ROWE & HELBIG

[2014] FamCA 751

FAMILY COURT OF AUSTRALIA

ROWE & HELBIG [2014] FamCA 751

FAMILY LAW – CHILDREN – Terms of reference for appointment of a single expert   – Application made by the Independent Children’s Lawyer where parties were unable to agree – Single expert appointed.

FAMILY LAW – CHILDREN – Interim orders – Whether the father should spend time with the child – Where final orders previously made – Serious allegations of sexual abuse of one child made against the father by the mother – Contradictory JIRT reports – Where discrepancies in the children’s evidence – Where children expressed wishes to see the father – Where potential psychological harm in children having supervised time and in not having time at all – Children to spend supervised time with the father.   

Evidence Act 1995 (Cth)

APPLICANT: Independent Children’s Lawyer

FIRST RESPONDENT:	Mr Rowe
SECOND RESPONDENT:	Ms Helbig

FILE NUMBER: (P)PAC 5421 of 2010

DATE DELIVERED: 30 July 2014

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 11 July 2014

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Legal Aid NSW
(Ms O’Reilly)

SOLICITOR FOR THE FIRST RESPONDENT: Mr B O’Sullivan

COUNSEL FOR THE SECOND RESPONDENT: Ms Haughton

SOLICITOR FOR THE RESPONDENT: Not applicable

Orders

1. Pursuant to Division 15.5.2 of the Family Law Rules 2004 Dr B, Child and Family Psychiatrist, is appointed as a single expert witness to enquire into and report upon matters relating to the welfare of the children X born … 2005 and Y born …2008 (“the children”) and that in preparing his report to the Court, the single expert is requested to consider the following matters:

   1.1the attitude of each of the parties towards their role as a parent and the extent to which any identified personality traits or beliefs inform that attitude;

   1.2the nature of the relationship between the parties;

   1.3the relationship of each of the children with each other and with each of their parents and any other relevant person;

   1.4the allegations of sexual abuse and/or whether each of the children are at risk of sexual abuse in the father’s household; and if so, the nature of that risk;

   1.5whether either of the children are at risk of physical or psychological harm in either household; and if so, the nature of that risk;

   1.6the capacity of each party to facilitate and encourage a relationship between each of the children and other party;

   1.7the likely effect of any changes in each of the children’s circumstances, including the likely effect on each of the children of any separation from either of the parties and any other relevant person;

   1.8the parenting arrangements that are most likely to benefit the children based on the matters referred to in Orders 1.1 to 1.7 above (inclusive);

   1.9any other matter the Court Expert considers relevant.

2. The parties do all things necessary to facilitate the preparation of the report, including attending upon the single expert witness and arranging for each of the children and other relevant persons sought to be examined by the single expert witness, to attend upon the single expert witness.

3. Each of the parents are jointly liable for the single expert report and witness costs and within costs and within 7 days of these orders, each of the parties shall pay the sum of $7,500 into the trust account of Legal Aid NSW, being their respective contributions towards the costs of the Single Expert.

4. In the event that further contributions are required to meet any additional witness costs of the single expert, each of the parents are jointly liable for such additional witness costs and within 7 days of receiving a request for payment from the Independent Children’s Lawyer, each of the parties to pay such costs into the trust account of Legal Aid NSW, being their respective contributions towards the costs of the single expert.

5. Within 14 days of these orders, leave is granted to the Independent Children’s Lawyer to provide to the single expert copies of:

   5.1Amended Response to Initiating Application filed on behalf of father on 6 June 2014;

   5.2Amended Contravention Application filed on behalf of the father on 16 April 2014;

   5.3Application in a Case filed on behalf of the father on 21 May 2014;

   5.4Affidavit of the father filed 28 January 2014;

   5.5Affidavit of the father filed 27 February 2014;

   5.6Affidavit of the father filed 16 April 2014;

   5.7Affidavit of the father filed 21 May 2014;

   5.8Response to Application filed by father on 6 June 2014;

   5.9Affidavit of the father filed 6 June 2014;

   5.10Initiating Application filed on behalf of mother on 31 January 2014;

   5.11Notice of Child Abuse or Family Violence filed by mother on 31 January 2014 and 9 July 2014;

   5.12Affidavit of the mother filed 31 January 2014;

   5.13Affidavit of the mother filed 26 March 2014;

   5.14Affidavit of the mother filed 30 June 2014;

   5.15Application in a Case filed on behalf of Independent Children Lawyer on 10 June 2014;

   5.16Affidavit of Susannah Jane O’Reilly filed 10 June 2014;

   5.17Copy of Orders dated 14 June 2014 and ### (these orders);

   5.18Children’s and Parents Issues Assessment of family consultant dated 6 May 2014;

   5.19Exhibits in the current proceedings.

6. Leave is granted to the Independent Children’s Lawyer to provide to the single expert copies of material produced on subpoena during these current proceedings and for this purpose:

   6.1leave is granted to the Independent Children’s lawyer to have photocopy access to material produced on subpoena and the fees in respect of that photocopying are waived;

   6.2the parties and the Independent Children’s Lawyer are restrained from issuing subpoena to produce documents for the production of material that was viewed by Dr R in preparation of the family reports prepared by her dated 9 June 2011 and 1 May 2013.

7. With the exception of the provision of documents by the Independent Children’s lawyer pursuant to orders 5 and 6 the parties and their legal representatives are not to forward any documents to the single expert witness.

8. In the event either party is hereinafter granted legal aid in this matter, he or she may make a request to the Independent Children’s Lawyer to have their share of the single expert’s costs paid by Legal Aid NSW, although Legal Aid NSW may refuse such a request.

9. The Independent Children’s Lawyer is under no obligation to brief the single expert in terms of orders 5 and 6 until there has been compliance with order 3.

10. The Independent Children’s Lawyer is under no obligation to make arrangements for the single expert to give evidence until there has been compliance with order 4.

11. Leave is granted to the Independent Children’s Lawyer to communicate with the single expert before and after the release of his report.

12. Further consideration of this matter is adjourned to 9.30 am on 17 September 2014.

PENDING FURTHER ORDER IT IS ORDERED:

1. That the children X born … 2005 and Y born … 2008 (“the children”) shall spend time with their father supervised by PP Family and Counselling Services (“PP”) on one occasion each fortnight for two hours at a time and date as directed by PP and to facilitate such time, each parent must:

   13.1contact PP on … 556 within 7 days to arrange assessment and intake for the children’s time with their father pursuant to Order 12 to take place;

   13.2comply with any appointment made by Happenstance;

   13.3Comply with all reasonable rules of Happenstance;

   13.4Comply with all reasonable requests or directions of the staff of PP;

   13.5If PP following its intake procedure is unable or unwilling to provide supervision as set out in Order 12 then the parties shall have liberty to restore the matter to the list on 7 days written notice to the other party and the Court;

   13.6If the parties are accepted by PP following intake procedures then the time the children spend with their father is to be implemented by the mother delivering the children to PP at the start of the father’s time with the children;  and

   13.7The parties are to equally share the costs of supervision and are to pay the fees as nominated by PP.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: (P)PAC5421 of 2010

Independent Children’s Lawyer

Applicant

And

Mr Rowe

First Respondent

And

Ms Helbig

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 11 July 2014, there were two applications before me, both made by the Independent Children’s Lawyer for the two children, X Rowe born in 2004 and Y Rowe born in 2008.

2. The applications were filed on 10 June 2014 and listed on 11 July 2014 in a duty list. 

3. The parents Mr Rowe (“the father”) and Ms Helbig (“the mother”) had been unable to agree to the terms of reference for the Chapter 15 Expert and any orders for time and communication between the children and their father.  Consequently the Independent Children’s Lawyer made the application.

Short history of litigation between the parties culminating in final orders on 21 May 2013 in Federal Circuit Court

Background of relationship

1. On 21 December 1996 the parties married and began living together.  The father was 37 and had two children aged 12 and 10.  The mother was 27 with no children.  After eight and a half years of marriage the parties had their first child X (now nine) in mid 2005.  Their second child Y was born in late 2008 (now five and a half).  Eight weeks after her birth the parties separated; the children remaining with their mother.

2. On 12 November 2010 the first application for parenting orders was filed in the Federal Circuit Court (formerly Federal Magistrates Court) in Parramatta.  The mother responded and sought a change of venue to Newcastle, based on her residence in Town N with her parents.  From the outset of those proceedings the mother alleged that the father represented an unacceptable risk to the children, or at least he did to the child X.

3. There was a hearing on 21 and 22 November 2011, interlocutory appeals and resumption on 23 May 2012.

4. On 21 May 2013 orders were made which finalised all applications.  Some of those orders, indeed the majority of them, were probably made by consent, and although that is agreed by the parties, that is not identified on the face of the orders.  The orders provided for:

   ·the parents to share parental responsibility;

   ·the children to live with the mother;   and

   ·to have defined time with the father, including alternate weekends, school holiday periods and other special times.

5. The orders of 21 May 2013 ultimately delivered in Wollongong were final.

Short history of the current proceedings before me

1. In about September 2013, a fresh application was made by the father in the Federal Circuit Court, or at least an affidavit was filed. 

2. A Contravention application was filed by the father on 28 January 2014.  That application alleged contravention without reasonable excuse by the mother of the orders providing for the children to spend time and have telephone contact with him.  There was also an allegation in relation to a specific issue, namely provision of information about a condition which X suffers, namely diabetes. 

3. The affidavit of the father filed on the same day referred to contact with him by a police officer from the child protection team on 2 January 2014, alerting him to allegations of abuse of the children raised by the mother on their behalf.  The father asserts that on that day he was contacted twice by that same police officer.  First to say that he would not be spending time until allegations of abuse had been investigated; later in the day telling him to “collect his children and enjoy his time with them”.

4. The father did collect the children and they spent from 2 January to 6 January 2014 inclusive with him.  This is not in dispute.

5. On 25 January 2014 the next period of time (four nights) was due to be spent with the father, the mother communicated to the father that:

   Due to serious allegations and a current JIRT investigation, it was appropriate (in her view) that there be no further contact between you and the children at this stage.

6. The children were not provided for that period of time.  The immediate next step by the father was the Contravention application filed on 28 January 2014.

7. On 31 January 2014 the mother filed an Initiating Application and a Notice of Child Abuse or Family Violence.  She sought a discharge of the orders of 21 May 2013 (“the May 2013 orders”), with sole parental responsibility and residence for the children with her, and on an interim basis, a stay of the orders for time and communication.  The mother also sought a raft of orders in relation to specific issues and restraint on the father’s conduct. 

8. In the Notice of Child Abuse or Family Violence[1] there were 13 paragraphs raising allegations of abuse of the children.  Of those, the first seven paragraphs relate to allegations arising since the May 2013 orders were made.  The relevant paragraphs for these purposes are set out below:

   1.On 27 December 2013, 5 year old [Y] told the mother the father, “[Father’s first name], he asked me to rub in his private parts”.

   2.On 31 December 2013 after JIRT interviewed [Y], Detective Senior Constable [H] and FACs case worker [Ms W] from the JIRT team spoke with the mother and one of them said “something has clearly happened.  [Y] told us [the father] wanted her to rub his penis.  [Y] pointed to the genitals on a male body chart”

   3.On 14 January 2014 [Y] told the mother “it was dark mummy.”  She looked frightened.  When the mother asked “did someone say something nasty was going to happen if you told?” [Y] nodded and buried her head on her knees.

   4.On 2 January 2014 after JIRT interviewed [X], Detective Senior Constable [H] and FACs case worker [Ms T] from the JIRT team spoke with the mother and one of them said “[X] told us about how [Y] had taken the toy and pretended its mouth was sucking in her private parts”.

   5.About August/September (presumably 2013) [X] told the mother “[Y] asked to suck my doodle”.

   6.[X] showed the mother how [Y] had turned a toy upside down to rub its mouth in her crotch and [X] told the mother “[Y] said look, Elmo has a big mouth … he’s going to suck my privates”.

   7.On 14 January 2014 during a visit with new friends [Y] put her finger up the bottom of a 12 year old girl and repeatedly grabbed at the penis of the 8 year old brother.  The mother of the children reported to FACS. 

   [1]   Notice of Child Abuse or Family Violence filed by mother 31/01/2014, p 3, pars 1 to 7    inclusive

9. On 27 February 2014 the father filed his Response and an affidavit sworn by him.

10. On 27 March 2014 the matter came before me and an Independent Children’s Lawyer was appointed for the two children.  The Contravention Application of the father was adjourned to a date to be advised (with a date nominated 17 April 2014 for that date to be appointed).  The father sought and was granted leave to file and serve an Amended Contravention application.

11. On 17 April 2014 orders were made that the father’s Amended Application be listed for hearing on 23 May 2014.  The time for a Children and Parents Issues Assessment (CAPIA) was brought forward.

12. On 23 May 2014 orders were made that the father’s Application in a Case for an adjournment of his Contravention application was granted; that the costs of both parties was adjourned to a final hearing and that the matter was given expedition and listed for trial dates and directions on 29 May 2014.  Short reasons were given for the adjournment of the father’s Contravention application relating to apparently conflicting information provided to each of the parents, the Independent Children’s Lawyer and indirectly, the family consultant, by various officers from the JIRT team.

13. On 29 May 2014 orders were made that the proceedings be declared exceptional within the meaning of s 69ZT(3) in relation to the mother’s allegations of sexual abuse of the children or either of them, and that pursuant to s 69Z(3) all the provisions of the Evidence Act pursuant to s 69ZT(1) refers, be applied to the proceedings.

14. The parties and the Independent Children’s Lawyer were directed to prepare a Minute of Order for the preparation of a Chapter 15 expert.  The proceedings were adjourned to 6 June 2014.

15. On 6 June 2014 there was no agreement about the Chapter 15 expert and an order was made appointing Dr B, Child and Family Psychiatrist, as the single expert.  The parties were to consult through the Independent Children’s Lawyer about the terms of reference for Dr B and also to consider what time the children should spend with their father pending further order.

16. On 10 June 2014 the Independent Children’s Lawyer filed the Application in a Case which came before me on 11 July 2014.  The parties had been unable to agree on both issues.  Consequently, the Independent Children’s Lawyer had made the application.

The applications before me

1. The application for terms of reference for the appointment of a     single expert.

1. I was asked to read two reports of Dr R, the former Child and Family Psychiatrist, reporting in the Federal Circuit Court proceedings; 9 June 2011 and 1 May 2013.

2. These reports were read to determine the issue of whether or not they should be provided to Dr B.  I determined that they would not be so provided noting that they might be used as a basis for cross-examination of Dr B.

3. The mother’s main objection had been that each party was required to contribute to the costs of the psychiatrist and rather sought that the father should pay all of the up-front costs.  The mother had also sought a much more extensive provision of the documentation to Dr B[2], but I am satisfied that it is appropriate for both parents to contribute to the cost of this exercise, especially as the mother is the applicant for final orders.

   [2]Mother’s proposed Minute of Order 

4. The document produced by the Independent Children’s Lawyer, including additional handwritten paragraphs, is an appropriate Minute and as indicated, I make orders accordingly. 

1. Application in a Case

1. The documents I have read for the Application in a Case are as follows:

   (a)Application in a Case filed 10 June 2014;

   (b)Affidavit of the Independent Children’s Lawyer filed 10 June 2014;

   (c)Response to an Application in a Case filed by the father 30 June 2014;

   (d)Notice of Child Abuse or Family Violence filed by the mother 31 January 2014.

   (e)Amended Notice of Child Abuse or Family Violence filed by the mother 9 July 2014;

   (f)Affidavit of the mother filed 31 January 2014;

2. The Application in a Case contains one order sought by the Independent Children’s Lawyer.[3]  In summary, that order is for the children spend time with their father supervised by PP Family and Counselling Services (“PP”) once per fortnight for two hours, at a time and date directed by PP.  There were practical provisions for the implementation of the order. 

   [3]Application in a Case filed by Independent Children’s Lawyer 11/07/2014, p 2

3. The application was supported by the father and strongly opposed by the mother. 

4. The mother’s affidavit consisted of 78 paragraphs, 57 pages of annexures plus a document titled ‘Index of Exhibits for [Helbig] affidavit’ in reply sworn 27 June 2014, being approximately 90 to 100 pages.  The mother had prepared the affidavit herself.  Counsel was briefed only to appear at the hearing.  I did not read the “Index of exhibits” document.  Counsel for the mother indicated that this was the research material that the mother had read which informed substantial parts of her affidavit and that she was not asking me to read the material, but was providing for it because of her references to that material in her affidavit.

1. The father took objection to the affidavit of the mother, as he was entitled to do.  His objections were contained in a document handed up and could all be upheld.  Certainly the paragraphs following the heading “Children are believable and should be believed” (paragraphs 19 to 40 inclusive), appear to refer almost exclusively to the research material which the mother provided in the index of exhibits referred to earlier, which was not read by me.

2. The balance of the paragraphs, 1 to 18 inclusive and 41 to 78 inclusive, are a combination of opinion by the mother, hearsay and a fusion of complaints pre-dating the May 2013 orders with current concerns.  It is difficult to read and fully comprehend without reference back to most of the documents which must have been tendered in the proceedings in the Federal Circuit Court, intermittently over four years.  I have not attempted to do so.  I did not refer to those documents.

3. As she was directed to do, the mother filed a further Notice of Child Abuse on 9 July 2014.  That was in response to a request by the father for a particularisation of the allegations made against him in respect of the children.  Paragraphs 1 to 13 inclusive relate to concerns which are said to have arisen since the May 2013 orders.  Those paragraphs are set out below: 

   1.In mid June 2014 [the child Y] said “I was scared when he was doing those things … you know when he asked me to touch him on his privates.  He said I could do some colouring in after I just did what he wanted first”.

   2.On 29 May 2013 [the child] told the mother “[X] was playing on the computer … [father’s first name] took me to the bedroom then took off his pants, his undies too mum.  And I tried to look behind me … he dept turning my head back to look.  I tried not to look.  Then I tried to run away but he grabbed me by the ankles … and then I tried again and he caught me with one foot.  He made me touch him on his private parts.”  I asked “can you show me where?”   [The child] pointed to my genitals.  I asked “where was [G]?”  [The child] said “out shopping”.

   3.In May 2014 [the child Y’s] counsellor said “[Y] said she has difficulty saying no to her father”.

   4.In April 2014 [Y] told her counsellor, Senior Psychologist [Ms C] [per her subpoenaed notes] “11/04/2014 [The child] and therapist engaged in a picture drawing about feelings.  What made us feel good and what made us feel bad or yucky.  [The child] drew a picture of her father telling her to go to the bathroom and get undressed!  She stated that he has said it in a shouty voice.  She stated that he always shouted at her like this..  [The child] was expressive of her anger and her desire to never go to [the father’s] again … [The child] stated that [the father] had asked her to touch him on his private parts.  Therapist asked one time, or more than one time?  [The child] stated more than one time.  Lots of times.  Therapist asked was it in the bathroom when he was shouting to get undressed?  [The child] stated No, it was in his bedroom and he didn’t shout it.  [X] wasn’t there  Therapist asked wasn’t there in the house or not there in the bedroom?  [The child] responded not there in the bedroom.  He was somewhere in the house” and

   In her 12 May 2014 Report, Ms [C] wrote “[The child Y] has demonstrated to me that she is extremely uncomfortable about the whole subject of her father and her relationship with him.  She has become dissociative on more than one occasion when asked to discuss her father, and at other times has become aggressive and stereotyped in her response to talking and thinking about him.  On 11 April 2014, for example, she became angry in her response to being asked about visits with her father and began stabbing the page with the pencil she was drawing with, repetitively stating the word “yucky yucky yucky” when asked how she feels when she visits”.

   5.[The child Y] has displayed behaviours not typical for her – flooding the bed after a visit with the father in Dec 2013, extremely clingy with me, since last year fretful and moody extremes – happy one minute and brittle, crying or very angry the next with the unprompted aggression including biting, kicking and angry tantrums and threats “if you don’t do this, I’ll hit you or you’ll die … I’m going to kill you”.  [The child] has made comments late last year to me like “I hate this world.  I just want to get out of this world forever” and “I wish I’d never had a father”.

   6.On 12 Jan 2014 during a visit with new friends, [Y] put her finger up the bottom of a 12 year old girl and repeatedly grabbed at the penis of the 8 year old brother.  The mother of the children reported to FACs. 

   7.On 14 Jan 2014, [the child] told the mother “it was dark mummy”.  She looked frightened.  When the mother asked “did someone say something nasty was going to happen if you told?” [The child] nodded and buried her head on her knees.

   8.On 2 Jan 2014 after JIRT interviewed [X], Detective Senior Constable [H] and FACs case worker [Ms T] from the JIRT team spoke with the mother and one of them said “[X] told us about how [Y] had taken the toy and pretended its mouth was sucking in her private parts”.

   9.On 27 Dec 2013, 5 year old [the child Y] told the mother the father, “[Father’s first name], he asked me to rub in his private parts”.

   10.On 31 Dec 2013 after JIRT interviewed [Y], Detective Senior Constable [H] and FACs case worker [Ms W] from the JIRT team spoke with the mother and one of them said “something has clearly happened.  [Y] told us [the father] wanted her to rub his penis.  [Y] pointed to the genitals on a male body chart” JIRT said “[Y] said no-one else had asked her to do that and she tried to get away”.

   11.About mid Aug/Sept 2013 [X] told the mother “[Y] asked to suck my doodle” and [X] showed the mother how [Y] had turned a toy upside down to rub its mouth in her crotch and [X] told the mother ‘[Y] said Look, Elmo has a big mouth … he’s going to suck my privates”.

   12.One night in the bath, [the child Y] spoke about the ‘porcupine game’ which she said “[the father] played with her” and she told me how you “get a brush and tickle here”, pointing to her vagina.

   13.On 19 June 2013 the children refused to go with [the father’s] agent/live in girlfriend [Ms G] after school with [Y] crying and holding onto me and getting out of the car after being strapped in and with [X] running away from the car.  In the days following the incident, the children told me and separately told the Junior School Head and [X’s] teacher “[G] threatened us … called u shit … and bullshit and shut us in a room and threatened us ‘dobbers go down to the grave’ and she “would kill mummy”.

   The Deputy school Principal and teacher met with [the father] on 3 Sept 2013 and minuted an agreement that “The [Helbig] children wouldn’t be left unsupervised in the care of [Ms G]”.   The teacher’s journal recorded in her journal “[The father] said he will take [G] out of the equation”.

4. I have disregarded 14 to 20 inclusive. 

5. I note that the concerns raised in the second Notice of Abuse are in summary:

   ·That the child Y has told her mother that the father directed her and forced her to touch his genitals and that that might have happened; the asking and the touching more than once,

   ·A reference to Y displaying atypical behaviours; wetting the bed, being moody, clingy, fretful, angry, biting, kicking and having tantrums after the visit to her father in December 2013.

   ·That Y has displayed strange behaviour; touching and grabbing older children’s genitals and displaying sexualised behaviour with toys and in relation to her brother and other children.

   ·There is also an allegation that both children were threatened by the father’s partner for having made disclosures about the father.

6. These are serious disclosures and the Court must take a careful and conservative approach to dealing with such allegations.  This is despite allegations of abuse being made over an extended period of time prior to final orders being made in May 2013 (partly or perhaps largely, by consent).

7. Despite the restricted nature of the application being made on behalf of the children by the Independent Children’s Lawyer, I must consider the pathway in the legislation, in determining whether it is in the children’s best interests to spend supervised time with their father.

The law

1. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as paramount.  The primary considerations are the benefit to children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm, from being subjected to, or exposed to, abuse neglect or family violence and I must give greater weight to that latter consideration; that is protection from harm.

2. In this matter the parents acknowledged the role of each other by consenting to equal shared parental responsibility.  If I am wrong about that and the order was not made by consent, then a Court having heard and determined the matter, concluded that equal shared parental responsibility was in the best interests of these children.  Accordingly that order recognises the meaningful relationship that each of the children has had with both of the parents. 

3. Now there are further serious allegations.  The children have been interviewed more than once and have had counselling on the basis of abuse.  It was forcefully put in submissions on behalf of the mother that harm could be caused by exposure of the children to a perpetrator of abuse.  I accept that submission.  Harm could also be caused to the children by prolonging the period for which they have no time with their father at all, presently six months.

4. The child Y is alleged to have made more allegations over the six months that she has not seen her father.  That could be consistent with further disclosures from a place of safety; it could be consistent with the child making further disclosures because she felt encouraged to do so.  I am not in a position to make a determination about that.  Once the report by Dr B has been released and in the event that the matter cannot be resolved, then all of the evidence will be appropriately tested in a final hearing.  I consider that there is potential psychological harm in the children having supervised time and in not having time at all.

5. Detective H of the JIRT team explained to the mother that there was “insufficient evidence to proceed criminally or for application for an AVO”.  The records indicate that the mother was advised that this was due to inconsistencies in the disclosure (by Y) and the interview with X, who denied any knowledge of the alleged abuse by the father, as per Y’s disclosure during interview.  That was in January 2014[4].

   [4]Exhibit 2, file note record 29/01/2014, red flag ICL 2

6. The Department advised the principal of the children’s school that JIRT had investigated the matter in relation to the children, but “have not been able to substantiate.”  The principal advised that the Department would not be intervening in the family law matter and the orders would remain as outlined[5]. 

   [5]Exhibit 2, file note record 28/01/2014 to 30/01/2014, tag ICL 3

7. The JIRT team made contact with Ms Z, a former counsellor for the mother and for X.  In January 2014 she had not heard from the mother since November 2013.  Ms Z is quoted by a Departmental officer as saying:

   [Ms Z] understands that everyone has hands tied.  Mum was crucified in Family Court.  Needs to keep relationship with her children solid.  It is difficult speaking to anyone objective.  Mothers get blamed and [the mother] finds this difficult.

Views

1. There is an indication in the records of the Department of Family and Community Services that in January 2014, the children were wanting to spend time with their father.[6]  The mother was expressing uneasiness about continuing to send the children to contact and there was this exchange: 

   I asked how the children were after their last visit and she said they were unsettled and [Y] has been moody and very up and down.  They were happy with all the presents they received thought including a Wii, trampoline and promise of an X box.  During phone calls he tells them how he has new games for them so of course they want to go back there.

   [6]Exhibit 2, tag ICL 5

2. This conversation between the mother and an Officer from the JIRT team is an indication that at the end of January 2014, the children were apparently expressing to their mother a wish to see their father, whether or not they had been seduced by the promise of gifts as suggested in the record.  I take this into account to some extent as to their views at least in January 2014, when they had recently both spent four days’ holiday time with their father.

Relationships

1. Photographs were tendered into evidence[7] of happy family scenes, between the children and their father over the years.  I do not know how old the children were when most of the photographs were taken and cannot place any particular weight on them.  I do take into account the audio recording which the mother tended into evidence.[8]  In that tape the child is said to have told her mother something which her mother then asked her to repeat for the benefit of the recording on her mobile phone.  It starts with the passage:

   [7]Exhibit 8

   [8]Exhibit 4

   Mother:         Will you tell me again what you just said?

   [Child Y]:Are you sending a message to [father’s first name]? (a reference to her father).

   Mother:No I’m not sending a message to.. but I want to know.  You just said that he had asked you to do that to him.  Is that right?

   [Child Y]:       He asked me to rub his private parts but I said no.

   There was then a strong statement from the child X:

   [Child X]:                 No he didn’t.

   [Child Y]:                 You weren’t there.

   [Child X]:                 I was there the whole time.

   This descended into an argument between the children.

2. It could be that X is being supportive of his father, championing his father but has been witness to inappropriate conduct.  It could be that there was no inappropriate conduct and that Y misunderstood or there was some innocent explanation for what she thought she was being asked to do. 

3. I am not in a position to determine those matters.  I am conscious that orders were made providing in details terms, for time between the children and their father and that that was happening until January 2014.  The possibility of an ongoing relationship is in place and is a very different one for both children.  There is no suggestion of any misconduct directed towards X himself. However in the event that there was misconduct between the father and Y, it would be abusive for X to have been present when that occurred.  Accordingly I take the undivided interests of both children into account.

4. There is psychological risk to the children of the irreparable breakdown of their relationship with their father.  There is risk of psychological harm to the children of being exposed to their father if they are concerned about his past conduct and if they are concerned about the allegations that they are making about him.

Capacity

1. I take into account and give some weight to the observations of the family consultant in her CAPIA.[9]   She describes the children as “happy well-adjusted children with age appropriate development.”  The children have been in the primary care of their mother. 

   [9]CAPIA dated 06/05/2014, pp 3 to 5, pars 12 to 28

2. The family consultant observed the children on 6 May 2014.  She noted that the children had had no contact with the paternal family since 7 January 2014 and the two adult half-siblings with whom they had close and loving relationships.  These are the two children of the father’s first marriage, who are now aged 29 and 30.

3. The child X noted “That he sort of misses the father and would like to see him again.”  He said the father has done nothing to hurt him but heard from the mother “about the stuff what he’s done to other people.”  He didn’t know who the other people were, simply “No I just know it’s not safe.”  X expressed himself to be safe and comfortable in his mother’s home, but not so safe when he visits the father’s home.  He said he has fun when he visits the father and would not mind if he visited without Y.  He described seeing the father without Y as “a bit different but he wouldn’t mind”.

4. The child Y was unsettled and resistant when talking about safety in her father’s home.  She identified the safety issues as the father having a trampoline with  no safety net to stop her falling off and a dangerous tree.”  She volunteered the statement, “my dad done something really wrong, really rude.”[10]  When asked who had told her about the really rude thing happening, she said it had been the mother and maternal grandparents.

   [10]CAPIA dated 06.05.2014, par 26

5. The family consultant noted that Y did not say that she was scared of the father, just that she did not like the rude thing that happened. 

6. The mother appears desperately concerned that the father is a risk to the children and has sexually abused Y; the father desperately concerned that he would lose all relationship with his children and that they would suffer psychological harm.

7. At the time of preparing her assessment report, the family consultant accepted the information provided by the mother that JIRT had substantiated harm and considered the father to be a source of harm.  The mother still considers that that is the case.

8. However on 20 May 2014 the legal officer from the Department communicated with the Independent Children’s Lawyer advising and passing on what she had been told by the Manager of case work at JIRT as follows:

   That there were no open plans for these children; that the JIRT matter was closed in February 2014, both children having been interviewed.  There was no present intention to re-open the matter.

9. There had been a further report since February 2014 which had been transferred and closed on 15 April 2014.

10. That information was quite properly communicated by the Independent Children’s lawyer to the family consultant and understandably, the family consultant responded that in light of that further information, she had no issue with the father spending supervised time with the child Y until a report could be prepared, presumably by a single expert.

11. Taking all of those matters into account and doing the best I can to balance the competing risks identified to the children, I do consider it appropriate for them to spend time with their father in the way envisaged by the Independent Children’s Lawyer and that there is a benefit to them in understanding that they can see their father in a safe setting.  Accordingly I make the orders sought by the Independent Children’s Lawyer.

I certify that the preceding sixty -three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 30 July 2014.

Associate: 

Date:  30 July 2014