Ott & Ott
[2023] FedCFamC1F 595
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ott & Ott [2023] FedCFamC1F 595
File number(s): DGC 49 of 2022 Judgment of: WILLIAMS J Date of judgment: 21 July 2023 Catchwords: FAMILY LAW – PARENTING – Where the matter proceeded on an undefended basis because the mother failed to attend – Where there are allegations of sexual abuse – Where the father has been convicted in relation to child pornography – Meaningful relationship balanced against assessment of risk – Steps to ameliorate unacceptable risk – Consideration of the allocation of parental responsibility – Consideration as to whether the children should spend overnight time with the father – Orders made for the mother to have sole parental responsibility and for the children to live with the mother and spend no overnight time with the father Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth), Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 15.19(1)(e)
Cases cited: Banks and Banks [2015] FamCAFC 36
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Division: Division 1 First Instance Number of paragraphs: 121 Date of hearing: 6, 13 July 2023 Place: Melbourne Counsel for the Applicant: Mr Devries Solicitor for the Applicant: Kaj Sharma Legal Counsel for the Respondent: Litigant in person (did not participate) Counsel for the Independent Children’s Lawyer: Ms Agresta Solicitor for the Independent Children’s Lawyer: Perry Weston Lawyers ORDERS
DGC 49 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR OTT
Applicant
AND: MS OTT
Respondent
INDEPENDENT CHILDRENS LAWYER
order made by:
WILLIAMS J
DATE OF ORDER:
21 July 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.The mother have sole parental responsibility for the children, X, born 2006 and Y, born 2010 (collectively, “the children”).
3.For the purposes of order 2 hereof before any long term decisions are made in respect of the children:
(a)The mother advise the father in writing (via SMS or email) of her proposal relating to the children or either of them;
(b)If the father wishes to comment on the mothers proposal (or has any alternative proposal he wishes to make relating to the children or either of them) he, within seven (7) days after the date of the mothers correspondence, advise the mother by reply (in the manner of correspondence sent by the mother) of his views;
(c)Upon receipt of any comment or proposal by the father, the mother give due consideration to his views;
(d)After the mother has considered the father’s comments, she may make a decision and advise the father in writing of the outcome immediately after making that decision; and
(e)If the father does not respond in writing as provided for in order 3(b) hereof, the mother be entitled to presume that the father does not wish to be involved and she may decide the issue.
4.The children live with the mother.
5.The children shall attend upon a counsellor to be nominated by the Independent Children’s Lawyer in consultation with the Family Report writer for the purpose of discussing the father’s criminal conviction and allegations of sexual offending as well as discussing protective behaviours. The mother and father shall do all acts and things necessary to facilitate this process and the father shall bear the cost.
6.X to spend time with and communicate with the father in accordance with his wishes.
7.Y to spend time and communicate with the father as follows:
(a)Immediately upon the Court making these orders until the conclusion of therapeutic intervention provided for in order 5 hereof:
(i)Each Saturday from 9.00am to 5.00pm.
(b)After the conclusion of therapeutic intervention provided for in order 5 hereof, and subject to Y’s wish to see her father:
(i)Each alternate weekend from 9.00am to 5.00pm on Saturday and Sunday;
(ii)Each Wednesday evening from the conclusion of school until 8.00pm for dinner.
Commencing with the long summer holidays in December 2023 and each long summer holiday thereafter:
(iii)Four days once a fortnight from 9.00am to 5.00pm by agreement or in the absence of agreement, for the first weekend of each month and Monday and Tuesday thereafter, continuing each fortnight until the end of school holidays.
Commencing with the first term holidays in 2024 and each term holiday thereafter:
(iv)Four days once a fortnight from 9.00am to 5.00pm by agreement or in the absence of agreement, for the first weekend of each month and Monday and Tuesday thereafter, continuing each fortnight until the end of term holidays.
Special Occasions:
(v)From 9.00am until 5.00pm on Father’s Day should it fall on a day when Y is not otherwise spending time with the father;
(vi)From 9.00am until 5.00pm on the father’s birthday if a non-school day, or from the conclusion of school until 8.00pm should it fall on a day when Y is not otherwise spending time with the father pursuant to these orders;
(vii)From 10.00am until 4.00pm on Christmas Day 2023 and each alternate year thereafter;
(viii)From 10.00am until 4.00pm on Boxing Day 2024 and each alternate year thereafter.
Communication:
(ix)Contact by telephone at any reasonable time and with Y to be free to contact her father by telephone, text or FaceTime at any reasonable time.
8.The fathers time with Y be suspended as follows:
(a)From 9.00am until 5.00pm on Mother’s Day should it fall on a day when Y is not otherwise spending time with the mother;
(b)From 9.00am until 5.00pm on the mother’s birthday if a non-school day, or from the conclusion of school until 8.00pm should it fall on a day when Y is not otherwise spending time with the mother pursuant to these orders.
9.The parties notify the other party of any serious illness or injury sustained by the child while in their care that requires the attendance upon a medical professional.
10.The parties notify the other party of any change of residence, telephone number or email address within forty eight (48) hours of such change.
11.That each of the parties are entitled to attend all school functions, school events and extra-curricular activities and be entitled to receive copies of all newsletters, notices, photographs, school reports and other school information usually provided to parents.
12.That the father forthwith attend upon a psychologist at C Psychology to explore the issues referred by in the report of Dr D filed in these proceedings and the father is permitted to provide a copy of Dr D’s report to the psychologist along with a copy of the Family Report prepared by Ms E dated 15 July 2023 and a copy of this order and reasons.
13.The father is restrained by injunction from consuming alcohol whilst the children, or either child, are in his care pursuant to this order.
14.The parties be restrained by injunction from:
(a)Denigrating the other parent or the other parent’s family to the children or in the presence or hearing of the children or allowing any other person to do so;
(b)Discussing these proceedings or any other court proceedings or documents from these proceedings or any other court proceedings with the children or allowing any other person to do so; and
(c)Using the children to transfer messages from one parent to the other or from other family members to the parent or allowing any other person to do so.
15.The mother continue to engage with her support services as recommended and follow all reasonable recommendations.
16.Pursuant to s 68Q Family Law Act 1975 (Cth), to the extent that a Family Violence Intervention Order is inconsistent with this order concerning a person spending time with a child, the Family Violence Intervention Order is invalid.
AND THE COURT FURTHER ORDERS THAT
17.The Independent Children’s Lawyer forthwith serve on the mother via her usual email address, a sealed copy of the orders and a copy of these reasons.
18.Upon compliance with orders 5 and 17 hereof, the order appointing the Independent Children’s Lawyer be discharged.
19.All extant applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ott & Ott has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
The applicant is the father and the respondent is the mother of the children, X, born 2006 and Y, born 2010.
On 10 January 2022 the father filed an Initiating Application in the Federal Circuit and Family Court of Australia seeking parenting orders, which he did not particularise. On 28 February 2022, the mother filed a Response to Initiating Application seeking the children live with her and she be excused from particularising final orders until the production of a Family Report and psychosexual and psychiatric assessments. She also filed an affidavit and Notice of Child Abuse, Family Violence or Risk. On 7 March 2022 orders were made in chambers transferring the proceeding to this court because of allegations of sexual abuse warranting referral to the Magellan registrar for inclusion in the Magellan protocol.
On 30 May 2023 the father filed an Amended Initiating Application seeking the parents have equal shared parental responsibility for the children and the children live with each parent on a week about basis. The mother did not file an Amended Response.
The matter was listed for trial on 6 and 13 July 2023, to accommodate the father’s medical commitments.
On 6 July 2023 the mother did not appear at the trial. Both counsel for the father and counsel for the Independent Children’s Lawyer sought that the matter proceed on an undefended basis and the court make final parenting orders pertaining to the children, which is what occurred.
SHOULD THE MATTER PROCEED UNDEFENDED?
The mother has not filed any documents in the proceeding since 23 May 2022 when she filed an affidavit, Financial Statement and Outline of Case for an interim hearing. She did, however, participate in a Family Report interview with the children on 19 May 2023.
On 16 February 2023 procedural orders were made at a case management hearing fixing all applications for trial before me on 6 and 13 July 2023 at 10.00am. Orders were also made providing for the filing of affidavits and other documentation in anticipation of the trial. At the case management hearing, the father appeared on his own behalf and the Independent Children’s Lawyer also appeared. The mother did not attend. Paragraph 14 of the orders made on that day provided for the Independent Children’s Lawyer to forthwith serve on the mother a copy of orders made that day together with a letter explaining the s 102NA scheme and the requirement for her to apply to Victoria Legal Aid. An order pursuant to s 102NA (2) of the Family Law Act 1975 (Cth) had previously been made in the proceeding.
On 30 May 2023 the father filed an Amended Initiating Application and affidavit. He filed an Outline of Case on 4 July 2023. The Independent Children’s Lawyer filed an Outline of Case on 5 July 2023. The mother did not file any documents in accordance with the procedural orders of 16 February 2023.
Because the mother did not attend court on the morning of 6 July 2023 she was called at 10.30am, with no response to the call. Shortly thereafter, the court attempted to call the mother via telephone on her number recorded with the court. The call went unanswered.
Both counsel for the father and counsel for the Independent Children’s Lawyer advised that the mother had been served with documents at the time of filing, although affidavits of service had not been filed. On 6 July 2023 the father’s lawyers filed an affidavit of service, as did the Independent Children’s Lawyer on 10 July 2023. The affidavit filed by the Independent Children’s lawyer also deposed to advising the mother of the procedural orders made on 16 February 2023 and annexed a letter to the mother dated 20 February 2023 in compliance with paragraph 14 of the procedural orders. A further letter to the mother dated 22 June 2023 was annexed to the affidavit of service. That letter again advised the mother of the date of the final hearing and enquired whether she intended to appear at the trial or apply for legal aid. No response was received from the mother.
On 5 July 2023 the Independent Children’s Lawyer served on the mother via email a copy of the Outline of Case and copy of a minute of proposed orders.
I am satisfied the mother was aware that a defended hearing of the father’s final orders application was fixed for determination on 6 July 2023 and she decided not to participate in the trial. I am also satisfied she was aware of her ability to obtain legal representation pursuant to s 102NA (2) of the Family Law Act 1975 (Cth), however fail to avail herself of that legal representation.
At the conclusion of the hearing on 6 July 2023 I advised both counsel that I would order a transcript of the day’s proceedings to be made available to all parties. I also requested the Independent Children’s Lawyer to forward by email a copy of the transcript to the mother so she would be aware of what had transpired on the first day of the trial. On 13 July 2023 when the trial continued, counsel for the Independent Children’s Lawyer confirmed a copy of the transcript had been emailed to the mother.
On the morning of 13 July 2023 the mother was called at 10.07am and there was no response to the call.
The current litigation pertaining to the children has been ongoing since January 2022 and it is in the interests of all parties, particularly the children, that a final determination of parenting arrangements is made without further delay.
I am satisfied the mother had adequate notice of the orders sought by the father and the Independent Children’s Lawyer and it was appropriate to proceed in her absence and I rely on r 15.19(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to enable the trial to proceed.
ISSUES IN DISPUTE
The following issues were the subject of dispute between the parents:
(a)The allocation of parental responsibility for the children;
(b)The living arrangements for the children which requires a determination of whether the father poses an unacceptable risk to the children in the future if his current time with them is increased;
(c)If the father poses an unacceptable risk to the children, what steps can be taken to ameliorate that risk.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The father is aged 56 and the mother is aged 53. The parties commenced a relationship in 2005 and married in 2006. According to the father, they separated under the one roof in June 2010 and he vacated the family home in October 2021. The oldest child is now aged almost 17 years and the younger child is aged 13 years.
The father was previously married and has two children from that relationship, both of whom are adults and with whom he has no current relationship.
The father, and subsequently the mother, have had a long and involved history with child protection as detailed in the Magellan Report dated 5 May 2022, which is referred to in greater detail later in these reasons.
The mother has made allegations of family violence against the father, which he denies in his affidavit, but which are referred to in great detail in the Magellan Report. On 8 November 2022 a risk report was prepared by Dr D and a Family Report was released on 26 June 2023.
Subsequent to the father’s application to the court, orders were made by consent on 20 July 2022 for the father to spend time with the children, initially supervised by the paternal grandparents. The children currently spend time with the father each Saturday from 9.00am to 5.00pm, which is not supervised.
THE PROPOSALS OF THE PARTIES
The father’s proposal
Prior to the commencement of the trial, the father filed an Outline of Case which set out the final orders he sought. Shortly after the trial commenced, it was briefly adjourned and a minute of proposed orders agreed between the father and the Independent Children’s Lawyer was provided to the court. On the second morning of the trial, counsel for the father submitted a further minute of proposed orders sought by the father. A copy of that minute is Annexure “A” to these reasons.
The mother’s proposal
Because the mother did not file any material for the trial and her comments are recorded in the Family Report, I proceeded on the assumption the mother sought the current orders which were made by consent in July 2022, should continue.
The Independent Children’s Lawyer’s proposal
On the second morning of the trial, counsel for the Independent Children’s Lawyer also submitted a revised minute of proposed orders. A copy of that minute is Annexure “B” to these reasons.
Documents relied upon by the parties
The father relied upon the following documents:
(a)Outline of Case document filed 4 July 2023;
(b)Amended Initiating Application filed on 30 May 2023;
(c)Affidavit of the applicant filed 30 May 2023;
(d)Report of Dr D dated 8 November 2022 and filed 14 November 2022;
(e)Magellan Report dated 5 May 2022;
(f)Family report of Ms E filed 26 June 2023;
(g)Documents tendered by counsel, including documents produced pursuant to subpoena.
It is not possible to ascertain which documents the mother sought to rely upon as she did not attend the hearing. The Family Report writer, however, states that the mothers’ proposal for the children’s time with the father is in accordance with the existing orders made by consent in July 2022. The mother previously filed an affidavit and Notice of Child Abuse, Family Violence or Risk in February 2022 and a further affidavit on 23 May 2022. It is necessary to consider her previous affidavits in order to properly consider the risk and allegations levelled at the father.
The Independent Children’s Lawyer relied upon the following documents:
(a)Outline of Case document filed 5 July 2023;
(b)Report of Dr D dated 8 November 2022 and filed 14 November 2022;
(c)Family report of Ms E filed 26 June 2023;
(d)Magellan Report dated 5 May 2022;
(e)Documents tendered by counsel, including documents produced pursuant to subpoena.
The following documents were tendered during the course of the trial:
Exhibit Number
Description
A - 1
Copy of letter from VicRoads regarding father’s driver’s licence, dated June 2023.
ICL - 1
Magellan Report, dated 5 May 2023. Tendered by consent.
ICL - 2
Documents produced pursuant to subpoena by Victoria Police. Tendered by consent.
Evidence
The standard of proof in this case, as to what did or did not happen in the past, is the balance of probabilities (Evidence Act 1995 (Cth) s 140).This standard of proof does not apply when hypothesising about future possibilities: see Isles & Nelissen [2022] FedCFamC1A 97.
Section 140 of the Evidence Act 1995 (Cth) provides:
(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 that the 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.
In this trial, counsel for the Independent Children’s Lawyer cross-examined the father. Her cross-examination was comprehensive and helpful. I was left with the impression that the father was engaging in impression management and minimising the extent of allegations which had been levelled against him. He attempted to provide answers in a manner that he perceived would be most advantageous to his case and at times had to be asked multiple questions to ascertain what was actually required to adequately answer the question. He attempted to create the impression of a measured and mild personality, which was at serious odds with the assessment of his conduct in the Magellan Report, which he relied upon, and the identification by both children to the Family Report writer that their parents had a volatile and tempestuous relationship. An example of his attempt at impression management was his evidence of how he had informed both X and Y about his prior conviction relating to child pornography and the allegations of sexual assault of the two older children. That evidence is directly at odds with X telling the Family Report writer that no one had provided him any information as to why he wasn’t spending time with his father. For these reasons I do not consider him a particularly candid or forthright witness and have considerable reservation about the veracity of his evidence.
Neither counsel required the Family Report writer for cross-examination. I accept her evidence as unchallenged.
THE LEGAL PRINCIPLES APPLICABLE TO PARENTING DISPUTES
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the court to include in the order any necessary safeguards.
I have considered all relevant sections of both s 60CC(2)(a)(b) and s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks and Banks [2015] FamCAFC 36. The relevant sections, which are referred to in these reasons are s 60CC(3)(a),(b),(c)(f)(g)(i) and (j).
As far as parental responsibility is concerned, s 61DA provides that when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for equal shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person. In this case, the mother seeks an order for sole parental responsibility and the father seeks an order that the parents have equal shared parental responsibility.
How the Court approaches allegations of unacceptable risk
The High Court of Australia in M v M (1988) 166 CLR 69 (“M v M”) at [76] said notwithstanding allegations of sexual abuse, the Court’s obligation is to determine what orders are ultimately in the children’s best interests. The Family Court is not required to resolve in a definitive way the disputed allegations of sexual abuse as a court exercising criminal jurisdiction would if it were trying a party for a criminal offence, although in appropriate cases the court can and should make such findings.
Recently, in Isles & Nelissen [2022] FedCFamC1A 97, the Full Court of this Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) at [50], agreed with and adopted the commentary of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”).
Simply put, the Court is required to make factual findings about past relevant disputed events to the requisite standard of proof and then on the basis of those findings and other relevant considerations, predict the level of future risk to a child.
Allegations of risk
The father asserts the mother’s care of the children exposes them to risk of emotional and social harm. Despite those allegations, he did not propose that the mother should not be the children’s primary carer, but rather that his time with the children should be increased to reduce their exposure to the risks the mother poses.
Paragraphs 42 to 47 of the father’s trial affidavit refer to his concerns about the children in the mother’s care. These include the mother accusing X of alcohol consumption, X’s poor performance at school and his desire to drop out and commence a business, lack of emotional and psychological support from the mother and the mother’s reluctance to facilitate psychological intervention for X. In his trial affidavit, the father denies the allegations of family violence levelled against him by the mother, despite relying upon the Magellan Report which details substantiated family violence perpetrated by the father.
In material previously filed by the mother, she asserts that the children and herself experienced family violence perpetrated by the father in the form of economic, physical, sexual and emotional abuse during the relationship and subsequent to it.
Paragraphs 12 to 18 of the mothers affidavit filed 28 February 2022 detail the circumstances of an intervention order obtained by her and depose to her having applied for multiple intervention orders since 2010 to protect herself and the children from the father. Paragraphs 19 to 25 of that affidavit particularise her allegations of controlling behaviour and paragraphs 26 to 29 particularise her allegations of economic abuse.
The mother alleges the father failed to disclose his conviction relating to child pornography to her in addition to the allegations made against him about his sexual abuse of his two older children. She deposes to learning of this via child protection officers in 2010, five years into their relationship, after the father breached a Family Violence Intervention Order. At paragraphs 35 to 36 she refers to child protection having advised her in 2021 that it would not support the father having unsupervised time with the children or having the paternal grandparents supervise the children. At paragraph 37 she refers to an incident which she alleges occurred in 2011 where subsequent to watching a movie with the father, there was another recording at the end “showing a baby girl with adult fingers poking the baby’s vagina”. She alleges the father quickly got up, took the disc and destroyed it.
She also alleges the father “would always try to walk into the bathroom constantly whenever the children were using it” and that he refused to put a lock on the bathroom door when requested by her.
The mother refers to an incident which she alleges occurred in 2019 when she saw sex toys on Y’s car seat and female underwear in a child’s size on the driver’s seat in the father’s car. Upon her questioning the father, the father asserted the underwear had been bought for her, despite not being the mother’s size.
At paragraphs 40 to 45 the mother particularises her claims about the father’s unorthodox behaviour with Y. These include observing the father taking photos of Y’s vagina in the hospital when she was born, in 2011 when she was absent at a driving lesson X told her the father had opened Y’s nappy while she slept, for the past five years on multiple occasions the father held Y’s breasts through her top saying there is ‘something on her top’, in 2021 kissing Y on the lips multiple times and again the following month, when Y ran away from him.
At paragraphs 46 to 55 she deposes to her concerns about the father with X including the maternal grandfather observing the father bath X and seeing the father play with X’s penis, the father taking X to buy underwear despite not being necessary and the father permitting X to drink alcohol. The mother also expresses her concerns that the father regularly purchases expensive items for the children to control their behaviour, which she alleges is grooming and an attempt to alienate the children from their mother.
I am cognisant that neither counsel was able to cross examine the mother and test these claims, I do not make any findings about these allegations. They remain allegations.
The Magellan Report
On 7 March 2022 a registrar made an order requesting a Magellan Report in response to the Notice(s) of Child Abuse, Family Violence or Risk filed in this proceeding. On 5 May 2022 the final report was provided by the Department of Families Fairness and Housing (“the Department”). The report was relied upon and tendered by counsel for the Independent Children’s Lawyer as Exhibit ICL-1. It was also relied upon by the father, as listed in his Case Outline. The report details the involvement of child protection as set out in the following paragraphs.
The first involvement occurred in 1998 when a notification was made that the father had sexually abused the child of a family friend. That report also triggered the first intake report for the father’s two older children. The concerns that the two older children were at risk of sexual harm were substantiated by the Department and a Protection Application was issued in the Children’s Court. During the course of those proceedings, a psychosexual risk assessment was completed by Dr B. The Departments’ Protection Application was dismissed by the Children’s Court, despite the Department asserting deficiencies in the report of Dr B due to a lack of access to relevant information.
In 1999 a notification was made that the father’s eldest daughter had made disclosures that he had touched her vagina with his hand on a number of occasions and that she had licked and bitten his genital area. These disclosures were investigated by Victoria Police and child protection. A Protection Application was issued and dismissed because the court had concerns leading questions had been used in interviews with the children.
In 2001 a notification was made to the Department alleging the father had sexually abused his oldest son during a unsupervised access visit. During an interview conducted by the Sexual Offences and Child Abuse Unit (SOCAU) the child disclosed he “hates” his father because his father “sucks [his] wee wee all the time” and that these acts occurred “at night time”. The child also disclosed to staff members at his childcare centre that his father had sexually abused him. The allegations were unable to be substantiated because the child did not make any disclosures during a VATE interview. The child’s mother sought any contact between the child and his father be supervised.
In 2002 the father was charged and convicted in relation to child pornography, was placed on a Community Corrections Order and was directed to complete a sex offenders program, including participating in any recommended treatment. I refer to the father’s evidence about this later in these reasons.
In 2006, when X was eight days old, a notification was made about concerns for X being at risk of sexual assault by the father because of the father’s alleged offending history against his older children and conviction relating to child pornography. The report states that it is unclear whether those allegations were substantiated.
In 2010 a further notification was made in relation to both children. At that time X was three years old and Y was less than six months old. The notification alleged the father was socially isolating the mother, financially controlling her and verbally abusing her. The mother obtained an intervention order including conditions that the father not consume alcohol nor commit family violence. The concerns were substantiated by the Department and the mother was linked into community support services and the father was required to attend counselling.
In 2020 a further notification was made raising concerns about the well-being and safety of X and Y, after X presented at hospital with an injury to his penis. The case was closed at intake with no further action as it was found that X had suffered from a medical condition.
In 2021 a further report was received in relation to X and Y whilst in the care of their father, when the mother was hospitalised due to a freak accident. In caring for the children overnight, the father contravened a pre-existing safety plan which had been developed by the Department and the parents in 2020 requiring the father’s time with the children to be supervised. When the safety plan was created, it was assessed that the father posed a risk of sexual harm to the children, the children would also be at risk of family violence, and doubts were raised about the father’s physical capacity to care for the children due to his health concerns. The Department substantiated the risk and a Protection Application was issued in the Children’s Court. The children were referred to an adolescent support program and the mother was referred to F Services for family violence counselling.
During the Children’s Court proceedings a further report was obtained from Dr B and at a directions hearing each parent provided undertakings to resolve the matter. The mother provided undertakings to ensure she engaged with F Services and family violence services, would not expose the children to family conflict and would refer the children for counselling if the need arose. The father agreed to undertakings to ensure he did not expose the children to family conflict and would refer the children for counselling if the need arose.
Later in 2021 a further notification was received by the Department alleging the father had attempted to kiss Y on the lips and touch her breast/chest area when he was intoxicated. This occurred on the evening the undertakings were given to the Children’s Court and child protection had withdrawn. The mother obtained an intervention order against the father, which included the children as affected family members and concerns relating to family violence were substantiated.
When Y was interviewed she did not make any disclosures about sexual harm, however, she had been crying and reported she was scared of her father when he yells at her and the previous day he had yelled at her and thrown things towards her. X also reported the father yelled at them. The case was closed because the father had been excluded from the family home which reduced risk of exposure to family violence and sexual harm.
As to the concerns identified by the investigation, the Magellan Report dated 5 May 2022, page 10 states:
It is concerning that both parents denigrate each other in front of the children and that neither parent is taking responsibility for the Family Violence that has occurred in the home and that the children have been exposed to these harmful events. [Mr and Ms Ott’s] contempt for each other has had a significant negative impact on the functioning of the family and in turn a negative impact on the childrens emotional wellbeing. [Ms Ott] presents as rigid in her approach to parenting, and it will be difficult to effect change in her parenting style; however, it does appear possible given the recent changes in mobile access for [X]. [Ms Ott’s] fixation on the paternal family’s thoughts and how they treat her may potentially be clouding her judgement around contact between the parental family and the children. The contact between the children and the extended parental family can be separate from [Mr Ott’s] contact with his children.
[Y] has disclosed that her father, [Mr Ott] is touching her breast with his index finger when she reports there is no need for that to occur, it is possible that this is a technique used to groom [Y] with respect to [Mr Ott] touching her breast. [Mr Ott] continues to choose not to engage with the Department and he has not at any point taken responsibility for his actions with respect to the child pornography conviction. [Mr Ott] blames everyone else for the family situation and it is unlikely that he will make any changes to his behaviour without him being able to take responsibility for his actions or acknowledging the harmful effects of his behaviour has had on [Ms Ott] and the children.
The outcome of the Department’s assessment is outlined on page 11 of the Magellan Report as follows:
The children have disclosed that when their parents lived together, they were exposed to their parents denigrating each (sic) and exposed to ongoing parental conflict. Neither parent has taken responsibility for perpetrating Family Violence to which the children were exposed to. The risk for the children would further increase if [Mr Ott] was in the home due to the concerns the children would be at risk of sexual harm. The Department has assessed that the children, would be at risk of sexual harm, given that [Mr Ott] past conviction [relating to] Child Pornography, the allegations of sexual assault made by his older children, and concerns raised by a family friend. [Mr Ott] is yet to take responsibility for his actions with respect to the Child Pornography conviction.
Report of Dr D
During these proceedings Dr D, clinical psychologist, prepared reports about both parents which are annexed to his affidavit filed 10 November 2022.
Neither counsel sought to cross-examine Dr D and I accept his evidence as unchallenged. In particular, I accept his assessment that the father’s psychological and psychosocial risk factors are estimated to fall in the moderate risk range and his opinion that the father’s progression to unsupervised time would require demonstration of cooperation with services and progress in treatment, neither of which occurred prior to the July 2022 consent orders. It would also require a positive response from the children with respect to their interactions.
Discussion and conclusion as to risk
In conclusion, I consider the mother does present with challenges managing the children and the dynamic between the children and their mother could be perceived by the children as the mother attempting to control them and when they react, they lash out at her. She and the father have very different parenting styles and expectations, as identified by the Family Report writer. I also accept that she has difficulties in engaging with family support services and counselling due to previous bad experiences. However, I do not consider her conduct warrants a finding that she poses a risk to the children. In reaching that conclusion I have had regard to the statements of the Family Report writer about the mother’s parenting style, including that she considers the children require structure and boundaries, monitoring with the electronic devices and online participation as a way of protecting them and her recognition that as the children are progressing into adulthood they required role modelling. I agree with those sentiments. All those comments demonstrate some insight into the parenting of teenagers and managing challenging behaviour of children who seek to push boundaries and restrictions. I do not necessarily consider imposing boundaries and restrictions on children’s access to electronic equipment and socialising as hampering the children’s emotional and academic development, as alleged by the father. I also take into account the father’s comments to the Family Report writer that he accepted the mother had relaxed her restrictions and was allowing X more time away from home. I am also cognisant that the mother has been the children’s primary carer since physical separation, with them spending limited time with the father.
As to the father, both counsel conceded in their final submissions that the trial proceeded on the basis the father presented as a risk to the children, particularly Y, however measures could be implemented to ameliorate that risk. Bearing in mind, the lack of participation by the mother and the absence the evidence of persons involved in the historical events, such as the father’s first wife and the mother of the child who accused the father of molesting her child, it is impossible to make factual findings about those events which occurred many years prior. Notwithstanding that difficulty, it was submitted, and I agree, I should have regard to the following factors, with regard to past events:
(i)The father’s conviction relating to child pornography;
(ii)The allegations of sexual abuse levelled against the father in relation to the child of his friend in 1998 and his older daughter in 1999, which are referred to in the Magellan Report;
(iii)The father’s reliance on the contents of the Magellan Report.
It is obviously not necessary to make any finding about the existence of the father’s conviction as it is an agreed fact. However, what appears to be disputed by the father in his evidence, is whether he knew about the images on his computer.
In the current proceedings the father acknowledges his conviction however maintains that he pleaded guilty because he was unable to afford legal representation and that he was not guilty of the charge. His evidence was that he had never viewed the images which were found on his computer and he believes they were planted on the computer without his knowledge in the context of an acrimonious separation from the mother of his older children.
Subpoena to Victoria Police were issued by the Independent Children’s Lawyer and the requested documents were produced in response. Counsel for the Independent Children’s Lawyer reviewed the documents which were tendered by consent as Exhibit ICL-2.
The documents produced pursuant to subpoena include the Victoria Police LEAP Intent to Summons Report dated 1998. The documents state there were two potential charges against the father for an indecent act with child; one relating to an unknown child and the other relating to his older daughter, although the charges were not authorised due to insufficient evidence.
The Victoria Police LEAP Sub Incident Report dated 2001 states:
To apply for 465 warrant a defendant’s address to seize computer for examination. Then to interview defendant re these offences.
Noted
[…] 2001 executed section 465 warrant a defendant’s address. Seized computer and accessories/diskettes/etc. Computer previewed by [Officer G] of CCIS. Located numerous pictures of naked children/child porn. Arrested [Mr Ott] and conveyed […] for interview. [Mr Ott] made a no comment interview. Even though indisputable evidence put to him. Fingerprinted and photographed.
It’s submitted. Two briefs to be submitted one for sex ofences [sic] on victim and one [relating to] child porn.
Supp report from […]
Additional sub incident to be added to incident no: […]. Computer and accessories seized to be examined by CCIS re […] child pornography. Pending result of examination.
Noted
Offender sup report by […]
[…] – matter not authorised all parties notified.
The father did not depose to ever having being interviewed about sexual assault of a child and his older daughter in either of his affidavits filed in the proceedings nor in his oral evidence. The LEAP report refers to “indisputable evidence” put to the father in relation to the child pornography charges.
The father was cross-examined by counsel for the Independent Children’s Lawyer about the circumstances of the conviction and my overall impression was that he sought to downplay the conviction, absolve himself of any responsibility and persuade the court that he had no involvement in either accessing or viewing the child pornography images. I find that to be most unconvincing and do not accept the father would plead guilty to such serious charges, undertake community service, nor engage in a sex offenders program if he genuinely had a defence to the charges. I also note the comments in the Magellan Report, relied upon by the father, that he is yet to take responsibility for his actions with respect to the child pornography conviction.
During his final submissions, counsel for the father most appropriately submitted the father cannot resile from his conviction and that he pleaded guilty to each element of the charge and “he cannot walk away from that”.
I also find on the basis of the Magellan Report relied upon by the father, the LEAP records dated 1998 (Exhibit ICL-2) and the father’s own evidence in his trial affidavit, that in 1998 there were complaints made about the father and his alleged sexualised conduct towards two children, including his older daughter, with whom he has no present relationship. I am cognisant the father was not charged with the sexual assault of the two children with the reason stated in the police records being insufficient evidence, which I understand to be the lack of disclosures by the children, as referred to in the Magellan Report.
On the basis of acceptance of these events, and the separate and distinct enquiry into the possibility of future risk, I have had regard to the following:
(i)The assessment of Dr D that the father presents as a moderate risk;
(ii)The father’s lack of insight into his past offending;
(iii)The father’s attempts at diminishing responsibility for past actions;
(iv)The father was required to complete a sex offenders course post-conviction and that has not moderated his attempt to diminish responsibility or improved his insight;
(v)The father’s evidence which conflicts with contemporaneous documents vis‑à‑vis the subpoenaed documents from Victoria police;
(vi)Child protection has in some instances substantiated the concerns expressed in the notifications, albeit Children’s Court proceedings have not been successful;
Because of the difference of both children in age, maturity and capacity to self-protect, I consider it appropriate to assess the potential risk to each child individually.
Despite my taking into consideration the past events referred to in these reasons and the factors relevant to assessment of future risk, I do not consider the father, particularly with his current serious health problems, to be a current risk to X. That is because X is a nearly 17 year old male teenager, who is vocal, seems opinionated and is passionate about a martial art. I consider he is well equipped to act defensively and protectively should the father attempt to engage in inappropriate or sexualised behaviour with him, particularly once the father’s conviction and history of allegations of sexual assault of children is made known to X. I also accept the reality that X is likely to take matters into his own hands and spend time with both parents in the future, as he deems fit.
I find the father poses a risk to Y because of the risk factors referred to in the preceding paragraphs. Whilst there have been two sets of Children’s Court proceedings pertaining to the two older children, and both have been dismissed, that in itself does not provide me with significant comfort about the father’s conduct. I do not accept his denials about the circumstances of him pleading guilty to a charge relating to child pornography in 2001, particularly because of the contradictory documents produced by Victoria police in response to a subpoena, and because of the father’s obvious attempt to minimise his involvement in extremely serious charges relating to child pornography and his failure to mention the other charges of sexual assault which were eventually withdrawn. As I remarked earlier, it is inconceivable someone in the father’s position would voluntarily plead to such a charge, which, if it had occurred subsequent to 2004 would have led to him being placed on the sex offenders register, and moreover carrying out several hours of community service which was imposed on him.
I find the father continually sought to minimise the issue of his conviction and to rationalise the allegations of sexual abuse of the older children on the basis of a vicious and vindictive former partner. He did not accept responsibility for his actions nor appear to demonstrate much remorse, other than the possible impact on these current proceedings with the two younger children. I do not accept his explanation that the children are aware of his past offending and allegations involving the two older children. His explanation in this regard was completely unconvincing and at odds with the comments of the mother to the Family Report writer that the younger children were unaware of the allegations and conviction of their father.
The Family Report writer refers to the father’s lack of acknowledgement of his past conduct and conviction as possibly an attempt to avoid taking responsibility for his offending behaviour. If that were the case, then it would be difficult for him to engage meaningfully in any programs to address his behaviour in the risk of reoffending remains. The father’s oral evidence was that he had attended upon a therapist subsequent to his conviction but did not impress me as having insight as to the benefits of that therapy. I agree with the comments of the Family Report writer in this regard.
In addition, the Family Report writer refers to the allegations of sexual abuse of the fathers younger children and a friends child, as well as the mother’s allegations that he was sexually abusive towards her and opines that if those allegations are found to be true, it raises concerns about whether the father truly understands the impact of his actions and his ability to conform to societal norms regarding sexual propriety. I agree those matters are serious concerns, notwithstanding the mother did not participate and was not available for cross-examination.
I also have had regard to the assessment of Dr D that the father presents as a moderate risk of sexual reoffending and his recommendations for the father to engage in therapy prior to unsupervised time taking place, which has not occurred.
During final submissions both counsel directed my attention to paragraph 131 of Dr D’s report in which he opines the father’s risk of offending could be assessed as low “in the context of an absence of extensive empirically-supported risk markers and the literature with regard to those who exclusively offend through accessing CEM online”. However, despite those comments Dr D concludes that his risk is moderate, not low, and comments on the father’s limited insight and his denial or minimising of his conduct. I accept the assessment of the father’s risk as moderate, as stated in the report. Dr D could have moderated his level of assessment after considering those factors referred to, but he did not.
I consider that risk to be too high to make orders providing for a 13 year old girl to spend overnight unsupervised time with the father. I’m also concerned that the father has not sworn any affidavits directly denying and particularising each and every allegation provided by the mother in her first affidavit. The father also denied in his affidavit that he had perpetrated family violence throughout the course of the relationship, contrary to the statements in the Magellan Report, which he relied upon, and contrary to the statements in the Family Report, including those of the children.
Are there any steps be taken to ameliorate the risk the mother poses to the child?
In the Family Report, the writer identifies possible protective measure which could ameliorate the risk the father poses to Y. As the children’s lack of knowledge about the father’s previous conviction and allegations of sexual impropriety does little to mitigate the future risk for the children, informing the children of the father’s historic allegations is a means of protecting them from potential grooming, although it may adversely impact on the children’s positive relationship with their father. The need to protect the children and enhance their capacity for self-protection, however, clearly outweighs any impact on their relationship with their father. According to the Family Report writer, the information could be provided to the children in a therapeutic and child-centred way in order to prevent traumatising the children and it would also be important for the children to be provided with information on grooming, safe touching and consent. Such an explanation would also benefit the children’s understanding of why their mother has been perceived to be overly protective and possibly reduce their resentment towards her for such behaviour and build a more positive relationship between the children and their mother in the future.
I do not accept the father’s evidence that he has provided an adequate and fulsome explanation to the children of his past offending and the sexual abuse allegations. I do so because of my comments about the father’s attempts to minimise matters adverse to himself in his case and to attempt to present himself in the most favourable and neutral manner possible. He does not seem to possess the emotional intelligence to have objectively told the children what has occurred in the past. I have also considered X’s statements, as noted in the Family Report, that he did not know why he did not see his father for a period of time. It would have been self‑evident to teenage children why that would be so, had they been informed of the father’s history.
It is ironic that the father proposed in his first minute of orders that the children undertake therapy to be provided with an explanation of his past conduct and conviction, as recommended by the Family Report writer, but once it was apparent the Independent Children’s Lawyer did not initially share that view, he opportunistically adapted his proposal to reflect this. During cross-examination by counsel for the Independent Children’s Lawyer, the father consented to such orders being made and indeed reinstated that proposal in his final minute, as did counsel for the Independent Children’s Lawyer.
Dr D recommended that the father engage in therapy to address his lack of accountability and I agree this would be an additional possible protective factor. I will make an order to this effect, as proposed by both the father and the Independent Children’s lawyer.
Another obvious step to mitigate any risk is for time between the children and their father to be supervised. In circumstances where the children have spent unsupervised day time with their father since July 2022, and the mother’s proposal is that should continue, I do not intend to reintroduce supervised time for the children.
What time between the children and their father is in their best interests?
It is abundantly clear from the Family Report that the children have a good relationship with their father and they are clear in their express wishes to expand that relationship and spend more time with him. Whether they will remain of the same view subsequent to being informed of his past conviction and allegations remains unknown.
There is a degree of futility in making orders regulating X’s time with his father, as he is nearly 17 years old and is in his late adolescence. According to the Family Report writer, that “is a developmental stage in which [X] is asserting himself in his environment and trying to find his way in the world and it is normal for him to challenge his parents and try to negotiate boundaries”. X engages in a martial art as his preferred recreational activity and I have no doubt that he is able to self-protect in the face of any inappropriate behaviour demonstrated by the father. I will, however, make orders for X to live with his mother and spend time with his father in accordance with his wishes. I consider both children should live primarily with their mother, as they have done since separation and that order will provide consistency and routine for the children about their primary residence.
As to Y’s time with her father, the Family Report writer notes that she reported a positive relationship with him and want wants to spend more time with him. The Family Report writer identifies that even though the father’s current health may place constraints on his ability to sexually offend against the children by force and put them in a better position to self-protect, there is a risk he may attempt to groom the children to gain cooperation and engage in further offending because of the children’s apparent lack of knowledge of his prior conviction and alleged offending. She opines that it is likely the father has withheld information about his offending history from the children in order to protect his relationship with them and their high regard of him.
Whilst the children have spent nearly a year of unsupervised time with the father and there have been no adverse allegations other than the father touching Y’s breast and attempting to kiss her, there still remains a risk. I am cognisant that the father described his actions as “touching the fabric of her top”. Y, however, told child protection she experienced the action as touching her breast but she did not report feeling unsafe with her father. She also denied the father kissed her.
The Family Report writer noted the children’s unequivocal views that they wish to spend more time with their father and expressed concerns about the children’s frustration and concerning behaviour if the court failed to increase the time with their father. However, because of the children’s lack of awareness of their father’s offending history and the consequential risk to their safety, she considers the children have not been able to make an informed decision about the time they spend with their father. Because of their lack of knowledge, only limited weight can be placed on their views. I agree with and accept that unchallenged evidence.
I consider the best outcome for the children is for the children to be told of their father’s past conviction and allegations in an appropriate therapeutic setting prior to any increase in time for Y. X and Y need to be in a position of knowledge and awareness and be provided with an opportunity to reflect on and consider their father’s past conduct. Ultimately X will make his own decisions about the time he spends with his father in the future. From my perspective, Y is a 13 year old adolescent girl significantly more vulnerable than X and protective measures need to be implemented to ensure her safety.
I intend to make orders for the current arrangements to continue, subject to Y’s views once she is appraised of her father’s adverse history. Thereafter at the conclusion of therapeutic intervention, I intend to change Y’s time with her father to each alternate Saturday and Sunday from 9.00am to 5.00pm and each Wednesday for an evening meal, again subject to her wish to see her father.
If Y chooses to continue to spend time with her father once advised of her father’s conviction and the sexual abuse allegations, the proposed increase in time will address her desire to spend more time with her father. It will also mitigate against any adverse reaction by Y, if she considers her voice has not been heard, as identified by the Family Report writer. It will also give some space from the intensity of their relationship to both Y and her mother, which will hopefully minimise any future problems between them. I am confident Y will consider her voice has been heard in crafting future orders.
I do not intend to make any orders providing for the father to spend unsupervised overnight time with Y as I consider overnight time would increase the risk to Y because that would require Y to engage in private personal hygiene in the father’s household, change her clothing from daywear to pyjamas and to potentially be vulnerable in her bed at night. All of that would provide greater opportunity for the father to engage in inappropriate sexualised conduct, if he were so inclined.
Counsel for the Independent Children’s Lawyer and the father suggested future therapy for the father may develop insight and mitigate the risk he poses to Y. I was informed by the father’s counsel that the father had made arrangements to attend on the counsellor as recommended by Dr D. Because the father still demonstrated lack of insight and was not prepared to accept responsibility for his previous conviction and actions, despite having completed a sex offenders course subsequent to conviction, I do not share the optimism of both counsel that future therapy or counselling will greatly assist the father and that he will somehow develop insight into his past conduct. He has had many years to reflect and accept responsibility for his past actions, but to date has failed to do so.
In her final minute of proposed orders, counsel for the Independent Children’s Lawyer proposed overnight time for Y, with X to be present until she reached 14. I do not consider X should be placed in a position of quasi supervisor when in reality a young man of X’s age may well be absent from the family home on a Saturday night pursuing social activities.
As to Y’s time with her father during school holidays, I consider it appropriate that her time on the scheduled weekend be extended to four days once a fortnight, for day time only, for both term and long summer holidays. This will enable some extended time with her father, whilst being vigilant about any overnight risk. I also intend to make orders providing for time between Y and her father during the day on Father’s Day and for Y to spend alternate Christmas Day and Boxing Day with her father, both during the day.
I consider the orders to be a balanced outcome of the need to protect Y from potential predatory behaviour and to ensure she has a relationship with her father, if that is what she desires.
PARENTAL RESPONSIBILITY
The father seeks an order for equal shared parental responsibility for the children, whereas the mother seeks an order for sole parental responsibility.
Neither party comprehensively addressed why an order regulating parental responsibility should be made as sought by them.
An order for the parental responsibility for X is of obvious limited utility as he will be 18 years old next year and it is highly likely, based on his comments to the Family Report writer that he will take matters into his own hands in relation to continuation of his education. There does not appear to be any other contentious parental responsibility issues relating to him.
As far as Y is concerned, again there was no evidence that there were any contentious issues which would require a decision by the parents in the immediate future. Y and both her parents appear to be content with her attending the local high school and the Family Report writer notes that she is progressing well and is not experiencing the lack of engagement and problems at school that X currently experiences.
Neither party raised any issues about future religious or medical decisions which might be required to be made for the children, nor levelled any criticism of past choices for the children.
It is clear the family violence is sufficient to rebut the presumption of equal shared parental responsibility, but that does not preclude me from making an order for equal shared parental responsibility in the event I consider it is otherwise in the best interests of the children.
An order for equal shared parental responsibility will require the parties who have an acrimonious and dysfunctional parenting relationship to communicate with each other and reach any decisions about significant issues.
I accept the experiences of both parties as recorded in the unchallenged Magellan Report. It is therefore not difficult to contemplate the distress which would be caused to the mother if required to consult directly with the father about significant issues affecting the children in the future.
I also accept the father’s position that he considers the mother’s horizons and world to be limited and because of the children’s sometimes antagonism towards her, she may not be best placed to make decisions about the children’s best interests. I am also cognisant of the reluctance of the mother to accept support services to assist her and the father’s lack of engagement with therapy to address past conduct and his conviction relating to child pornography.
The issue of parental responsibility in this dispute is finely balanced as there is merit in both proposals. However, because the mother will remain the primary carer of at least Y, and possibly X, I consider it would be in the children’s best interests to make an order for sole parental responsibility to be vested in the mother, subject to a requirement for her to advise the father in advance of any decision she proposes to make and to take the father’s response, if any into consideration prior to exercising parental responsibility.
Because the mother did not appear at trial, I will also make an order for the Independent Children’s Lawyer to forthwith serve on the mother a sealed copy of the orders and a copy of these reasons. Service may be effected via the mothers usual email address.
I will make orders accordingly.
I certify that the preceding one hundred and twenty one (121) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 21 July 2023
Annexure “A”
MINUTE OF REVISED FINAL ORDERS PROPOSED BY THE FATHER
BY CONSENT IT IS ORDERED
1.That the Applicant and Respondent have equal shared parental responsibility for the children X born 2006 and Y born 2010.
2.That the child X live with, spend time with and communicate with each of the Applicant and Respondent in accordance with his wishes.
3.That the child Y live with the Respondent.
4.That Y spend time with and communicate with the Applicant as follows:
(a)For a period of two months on each alternate weekend commencing on 15 July 2023 from 9am until 5pm on Saturday and Sunday.
Commencing on 9 September 2023, and subject to completion of the counselling provided for in Order 12(b) hereof, on each alternate weekend from 9am on Saturday until 5pm Sunday.
(b)Commencing on 18 November 2023 on each alternate weekend from 5pm on Friday until 5pm Sunday.
(c)On each Wednesday from the conclusion of school until 8pm for dinner.
(d)Commencing with the first term holidays in 2024 for four consecutive nights during school term holidays by agreement, or in the absence of agreement from 9am on the middle Friday of such holidays until 9am on the second Tuesday of such holidays.
(e)Commencing with the long summer vacation in December 2024, for two weeks by agreement or in the absence of agreement for the first two weeks of January in each year with the father’s weekend time pursuant to these orders to otherwise continue.
(f)From 9am until 5pm on Father’s Day should same fall on a day when Y is not otherwise spending time with the father.
(g)From 5pm on Christmas Eve until 3pm on Christmas Day in 2023 and each alternate year thereafter, and from 3pm Christmas Day until 5pm Boxing Day in 2024 and each alternate year thereafter.
(h)On the father’s birthday and Y’s birthday should they fall on days when Y is otherwise not spending time with the father pursuant to these orders from the conclusion of school until 6pm if a school day, or from 11am until 3pm if a non‑school day.
(i)Contact by telephone at any reasonable time and with Y to be free to contact her father by telephone, text or FaceTime at any reasonable time.
(j)As otherwise agreed by the parties.
5.That the father’s time with Y be suspended as follows:
(a)From 9am until 5pm on Mother’s Day.
(b)From 3pm on Christmas Day until 5pm Boxing Day in 2023 and each alternate year thereafter, and from 5pm Christmas Eve until 3pm Christmas Day in 2024 and each alternate year thereafter.
(c)On the mother’s birthday and Y’s birthday should they fall on days when Y is otherwise not spending time with the mother pursuant to these orders from the conclusion of school until 6pm if a school day, or from 11am until 3pm if a non‑school day.
6.The parties notify the other parent of any serious illness or injury sustained by the child whilst in their care that requires the attendance upon a medical professional.
7.The parties notify the other party of any change of residence, telephone number or email address within 48 hours of such change.
8.That each of the parties are entitled to attend all school functions, school events and extra-curricular activities and be entitled to receive copies of all newsletters, notices, photographs, school reports and other school information usually provided to parents.
9.That the father forthwith attend upon a psychologist at C Psychology to explore the issues referred by in the report of Dr D and filed in these proceedings and the father is permitted by this Order to provide a copy of Dr D’s report to the psychologist along with a copy of the Family report prepared by Ms E dated 15 July 2023 and a copy of this Order.
10.The father is restrained by injunction from consuming alcohol whilst the children or either of them are in his care pursuant to this order.
11.The parties be restrained by injunction from:
(a)Denigrating the other parent or the other parent’s family to the children or in the presence or hearing of the children or allowing any other person to do so.
(b)Discussing these proceedings or any other Court proceedings or documents from these proceedings or any other Court proceedings with the children or allowing any other person to do so; and
(c)Using the children to transfer messages from one parent to the other or from other family members to the parent or allowing any other person to do so.
12.The parties shall each do all acts and things and sign all documents as may be necessary to:
(a)Have both children attend upon the Independent children’s Lawyer at a time and date nominated by him to enable him to explain these Orders to the children;
(b)Have the children attend upon an appropriately qualified counsellor nominated by the Independent Children’s Lawyer, at such times and dates as are advised by such counsellor, for the purposes of the counsellor informing the children of the father’s conviction and the historic allegations made against him and of appropriate self-protective behaviors and strategies on their part. For the purposes of such counselling the Independent Children’s Lawyer be authorised to provide such counsellor with copies of these Orders, the Family Report and the Magellen Reports filed in this matter. Such counselling shall be at the sole cost of the father.
13.It is declared that pursuant to Section 68Q Family Law Act 1975, to the extent that a Family Violence Intervention Order is inconsistent with this Order concerning a person spending time with a child, the Family Violence Intervention Order is invalid.
14.That the appointment of the Independent Children’s Lawyer be discharged after he has explained this Order to the children.
15.That pursuant to S.65DA(2) of the Family Law Act, the particulars of the obligation these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
Annexure “B”
MINUTE OF PROPOSED FINAL ORDERS SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER
BY CONSENT IT IS ORDERED
1.That the Father and Mother have equal shared parental responsibility for the children X born 2006 and Y born 2010.
2.That the child X live with, spend time with and communicate with each of the Mother and Father in accordance with his wishes.
3.That the child Y live with the Mother.
4.That Y (and X, if in accordance with his wishes) spend time with and communicate with the father as follows:
(a)For a period of two months on each alternate weekend commencing on 15 July 2023 from 9am until 5pm on Saturday and Sunday.
(b)Commencing on 9 September 2023, on each alternate weekend from 9am on Saturday until 5pm Sunday.
(c)Commencing on 18 November 2023 on each alternate weekend from 5pm on Friday until 5pm Sunday.
(d)On each Wednesday from the conclusion of school until 8pm for dinner.
(e)Commencing with the first term holidays in 2024 for four consecutive nights during school term holidays by agreement, or in the absence of agreement from 9am on the middle Friday of such holidays until 9am on the second Tuesday of such holidays.
(f)Commencing with the long summer vacation in December 2024, for two weeks by agreement or in the absence of agreement for the first two weeks of January in each year with the father’s weekend time pursuant to these orders to otherwise continue.
(g)From 9am until 5pm on Father’s Day should same fall on a day when Y is not otherwise spending time with the father.
(h)From 5pm on Christmas Eve until 3pm on Christmas Day in 2023 and each alternate year thereafter, and from 3pm Christmas Day until 5pm Boxing Day in 2024 and each alternate year thereafter.
(i)On the father’s birthday and Y’s birthday should they fall on days when Y is otherwise not spending time with the father pursuant to these orders from the conclusion of school until 6pm if a school day, or from 11am until 3pm if a non‑school day.
(j)Contact by telephone at any reasonable time and with Y to be free to contact her father by telephone, text or FaceTime at any reasonable time.
(k)That Y’s overnight time with her father pursuant to this order shall only take place with X also being present until Y turns 14.
(l)As otherwise agreed by the parties
5.That prior to the commencement of overnight time pursuant to this order Y and X shall attend upon a counsellor to be nominated by the ICL in consultation with the Family Consultant for the purpose of discussing the fathers criminal conviction with the children and discussing protective behaviors and the mother and father shall do all acts and things necessary to facilitate this process and the father shall bear the cost of this process.
6.That the father’s time with Y be suspended as follows:
(a)From 9am until 5pm on Mother’s Day.
(b)From 3pm on Christmas Day until 5pm Boxing Day in 2023 and each alternate year thereafter, and from 5pm Christmas Eve until 3pm Christmas Day in 2024 and each alternate year thereafter.
(c)On the mother’s birthday and Y’s birthday should they fall on days when Y is otherwise not spending time with the mother pursuant to these orders from the conclusion of school until 6pm if a school day, or from 11am until 3pm if a non‑school day.
7.The parties notify the other parent of any serious illness or injury sustained by the child whilst in their care that requires the attendance upon a medical professional.
8.The parties notify the other party of any change of residence, telephone number or email address within 48 hours of such change.
9.That each of the parties are entitled to attend all school functions, school events and extra-curricular activities and be entitled to receive copies of all newsletters, notices, photographs, school reports and other school information usually provided to parents.
10.That the father forthwith attend upon a psychologist at C Psychology to explore the issues referred by in the report of Dr D and filed in these proceedings and the father is permitted by this Order to provide a copy of Dr D’s report to the psychologist along with a copy of the Family report prepared by Ms E dated 15 July 2023 and a copy of this Order.
11.The father is restrained by injunction from consuming alcohol whilst the children or either of them are in his care pursuant to this order.
12.The parties be restrained by injunction from:
(a)Denigrating the other parent or the other parent’s family to the children or in the presence or hearing of the children or allowing any other person to do so.
(b)Discussing these proceedings or any other Court proceedings or documents from these proceedings or any other Court proceedings with the children or allowing any other person to do so; and
(c)Using the children to transfer messages from one parent to the other or from other family members to the parent or allowing any other person to do so.
13.It is declared that pursuant to Section 68Q Family Law Act 1975, to the extent that a Family Violence Intervention Order is inconsistent with this Order concerning a person spending time with a child, the Family Violence Intervention Order is invalid.
14.That the appointment of the Independent Children’s Lawyer be discharged after he has explained this Order to the children.
15.That pursuant to S.65DA(2) of the Family Law Act, the particulars of the obligation these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these Orders.
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