Resnik and Nervi

FEDERAL CIRCUIT COURT OF AUSTRALIA

RESNIK & NERVI

[2018] FCCA 742

Catchwords:
FAMILY LAW – Parenting dispute about 3 children aged 16, 11 and 9 – father 41 and mother 15 when relationship commenced – father convicted sex offender – father’s offences involving child of about the same age as the eldest child – father wholly lacking insight about his offences – father assessed as moderate risk of re-offending – mother opposing any spend time regime – all three children missing father and wanting to see him – risk of oldest child taking matters into their own hands – orders made for supervised time as sought by Independent Children’s Lawyer.

Legislation:

Family Law Act 1975, ss.4AB, 60CC, 69ZT, 69ZF.

Goode v Goode [2006] FamCA 1346

Applicant:

MR RESNIK

Respondent:

MS NERVI

File Number:

DGC 2436 of 2016

Judgment of:

Judge Burchardt

Hearing date:

8, 9 & 12 February 2018

Date of Last Submission:

12 February 2018

Delivered at:

Dandenong

Delivered on:

12 April 2018

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Foo

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Independent Children’s Lawyer:

Ms Conlan

Solicitors for the Independent Children’s Lawyer:

Dandenong Family Lawyers

ORDERS

All previous parenting orders be discharged.
The mother have sole parental responsibility for the children, [X] born (omitted) 2001, [Y] born (omitted) 2006 and [Z] born (omitted) 2008 (“the children”).
The mother keep the father updated and informed of all issues pertaining to the long term, care welfare and development of the children or any of them, including but not limited to progress at school and any significant medical and allied health intervention.
For the purpose of the mother keeping the father updated and informed of all issues pertaining to the long term, care welfare and development of the children or any of them:
(a)The mother will at least once per calendar year initiate shuttle mediation at an authorised relationship centre of her choice (“the relationship centre”) and do all acts and things necessary to notify the father of the shuttle mediation;
(b)The mother and father will attend upon the relationship centre for the shuttle mediation as directed by the relationship centre.
The children live with the mother.
The children spend time and communicate with the father:
(a)Once per month supervised by Ms J or such other supervisor nominated by the Independent Children’s Lawyer.
(b)By way of cars and/or gifts for Christmas and the children’s birthdays, such cards and gifts to be screened by the mother before transmission to the children.
The mother do all acts and things necessary, and provide all necessary authorities to the father, to engage with any agreed medical practitioner or allied health professional treating the children from time to time.
The mother and father follow all reasonable recommendations and directions of any agreed medical practitioner or allied health professional treating the children from time to time including the administration of prescribed medication and engaging with other support services.
The father be and is authorised to contact and communicate with any school attended by the children and to receive all school correspondence, including school reports, ordinarily received by a parent, except having access to any electronic filed portals.
The parties ensure that at all times they provide to the other party a current email address upon which they can be contacted.
The mother inform the father of any serious illness, hospitalisation or injury sustained by the children whilst in his or her care as soon as practicable and provide particulars of any treatment required or received by the children together with the contact details of the treating doctor/s.
Each of the mother and father be and is hereby restrained from:
(a)Denigrating the other parent or any member of the other parent’s family in the presence of hearing of the children or allowing any other person to do so;
(b)Discussing these proceedings in the presence of hearing of the children or allowing any other person to do so; and
(c)Exposing the children to family violence.
Each of the mother and father be at liberty to:
(a)Provide a copy of the Family Report of Family Consultant D dated 4 April 2017 to the relationship centre they attend for mediation; and
(b)Provide a copy of these orders to any school, medical or allied health professional involved with the children and to the relationship centre they attend for mediation.
Pursuant to ss.68Q and 68P of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these orders conflict with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
The mother be authorised and permitted to apply for and receive an Australian Passport to each of the children without first obtaining the written consent of the father.
The mother be permitted to travel (or facilitate travel) outside the Commonwealth of Australia with/for any of the children.
The order appointing the Independent Children’s Lawyer be discharged.
Certify for advocacy.
Pursuant to s.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are including in these orders.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Burchardt delivered this day will for all publication and reporting purposes be referred to as Resnik & Nervi.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 2436 of 2016

MR RESNIK

Applicant

And

MS NERVI

Respondent

REASONS FOR JUDGMENT

Introductory

This is a parenting dispute about the best interests of three children, [X], born (omitted) 2001; [Y], born (omitted) 2006 and [Z], born (omitted) 2008. The applicant father desires that the children spend substantial and significant time with him (his position has oscillated and at times has been that the children should live primarily with him), the mother is opposed to the children spending any time at all with the father and the Independent Children’s Lawyer submits that the children should spend supervised time with the father.
For the reasons that follow, I am going to make the orders proposed

by the Independent Children’s Lawyer.

Agreed or Uncontested Matters

Much of the material in this case is in fact not the subject of dispute, despite the intensity of the battle. The father was born on (omitted) 1958 and the mother was born on (omitted) 1984. The mother has been diagnosed with Asperger’s and a number of other difficulties.
The parents met on the internet when the mother was 15 years old and the father was 41 years old. The mother was unwell at the time and was depressed and self-harming.
The parents met physically when the mother was 16. Although there

is a dispute as to how quickly it occurred, there is no question that they rapidly became sexually intimate and the mother refused to return

to her parents. The children followed in due course.
Thereafter the parties lived together until separation in December 2014. That separation followed shortly after, and was clearly inter-related with, the sentencing of the father by Judge (omitted) in the County Court of Victoria for indecent communication, to which he pleaded guilty, and a grooming charge, which he contested. The father was sentenced to two years jail and directed to serve three months in prison upon a security recognisance of $5,000 and to be of good behaviour for two years. He was placed on the sex offenders register for eight years and directed to undertake a sex offender treatment program supervised by Corrections Victoria. He served three months in prison from October to December 2014.
On his release from jail the father returned to live at the family home with the mother and the children but they separated during this period of cohabitation. The Department of Health and Human Services (“DHHS”) became involved with the family in early 2015 and the mother signed a safety plan with the Department which prohibited any unsupervised contact between the father and his children. This safety plan was perhaps not adhered to and in May 2015 an Interim Intervention Order was taken out. This was subsequently made final on 13 August 2015.
Thereafter the parties attended family dispute resolution and made a Parenting Plan which allowed the father to spend daytime periods with the children twice a week and to maintain telephone communication. These arrangements remained in place, as the family report records, until the father lodged an appeal against the Intervention Order granted on 13 August 2015.
That appeal was heard on 4 and 5 November 2015 before (Judge omitted) in the County Court. Her Honour, whose decision has been tendered as exhibit R3, upheld the Intervention Order and excised the father’s time with the children completely. The children have not seen the father since. The Intervention Order is of indefinite duration.
Although the parties have been reasonably prolific in affidavit production, much of what those affidavits say is covered by the agreed matters set out above. Further issues raised by the father from time to time have been the excessive absence from school on the part of the children, and a more detailed description of how he met the respondent mother. In his affidavit filed 23 March 2017 he deposes that the mother was proposing to run away to Queensland with another man at the time that he came into contact with her. She refused to return to her parents and stayed with him. I note that he maintained his innocence of the grooming charge. I note further that in this affidavit he deposed to having undertaken an eight-month program with the Specialist Offender Assessment and Treatment Service (“SOATS”).
The mother’s affidavit sets out a different version of the commencement of the relationship. She had deposed that they had sex on the first occasion they met whereas the husband’s affidavit material puts the matter somewhat later. The mother has deposed in her affidavit, filed 20 October 2016, to extensive family violence in the relationship, to her own Asperger’s condition and the fact that she suffers from clinical depression and anxiety, for which she has been treated by Mr G.

The Report of Dr K

Dr K’s affidavit, filed 28 March 2017, appends his reports on each of the parents. The report noted in respect of the father, at page 14, that he was assessed at a moderate to low risk of sexual offending. At page 21 Dr K opined that another adult should be in substantial attendance during the father’s time with the children.
Noteworthily, he also found that the mother was competent to take care of her children.

The Affidavit of Mr G

The affidavit of Mr G, filed 23 May 2017, details the extensive treatment he has given the mother in respect of her various conditions.

The Affidavit of Ms M

The maternal grandmother, Ms M, filed an affidavit on 1 February 2018. She deposed relevantly to her more recent and regular involvement with the family, and the occasional assistance of her husband. She deposed to improvements in the school attendance, a matter the mother had previously sought to explain in her affidavit filed 22 May 2017.

The Family Report of Ms D

It should be noted that the father expressly disdained any desire to cross-examine either the mother, the maternal grandmother or Ms D . Since neither the mother or counsel for the Independent Children’s Lawyer sought to cross-examine Ms D , her report must be taken as unchallenged.
Relevantly, Ms D ’s report sets out the history of the relationship and the process from 2013 onwards whereby the father was convicted before (Judge omitted) and subsequent DHHS involvement, to which I have already referred in the agreed facts above.
The report noted the report of Dr K and noted the mother’s difficulty getting to appointments since her car had broken down before Christmas 2016 (paragraph 14).
The report noted the formal positions of the parties including the father’s revised amended application by which the children should live with the mother and spend unsupervised time with him. I note that at paragraph 29, Ms D recorded:
“Mr Resnik reported that he has completed the Specialised Offender Assessment & Treatment Service (SOATS), which involved weekly attendance at the Department of Justice over 8 months. In addition, he made monthly visits to the Corrections Office for a period of 2 years. He stated that he has completed all the requirements of his Corrections order.”
The report noted, at paragraph 35, the very significant lack of attendance of both [Y] and [Z] at school in 2016 and 2017.
At interview I note that the report described the mother’s presentation as “childlike,” an observation with which I would entirely agree having seen her in the witness box. I note that at paragraph 43, in a follow up phone interview, the mother informed Ms D that the children had not been attending school regularly and gave various reasons for their prior non-attendance.
I note that the father denied the family violence allegations made by the mother. However, at paragraph 58 the report noted:
“… At different points in the interview he acknowledged forms of abuse, for example, throwing cups in sheer frustration, but not at Ms Nervi. He admitted to yelling at her in frustration, and said, “family violence was not an everyday thing, and 8 out of 10 days everything was normal”.
The report noted the father’s complaints about the mother’s alleged incompetence as a housekeeper and mother.
At paragraphs 60-62 Ms D noted the father’s history of his experiences as follows:
“60. … He regrets that his actions have impacted adversely on the children. While in prison, he maintained daily telephone communication with the children, and upon leaving prison he returned to the family home and continued to care for them. He was informed that his Correction Order does not preclude him from living in the family home. He emphasised a number of times that Ms Nervi struggles with household and parenting responsibilities without his support. He said everything was going well until DHHS became involved in February 2015 and questioned why he was living at home. They told him to leave the house and he was homeless for 19 days. After their investigation, DHHS called him and said he was free to return home. However, DHHS advised Ms Nervi to seek an Intervention Order to remove him from the house. He was confused about the contradictory messages given to him and Ms Nervi by DHHS. He reported that he became suicidal when he could no longer maintain a relationship with his children.
61. He perceives the Appeal Judge’s decision to remove him completely from the children’s lives was discriminatory, unfair, wrong, and not in the children’s best interests. He has written to various ministers to express his concerns for the children in Ms Nervi’s care, particularly his concern about their poor school attendance.
62. He said he has completed the Specialised Offender Assessment & Treatment Service (SOATS) which involved attending the Department of Justice weekly over 8 months. He will try to obtain evidence that he has completed the Program.”
It is sufficient to note that all of the three children, when interviewed, missed their father. [X] wished to convey a message to the Judge that if she is not allowed to see her dad until she is 18 she would like communication with him by letters and cards. [X] was somewhat critical of her mother’s capacity as a housekeeper.
Ms D correctly noted at paragraph 96 that:
“This report raises concerns about the parenting capacity of both parents and the concerns identified about each of them.”
Ms D noted correctly that the mother had been the sole parent since the father’s involvement ceased. She noted the difficulties with the younger two children’s poor school attendance. All three children had stated that they were happier when their father was involved in their care and they appeared to miss him very much (paragraph 103).
The report noted the mother’s difficulties in coping and suggested that the family could benefit from DHHS involvement to assess the mother’s ability to adequately care for the children.
In the end, however, Ms D concluded at paragraphs 111-112:
“111. This writer is unable to offer clear recommendations on the children’s live with and spend time arrangements as more information is needed regarding both parents. If it is determined that it is not appropriate for the father to have any direct parenting involvement with the children, this matter requires a notification back to DHHS for a re-assessment of the mother’s capacity to adequately meet the needs of the children and to link her with appropriate supports. It may be advisable for a copy of this report to be provided to DHHS.
112. In conclusion, it is clear that the children miss their father and appear to be grieving for him. Dr K recommended supervised visits between the father and children. A determination needs to be made regarding the impact on the mother if this should occur. She is opposed to any type of contact between the father and children. If this cannot occur, it is recommended that the children be permitted to maintain communication with their father via cards and letters that are delivered to each other by a trusted third party. It recommended that ICL informs the children of decisions made by the Judge in respect of their future contact (or not) with their father.”

The Submissions and Evidence at Court

The Father

What follows is taken from my notes. It records those aspects of what was said that struck me as being significant.
The father made an opening which went on for quite some considerable time. It is not appropriate to paraphrase it in great detail. The themes that emerged included a passionate desire on the father’s part to continue a close relationship with his children. He also described wide-ranging conspiracies on the parts of various authorities to keep him from his children and, as he put it, stop them knowing the truth. The father took issue with the characterisation of his criminal history. He strongly disputed his conviction for grooming. He accused the Department of Health and Human Services of misinformation on a constant basis. He asserted that the hearing before this Court was the first chance he had had to tell his story. He complained of the mother’s inadequate parenting skills.
He said that [C] (the girl in respect of whom his indecent language and grooming offences occurred) had approached him. She had targeted him for cigarettes and vodka and it was his refusal which led to the charges.
He complained of the lack of school attendance and the mother’s alleged mental issues. He said he wanted to remove the mother from the family so that there was no physical or mental abuse. The mother could spend time as agreed.
When sworn, the father adopted his affidavits.
Under cross-examination by counsel for the mother about the sentencing judgment of (Judge omitted), the father said that the girl was coming on to him. He pleaded guilty to transmitting indecent communications but not guilty to grooming. There was a six-day trial with a jury. He was not guilty of grooming. [C] had his telephone number. There were only seven to eight sentences of indecent conversation. [C] has said she was nearly 15. She was a child who played with his own children. Ms Nervi never liked her. She was in fact his neighbour. He did not accept the girl’s victim impact statement. The jury was not told about her contacts to him offering herself for sex. She was an errant kid who was expelled from school. He did not blame her. The father said “I gravitate to those who need help.” He was not happy to read the comments he had sent to the girl and was not proud of them. He had had no contact at all with children under 18. He has, however, an Instagram account and anyone can contact you. He had put “If you are under 18 don’t follow me” on his Instagram. He is seeking a woman. He has to keep his Instagram texts in case there are future allegations. One 13 year old from Russia had contacted him and he thought that this was a set up by the police.

He was sentenced to two years but only three months in jail. He was on the sexual offenders register from 2014 for eight years. (Judge omitted) had not restricted him from his family. He had to meet the police once per month for two years. There are also five pages of police conditions.
When it was put to him that he had first contacted the mother on ICQ in 1999 he agreed. This was I Seek You. He was not aware of the mother’s age when he first contacted her. He remembered her saying she was abused by her father. Then she said she was nearly 16.
When it was put to him that he had asked the mother to delete his communications with her, the father said this was probably because what she told him was confidential. He said “They confide in me.” He said he had picked her up from the street and told her not to go to Queensland. He rang her parents but she refused to return to them. He was not aware of her Asperger’s for the first few weeks. He was 41 in 1999 and she was 15. He was a (occupation omitted) at (employer omitted) at the time. He did not agree he had power over a 15 year old and could not persuade her to do things.
When he was challenged about the police interview on 29 January 2013 he conceded this and it was tendered as exhibit R2. He did not remember telling the police he liked young blondes with big tits.
The father said the mother was an (omitted) girl. He is not sure if she was blonde. He did not remember the colour of her hair. He is still on Instagram as he is looking for a partner.
He had taken pictures of the mother’s home when he had two days of visitation in 2015. This was after the Intervention Order. He has no current photographs. His concerns arise from 15 years of living with the mother. He has provided the photographs to the Prime Minister (and numerous others).
When it was put to him that orders made in 2015 prohibited it, the father said he uploaded the photographs because of his concerns about the children. He put it online with password protection. (name omitted) is his adult name. He uses this on his profile on Instagram. His children talk to cousins who talk to him. They tell him the house is smelly and there is no food.
When he was taken to the DHHS report dated December 2017 the father confirmed he had seen it. The Department lie. He blames them for the Intervention Order. He does not trust DHHS one single bit. The father said his children are still not being fed and not going to school. They say they hate the in-laws.
When it was put to him that he had not told the mother or the children about his charges in 2014, the father responded that the mother was already in contact with DHHS. He could not recall 2012 and 2013. The police took computers and returned them two months later and there were no charges.
The father had been in court when an Intervention Order was made by(Magistrate omitted). He contested it and gave evidence. The Magistrate found him an unreliable witness because the evidence given against him was false. The Intervention Order is until further order. He appealed to (Judge omitted). He was not allowed to give evidence. He had power over the mother. There has to be discipline in his house. The mother has been hitting the children since they were three years old. The mother spends most of her time on the computer playing games. Photographs of the children show them as skeletons. These were put on the internet by the mother or his daughter. The father’s sister sent him the photographs. Photos were taken at a 16^th birthday party.
When taken to paragraph 26 of Dr K’s assessment, which recorded him telling Dr K that he had not undertaken sex offender treatment, the father denied that Dr K had asked him about this. He had assumed that Dr K had those sources. He was the expert. Dr K got it wrong about the mother because she had lied to him. The children are terrified of her. Dr K was incorrect about him. He shows remorse for this indecent language but he has no remorse for grooming because he was not guilty.
When asked if he could say anything positive about the mother, he replied that in 15 years with her she was very volatile. He was the buffer between the children and her. She had a good heart but has Asperger’s and ADHD and the DHHS coerce her. She has a Jekyll and Hyde personality. It is still his view that DHHS destroyed his family. DHHS are lying, deceitful and prejudiced against him. He has notified the Minister.
He did not agree with the assessment that he was rigid in his personality and he did not accept that there was any risk of his re-offending. He assessed his risk of re-offending as zero. He conceded that the Department of Corrections had said he was narcissistic.
When taken to paragraph 59 of Ms D ’s report, he conceded that he had told her that his offending behaviour occurred in the context of a lack of sexual intimacy in his relationship with the mother. He is not sexually intimate with anyone now. The mother had stopped intimacy when [Y] was born. She was sexually active long before he met her. The father said 35 women (all from DHHS) berated him and this had turned him off women.
When taken to paragraph 66 of Ms D ’s report in which he had reported that the maternal grandparents had rejected the children in the past and would not be likely to offer support, he was not aware that the grandparents had brought the mother and the children to the interviews on the day. He said they had an agenda. He had read the maternal grandmother’s affidavit. He blames the maternal grandparents for what happened to his family. He blames (Judge omitted) but not (Judge omitted). (Magistrate omitted) had told him to get out of the family home because he was grooming children. He did not blame himself for what has happened. There was collusion between the DHHS and the maternal grandparents. The mother has the mind of a child most of the time. He confirmed he is angry. The cousins gave him the photograph. They are overseas. His niece is about 21 years old.
Under cross-examination by counsel for the Independent Children’s Lawyer, the father said his motives in contacting young girls on the internet were to be concerned and generous. The mother refused to return to her parents.
It is perhaps sufficient to note that the father, in a fashion wholly insightless, essentially blamed his victim for his grooming charge.
When questioned as to who might supervise his time as recommended by Dr K, the father said there is a pastor who can assist. This is Mr M. He has known Mr M for 20 years. When he was questioned about the cost of professional supervision at $200 to $300 per visit, the father said he could afford this once per month. He can find that sort of money.
The father tendered as exhibit A1 photographs which he said were taken in January 2016 (these being those, as I understand it, that he referred to as being taken in November 2015, earlier referred to).
In re-examination the father said he was extremely confused. He was taken to court four to five years ago. He is stressed by these questions.
There was extensive self-exculpation. He said the word “grooming” is not in his vocabulary. He just wanted to protect the mother. He asked rhetorically (and, in my view, completely insightlessly) “Is it that I am 41 and she 15?”
He never intended to use the internet to obtain sexual acts. He said however of course he and the mother became intimate later. He would not groom his own children.

The evidence of the Mother

In his brief opening, counsel referred to the Notice to Admit Facts filed earlier in the proceeding but, as I pointed out, while that had been done, Mr Resnik’s lack of legal representation made the absence of a Notice of Dispute somewhat redundant.
The mother was called and adopted her affidavits as true and correct.
I reminded the father that he had the opportunity to cross-examine should he so wish but he expressly refrained from doing so.
Counsel for the Independent Children’s Lawyer cross-examined the mother in some detail about the absences of the younger two children from school. The mother’s evidence was that 2015 and 2016 were stressful times and there were a lot of colds and flu’s and the like.
The mother conceded she had mental health issues. She cannot cope when she gets anxious about going to Court. The children are seeing a child psychologist at school.
The Independent Children’s Lawyer tendered as ICL1 the school records of the two younger children which certainly show an extraordinary amount of absences. It should be noted however that in the brief period covered in 2018 the children have been attending.
The mother confirmed that [X] gets herself to school. She said it was difficult to get the children to walk to school and [Y] refuses any car other than her own. She said that since junior primary school she had been trying to get [Y] assessed but has been consistently ignored.
It should be noted that the mother’s answers about the children’s non-attendance were generally unconvincing.
She said that they had refused various foods she had offered. She makes sure they have 250 mg of milk or a muffin. They are very picky children as to what they eat. When she was asked about the children waking up late she said this was part of school refusal. Everything is turned off by 10.30 pm, 9.30 pm for [Z] and 10.30 pm for [Y]. It is 20 minutes to half an hour walk to school. She said the children do not get to school because she is on the computer. She then said they do not have a working computer and then said that [X] has her own computer. The mother said she does regulate the children’s time on the computer and [Y] does not play in the morning.
The mother said that the house was no messier than any house with teenagers. They do have an indoor cat and have guinea pigs. They are brought in at night time or when it is hot. Photographs tendered as exhibit A1 show what the house was like when the father was there. The maternal grandmother had helped since August 2017 and provided emotional support. The mother now has the funds to look after and maintain her car. The children were excited to go to school. She intends there be more communication with the school about sickness and more detailed doctor’s certificates. She is aware the children want to see the father but there are safety risks. She is not comfortable that the children spend time with the father as he would be a negative influence. She is scared that [Y] will withdraw again. She is not sure what it is that made him withdraw in the past. He is slowly making friendships in school. Supervision would not be enough as the father would bypass the adults.
When Mr M was mentioned as a supervisor, the mother was adamant that this is not appropriate. The pastor was mentoring younger girls. When asked about a paid supervisor, the mother said she did not see how this would benefit the children. The children are finally getting some grounding. When asked about cards and letters, the mother said this would again be a voice by which they could be manipulated. She could perhaps get her own psychologist to look at the letters.

The Evidence of the Maternal Grandmother

Ms M adopted her affidavit as true and correct. The father expressly disdained cross-examination.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms M was aware that the children missed a lot of school. It is only two weeks into the New Year but there has been a remarkable turnaround. They leave the house at 8.30 am and are busting to get to school. [Y] has firmer friendships. Last year, after the car was bought, the children got flu. The mother always tried to get them to school. She now has the car and the maternal grandmother’s support. She tells the children they have to go to school. She and her husband will be on holiday overseas from April to May and possibly again later in the year. The mother’s brother, Mr A, could give advice. He is a university graduate.

The Evidence of Dr K

Under cross-examination by counsel for the Independent Children’s Lawyer, Dr K confirmed that he did not have any record of the applicant completing the SOATS course.
When it was put to him that treatment had not changed the father’s views and that if he was still the same, what would be the level of risk, Dr K replied that it was difficult with this evaluation. The information about treatment was not available. The father says he had not undertaken the SOATS but did. The static risk would not necessarily change significantly. It was important that the father continues to blame the victim and has psychological problems. The risk assessment by RSVP would end up with a more significant risk of re-offending. It was possible that the father could put the children at risk in other ways, for example in attitudes to women who have made his life difficult.
When questioned about professional supervision Dr K said this would be the minimum and would be required. There was a query as to whether the children were safe. He would agree with supervised time with the father.
The mother has difficulties. She has depression and anxiety. She could be vulnerable but she could cope with supervised time. The mother is not particularly assertive.
Under questioning by counsel for the mother, Dr K said the father’s self-assessment at zero risk accords with the information already provided to him. He would be concerned about contact with the children by electronic means and is concerned that the Instagram account does not block underage participants. The father’s risk rating is at least moderate. He denied SOATS treatment to Dr K. Dr K did ask the father about all of this treatment both mental and health and other.
Under questioning by the father Dr K agreed that he could get things wrong. When asked what was the difference between grooming and a paedophile, Dr K said paedophile is a very broad phrase. It is a very specific disorder. An individual who seeks sex with a person who is underage. It can be exclusive or non-exclusive. Grooming is behaviour which can be more general. It could offend against a variety of different aged individuals. It could be teenagers with mature body type.
The sources of information upon which Dr K relied are on page 2 of his report. The grooming charge was indecent conversation and grooming a child.
The father’s questioning at this point can only be described as a long ramble including his assertion that 35 people at the Department of Health and Human Services who had caused him difficulty were all women.
Dr K confirmed that he had addressed the issue of risk. What the police do or do not do or what the Judge says is irrelevant. Static 99 is a relatively blunt instrument based on charges and the type of charges.
Dr K had seen the father on 6 February 2017 and the mother on 13 February 2017. The appointment with the father was for two hours. Dr K did not agree that most of the time was spent talking about travel or cars. It was very clear what they talked about and this was in the report. Dr K repeated again that he did ask about the SOATS.
Dr K denied that his evaluation at paragraph 29, that the father was a man with personality difficulties which underpin his sexual offending and that those factors were probably also relevant with respect to his issues of impulsivity, was an assumption. He said it was what he found in the evaluation. Further, his finding at paragraph 30 that it was unlikely the father would support his ex-partner’s parenting and required psychological intervention over the next two to three years with a focus on the treatment on psychosexual and personality matters was based on nothing other than the interview itself. Dr K said the risk is indicated in the report and in his earlier answers.

The Evidence of Ms D

Ms D , who had sat in, by consent of the parties and the Court, on the evidence of Dr K, which was given by phone, was first questioned by counsel for the Independent Children’s Lawyer. Having heard Dr K she said it seemed there was no rehabilitation on the father’s part.
When questioned about [X]’s parentification, Ms D said she did not think that the mother put her into that role but rather the child took it upon herself. If this continues long term, [X] may be very unhappy. The school should be requested to monitor it. Ms D got the impression from the children that the mother has difficulty setting boundaries and is not an authority figure for them. The help of the grandmother may be enough. An agency like Child First should monitor the matter.
When questioned about change of residence, Ms D said there were risks to the children based on what she had heard today. Time should be supervised by someone like Ms J. If properly managed, supervision would be okay but the supervisor would need access to the Court materials. The children should have access to counselling if they see the father and possibly the mother also. The Independent Children’s Lawyer should explain the orders to the children.
Under questioning by counsel for the mother, Ms D confirmed she was aware that the mother has Asperger’s. All three children are missing their father. [X] understands the father has done something wrong. Supervision of time would benefit [X]. Seeing the father would meet a need of the children and the children would not regress. It might affect the mother but Ms D could not say how.
Under questioning by the father, Ms D said she was not an expert on sex offences. He had exposed the children to yelling at their mother. The children did not raise violence by either parent. Ms D had concerns about the condition of the house but she was not there to observe it. She can only recommend professionally supervised time.

The Submissions of the Independent Children’s Lawyer

The Independent Children’s Lawyer submitted there should be supervised time. Ms J is experienced and has a good network. The father can pay up to $300 per month. He should also be permitted to send cards and gifts which the mother could vet. The children should have the orders explained to them.
There have been findings of family violence in both the Magistrates Court and the Children’s Court. The decisions of (Judge omitted) and (Judge omitted) have been tendered and of course may be relied on pursuant to s.69ZT and s.69ZF of the Family Law Act 1975 (“the Act”).
Counsel submitted that the father had not satisfied the Court that he draws the line at his own children or has accepted his conduct. The SOATS file is against the father. The children see the father as more child focused. The mother cannot provide for their basic needs but now has the regular support of the maternal grandmother. Counsel noted however that it is only early in the school year. Professionally supervised time is appropriate, otherwise [X] might take the matter into her own hands in any event. Supervision will lead to the monitoring of the children’s welfare on a monthly basis. The father, it is submitted, is still insightless.

The Submissions of Counsel for the Mother

The mother agrees with all the orders proposed by the Independent Children’s Lawyer save order 6 which was for supervised time once a month with Ms J. She seeks that there be no time. The father is a convicted sex offender. The presumption as to parental responsibility is rebutted and there is an indefinite Intervention Order against the father. Dr K agrees that the risk is moderate. The father has no insight. Things have changed since the father stopped time. [X] has improved a lot since she has not been seeing the father. If [X] was going to move it would have happened already. The father is continually monitoring the mother in breach of the Intervention Order. The father says there is zero risk but this is wrong. He says 35 women are instrumental in reducing his time. The school issue has dissipated because of the involvement of the maternal grandmother.

The father says he is celibate and the offences took place when he was celibate. Even supervised contact would make the mother scared because he would manipulate the children. Exhibits R2 and R4 are highly probative. R4 is the SOATS summary. Dr K raised the assessment to medium and there has been no family report. The mother has been the sole parental figure for years and she opposes the father’s time.

Submissions of the Father

The father said the case was about facts. He said the facts show that in both cases his intentions were totally designed to ensure the safety of the children. He made every attempt to return the mother to her family but she refused. The mother’s family had been insulting to her and indeed to him also. There was racism and he was referred to as a “(omitted)”. The children don’t like the mother’s family. The only person who has talked to the children is (omitted) (Ms D ).
DHHS were misleading. There were 38 women involved. All say the same thing and say he is bad. 15 years later another woman contacted him. He did not contact her after she was 16. The police undertook a thorough investigation. The children love and adore him. What would they feel if there was no contact with their father? The mother lied before (Judge omitted). It was a litany of lies. His children will know the truth. Dr K had lied. He did not talk about SOATS. The mother had hit, kicked and abused the children.
The father said he has OCD. He vacuums three to four times per week. He lives with flatmates. He said “If you give me my children, the first thing I will do is to focus on their studies.” He wants to ensure the children are clean, tidy, have lunches and are happy.
The father said he works smart not hard. 95 per cent of his clients come from what he did on the computer. He would pull the plug at 9.00 pm. The children are doing really well. There was never any question of his sexual offending. He said these two were prostituting themselves. The police and (Judge omitted) knew this. The DHHS and Department of Justice have an agenda. They take screenshots of young girls and boys and then talk to the police. He needs another woman in his life. He doesn’t like the 38 women. If he had access to his children, the first thing he would do is clean the house. He would get them to school. They say he is a sex offender but this is so far from the truth. There should be no contact with the mother’s family. Everything the mother said is a total lie.

Findings about the Witnesses

The professional witnesses were giving evidence within their area of expertise and were not moved at all in cross-examination. Both Dr K and Ms D were excellent witnesses who were clearly telling the truth. It should be noted that the father’s denial that he had denied taking the SOATS course to Dr K is clearly untrue.
The father was, at times, extremely evasive. His evidence about what it was he found attractive in the mother was extremely unconvincing. I formed the clear view that he well remembered what he found attractive about her (blonde and with large breasts) but did not wish to admit it. His evidence was wholly self-righteous and unrepentant and was at times given with some pressure of speech.
It is perhaps sufficient to say that I would entirely echo the finding made by (Judge omitted) at paragraph 16 of her judgment in these terms:
“Leaving this issue aside, I must say that the Appellant impressed me as an overbearing, self-righteous and arrogant person, who had no insight into the respondent’s fragile mental health state.”
I would go further and say that the father exhibits no insight whatsoever into his prior conduct. He endeavoured to persuade the Court that (Judge omitted) had not really accepted that he was guilty of grooming but it is clear that he was.
Like Ms D, I found the mother somewhat childlike. Her vocabulary was not well developed and she presented, as (Judge omitted) found her also, as a vulnerable person with a number of mental health issues.
The one real ray of light in the evidence given by the non-professional witnesses was that of the maternal grandmother. She was an extremely measured and impressive witness. She gave her answers in a fashion that was entirely convincing. She was clearly telling the truth and I accept her evidence in its entirety.

Findings about the Facts

Taking the evidence as a whole, the picture could scarcely be more clear. The father commenced his relationship with the mother when he was 41 and she was 15. I do not accept that this was a relationship commenced on the basis that he wished to protect the mother from harm. He wanted to, and rapidly did, enter into a sexual relationship with this underage and vulnerable girl who, on his own evidence, he knew to be self-harming and unwell. He persuaded her to remain with him and over time they had their children. In a sense, much is revealed by the father’s rhetorical question “Is it that I am 41 and she is 15.” The answer to that question is “yes, it is”. It is not an unremarkable and every day matter to be set to one side. It represented, at the very least, the taking advantage by the father of the mother’s youth and vulnerability.
Although I am entitled to give full weight to (Judge omitted)’s findings, I do not, in a sense, need those findings. Like (Judge omitted), I am quite satisfied that the mother would have been belittled and abused together with occasional violent outbursts where the father threw objects around the house, over many years. His belittlement of the mother continued even in his submissions.
The mother is a person who, as a result of various difficulties, struggles to cope with life generally. The photographs tendered by the father are clearly an accurate depiction of the house as it is likely to be a lot of the time and it is something of a shambles. Nonetheless, and very importantly, she has regained her relationship with her parents (she was estranged from her father for a period) and the maternal grandmother, most particularly, is now regularly part of the scene. This is, as I accept, the reason why the children’s school attendance has markedly improved. I accept the grandmother’s evidence that this is so for the reasons that she gave. It is a concern that the maternal grandmother and grandfather are going overseas for some months relatively shortly and it is appropriate, in my view, that steps be taken to give the mother the assistance that she will probably need to cope without the assistance of her own mother.
The father remains wholly unrepentant about his prior conduct which he at all times either denies or seeks to minimise. He is arrogant and overbearing and rigid in personality.
It is not possible to evaluate in any final way the father’s denials that he would ever molest his own children. What I do accept is that, as Dr K put it, he might be a risk to the children in other ways, in any event.
This is rendered all the more significant by the fact that the children do love their father, do miss him and do wish to see him.

Statutory Pathway

The statutory pathway as set out in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”) at [65] is as follows:
“Summary
[65]    In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).
7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)     the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii)    days that do not fall on weekends and holidays; and
(b)     the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii)    occasions and events that are of particular significance to the child; and
(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10.    When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11.     The child’s best interests remain the overriding consideration.”

Parental Responsibility

There can be no doubt whatsoever that there has been extensive family violence within the extended definition in s.4AB of the Act over many years. This is reflective of the father’s demeaning view of the mother and his resultant conduct. Further and in any event, given the father’s history and lack of insight, it is absolutely apparent that the mother should have sole parental responsibility. It is not necessary to say more than this.
The Court next has to consider what is in the children’s best interests.

The Primary Considerations

As already stated more than once, the children want to see their father and miss him. This is perhaps more marked even in the case of [X]. Nonetheless, there are queries as to the extent to which, notwithstanding the children’s desires, it is in truth in their best interests to have time with somebody with so warped a view of the world as the father. Against this, there is of course the risk identified by the Independent Children’s Lawyer’s counsel that [X], given her age, may seek to take matters into her own hands if denied.
What is even more clear however is that it is necessary to protect the children from psychological harm. Were time to be permitted on an unsupervised basis, there can be no doubt that the father would expose the children to psychological harm by abusing their mother in their presence in terms consistent with the expanded definition of family violence in the Act. Even if this finding goes perhaps further than the language of the subsection, it is a matter that would be required to be considered under the additional considerations in any event.

Section 60CC(3)(a)

The children have expressed a clear desire to see their father. In the case of [X] her age makes this a significant matter. Even the relatively young children have likewise expressed what, from Ms D ’s report, seems to be clear and considered views to this effect.

Section 60CC(3)(b)

This matter is complicated by the personalities of the parents. The children do wish to see their father and they clearly have a love for him. Only the older child however really seems to understand that the father may have done anything wrong and this appreciation on her part is doubtless influenced by the father’s self-exculpation. Their relationship with their mother, who has always been their primary carer, is complicated by her own difficulties. Those difficulties have given rise to complaints by the children as to their material circumstances when in the mother’s care.
Although the evidence does not take the matter very far, despite what was told to Ms D , it would seem that the maternal grandmother has a parental authority significantly deficient in the mother and from her evidence it is clear that she, and her husband, love the children and have a burgeoning relationship with them.

Section 60CC(3)(c)

There is no question that the father has sought to spend time with his children. He has conducted his case through to judgment. As a matter of practical politics, however, the father’s excision, since the decision of (Judge omitted) in 2015 has left matters largely in the mother’s hands. She is not all that good at being a parent but she is the parent that the children actually have.

Section 60CC(3)(ca)

In a sense, this subsection somewhat repeats the matters just described. The mother has, by force of circumstances, been the only operative parent the children have had since at least 2015. She has not entirely successfully discharged her obligation to maintain the children but has done the best she can. The father necessarily has been absent from the scene.

Section 60CC(3)(d)

The effect of separation from the father is a matter in issue. The father says of course that the children are devastated by their absence from him and this needs to be remedied forthwith. He further complains that in his absence any routine in the household has disappeared and that the children do not attend school, are not fed properly and unkempt. The mother, by way of contrast, says that since the father has been excised the children have become somewhat better. This is not made out by the school records of [Y] and [Z] although I note that school attendance appears to be markedly improved in 2018. What is clear however is that were the children to be removed from the mother and to live wholly with the father (something the father seemed to finally readopt as his position in almost his closing submission) the effect on the mother would be devastating. This would be at least in part because it seems as if [X] has been thrust into a parent role in any event, but more particularly because the mother would entertain the most vivid fears as to the father’s conduct, most particularly with [X], a child much the same age as she was herself when the father commenced his relationship with her. It is also much the age of the child that the father groomed and for which he was convicted.

Section 60CC(3)(e)

The salient factors that emerge under this subsection are the cost of potential private supervision. The father has said he could afford, in effect, about one session per month and that is obviously significant.

Section 60CC(3)(f)

The mother is able to provide for the children’s needs so far as her various difficulties permit. The fact is that [X] does well at school and it is to be hoped that [Y] and [Z] will improve now that they are more regularly attending. It is noteworthy and concerning that [X] has been thrust, in effect, into a parental role, at least to an extent, because of the mother’s deficiencies. Nonetheless, as I have said already and perhaps more than once, the mother is the only mother the children have and she has been in sole charge of the children for now well over two years. While the home may be messy and somewhat unkempt, the father’s assertions that the children are malnourished are simply not supported by any external independent observation. The mother’s own childlike personality makes her capacity to provide for the children’s emotional and intellectual needs somewhat compromised and this is a factor that will not go away.
Nonetheless any difficulties with the mother’s capacity pale into insignificance when compared with those of the father. He is arrogant, rigid, controlling, domineering and insightless. He would never promote the mother to his children and would, to the contrary, denigrate her relentlessly if given the opportunity to do so. While he is an intelligent and forthright man, he has no idea of the extent to which his own lurid conspiracy theories, which are strongly interlaced with sexist abhorrence of female officers of the DHHS, may impact upon his children. This is part and parcel of his incapacity to address his own prior conduct and to see the obvious risk extant that he may re-offend in the future and indeed possibly even with his own children.

Section 60CC(3)(g)

The children, despite all their travails, seem by and large to be developing well. There is nothing to suggest that their development is not age appropriate despite the mother’s lingering concerns about [Y]’s possible Asperger’s (something she has done nothing about over the years). The mother, as I have indicated, struck me as being childlike. Her self-expression and manner of speaking were not those of a person in her 30s but of someone much younger.
The father is of course now almost 60 years old. It appears that he lives in shared accommodation, which by definition would not be satisfactory for the children. His employment circumstances did not emerge with any clarity at all during the currency of the proceeding. While he is originally from (country omitted) where he lived for the first 26 years of his life and while he pointed out that he was in the navy for a period of time, these background matters seem to be irrelevant, not least because, as I understand it, the father is essentially largely estranged from his (omitted) forebears.

Section 60CC(3)(h)

This is irrelevant.

Section 60CC(3)(i)

The mother’s attitude to the children and the responsibilities of parenthood is wholly unexceptionable. While she has her limitations she does her best. The father’s attitude towards parenthood is strongly laced with a sense of proprietal ownership. The submissions he made and indeed almost everything he had to say was, to coin a phrase, “all about him”. His attitude towards parenthood is intimately bound up with what he perceives to have been the disasters foisted on him by third parties including the Department of Justice, the Department of Health and Human Services, the police and no doubt the court system also. In part, the time he seeks with the children is interwoven quite clearly in his own mind with the vindication that he demands.

Section 60CC(3)(j)

There has been family violence throughout this relationship. It is important but it is not necessary for me to repeat at this stage its extent.

Section 60CC(3)(k)

There is an indefinite Intervention Order following (Judge omitted)’s decision. This in fact followed an appeal and a contested hearing. I am entitled to and do conclude from the terms of that order and the terms of her Honour’s judgment that the father has been assessed as an ongoing risk.

Section 60CC(3)(l)

It is plainly appropriate to make final orders at this time. No one has suggested the contrary.

Section 60CC(3)(m)

Although the matter has been referred to again and again in this judgment, there is no going round the father’s offending history. The fact is that he commenced his relationship with the mother in circumstances that involved significant criminal conduct. He has subsequently been convicted of a serious offence of grooming. His heightened denials that he was guilty only go to show his total lack of insight. The child he was seeking to groom is roughly of an age with his own eldest child. While the father said he was not proud of his language in his dealings with the child, the fact is that his language was vile and disgusting. Someone with a history like this, and as I find with an extremely controlling and manipulative personality, represents an ongoing risk to his children even though they love him. This is a case in which time should proceed on a supervised basis as sought by the Independent Children’s Lawyer. It will be of a period appropriate in the circumstances. The time will be once per month and this will give the children the opportunity to see their father under a strictly controlled professionally supervised setting. In the circumstances, while there is no question of punishing the father for his prior conduct, it is clear that the children’s best interests will be served by this limited form of contact.
I am conscious that the mother may be discommoded by this outcome, although I note that Ms D did not agree that she would necessarily be affected significantly by it. Nonetheless, the children do miss their father, and the Independent Children’s Lawyer is right to submit that there must be a risk, given [X]’s age, that if totally denied time with her father she will act of her own accord. In all the circumstances the orders proposed by the Independent Children’s Lawyer are clearly those that are in the children’s best interests in circumstances, which on any view, are far from ideal.

Conclusion

This is a distressing case in which both parents have deficiencies. The orders proposed by the Independent Children’s Lawyer are appropriate in the circumstances and the Court’s orders reflect those proposals.

I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of Judge Burchardt.

Date: 12 April 2018

[2018] FCCA 742

12 April 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness