Austen.  She would have trouble coping with that arrangement.

10. Ms Austen Senior described Ms Austen’s mental health after the poem was read in October 2007 as ‘very very bad and has not been that bad since’.

Ms Delware Senior

1. Ms Delware Senior is Ms Delware’s mother.  She gave evidence in accordance with her affidavit sworn 26 May 2011.  She was frank in giving her evidence and endeavoured to answer questions directly.  I generally accept her evidence.

2. Ms Delware Senior gave answers which were clearly against her interest such as describing some events which were different to the evidence of Ms Delware.  Her evidence was of a relationship which was under stress from the time of the birth of B.

3. Ms Delware Senior gave some evidence as to the father placing his hand over B’s face, to stop her from crying, in an inappropriate way for a newborn child.  Ms Delware Senior endeavoured to remove the father’s hands but he would not listen and needed to be persuaded by her.  Another example was his suggestion to straighten B’s legs as set out in paragraph 14 of her affidavit.

4. Her evidence, which I accept, and the father’s lack of insight into parenting is of concern.

5. Ms Delware Senior was not challenged about the events at separation in cross-examination.  I am satisfied that the events describing the assault on Ms Delware Senior are as set out at paragraphs 18 and 19 of her affidavit.

6. The behaviour of the father at separation was at least bizarre but also aggressive and difficult.  I am satisfied that the father knew that Ms Delware was going to Tasmania and I accept the evidence of Ms Delware Senior at paragraph 25 of her affidavit.

7. Ms Delware Senior will be and is a significant support for her daughter and B. 

The family consultant

1. Ms O is the family consultant (“the family consultant”) who filed four affidavits.  Two in each of the proceedings.  The first set of affidavits was filed in June 2010 and the second were filed in August 2011.

2. There is no real issue as to her qualifications.  Unfortunately much of the information provided to her by the father has to be seen as unreliable.  I accept her evidence as to the manipulation of language skills by the father.

3. The family consultant recommended that B continue to live with the mother and that if the court determines that the father does not have the capacity to provide adequate and safe care then B spend no time with the father and that Ms Delware have sole parental responsibility for the child.

4. In terms of Ms Austen, the family consultant recommends that Z live with her mother and that Ms Austen have sole parental responsibility for her.  In her later report the family consultant recommends that, if appropriate, the father should have some time with Z at the N Contact Centre.  She also recommended that Z should be gradually introduced to the father, initially once per fortnight for a period of up to two hours.

Section 60CC(3)(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;

1. As I have indicated elsewhere in these reasons, the effect of supervised time on Ms Austen and consequently Z will be significant and will impact upon the ability of Ms Austen to parent Z.

2. Z does not have a relationship with the father and I have considered the impact of that circumstance upon the child.

Section 60CC(3)(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;

1. Ms Austen wants orders to enable her to relocate to northern Tasmania at her own expense.  Having regard to the proposed orders, there will be no practical difficulty and expense of Z spending time with and communicating with the father.   

2. There is no evidence that the father could afford to travel to Tasmania on regular occasions.

Section 60CC(3)(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;

1. Apart from her adverse views of the father, Ms Austen has displayed a long term capacity to care for Z and the child appears to be thriving in her mother’s care.

2. The father has not demonstrated a capacity to care for Z, albeit his limited opportunity to do so.  What care he has provided has not always been child focused and was at times inappropriate.

Section 60CC(3)(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;

1. Z has a Spanish heritage and limited steps have been taken thus far to promote that part of her culture and tradition.  The outcome of these proceedings is that the father will have no face to face time with Z and will have limited communication.

2. It is important that Z has some knowledge of the Spanish side of her family.  To that end I will make an order enabling her Spanish family to have some communication with her.  I will direct the ICL to provide details of that entitlement to Z’s paternal grandparents and aunts.  I expect Ms Austen to ensure that such lines of communication are maintained and, if appropriate, developed.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

1. I repeat the comments I have made above. The attitude of Ms Austen is generally constructive and child focussed, except in so far as the father is concerned

2. The father has demonstrated an overall poor and self centred approach to the parenting of Z.  

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family;

1. I need to deal with both families in this respect as B and Z are sisters and as such are members of each others family.

2. In terms of Ms Austen, a temporary domestic violence order was made in 2011 in Queensland on the application of Ms Austen.  That order was continued until it was dismissed later that year and had not been heard on its merits.  I am concerned that it was commenced for forensic purposes.

3. Ms Austen was assaulted on at least two occasions in early May 2007 as referred to elsewhere in these reasons.  I have detailed the findings of violence and intimidation earlier.  The father threatened Ms Austen’s brother as I have also referred to earlier.

4. Ms Delware was the subject of violence at separation and during her relationship, including at the time of separation and as set out in her 2009 application for a domestic violence order. 

5. From time to time the father uses violence and threats of violence to intimidate and control.

Section 60CC(3)(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;

1. I have referred to past orders in these reasons, there are no final orders nor are there any orders that are presently in place.

Section 60CC(3)(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;

1. In terms of this factor I have had regard and adopted the submissions of the counsel for the ICL which I have discussed earlier.

Section 60CC(4) Without limiting paragraphs (3)(c) and (i), 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, in particular, the extent to which each of the child's parents:

(a)has taken, or failed to take, the opportunity:

(i) to participate in making decisions about major long‑term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long‑term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.

1. Much of the evidence, findings and discussion have related to this factor and repeating them again serves no purpose. 

2. The father has not provided for the financial support of the children.  Yet the father still asserts (through counsel) that he is seeking orders that Z eventually spends significant time (in the general sense not defined sense) with him.  He endeavoured to send presents to the children last Christmas but has not made any real attempt to provide financial support for them either before or after separation.

CONCLUSION

1. Counsel for the ICL concluded his submissions with the following:-

   The ICL agrees with the experts in terms of the “management” of time, in the event this Honourable Court does determine that such time should occur.

   However, those recommendations are not endorsements in themselves that time should occur. The experts did not have the benefit of observing the parties in the witness box to the extent that the Court has.  It is submitted that such a question (whether time should start) will be finely balanced between the risk of emotional harm to the children from a difficult and probably inflammatory reintroduction process against the long term risks associated with exclusion of a parent from their lives.

   The ICL submits that all parents in this matter are implacably entrenched in their significantly negative views of the other parent of the opposite sex. [Ms Delware] stated she would “be petrified” if time were ordered and [Ms Austen] indicated (perhaps disingenuously[45]) she would be “a basket case” but admitted the only reason she wanted to move to Tasmania (uprooting not only [Z] but her mother as well) was to make it harder for the Father to spend time with her.  The Father is equally as scathing in his rejection of any of the complaints of the mothers as valid, yet none of the mothers were significantly challenged in terms of their allegations against him in cross examination.

   [45] I am not sure this was disingenuous, it may be ill founded or hysterically founded but I am satisfied that this belief of Ms Austen is genuine.

   Looming large against the Father is his heretofore unexplained misuse of an interpreter. Use of an interpreter when a person does not have a full grasp of the English language is acceptable, but where a person – with quite a good grasp of the English language down to the subtleties of the use of the word “naive” - employs an interpreter to engage in a “contact” observation in a family report setting thereby creating a greater level of discomfort for a child shows a startling lack of child focus.  Is the Father going to use an interpreter during the introductory phase?  The answer must be yes because he has steadfastly denied that his use of an interpreter in the past has been improper.  How these young girls are to manage reintroduction to the Father against that background is difficult to foresee.

   The ICL submits the Father’s use of an interpreter in these proceedings has been a ruse.  To the extent that it has been at the tax-payers expense is reprehensible conduct on his behalf.[46]

   The proposals of both experts set a scene whereby the future therapy and time arrangements would need to be micro managed by the Court.  The ludicrousness of the Father’s insistence of the use of an interpreter to date looms large in terms of that future management as is the itinerant and impecunious lifestyle he appears to have led to date.

   The ICL also observes that the Father’s immigration status is far from resolved.  One wonders what the emotional impact might be upon these two little girls if they commence along a path of “reintroduction” to their father only for that to cease due to his removal from the country.

   The ICL submits that the prospect of ongoing litigation would be more than likely if an interim order (in terms of the expert’s recommendations) were made.  There is a high probability (whether due to parental enmeshment or a de-compensating in parental capacity) that the children will be negatively impacted upon by further drawn out court battles.

   It is submitted that in terms of equal shared parental responsibility (and the orders that flow from equal shared parental responsibility), the presumption is rebutted. Whilst the ICL has avoided taking any view with regard to the findings the Court ought make about credit or specific allegations of one parent against the other, it is likely that the Court’s findings in terms of s60CC(3)(c), (f), (i) and (j) might militate against the Father being jointly involved in decision-making processes of the children. There was no real challenge to the parenting decisions made to date (other than exclusion of the Father).

   With some reluctance, the ICL supports an order for no time, other than “identity” communication between the Father and his family and the children. To facilitate that, each parent must exchange, and keep up to date, information regarding the current address and postal address of each other.

   The ICL considers the Father may have authority to obtain information from the children’s school about their progress and obtain also copies (at his own expense) of school reports and school photographs. There would need to be some injunction against the Father however approaching the Mothers or their usual places of employment and the children outside of the above “identity” contact.

   The proposed management suggested by the experts amounts to “micro-management”, in the ICL’s view, of the parents personal counselling and education and then the initial stages of supervised time. Those resources should be employed only where there is a semblance of a parent (or in this case all 3 parents) taking some responsibility for the present scenario and showing – even if just the slightest notion – some intention to move forward and take up that counselling or micro-management of the time arrangements.

   This is a case where there is simply no evidence of that. Accordingly, in the ICL’s view whilst the objects of the s60CC investigation ought to focus on the positives, this is a case where it is a case of weighing up all the various negatives for the children and adopting the least negative approach. The ICL submits that her proposal, while less than ideal, continues the children’s current stable living arrangements and removes the risk of an uncertain 12-24 months while their parents make, what the ICL suspects, will be a less than genuine attempt to rehabilitate their own selves.

   [46] It is right and appropriate that parties and witnesses are entitled to the use of an interpreter when involved in the judicial system, however, in this case I am satisfied that the assertion by the father that he needed an interpreter was a ruse.  As such I do not accept that he would need an interpreter if I had determined to order a reintroduction between the father and both or one or other of the children. 

2. I have set out these succinct submissions as they identify the essence of the conflict before me.  They are supported by counsel for Ms Delware and by Ms Austen.

3. Counsel for the father made different submissions and sought a different outcome.  He outlined a number of issues:-

   a)Whether the serious sexual allegations made against [the father] has any credibility.

   b)Whether the serious sexual allegations have any merit [or] enough [merit] to warrant the father never to have contact with his children.

   c)Whether [the father] is capable of handling his infant children and whether he is capable of establishing meaningful relationship with his daughters and whether he was fit to fulfil his parenting obligations.

   d)Whether [Ms Delware] lied in her oral testimony and is a credible witness.

   e)Whether the actions of [Ms Austen] in prejudicing the course of justice, by tampering with the father’s witnesses and potential witnesses, through threat or coercion should be ignored and allowed to have her request granted.

   f)Whether a final order should be made on the illogical assumption of the ICL that the father’s immigration status has not been resolved even though the decision of the Minister has been quashed in the Federal Court and the Minister has discontinued his leave for special appeal in the High Court.

   g)Whether [sic] if such order is given, and the father is allowed to remain in Australia what effect will there be on the father and the children.

4. As to ‘whether the serious sexual allegations made against [the father] has any credibility’?  It is perhaps not accurate to say whether they were credible, for as I referred to earlier the approach is as set out in B and B (1993) FLC 92-357 the Full Court (Fogarty, Baker and Purvis JJ):-

   The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   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

5. In this case it is the combination of sexualised conduct of the father to each of the children and at times their mothers, his physical and emotional abuse of the mothers, his endeavour to (and at times success in) controlling and dominating the mothers, his anger and uncontained behaviour to the mothers and to the children (as referred to in these reasons) make the father an unacceptable risk of abuse[47] or violence to the children as an unsupervised carer of one or other of them.  Each of the mothers complains that the father is uncontainable and having observed him and hearing evidence, that complaint is well based. 

   [47] Whether that abuse or violence is sexual, emotional, physical or a combination of all of them.

6. Counsel for the father submits that one of the issues is whether [the father] is capable of handling his infant children and whether he is capable of establishing a meaningful relationship with his daughters.  I have dealt with the issue of a meaningful relationship elsewhere.  As to his ability to care for the children, this needs to be seen and determined in the present and the future, having regard to the evidence from the past. The father showed poor and/or lack of knowledge and experience in terms of parenting and displayed a reluctance or even aversion in listening to and/or implementing sensible parenting suggestions.  Nothing from what I saw or heard seems to indicate any change in the father in that regard.

7. There is the question of the credit of both Ms Delware and Ms Austen, with particular criticism of Ms Delware.  I have considered and dealt with those issues earlier in these reasons.

8. The next issue raised by counsel for the father was whether the actions of Ms Austen in prejudicing the course of justice, by tampering with [the father’s] potential witnesses, through threat or coercion should be ignored and she be allowed to have her request granted.  This is a somewhat inelegantly worded submission.  The two witnesses to which Ms Austen was alleged to have ‘tampered’ with has been dealt with elsewhere and I do not accept that she tampered with the witnesses as submitted.  Ms Austen spoke to Mr E in the context set out earlier.  As to Ms A, the less said about her evidence and credibility the better.  Ms Austen was perhaps enthusiastic but there is no credible evidence that she has ‘prejudiced the course of justice’.

9. As to the final issues of ‘whether a final order should be made on the illogical assumption of the ICL that the father‘s immigration status has not been resolved even though the decision of the Minister has been quashed in the Federal Court and the Minister has discontinued his leave for special appeal in the High Court’ and ‘whether if such order is given, and the father is allowed to remain in Australia what effect will there be on the father and the children’.  I have determined this matter wholly on the basis that the father will have a continuing right to reside in Australia for the medium to long term.  The eventual outcome of his visa application is a matter for the Immigration Department and/or Tribunal, not for me.

10. Counsel for the father made submissions in relation to the credit of the father, I reject these submissions.  The father was not prevented from running his case, as was implied in the submissions and the question of the father’s ability to speak, write and communicate in English was front and centre from day one.  It was submitted that the difficulties of the father in this respect arose in the adversarial context, but this did not explain the difficulties encountered by the family consultant in contrast to the lack of difficulties with Dr V.

11. Some of the submissions by counsel for the father seemed to stretch beyond the available evidence and make conclusions without any basis in evidence.  Counsel for the father, at times, resorted to hyperbole.  He submitted that the mothers have ‘abused the due process of law including lying and false declarations, labelling [the father] with no evidence only to selfishly achieve a common goal to the detriment of the children and the father’.

12. Counsel for the father complained, in his submissions, that he did not have access to the diaries of Ms Delware prior to his cross-examination.  He submitted that this Court should only have regard to the oral testimony of Ms Delware and not the contents of the diaries.  The diaries were admitted in evidence and were available for all purposes.  It was open for counsel for the father to make submissions in relation to the diaries and, if necessary, seek leave to ask further questions of Ms Delware and/or call evidence in reply.

13. In some of his submissions, counsel for the father has endeavoured to provide evidence.  This includes some evidence about a discontinued application for leave to the High Court in the immigration proceedings, and some evidence that the father may be relocating to Tasmania.  I have not had any regard to the evidence except in so far as it was provided during the course of the hearing in appropriate form.

1. Some of his submissions verge upon being offensive and/or humiliating of one or other of the mothers.  At some levels counsel for the father was endeavouring to provide evidence of a cultural and broader nature to which I could have no regard.

2. I have not set out examples of all my criticisms, they are in any case, clear from any reading of the submissions, and are problematic.  Regurgitating them in ‘chapter and verse’ in these reasons serves no purpose.  I have endeavoured to ‘read the submissions down’ to the underlying concerns and address them in these reasons.  A failure by me to reject particular submissions should not be taken that I have accepted them.

3. The impact of the evidence from Dr V and the family consultant is that there would be a significant adverse impact on both mothers if their respective child spent time with the father.  The only way that could occur was with the complex treatment over many years as set out earlier and even this was based upon the goodwill of the parties and the willingness of the father to accept education. Neither of which is likely to occur.  That significant adverse impact upon the mothers will undermine or diminish their ability to parent each of the children. 

PARENTAL RESPONSIBILITY

1. In these proceedings Ms Austen has exercised parental responsibility for Z since her birth. 

2. Having regard to the findings of violence and my concerns about the controlling and abusive nature of the father, it is clear that the presumption under s 61DA does not apply. Even if it did apply, having regard to the evidence as it relates to the various factors pursuant to s 60CC would mitigate against the presumption applying as it would not be in the best interest of either child.

3. I have considered whether there ought to be an order for equal shared parental responsibility.  Ms Austen has not had a serious conversation with the father since May 2007.  She was upset and distressed by telephone calls made to her by the father in November/December 2011.

4. Having regard to the nature of the relationships, the evidence of Ms Austen and the evidence of Dr V it is not realistic to anticipate that these parents could communicate in any meaningful way.

5. To impose a regime of equal shared parental responsibility would essentially prevent the exercise of parental responsibility.  Having regard to the facts, findings and submissions above I am satisfied that Ms Austen should have sole and exclusive parental responsibility and such an order would be in the best interest of Z.

6. As I am making an order preventing face to face time between Z and the father and limiting other communication, there seems to be no reason why parental responsibility, exercised by Ms Austen, should not include determining where the child lives within the Commonwealth of Australia.  

7. The father has shown no inclination to move to Tasmania since separation (although his submissions assert that he will move to Tasmania if it enables him to spend time with Z and B). However, as there will be no order for face to face time such a move would be pointless. This particularly in the circumstances of the injunction that will be part of the order to enable school photographs and reports to be made available to the father. Accordingly, I will be making an order extending parental responsibility to enable Ms Austen to move from one town, state or area within the Commonwealth of Australia to another if she decides, in respect of the care of Z.

8. This approach accords with the submissions of the ICL.

TIME AND COMMUNICATION

1. Counsel for the ICL submits that there should be ‘identity’ communication between the father and his family and each of the children.  He sets out a proposal in his submissions and that was the subject of some discussion during submissions on 13 March 2012.

2. These reasons set out detailed concerns in relation to the father spending time with each of the children.  The impact of Z spending time with the father, and the resulting impact on Ms Austen is considerable.  The expert recommendations, which are not seriously challenged, are that each of the mothers would have to undergo cognitive behaviour therapy for at least ten to twelve sessions initially, followed by two years of psycho-dynamic psychotherapy.  At the same time the father would need to undertake a parenting education course specific to the developmental age of each of the children on a one on one basis with a psychologist.  Ms Austen’s evidence is that she would struggle to cope with this approach, and can only envisage doing so if she is living in close proximity to Ms Delware.  Ms Austen is Z’s primary carer and an order for time would undermine Ms Austen’s ability to parent.

3. Any initial time would need to be supervised because the father is a stranger to the children and either of them could not be left in his unsupervised care.  The supervision would need to be observed and assisted.  The supervisors would need to be both assertive and observant.

4. There is no good will on behalf of either of the mothers to the father.  They are both likely to comply with orders but are unlikely to genuinely support them.

5. I accept the submissions of the ICL that there is little or no evidence that any of the parents have the capacity to act with some form of good will towards the other.  The mothers are likely to view any therapy with anger, denial or resentment to the other and the father is likely to treat education the same way.

6. I am not confident that either mother would cope with the proposed regime or cope with the father spending time with the children.  I accept the evidence of each of the mothers as to the impact that it would have on them.

7. I conclude, in the circumstances of this case, it is not possible or feasible for time to commence between the father and the children.

8. One of the questions raised by counsel for each of the children was ‘where to from here’?  I have serious concerns about the father’s ability to care for the children and the children being at risk in his care.

9. Accordingly, having regard to all of the evidence and all of the factors, I have come to the view that there ought not to be any face to face time between each of the children and the father.

10. As I have indicated elsewhere I intend to put in place arrangements to enable there to be communication between each of the children and their paternal Spanish families.  I have requested that Legal Aid Commission Queensland fund a translation of the orders and for a letter to be sent to the children’s paternal grandparents and paternal aunts informing them of this opportunity.

11. Each of the mother’s sought an order that the children remain on the PACE Alert system.  Interestingly the father did not object to this course and there was some argument as to whether the time should be for about eight years from this time (the submissions of counsel for Ms Delware and counsel for the father) or five years, on submissions from Ms Austen.

12. In terms of Z I will put in place the order until 2017 when she will be aged approximately 10 years.

I certify that the preceding three hundred and fifty three (353) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 5 April 2012.

Associate:     

Date:  5 April 2012