Rungta and Rungta
[2017] FamCA 845
•24 October 2017
FAMILY COURT OF AUSTRALIA
| RUNGTA & RUNGTA | [2017] FamCA 845 |
| FAMILY LAW – CHILDREN – Magellan – Best interests – Whether the children are at an unacceptable risk of sexual abuse in the unsupervised care of the father – Where a finding is made that the father sexually abused his child – Where it is ordered that the children continue to spend supervised time with the father. |
| Family Law Act 1975 (Cth) |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Cross on Evidence (Sixth Australian Edition), LexisNexis |
| APPLICANT: | Mr Rungta |
| RESPONDENT: | Ms Rungta |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Grainger |
| FILE NUMBER: | LEC | 283 | of | 2015 |
| DATE DELIVERED: | 24 October 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 13, 14, 15 & 16 March and 11, 12 & 13 September 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Mason |
| COUNSEL FOR THE RESPONDENT: | Mr Linklater-Steele |
| SOLICITOR FOR THE RESPONDENT: | O'Reilly & Sochacki |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Frizelle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Grainger Legal Aid Queensland |
Orders
That all previous parenting orders be discharged.
That the children, B born … 2009 and C born … 2013, (“the children”) shall live with the mother.
That the mother shall have sole parental responsibility for the children for all of the major long-term issues in the children’s lives save for decisions about:
(i)the children’s names; and
(ii)changes to the children’s living arrangements that would make it significantly more difficult for the children to spend time with the father in accordance with the provisions of these Orders;
for which the mother and the father shall have equal shared parental responsibility.
That the children shall spend time with the father for up to two hours on one occasion per fortnight during the weekend at the P supervised contact centre located at Town F, Queensland or away from that contact centre as organised with the P Contact Centre management but still to be supervised by the P Contact Centre.
That the father shall be entitled to take his current partner with him to the supervised visits with the children as long as the provider of the supervision service approves of same.
That any time any member of the father’s immediate family of origin who live in India is visiting Australia and spending time with the father and he wishes to take them with him to the supervised visits with the children he shall be entitled to do so, as long as the provider of the service approves his request to do so in advance.
That the father shall only be entitled to take any other third person not already referred to in these Orders with him to a supervised visit with the children with the approval of the mother and the service provider obtained in advance.
That the father shall pay the costs of the P Contact Centre.
That should the father wish to move the supervised contact from the P Contact Centre to an alternative community based, government funded, non-profit children’s contact centre located on the Gold Coast for his own reasons, he shall be entitled to do that with the mother’s agreement, or should P Contact Centre for any reason no longer be able to offer supervision of the children’s time with the father for this family, then the children’s supervised time with the father should be facilitated through one of the community based, government funded, non-profit children’s contact centre located on the Gold Coast instead, with the mother and the father being required to take all steps necessary to register with such a centre to ensure a smooth transition in arrangements as quickly as possible.
That should the children’s supervised time with the father transition to a community based, government funded, non-profit children’s contact centre located on the Gold Coast, the father shall still be responsible for all of the costs charged by such centre.
That the Independent Children's Lawyer be discharged.
That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rungta & Rungta has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: LEC 283 of 2015
| Mr Rungta |
Applicant
And
| Ms Rungta |
Respondent
And
| Independent Children's Lawyer |
REASONS FOR JUDGMENT
B and C Rungta are 8 years old and 4 years old respectively. They are the children of the marriage of Mr Rungta (“the father”) and Ms Rungta (“the mother”) who separated in early 2015 and who have been in dispute about parenting arrangements for these two children ever since.
The children live with the mother and have done since the parental separation. The dispute between the parents that is now for this Court to decide arises out of the mother’s belief that the father was sexually abusing C before their separation. The children have only been spending time with the father since the separation on short visits at a private, commercial children’s contact service on the Gold Coast, supervised by the owner/operator of that business.
The father agrees that the children should live with the mother. They disagree about how parental responsibility is to be allocated between them and they disagree about the amount of time the children should spend with the father and whether it is to be supervised or not on an ongoing basis. The father opposes supervision and wants the children to spend each second weekend with him. The mother wants the time the children spend with the father to continue to be limited to short, two hour visits every second weekend that are supervised.
There was an Independent Children’s Lawyer (“the ICL”) appointed in the matter and he instructed counsel at the trial. The mother and the father were also each represented by experienced counsel at the trial. The trial first took place over four days in March this year. That was because the Court had been told it was only going to take four days to complete. It did not and remained part-heard after four days. As my judicial calendar was full for several months after those four days, the trial was adjourned to be completed over three more days in September.
The Court was assisted at the trial by the evidence of Ms Y, an experienced Social Worker who has worked for many years in family and child protection services in the United Kingdom, New Zealand and Australia and for seven years with Legal Aid Queensland.
I have determined that the proper parenting order to make in this case is for the mother to have sole parental responsibility for the two children and for their time with the father to continue to be supervised on an indeterminate basis. I have come to that determination as I am satisfied that the children would face an unacceptable risk of sexual abuse and emotional harm if they were to spend unsupervised time with their father and that this unacceptable risk will not be sufficiently ameliorated for many years to come.
These are my reasons for making the orders that I do.
Background Facts
The mother is now 33 years of age. The father is 32 years of age. In early 2008, the mother and her son of a former relationship, who was then 4 years of age, were living on the Gold Coast and the father was living and studying in Melbourne. He was studying towards a Master’s Degree, having already obtained a Bachelor’s Degree in his country of origin. The father is a citizen of India, where he grew up and where his family of origin still live. When he and the mother met, he was in Melbourne studying on a student visa.
The mother and father first met and got to know each other through a social media website on the internet. After they commenced an internet friendship, the father visited the mother in Queensland in or around August 2008 and spent holiday time with her, during which they formed an intimate relationship. However, during that time, the mother found some evidence of other online communication between the father and other persons that concerned her. The father had been communicating with a teenage girl who lived in South Australia and a man in Canada. The mother then contacted those people and the girl told her she was only 15 years old, with the Canadian man telling her that he was gay. The mother raised these revelations with the father. He has always denied knowing that the girl was only 15 and he denied any sexual interest in the Canadian man.
The mother said she nevertheless decided not to continue her relationship with the father. Telephone records produced by the father demonstrated that such a decision did not last very long though. He and the mother were clearly communicating by phone again soon afterwards and then the mother learned she was pregnant with their child. This led to a decision for the father to leave Melbourne and to move up to northern New South Wales to live with the mother in February 2009. They married in 2009. Their child, B, was born in 2009.
The mother sponsored the father in his application for a permanent residency visa and his studies were terminated. After B was born, the mother actually went back to work in telemarketing and the father stayed home looking after the children as he was unable to secure employment of any kind.
The father went back to India shortly after their wedding to attend the wedding of his brother and he stayed there for a month. He only returned to Australia a few days after B’s birth. He did not tell his family of origin about marrying an Australian woman or that she was having his child. He was, he said, too embarrassed about that to tell his Indian family.
The mother’s first son, M, was attending school in 2009. The mother would drop him to school, go to work then pick him up from school on the way home. The father looked after baby B at home.
In the second half of 2009, M was spending regular time with his own father by agreement between the mother and M’s father. M was 5 years old at that time. According to the mother’s affidavit evidence, one night she was putting M to bed and he said to her “what you’ve got to do is put your finger in your mouth and stick it up my bottom”. She said that she asked him who had told him that and he replied “Dad”. The mother said she thought at that time M was referring to his own father. The undisputed evidence is that M (and the other two children) have always called the father “papa”.
The mother said that she spoke with the father about it that night and he “down-played its seriousness”. She said that he said to her “brush it off, it doesn’t mean anything”. Despite that, the mother reported it to the NSW child protection Department. She said that M was interviewed by departmental officers and nothing came of the investigation.
NSW Departmental records were produced to the Court under subpoena. They record that an assessment commenced on 25 September 2009. The records appear, on my reading of them, to reflect the following information having been provided to the Department. I consider it safe to presume the source of the information to have been the mother.
·That M’s behaviour is very different after he sees his father with M reportedly being hypo and displaying sexualised behaviour at home such as touching himself on the penis and rubbing himself up against his dad (said in the notes to be [Mr D], his own father);
·That on 16 September 2009 M disclosed that he played a game with his father called “boy and girl”;
·That after some leading questions such as “does he touch you and whereabouts?” the child said “Dad squeezes my bum, smacks it, puts his finger in his mouth and then sticks it up my bum”.
Plainly, it can be observed that such an alleged disclosure is not the same as that deposed to by the mother in her trial affidavit as having been said by the child to her. At the trial, she could not give any evidence that explained that.
The Departmental records reflect that M was interviewed by NSW Joint Investigative Response Team (JIRT) members shortly after the assessment began. The records reflect that M did not disclose any harm from his biological father or any other person. He is recorded to have said “Dad does rude stuff” but when asked about that, his answers were innocuous. The notes say that M was asked whether there were any questions that he had been asked that he knew the answer to but did not want to tell the answer to. He is recorded as having responded “yes” to that. When asked “can you tell us why you don’t want to tell?” he is recorded as having said “Someday ... Not ready to tell”. It is recorded that he was asked about the “boy and girl” game and that he said he was “only joking” and “it was a lie”.
Those NSW Departmental records reflect that the mother said that she would have a conversation with M’s father and paternal grandparents and that she would tell them what M had disclosed to her so that they would be aware that M is able to report harm and they could be vigilant. At the trial, the mother conceded that she had not done that, saying that she decided not to do that as the investigation had not substantiated the allegation.
Around November 2009, the mother and father and the two boys moved to a township on the north coast of NSW. The mother then fell ill with benign intracranial hypertension. She was hospitalised with this illness a few times in early 2010. The maternal grandmother, who lived in her own home in a nearby township, moved in with the family to help look after the children.
The mother had a childhood friend who lived in a town in country Victoria and the father secured employment in that town. He moved down there in early 2010 and in mid-2010 the mother and the two boys moved down there to join the father.
After they had been there a while, the mother’s friend, who had herself been a victim of sexual abuse as a child, expressed her thoughts to the mother that the father was too affectionate with the two boys, apparently asserting that she thought “it was not right”. The mother and her friend’s friendship broke down some time thereafter, apparently because the mother ignored the concerns expressed by the friend about the father.
In that Victorian town, the mother and the father had a serious disagreement after an incident at a party one night. Another friend of the mother’s was apparently demonstrating some affection towards the father. The mother said she later confronted the father about this, they argued and he punched her in the face near her mouth with his fist. She said that she had a swollen lip for a week and avoided the father during that time by staying at her friend’s home. She did not report the assault to police. When she left her friend’s home and moved with the boys back into the home with the father, the friend became upset and their friendship ended.
The father admits that he and the mother had an argument such as described by the mother but he denied that he punched the mother. He said that he pushed her instead.
It is undisputed that the mother’s former friend started telling other people in that Victorian community that the father was a “paedophile”. Apparently, she would shout that out in public whenever she saw him. The mother said that other people also started reporting this to her. Understandably, it began to create difficulties for them as a family in that small town.
The mother again became ill with the intracranial hypertension when she was pregnant with C and was hospitalised again around Christmas, 2012.
In 2013, the Victorian child protection Department received a report from a person that the mother had told another adult that M was being sexually abused by the father. It was also reported that M had written across “one of the photos in the home ‘sex fucker’”. It was recorded that the photo was a photo of the father. At the trial, the mother said that she remembered the writing on the photograph actually occurring. The Victorian Department’s records reflect that M was reported as displaying no concerning behaviour or sexualised behaviour at school, with his classroom performance reported to be “within normal range”. He is reported to appear as being “quite confident” and “a child who chats to people”, and no disclosures were said to have been made by him. The matter was not investigated further at that point.
In July 2013, the Victorian Department received another report that M had been speaking “sexually inappropriately”. It is recorded that M had confided in another male that he watched pornographic DVDs and had described the contents of them. The records reflect that the administration of M’s school was contacted and M was reported by the administration to be generally well behaved at school, although he was observed to have written once about a violent movie. He was reported to have said he watches that type of movie and it was reported that he does speak to other boys about them.
The Departmental records reflect that an officer went to M’s school in August 2013 and spoke with him (without the mother’s knowledge or consent) for over an hour. The records say “M was ‘switched on’, relaxed, ‘good as gold’, happy to talk freely” and that he made no disclosures.
The Kindergarten where B was attending was also contacted and reported no concerns for the child from his presentation, but it was recorded that he would be monitored and any significant concerns would be reported in future.
The mother said in her trial affidavit that the Detective who spoke with M told her it was necessary to interview M without her consent
“as they need to catch him, [the mother and the father] off guard.” She said that the Detective assured her that there was “no risk of abuse in the home”.
C was born in 2013 in Victoria.
The mother, the father and the three children moved from Victoria back to the north coast of NSW around the end of 2013. They moved in with the maternal grandmother in her home to support her as her partner had recently died. They also considered it was best to leave Victoria because of the allegations of “paedophilia from other people” that had been made against the father.
M started spending time with his father and paternal grandparents on a regular basis again. The mother said that the father’s attitude towards M then changed from a loving one to a critical one. She said that she was surprised as her observation was that M was thriving back in this environment.
The mother said in her affidavit that the family relationship “was good from around September, 2013 to January, 2015”.
The immediate lead up to the separation of the mother and the father and the allegations
It is undisputed that in or around October 2014, C was admitted to hospital having had febrile convulsions and was diagnosed with a urinary tract infection.
There was evidence which I accept that from around December 2014, C was complaining of pain in her genital region. She would often hold herself there and say things like “ow”, “ouch” and “owee”. The mother said that she would check her daughter when she made such complaints but could see nothing like nappy rash or any other obvious physical explanation for her frequent complaints. It is undisputed that C began to react negatively to having her nappy changed, screaming and holding her legs tight together.
The mother said that at the same time, C started “nodding off to sleep at odd times during the day, and started getting very dazed”. The mother said that when she spoke with the father about her concerns about these observations, he suggested that she might have been bitten by a tick. The mother said he would tell her “not to worry about it”.
The mother said that the father was also becoming very affectionate with C, often kissing her on the lips; such that the mother began to feel uncomfortable about it.
The mother also gave evidence that on a day in January 2015, she was in the kitchen of the house and she could hear the father and B together in the lounge room around the corner on the other side of the wall. She said that she heard B call out loudly “[Dad] has just touched my doodle”. The mother said that she asked the father about that and he said that he said something like “I was tickling him. I accidentally bumped it.” Ms Y reported in paragraph 24 of her first family report that the father “denies touching B’s penis or making the statement to the mother”. Yet, at the trial, the father did say under cross-examination that he remembers a time when he was playing with B when B called out that he (the father) was touching his “doodle” and he did remember that he “might have done it by accident”.
The mother said that an incident occurred in early 2015. She said she was in the kitchen cleaning and recalls thinking that it was “really quiet in the house”. She said that she went looking for C and as she approached the bedroom in which she and the father slept at the time, C and the father came walking out from the en-suite bathroom. C was naked on the bottom half of her body – she had no nappy on. The mother said the father said to her that C had wanted to use the “potty” in the en-suite. The mother said:
I found it odd that C would be using my en-suite, as she has never used it before and her “potty” is on the other side of the house in the other bathroom.
She said that she then dressed the child in a nappy and some leggings and the child then ran over to the father who was sitting on the couch. She jumped onto him with her legs straddling his and began moving herself “backwards and forwards on him”. The mother said that the father grabbed the child’s face and kissed it on both cheeks. The mother said that she was “horrified and upset” by what she saw. She asserted that C’s behaviour seemed sexual in nature and that the father’s response seemed “sexual also”. She said that she looked sternly at the father and he grabbed the child and removed her off his lap in response. The child kept trying to climb back onto his lap. The father stood up and told the mother he was going to go and watch the cricket and he left the house not returning home until later that evening. The mother said she thought that was unusual as he never usually went out to watch cricket but rather watched it on the television in the home.
The separation of the mother and the father occurred on Tuesday, 24 2015 in tumultuous circumstances. By this time, the father had employment that gave him, generally, five nights work each week. The mother was not working but was looking after the children full-time, with both boys going to the local school and C only being about 21 months old. The maternal grandmother who also lived in the home was working in a nearby town and would work during the day time, leaving early mornings to get to work.
On the Monday night, the father, who was not working at his employment that night, went to bed before the mother. The mother said that C had fallen asleep in the lounge room whilst she was watching television with the mother and grandmother. The mother put her into her toddler bed in a separate room across the hallway from the bedroom that the mother shared with the father. The mother then went to bed herself.
The mother said that she was woken in the early hours of the morning (she thinks it was around 3:00 am) hearing C saying “owee”. She could see C lying in the bed between the mother and the father. It is undisputed that it was common for C to come across from her bed in the night time and to climb into bed with the mother and the father and that it often happened without the parents even knowing that she had climbed into bed with them.
The mother said that when she woke she saw the father had his left hand on C’s groin, with two fingers (she said at the hearing it was the first and second finger on his left hand) inside her nappy up to as far as the ends of those fingers. She said the other two fingers were on the outside of the nappy, but she could not see his thumb. She said “the next thing I saw” was the father pulling his finger (on his right hand) out of C’s mouth and she heard him say “what owee?” She said she smelt urine and then saw the father pick up C’s dummy from his bedside table and put it in the child’s mouth. He then pulled the child close to him so she was facing him, kissed her a few times and cuddled her. The mother said that the child “seemed to drift back to sleep” and the father then got up and went to the en-suite bathroom. She said she heard the sound of what might have been the father urinating and then the sound of him washing his hands before he came back and got back into bed.
The mother said nothing to the father at this time. She said she was in shock. She said she believes he must have seen her eyes open but she is not sure. She said that she remained awake and got out of bed at around 4:00 am, before taking C back into her own bed. She then went to the lounge room and sat, waiting for the other two children to wake. She thought that she would drop the boys to school then go straight to a local Women’s Service that she had become aware of through her studies.
She saw her mother in the morning when her mother woke and readied herself for work. She did not say anything to her mother about what she had seen. She said that when the boys got up she got them ready for school. She said that day the father did not get up and say goodbye to them as he usually did.
She decided to see the boys off on the bus as usual and she then left with C, saying to the father as she left “we’ll be back soon, we’re just going to the shops.” She actually drove to the Women’s Service in a nearby town and spoke with a family support worker there and got some advice.
Some records of that service were produced under subpoena and adduced into evidence by the ICL. They confirm that the mother, with C, walked into the service that morning in early 2015. The support worker reported observing that the mother displayed emotional distress as if she had experienced some trauma. The mother would not give any details except her first name. She is recorded as having “disclosed her intuitive, gut feelings around [C] possibly being sexually abused” by the father. The worker wrote that the mother was so distressed that at one stage she was incoherent with sobbing and disbelief. The worker records that she discussed with the mother her safety and supports as well as her own mandatory reporting obligation and the idea of the mother reporting it to police. She records that the mother said she would have to think about all that information, and that she was in disbelief and shock. The worker also records that she asked the mother if there had been excessive computer use and she notes the mother’s answer was “yes”.
The mother said that she wanted to ensure that she could leave the home with the children safely. She went back to the home with C at around 12:30 pm that day. The father was there in the lounge room, sitting on the floor. She sat next to him on the lounge and C went to her play room. The mother said she began the conversation with the father with words like:
It’s not a tick bite causing [C’s] behaviour, she’s suffering trauma at night.
The mother said the father did not reply but just asked the mother where she had been. The mother said she replied:
It doesn’t matter where I’ve been. It’s not in your best interests to stay here. You should go back to India. [C] is suffering trauma at night.
The mother said the father replied “she will be ok”. She said he looked at her again and said “She is going to be fine. What? Did you take her to the Doctors?”
The mother said she replied:
I am not going to disclose to you where I have been. As a partner I am going to tell you it’s in your best interests to pack your bags and leave for India because your second option is not looking very good. I have to start being a parent now and you and I both know the kids aren’t safe.
The mother said the father looked at her and she said again:
You have to go. You and I both know what you’ve done.
She said the father then said to her “Say it”. She said she responded “You tell me. You know.”
She said that the father did not say anything in response but just looked at her. She said he did not display anger or that he was upset. She said that he did not seem “phased” by what she was saying or as to how distressed she was.
She said that C then needed her help and she went to her. She said that she heard the father walk to the kitchen and she heard a drawer open and close quickly and she said she heard the cutlery rattling. She went back into the lounge room and the father was again sitting on the couch. She said that she asked him what he got from the kitchen and he said that he had got a drink.
Saying she was certain that he had opened the knife drawer, she said that she immediately picked C up, grabbed her keys and made for the front door. She said that she said to the father “you didn’t get a drink. You grabbed a knife”, and she walked out of the house. She said the father said to her “come and sit down so we can talk about it.”
She said that she put C in the car and started reversing. The father was standing at the front door and he said to her:
Just come inside and have a talk about it. You need to tell me what’s going on.
She said as she drove off she heard the father call out her name, but she just drove. She went to the local school and sat there for a moment. She then went to the local general store as she had left without her mobile phone and wanted to use the phone. She used the phone there and rang the Women’s Service again but could only get the answering machine. She asked the shopkeeper, who she knew, to tell the father, if he turned up there looking for her, that she had left with somebody else. She then decided to pick the boys up early from school and to go and meet her mother.
She arrived in the town where her mother worked at about 3:30 pm with the three children. She went to her mother’s place of work, spoke with her briefly and arranged to meet with her at a park as soon as her mother could get off work. Her mother told her that she knew something was wrong and told her that she had received a message from the father asking her to call him.
The mother met with her mother at a nearby park, whilst the children played close by. She said she told her mother that her Victorian friend’s gut feeling about the father was correct as she had caught the father doing something to C that morning. She did not tell her mother what she had actually seen.
The grandmother gave her mobile telephone to the mother and went home. She called the mother on her arrival at home to tell her that the father was not there. The mother then headed for the home and actually saw the father’s car pass by on her way back home. He was, she thought, going to work. The mother said she gathered things up quickly at home and her mother gave her some money and she and the children then went to stay overnight in a nearby motel.
The mother said that in the afternoon, whilst driving, she had asked M if there was anything that he wanted to tell her in the context of it being really important for her to keep them safe. She said she told him he would not get into trouble. She said that he said to her “no, stop asking.” She responded with “ok, if you think of something please let me know.”
She said that in the motel room that night, after the other two children were asleep, M came to her and said “Mum, there is something I want to tell you”. She replied “what’s that?” and she said that M responded with:
[The father] would always touch me on the bum and doodle when he’d walk past.
She said that she asked him whether that was on top of his clothes or underneath to which the boy replied:
No, just a tap on the top of my clothes if he was walking past.
The mother said she asked M how that made him feel and he said “uncomfortable. I didn’t like it.” She said she asked him how often the father did it and the boy said “all the time”. She said she thanked him for telling her and told him it was wrong for anyone to touch him that way.
The mother said that on the next morning, she met with her neighbour, who is a local medical practitioner, at a café in a nearby town. The neighbour had contacted her about school canteen and when they spoke the neighbour became aware the mother was upset and asked to meet with her to talk about what was upsetting her. The mother said when she told the neighbour about what had happened, the neighbour advised her to report the matter to police or, at least, the child protection Department, and to take C to the Hospital for an examination.
The mother said after that she rang the Women’s Service and asked could she come there and speak with the support worker again. That is what she did.
The support worker’s notes record that they had that second meeting that day. They record the mother having told the worker that she had gone home the day before and had asked the father to leave the country. The conversation the mother said she had with the father, as described by the mother, was recorded. So, too, was the mother’s belief that she had heard him go into the kitchen and get a knife out of the drawer. The notes record the mother telling the worker that she had waited until the father left for work before going back to the home and gathering some things before staying in a motel. The worker records the mother disclosing more “around his excessive computer use, his association with children everywhere they went”. The notes also record the worker spoke with the mother about getting advice from the police and the local police were telephoned. It was suggested the mother go down to the police station and do a report. The worker noted the mother was still distressed. After the mother left, the support worker immediately made a mandatory report to the NSW child protection Department. That was done by way of telephone call.
There is another document from the Women’s Service that is in evidence. It appears to be a print-out of a computer document that is a mandatory reporter’s guide. It includes matters clearly entered by the worker under a heading “other concerns” as a consequence of the conversations with the mother over those two days. That part includes something that was not in the worker’s handwritten notes. It records that the mother told the worker that when she had gone home the day before to get a few things she had “noticed all his computer sticks had been taken but no other personal effects”.
The NSW Department’s records were also subpoenaed and some of them were adduced into evidence. They include a document called a Contact Record completed after the reporting to the Department of the events of those days. It included the following statement:
The mother stayed overnight last night in a motel. She returned to collect things before going to the motel and noticed that the father had not taken any of his personal belongings except for his computer hard drive storage unit.
The Contact Record went on:
Reporter said she had asked the mother if the father spent copious amounts of time on the computer. The mother said he was often on the computer until as late as 02:00 in the morning and always used his own personal hard drives.
After leaving the Women’s Service that day the mother then went to the police station and was spoken to by the police and arrangements were made for her to return the following day to make a statement. She did that.
The maternal grandmother had spoken with the father by telephone on the night of the incident, and told him not to come home that night after work but to come and collect his things the next day and then to leave the home. The next day, the father did attend at the home. The maternal grandmother had taken the day off work and was being visited by friends when the father turned up. She and the father did not have much of a conversation. He only spoke to her as he gave her the house keys, as he was leaving. She said in her affidavit that he said to her:
I don’t know what I did wrong. Why are you treating me like this? What did [the mother] tell you?
The maternal grandmother said she said nothing more than “you just need to leave”. He did. He has never been back to the home since.
Two days after the incident, the police applied for and obtained a temporary Apprehended Violence Order with the mother and children as the protected persons and the father as the respondent. A month or so later, with the consent of the father, that was made into a final AVO of a year’s duration.
The police gathered statements from the mother, the Women’s Service support worker, the maternal grandmother, the neighbour who is the GP, and the woman who is the operator of the general store where the mother went on the morning in question. All of those statements were adduced into evidence before me.
The father took part in a record of interview with police officers two days after the incident. The interviewing officer told the father she was investigating an allegation that he indecently assaulted C in the early hours of Tuesday morning and she gradually put the particulars of the allegations, in line with the statement given by the mother that day, to the father and asked him for his comments. A full typed transcript of the Record of Interview was adduced into evidence before me. So, too, was a DVD of a video recording of that interview.
The father told the police he was not awake when C came into their bed on the (three nights before. He agreed that C was lying on her back between him and the mother. He said he did not remember hearing C yell out “Owee” like she had hurt herself. He said “no” six times around being asked about that.
When he was told that the mother alleged that she saw him with his left hand reaching over C with a couple of his fingers inside the crutch area of the child’s nappy, he was asked if he remembered his hand going anywhere near C’s nappy. His answer was “no”. He expressly denied there being any reason for his hand to be touching near her nappy on that night.
He did say that if he smells “stink” he checks it but that did not happen on that night. He said she had not soiled her nappy at night for a long time.
Then a very significant part of the interview took place. It went as follows:
Police officer: Now [the mother’s] also alleging that she saw you with your hand near the crutch of the nappy...
Father:Inside?
Police officer: With a couple of fingers inside the nappy…
Father: Yeah. Ok.
Police officer: Ok. And at the same time your right arm …
Father: Yeah. In [or “on”] her mouth. (my highlighting and I have not been able to determine whether he says the word “in” or the word “on”, but it is one of those two words)
Police officer: …was reached over your body, like it was over your body and that you had one of your fingers inside C’s mouth.
Father:Mouth?
Police officer: Yeah.
Father: No. That’s really, really wrong.
There is no dispute that the mother had not put all of the details of her allegations to the father before they separated on the Tuesday or at all before the father’s interview with the police. There is no evidence that the father knew of the allegations in their particularity at all before this interview with the police. In fact, the father confirmed in his oral evidence that no one had told him of the detail of the allegations before the police interview.
At no time prior to the above passage of the interview had the police officer told the father that the mother’s allegations included the fact that she had seen him with a finger of his right hand in the child’s mouth. Aware of this fact, counsel for the ICL asked the father in her cross-examination of him in the March part of this trial about this matter. She asked him to explain how he was able to say “in her mouth” when he answered over the top of the police officer’s question as above. The father had, at first, said “I think police told me, the detective”. A little later, when pressed further to explain, he went on to assert:
If you have a video I’m 100% sure they were explaining from the hand.
He then repeated that he got it from the detective’s body language and he waved his hand around as if to demonstrate what it was the police officer had done that made him think that she meant that his hand was in the child’s mouth.
During the second part of the trial in September, the video recording of the interview that had been produced by the police in the interim period since March was adduced into evidence and played in Court. I have watched it privately in my chambers a number of times also. At the relevant part of the video, only the right arm of the police officer is visible on screen. She definitely does not put her right hand near her mouth at any point just before the father said the words “in (or “on”) her mouth”. Her left hand is not visible, nor is her face, but she can be heard talking and seen gesturing with her right arm and hand in a reaching motion. Her right arm goes nowhere near her mouth just before the father says the words that are set out above. There is no suggestion that her left hand or fingers have gone in or near her mouth. Her words are not muffled in any way.
In addition, the video shows the father reacting in an interesting way just after he said the words “in (or “on”) her mouth”. Just up to that point, he is looking at the police officer as she is talking to him. After he says the words “in (or “on”) her mouth”, he shifts his gaze slightly leftwards to look at the camera and around it before turning back to the police officer. It is a look that causes me to consider that he appears to realise that he said something that he should not have said at that point in the interview.
I am satisfied that the most likely way the father could have known at that time that the allegations that were about to come included an allegation that he had his right hand “in” or “on” the child’s mouth at that point is if he remembered that he had done that himself on the night in question. After he said that in the interview, he then vehemently denied the allegation that he did put his finger in the child’s mouth.
A little later in the interview, the police officer puts the mother’s allegation that she then saw him reach over to his bedside table, pick up the child’s dummy and then put it in the child’s mouth and then asks him if he remembers comforting the child at all with the dummy. He says “I might, I might did that too, because she cry, we shove dummy in because we get annoyed.”
The police officer then went on to ask him if he could tell her anything that happened during the night. He responded saying he was on his phone and that he had “a little bit of an idea C came. I reckon I, I lift her up that night…onto the bed”. He then told the police officer he lifted the child up onto the bed that night when she came into their bedroom and that he went back to sleep straight after that. He said nothing else happened before morning.
He went on to tell the police of the mother leaving the home with C in the morning before returning around lunchtime and then having the conversation with him in which she said that it was not a tick that had caused problems with C. He told the police that she gave him the impression that she thought he was abusing C. He told them that he was trying to talk to her to find out what was going on. He also told police that she had raised M with him during that conversation and asked him why M was scared of him. He told police that he responded with “because when he’s naughty he get in trouble from me”. He then told the police that the mother then went to the other room and because he was “furious” he got up and went to the kitchen and had a drink. He then asserted to the police that the mother went “psycho” and that she then left the home. He also told the police that the mother had told him to “go to India” and that he had said to her that he was not going to go and that he loved his kid.
When the police officer asked him if he had gone and got a knife from the drawer in the kitchen, he denied that he had. He said that he might have gone back to the lounge room and held the television remote control unit in his hand behind his leg. He did concede to the police that the mother seemed scared.
He told the police that his thinking was that all of these allegations were just a product of her mind as he had not done anything to hurt his children.
The External Hard Drive
It was undisputed that the father did actually own an external hard drive, about as big as a smart phone, which he had owned since the commencement of the relationship with the mother. It was also undisputed that it would sometimes be connected to the mother’s laptop computer and that they would watch movies on the laptop together. The mother said the father would usually be responsible for connecting it and turning the movies on for them when they did. She had also used it a few times, she said, to do things such as storing her own resume on it.
Further in to the father’s police interview, the following exchange took place relevant to the father’s external hard drive.
Police officer: I understand you also have… what computer devices do you own?
Father:I’ve got my phone. I use most of the time this.
Police officer: Yes. OK
Father: [The mother] use laptop
Police officer: Yeah
Father: And she use iPad.
Police officer: Ok. Do you have any other, um, storage devices?
Father: No. I’ll tell you another thing that I was doing.
Police officer: Yeah.
Father: On Monday, I … remember now.
Police officer: Yes
Father:I was making resume all day to apply a job.
Police officer: Ok.
Father:All day. I remember now.
Police officer: OK. That’s all right. Um, [the mother] was saying that you own a little hard drive?
Father: Yeah. I don’t know where it is. I can’t find it. It’s not with me, it’s somewhere in the house maybe.
Police officer: Ok. Well she’s saying it’s not in the house and that you took it with you.
Father:No. It’s not with me. I can, I can take it, swear on anything. I couldn’t find it. I was looking for it today but I couldn’t find it. And there is nothing in it.
Police officer: Ok
Father:I can tell you that too.
Police officer: Ok. Well what was on the hard drive?
Father: Just movies. Just movies. That’s it.
Police officer: Ok. And what sort of movies were on there?
Father: Like from all the movies. English movies because I go, when we go, when I went to [the mother’s] house in 2000, [the mother’s] cousin’s house in 2010 or something in Victoria, I take movies from this. Like a kid’s movie and our movies, like normal movies.
Police officer: Ok. Did you have any pornographic movies on there?
Father: Yes, I do. Yes.
Police officer: Ok. What sort of pornographic movies, do you have?
Father:No kids movie, trust me.
Police officer: Ok
Father: It’s all adult pornographic
I note in that exchange the father initially denied that he had any other devices and seemingly sought to divert the Police officer’s attention from the issue of the storage device by talking about something else. The Police officer brought him back to the issue and he had to answer her again. This time he admitted he had “a little hard drive” and without waiting for any further questions he launched into a series of assertions of not knowing where it is, not having it and believing it was still in the house.
I note that the mother is recorded by the Women’s Service support worker and the NSW Department as having asserted that on the very first day after the alleged incident in the night that the father had taken the external hard drive with him when he left for work that day. So clearly, from the very first time she spoke to a third person about the allegations that is what the mother was asserting.
Just a few days prior to the trial commencing in March, this year, the father sent an email to the mother’s solicitors in which he said, relevantly:
Your client has informed me that after I left the former family home she did in fact find my portable hard drive.
I hereby require her to produce it the Court on Monday.
I have found a journal started by your client in late 2014 and will return that to her at court.
I confirm that Mr Mason of counsel will represent me at the hearing.
Plainly, Mr Mason (who acted for the father on a direct access brief without any solicitor instructing) had become involved in the matter by then. It had, at least by that point in time, become clear to the father how significant the issue of the hard drive was. However, it should have been clear to him, if it was not already, by the time Ms Y had prepared her first family report. That was in late February 2016.
In paragraph 91 of that report, Ms Y recorded that she had asked the father about his use of pornography during her interview of him. She quotes his answer. He did not say anything about having pornography on his portable hard drive. In fact, he is recorded as having said to her “it was only on my phone”. That resulted in Ms Y pointing out in her report that his answer was inconsistent with what he had told the police in his interview with them. She pointed out, quite correctly, that he had told the police that he had pornography on his portable hard drive. She also pointed out that the hard drive was missing.
That report was in the father’s possession for over a year by the time this matter came on for trial. The father had certainly not asserted in any affidavit that he relied upon at the trial or in any of those that were tendered into evidence by counsel for the mother, that the mother had told him at any stage that she “did in fact have [his] portable hard drive”. There is no reference in Ms Y’s reports, most significantly her last report, to the father telling her that the mother had told him that she had found his portable hard drive.
When the father was cross-examined by counsel for the mother at the first part of the trial in March, he denied the proposition that he had taken the hard drive with him when he left the home. Later, at a point when he was actually asked whether he had told the psychologist who reported on him as to whether he had pornography on a portable hard drive, he volunteered that the mother had told him that she had the hard drive. He went on to say that she told him that she had found the portable hard drive in the fruit bowl at the home. He asserted that she had told him in October 2015 when they had travelled together to Brisbane for a Court mention and had actually stayed together in the same hotel. I shall say more about that matter further on.
The father went on to say in that passage of cross-examination that he thinks the mother has probably retained the hard drive, looked at it, found nothing on it that incriminates him and is now hiding the hard drive and lying about having found it, believing that if it was produced and examined it would not help her case. The father agreed with the proposition put to him by counsel for the mother that he had not told anyone that the mother had informed him in October 2015 that she found the hard drive in the fruit bowl before telling his counsel just before the commencement of the trial. When asked why he had not done so, the father said that he did not “think it was important”. I do not accept that the father could not have understood the importance of it in light of the questions asked of him about it by the police in their interview with him a few days after separation.
Consistent with what his instructions obviously were, at the first part of the trial, when counsel for the father was cross-examining the mother he called for the mother to produce the hard drive. The Court was told by her legal representatives that she could not produce it because she did not have it.
Relevantly, counsel for the father went on to cross-examine the mother about the portable hard drive. However, he did not suggest to her that she was not telling the truth about the hard drive. He did not suggest to her that she had told the father in October 2015 that she had found the hard drive in the fruit bowl at the home and that she had retained it. He did not suggest to her that she had looked at the hard drive and found nothing on it that incriminated the father and had decided to continue to hide it and not admit to possessing it.
When the matter adjourned part-heard in March, the mother was still under cross-examination. When it resumed in September the cross-examination of the mother by counsel for the father resumed. When counsel for the father told the Court that his cross-examination of the mother was complete, I raised with him my concerns about him not putting that part of the father’s case to the mother for her to answer. I particularly pointed out to him that he had not suggested to the mother that she had admitted to the father in October 2015 that she had found the portable hard drive in the fruit bowl. Counsel considered the issue and sought leave to ask some more questions.
Counsel specifically asked the mother many of the same questions he had asked her in March about the hard drive. Her answers were entirely consistent with the ones she had given in March. He then expressly suggested to her that when she had travelled to Brisbane with the father in October 2015, they had spoken about the hard drive. She said that she could not recall doing so. He asked her if it was possible that they had. She said it was possible. He suggested to her again that they had spoken about the hard drive and again she said she could not recall. Counsel concluded his cross-examination at that point and did not specifically suggest to the mother that she had actually told the father that she had found the hard drive in the fruit bowl or that she had retained it, hidden it, or disposed of it and was deliberately not producing it for examination as she knew it would not incriminate the father.
Counsel for the mother afterwards submitted that counsel for the father had effectively not complied with the important rule of practice known as the rule in Browne v Dunn (1893) 6 R 67 (House of Lords). He submitted that counsel for the father had offended the rule by not expressly asserting to the mother that she had told the father that she had found the hard drive in the fruit bowl and had retained it.
Counsel for the father submitted that he had asked enough questions of the mother about the matter. He submitted that asking her whether she recalled discussing the hard drive with the father in October was sufficient once she had said she could not recall but conceded it might be possible that they had.
The rule in Browne v Dunn has been formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16 as:
...unless notice has already been given of the cross-examiner’s intention to rely upon such matters, it is necessary to put to an opponent’s witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.
The learned authors of Cross on Evidence (Sixth Australian Edition), LexisNexis, at [17435] assert further of the rule:
And if a court is to be invited to disbelieve a witness, the grounds upon which the evidence is to be disbelieved should be put to the witness in cross-examination so that the witness may have an opportunity to offer an explanation. (see Village Cay Marina Ltd v Acland [1998] 2 BCLC 327 at 338 (Privy Council) and Buchwald v R (2011) 38 VR 199).
At the time I raised the matter with counsel for the father when he had first said he had concluded his cross-examination, I was quite concerned that he had not put the matters asserted by his client about the hard drive (for the first time during his own cross-examination) to the mother so as to give her an opportunity to offer her own evidence on it. I expected counsel for the father would be submitting at the conclusion of the trial that I should believe his client’s evidence that he had not taken the hard drive and that the mother had told him in October 2015 that she had found the portable hard drive in the fruit bowl and had retained it.
When he concluded his cross-examination of the mother after he had been given leave to ask further questions, I remained very concerned that the specific proposition of fact that the mother had told the father she had found the portable hard drive in the fruit bowl, asserted by the father in his cross-examination, had not been expressly put to the mother.
However, it has been said that if a witness says she has no recollection of an event, it is not a breach of the rule in Browne v Dunn to fail to take the witness through the details of the event.[1] I consider that a reasonable proposition. Ultimately, however, counsel for the father, in his final submissions, did not expressly invite me to reject the evidence about the hard drive that supported a finding that the father had taken it, nor did he expressly invite me to accept his client’s evidence that the mother told him that she had found the hard drive in the fruit bowl.
[1]See Trade Practices Commission v Mobil Oil Australia Limited (1984) 55 ALR 527 at 540 cited with approval in Waight and Williams, ‘Evidence: Commentary and Materials’, Law Book Co, 6th Edition at p 318
I respectfully consider that position plainly adopted by counsel for the father was appropriate in the circumstances. Of course, I have little doubt that the father would hope that I might accept his evidence that the mother told him that she had found the portable hard drive in the fruit bowl and that she retained it. Equally, I have little doubt that the father would hope that I, too, might arrive at a conclusion that the mother probably looked at the hard drive and found that there was nothing incriminating on it and then decided to hide it and not tell the truth about it.
Unfortunately for the father, I do not accept his evidence on this particular factual matter. I am quite satisfied, on the balance of probabilities, the father took the hard drive with him when he left the home to go to work on the day of the incident and that he has not told the truth about it to the police in the interview two days later or to this Court during his cross-examination.
The evidence satisfies me that the Women’s Service support worker clearly discussed the father’s computer usage with the mother at her first on the day of the incident, after which the mother was alert to the potential importance of the external hard drive. I accept that the mother went back to the home that night to gather up some things and I accept that the very next day when she saw the Women’s Service support worker again she must have told her that she had observed that the portable hard drive was gone from the house. That much I specifically accept after considering the evidence of the notes and mandatory report of the support worker and the records of the NSW Department’s receipt of the notification or report on that same day.
In addition, the statement provided by the neighbour, the GP, to police on 12 March 2015 included the following sentence in the paragraphs where she is referring to her meeting with the mother in the café on the day after the incident:
[The mother] also told me that [the father] took a hard drive with him and she couldn’t understand why he would take that and nothing else.
That evidence and the way in which the father answered questions about the hard drive to the police during his interview; his failure to take any meaningful steps to ensure the device was located and examined soon after his police interview; his failure to do or say anything to anyone about the alleged admission by the mother in October 2015 at that time; his failure to tell the family report writer about it during her first interview with him; his failure again to tell anyone or to do anything more about the alleged admission of the mother until the week before the trial commenced in March 2017; all lead me to the conclusion that the father took the portable hard drive with him at the first opportunity, lied to the police about not being able to find it and has intentionally failed to produce it to police, the mother or anyone else for it to be examined. Plainly though, his apparent dishonesty goes further than that. I am satisfied that he gave false evidence to this Court when giving the evidence that the mother had admitted to him that she found the hard drive in the fruit bowl. I am quite satisfied that he just made that up in an endeavour to exculpate himself and to cast blame on the mother and doubt about the general veracity of her evidence.
The Child’s Medical Examination
The mother took the child, C, to be medically examined on 3 March 2015. A Paediatrician, Dr N, examined the child. Her report was adduced into evidence. Dr N said:
When I tried to approach [C] for examination, she became immediately distressed. I was unable to even touch her hands or touch her back with a stethoscope. She responded with tears and a loud cry…
…
[The mother] changed [C’s] nappy … She was upset even when her mother parted her legs for me to attempt to view her perineum from 1 metre away.
…
My impression is that [C] has had limited exposure to doctors and the medical environment. She was distressed on any approach which suggested examination. With non-medical interactions, just sitting at the table colouring in, she was a warm settled securely attached 2 year old with development at least age appropriate level globally. My impression was that examination would have required sedation or physical restraint of an already distressed child.
The doctor offered “delayed physical examination” on the basis that there would be no specimens to be found more than 7 days after alleged harm in any event. The child never underwent an ano-genital examination thereafter.
The Boys’ records of interview
On Monday, 2 March 2015, both of the boys were interviewed by JIRT team members in separate, video recorded interviews. Recordings of those interviews were adduced into evidence. They were played at the trial and I have watched them again in the privacy of my chambers.
M told the interviewers, when asked if there was anything that made him feel uncomfortable, that the father “sexually harasses” him. He told the interviewers that the father touches him on the “bum” and the “doodle” (which he identified as his penis) over his clothing. He said that this had happened “maybe 30 times” over approximately one year. He thought that it might have first happened when he was about 10 years old (he was 11 at the time of the interview). He said that it usually happened in the home “like when Mum’s cooking dinner or something”. He particularly recalled that his father touched him “on the butt” when M got a new motorbike earlier in the year at a time when the others were distracted, looking at the motorbike.
B was also interviewed. He made no disclosures of sexual harm perpetrated against him by the father.
Under cross-examination by counsel for the mother, the father denied ever tapping or touching M on the bottom or groin as he walked past him. He could offer no explanation as to why the boy would say that to anyone, as he did.
October 2015
The proceedings commenced by the father after separation were listed for an interim hearing before Principal Registrar Filippello in late October 2015. The mother and the father were communicating with each other directly in the lead up to this Court event though both were legally represented. The children had not been spending any time with the father since separation as the mother had not allowed it.
It is undisputed that the mother contacted the father by social media and proposed a meeting to discuss parenting arrangements. They agreed to meet. She proposed to the father that they resolve the parenting dispute by him agreeing to spend only supervised time with the children and, if he did, she would arrange for someone to be the supervisor. Against that background, the mother arranged to meet the father at Town H (in Queensland where the AVO did not apply) and to drive up to Brisbane with him on the day before the hearing. The mother asserted in evidence under cross-examination by counsel for the father that the father had caused her to believe that he would consider her supervision proposal. She asserted that she had intended to stay at the home of a friend of hers who lived in Brisbane. She denied the proposition that she had gone to Brisbane with the father with the intention of staying with him and having sexual relations. However, she agreed that they stayed together in a hotel or motel on the night before the hearing and it is not disputed that they were sexually intimate that night.
Notwithstanding that sexual intimacy, when they went to Court the next day they did not present an agreement on ongoing arrangements for the father’s time with the children. The father maintained his position, apparently, that he did not agree to his time being supervised. At the conclusion of the hearing, PR Filippello ordered that the children spend no time with the father until further order.
There was evidence, unsurprising perhaps, that after that hearing on 29 October the father was unhappy with the mother and there was some further conflict between the mother and the father when the mother returned to the hotel they had stayed in together overnight to collect her things. After that conflict, the mother returned to the Gold Coast alone by train.
The mother later expressed regret and disgust with herself for having been sexually intimate with the father that night, attributing it to her mixed feelings about the father, including the love and affection that she had for him during the years of their marriage and asserting that she felt “trapped” into it by what she claimed were the father’s assurances that they could work it out before they went to Court.
The father told the family report writer about the intimacy during the interviews for the preparation of the February 2016 report. He is also reported to have told the report writer then that he thought he was still in love with the mother at the time of the interview. The mother confirmed that the sexual intimacy had occurred during their subsequent joint interview and spoke further about it with the family report writer when she was separately interviewed afterwards. Ms Y wrote that the mother was “clearly perturbed and upset by the sexual encounter”.
Under cross-examination by counsel for the father, the mother agreed that one of the reasons for her deep regret about having been sexually intimate with the father that night is because she knows it is behaviour that reflects poorly on her in circumstances where she alleges that the father had sexually abused their daughter.
There was no evidence that anything like that occurred again.
I am not persuaded that the fact the mother and the father stayed together for that one night and were sexually intimate proves that she could not truly believe he sexually abused their daughter and that she must be making up the allegations about what she says she saw on the night in early 2015. Human relationships are not always predictable and people do not always behave rationally and sensibly when relating to each other, particularly in emotional and intimate relationships. The mother explains her behaviour as best she can and I accept her embarrassment, regret and remorse is real and truly reflective of her own insight into the apparent inconsistency of her behaviour and an honest belief that the father sexually abused their daughter. This apparent inconsistency is but one of the many facets of the evidence in this case that I must consider. It does not, on its own, prove the alleged abuse did not happen as the mother asserts it did.
The Evidence of the Psychologist seen by the Father
The father caused an affidavit to be filed on 25 January 2017. It was by Dr G, Psychologist, and it attached a report prepared by her dated 19 October 2016. The report was described as a Forensic Psychological Assessment. The report begins with Dr G saying:
In August 2016, I received a request from [the father] to conduct a sexual risk assessment of him and write a report regarding him making an application to the Courts for unsupervised visitation with his children.
The report concluded with Dr G expressing the opinion that the father:
…is not a risk to his children’s wellbeing and unsupervised contact with his children would be beneficial for the children as well as [the father]”.
I respectfully attribute very little weight to the opinion of Dr G. It provides me with little assistance in determining the issues in this case. The opinion evidence of Dr G was largely very effectively discredited through the cross-examination by counsel for the mother. That was so clear that counsel for the father effectively conceded as much in his oral submissions at the end of the trial although he still submitted that it should be given some weight in my determination.
The evidence satisfied me that a psychiatrist who the father was sent to see by his GP in order to get a sexual risk assessment for the Court proceedings referred him to Dr G as she did not do such reports and Dr G did. There was a telephone call from the psychiatrist to Dr G, probably in or around August 2016, in which the psychiatrist asked the psychologist if she could do a sexual offender’s risk assessment for the father. Dr G confirmed she could. The psychiatrist then wrote a referral letter in which she actually asked Dr G if she could assist the father with his mental health issues as part of the mental health care plan, enabling access to payment through the Medicare Benefits Schedule for a total of 10 visits. There was no mention of a risk assessment, though the psychologist conceded she knew that is what she was being engaged to do.
The psychologist accepted that she could not lawfully charge Medicare for the preparation of a forensic sexual risk assessment, yet she saw the father only once on 28 September 2016 for which she charged in two distinct ways. She accessed Medicare to be paid for one clinical session and she charged the father separately for the provision of the sexual risk assessment. The psychologist maintained in evidence that she firstly saw the father for stress related adjustment disorder on a clinical basis before moving into the preparation of the forensic report, thus asserting an entitlement to access Medicare benefits for that part of her consult, in addition to charging him privately for the preparation of the report. Nevertheless, when challenged by counsel for the mother as to why she had said nothing about that clinical session and the reason for it in the report, the psychologist conceded that it would have been preferable if she had said something about it in her report.
During the one session, the psychologist interviewed the father and administered the Personality Assessment Inventory test. Then, guided by a structured clinical judgment protocol, she said, called the Sexual Violence Risk or SVR-20, she said she went on to consider and assess sexual risk posed by the father in general, and more specifically to his children.
Counsel for the mother was able to get concessions from the psychologist in respect of many matters that impacted upon my assessment of the efficacy of her opinions. She conceded that she chose the SVR-20 as it is relatively quick and easy and would enable her to get through the task faster. She conceded that the SVR-20 is now somewhat antiquated having been overtaken by more contemporary protocols based on more recent research, and that she has used these more contemporary protocols on other occasions in the past. She conceded she did not, therefore, use the most up to date tool even though she had it available. She conceded that the SVR-20 is more appropriately used where the subject of the assessment is known to have committed sexual offences in the past. She conceded that the user manual supplied with the SVR-20 recommends that it be used in conjunction with an adjunct tool – a psychopathy test, of which she said there are two options, neither of which she administered. She conceded that she did not specialise in providing sexual risk assessments although she has done many of them. She was not able to provide a list of the latest peer reviewed articles dealing with sexual risk assessment that she had read, though she named one she had read. She conceded that she was aware of one piece of research that was critical of the reliability of the SVR-20, particularly where the subject denies having committed a sexual offence. She conceded that the SVR-20 is not a predictor of past behaviour, so could not be said to give any assistance on whether or not the father actually abused his daughter as the mother alleges, but rather is just about predicting risk in the future.
Counsel for the mother took the psychologist to the SVR-20 Coding sheet that she had completed on the day she saw the father. He observed that under the heading “Sexual deviation” there were two boxes that could be ticked. One said:
Coded from current or past mental health evaluations
The other said:
Provisional until confirmed by mental health evaluation
Counsel pointed out that the psychologist had marked the second box, thus identifying that her position on this was only provisional. She agreed that was the case and that it could only be provisional because she had not administered the adjunct test prescribed in the manual. She agreed with counsel that sexual deviation is the biggest single predictor of future risk but that she had not completed that part of the exercise and that the exercise was, consequently, not really finished. She conceded that as a consequence her reliance on this protocol and her conclusions projected from it must be considered to be limited. She agreed that she had not pointed this out in her written report that was adduced into evidence by the father.
The psychologist agreed that she had not seen the affidavits of the mother or the family reports of Ms Y when she wrote her report and proffered her written opinion. She agreed that the computer software generated reliability scale that went with the Personality Assessment Inventory was towards the high end, which raises some concerns about the reliability of information provided to her by the father. She agreed that having read the family reports a week or so before trial that she was made aware of additional matters of concern about the reliability of the self-reporting of the father that could really only be appropriately considered by a further consult with him and further testing, but then she acknowledged that she had not had any such further consult and had simply confirmed in her evidence in chief that her opinion had not changed after having read the family reports. She did concede that she would like to have asked the father about the apparent inconsistent stories he had given the police, the family report writer and her about his viewing of pornography and the device he viewed it on. She agreed that he had told her he viewed pornography on his mobile telephone and that the police had access to his phone and that she had learned that is not what he told the police.
In my respectful judgment, the psychologist was not really able to satisfactorily explain how she could have honestly maintained the same opinion when she said she did in her oral evidence in chief in the light of these subsequent concessions. She simply asserted that she had thought about these matters and did not see any reason to revisit the matter. She agreed that the father had another 9 clinical visits available to him that could have been paid for by Medicare (though not if they were for updating this forensic report) but that she had had no further sessions with him.
Ultimately, she agreed that she really should have caveated her opinion when she was asked by the father’s counsel whether she maintained her opinion having read the family reports. She also agreed that if the Court found that it accepted the mother’s evidence of what she had seen on the night in early 2015 and rejected the father’s evidence about what happened that night that her opinion that he should be able to have unsupervised time with his children would indeed be wrong.
Before I move on from the psychologist’s evidence, I consider I must also say I was troubled to hear her give evidence that she was a bit naïve about the court process when she provided the report. Curiously, she said that she did not think the report was to be used in the Family Court, even though she had proffered an opinion in her report on the children spending unsupervised time with the father. That fact itself makes her oral evidence about what she thought the report was for impossible to accept. She also said she did not think that she would have to give evidence in court when she wrote the report. As I said to her during the trial, no expert should ever provide a forensic report like the one she provided without appreciating that she is likely to have to justify her opinions in the witness box in a trial at some time after the report is provided.
The psychologist’s report did not help the father’s case.
The Principles by which this matter is to be determined
I have said the following things in many judgments that I have had to deliver in cases such as this one. They should be repeated in this one.
The High Court has determined that parenting orders proceedings under the Family Law Act 1975 (Cth) (“the Act”) are not about parents enforcing a parental right to have a child live with or spend time with them, but rather that this Court has a duty in such cases to determine and make such orders as, in the opinion of the Court, will best promote and protect the interests of the child. The High Court observed that in doing that the Court will:
…give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access [as were the terms used in the legislation at the time of the High Court’s judgment in this case], but because it is prima facie in the child’s interests to maintain the filial relationship with both parents.[2]
[2]M v M (1988) 166 CLR 69 at page 76.
In that same case, the High Court also relevantly observed that:
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[3] (my emphasis)
[3] At page 76.
The Judges of the High Court said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.[4]
[4] At page 75.
The High Court Judges’ reference to “the paramount issue which [this Court] is enjoined to decide” is reference to the statutory requirement that the Court’s task in determining the proper parenting orders to make in respect of any child is to be undertaken with mandatory regard to that child’s best interests being the paramount consideration (see s 60CA of the Act). In that respect, the Act also sets out a list of matters that must be considered by the Court in determining what is in a child’s best interests (see them set out in s 60CC) when making such parenting orders the Court thinks proper.
As is well known, this Court hears large numbers of parenting cases involving allegations of sexual abuse each year. In the almost seven years I have been a Judge of the Court, I have heard and determined very many. Nevertheless, in deciding each individual such case, it remains important to reflect upon the seriousness of the central issue. Fogarty J, a former Judge of this Court, said in his judgment in the Full Court decision of N and S and the Separate Representative (1996) FLC 92-655 at 82,709:
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.
I am certain that statement remains “as poignant and relevant” today as the Full Court of this Court said it was twelve years ago in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129.
However, I hasten to observe that the High Court Judges went on in their judgment in M v M to expressly say (at pp 76-77) the following:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p 362. There Dixon J said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[5]
[5]What became known as the “Briginshaw test” following that 1938 High Court decision of Briginshaw, was given legislative force in s 140 of the Evidence Act 1995 (Cth). That section provides:
s 140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject matter of the proceeding; and
(c) the gravity of the matters alleged.
(d)
Relevantly, their Honours continued (at page 77) and said:
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
…
The test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse (my emphasis).
This has become known as the “unacceptable risk test”. It was discussed further by the Judges of the Full Court in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; 34 FamLR 129 who said (at para 111):
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities, abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S… do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
At paragraph 105 of that judgment, the Full Court Judges, referring to that judgment of Fogarty J in N and S and the Separate Representative, said:
Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
Murphy J also discussed the question of risk assessment in his judgment in Harridge & Harridge [2010] FamCA 445. Having referred to N and S and The Separate Representative (supra), his Honour proceeded to adopt the following list of inquiries in relation to risk assessment:[6]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[6]Taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
Respectfully, I also consider these useful questions to consider in the determination of this matter.
Ultimately, I am satisfied the proper parenting orders to be made in this case are to be determined by considering all of the evidence against the “primary” and “additional” considerations mandated by s 60CC of the Act, with the most attention being paid to the determination of whether the children, C and B, will be exposed to an unacceptable risk of harm by way of sexual abuse, or otherwise, in their father’s care and whether, if there would be such an unacceptable risk, it could be ameliorated by conditions such as supervision being imposed on any time they spend with their father.
Of course, I acknowledge that the statutory pathway set out in Part VII of the Act for determining the proper parenting orders to make must also be followed.
My Findings on the critical allegations
There is a clear and stark contrast between the evidence the mother gave about what it is she said she saw when she was woken by C saying “owee” in the early hours and the father’s straight denials of the behaviour the mother said she saw. In his affidavit evidence the father attributed the mother’s allegations to her misinterpretation of the “children’s behaviour or things the children said”. He even suggested the allegations may have been made maliciously as justification for ending the relationship and keeping him away from the children. In his oral evidence at the trial, the father went even further. He said he considered the mother is somehow obsessed with matters sexual as a result of her childhood (although he did not assert that she had been sexually abused herself as a child) and that she is delusional about what she said she saw that night.
On the father’s case, there is no room for a finding that the mother saw him doing something innocent and misinterpreted it. His case is that he did not have his hand on the child’s groin or in her nappy in bed at all that night. Indeed, the father told the police, as they put the matters to him that the mother reported having seen that night, that none of those things happened. Whilst he did say in his oral evidence at trial that he did have a recollection of hearing his daughter making a noise that night and then putting a dummy in her mouth, I consider that to be more of an afterthought than a disclosure of an accurate recollection. Even he said it was “later”, after he had thought about everything and tried to recollect it, that he had come to that view.
If I accept the mother’s evidence about what she saw that night, then, in my judgment, it follows that I must reject the father’s denials. If I reach that position, I must then consider the question of why the father would deny the alleged behaviour if it was innocent and not sexually abusive.
As I have acknowledged many times, determining these cases is never an easy task. It is a very difficult thing to consider that an otherwise caring, loving, involved parent would perpetrate sexual abuse on a child, let alone that parent’s own child, particularly one who is still a toddler like C was at that time. Yet, sadly, we all know that it happens and continues to happen and admissions are rarely ever made. The cases this Court hears and determines that involve allegations that a child has been sexually abused by a parent far more often than not are heard in circumstances where the alleged offender has not even been charged with a criminal offence by police after investigation. This case is another one of those. Again though, whilst the absence of criminal charges makes them harder for this Court to determine, it is, of course, never of itself solely determinative of the matter.
Having weighed all of the evidence that I have read and heard in this case, I am ultimately satisfied that I can accept the truth of the evidence the mother gave about what she saw on the night in question and that I can safely reject the father’s denials. The consistency of the mother’s actions, reports, statements and her evidence of what she saw and heard that night impress me. The impression I gain of that is not so detrimentally impacted by the acceptance of the fact that the mother was sexually intimate with the father in Brisbane before the October 2015 Court event so as to cause me to doubt the honesty of the mother as to what she has always said she saw.
I do not consider that she was delusional. I do not consider that she was being malicious so as to end her relationship with the father and to deny him a relationship with the children. Even though she initially urged him simply to leave Australia and return to India, her subsequent and current commitment to the maintenance of the children’s relationships with the father, albeit in circumstances where their time with him is spent in the safety of supervision, adds to my satisfaction in respect of this issue, along with the fact that there was no evidence that caused me to consider that their marriage relationship was unstable and at significant risk of breaking down prior to the events she witnessed in early 2015.
I do not consider that she has unwittingly misinterpreted innocent events that she has witnessed. As I have already observed, it is virtually impossible to be able to make a finding that she has, given the father’s denial that any such innocent event actually occurred.
The inconsistencies in the father’s evidence; the answers he gave to police in the interview that took place in the week of the subject events; the information he gave to the family report writer; and the information he gave to the psychologist he saw to obtain a sexual risk assessment, all lead me to a finding that the father has not been honest about what happened on that night. Whilst I acknowledge, as counsel for the father pointed out, that English is not the father’s first spoken language, and that care must be taken in making determinations on matters that involve his oral statements and testimony, I do not accept that his English is so poor that it would be dangerous to rely upon his English answers in determining matters based on inconsistencies in them.
I am quite satisfied that the father’s evidence about the external hard drive was untrue and inculpatory. I am satisfied he made a particular point of collecting it and removing it from the home on the day after he became alerted to the mother’s observation of his sexually abusive behaviour and the depth of her resolve. I am satisfied that he was untruthful to the police about it. I am satisfied that he was untruthful about it to the family report writer and the psychologist who did the risk assessment report and I am satisfied that he was untruthful about it to the Court, particularly in asserting that the mother had told him two years ago that she had found the external hard drive in a fruit bowl in the home and retained it. That he tried in that way to divert responsibility for that onto the mother does him little credit, in my judgment. His actions in relation to this hard drive do little but attract attention to the question of what may have been on that external hard drive. I am satisfied the content of what was stored on the external hard drive would not have helped the father’s case.
Satisfied that what the mother said she saw on the night in question is actually what happened, the father’s denials that he did the things that the mother saw lead me to the conclusion that the father having his fingers inside the child’s nappy is not innocently explained. I am satisfied that he had his fingers inside the child’s nappy perpetrating or attempting to perpetrate a sexual act. I am satisfied that it hurt the child such that caused her to make a noise in pain that woke the mother. I am satisfied that the father’s response was to immediately try to soothe the child, to get her to desist from making any further noise, by firstly putting his finger in her mouth before reaching for a dummy and putting that in her mouth.
With that central finding of fact, what Parenting Orders should be made?
The Court must make parenting orders that it considers proper, with the best interests of the subject child being the paramount consideration. The process of determining those proper orders begins with consideration of the issue of parental responsibility. Of course, in this case my finding that the father has sexually abused his child means that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them does not apply.[7]
[7]See s 61DA(1) and (2)(a)
I am also satisfied by the evidence that the parents do not communicate at all and have not been doing so except through their legal representatives. An order that confers shared parental responsibility on the parents statutorily mandates consultation with the other parent in relation to a decision that is to be made about a major long-term issue in relation to a child. It also statutorily mandates that the parents make a genuine effort to come to a joint decision about that issue and for the decision to actually be made jointly by those persons.[8]
[8]See s 65DAC
I do not consider it proper, having regard to the best interests of the two children, given my finding on the central factual issue, to make an order that requires these two parents to communicate with each other and consult in a genuine effort to come to a joint decision about issues such as the children’s education and health. I will not make an equal shared parental responsibility order. I am satisfied that the mother should have sole parental responsibility in respect of decisions in relation to the children’s health and education.
As for decisions about their names or about moving to live in a place that makes it harder for the children to spend time with the father, I do not consider it proper to give parental responsibility for those things solely to the mother. Given the orders that I intend to make about the children spending time with the father, the mother should not have the right to unilaterally move the children away to live in a place where it would be harder for them to see the father. Also, I do not consider it appropriate that the mother have the right to unilaterally change their name. I will order that parental responsibility for decisions about those things still be shared.
What time should the children spend with their father?
I am satisfied that both children would face an unacceptable risk of experiencing sexual abuse and emotional harm if they were to spend unsupervised time in the father’s care.
I have found that the father sexually abused C in early2015. The balance of the evidence, particularly all of the evidence that suggested that M might very well have experienced abuse at the hands of the father and that B complained of the father touching his penis during play in early 2015, leads me to conclude that not only C but also B faces a risk of being sexually abused by the father if she or he was to spend unsupervised time in the father’s care.
As counsel for the mother submitted, the fact that the father was prepared to risk being caught when he put his fingers inside the child’s nappy to abuse her when they were lying in bed with the sleeping mother shows the plain lack of self-restraint the father actually has in respect of his actions. This is a matter of significance when assessing the magnitude of the risk of sexual abuse of the children happening in the future if they were spending unsupervised time in his care. In my judgment, it increases the level of risk and reinforces my view that the level of risk of abuse in the father’s unsupervised care is certainly of an unacceptable level.
Even if the risk to B was considered to be of a lower level, (and I do not find that it is) I do not consider it in the children’s interest to separate them in their contact with their father in any event. I consider it would be emotionally detrimental for both children to have them spending time with their father by way of some differential system. In my judgment, neither child should spend unsupervised time in the father’s care.
Although the mother gave evidence that the children were initially somewhat traumatised after the introduction of supervised visits with their father in 2016, she does not now oppose a continuation of a regime of short supervised visits on a regular basis for the children to spend time with the father so as to be able to maintain a relationship with him. The evidence of the family report writer, which I accept, was that the children apparently enjoy their time with their father. She reported in her updated report that B had said that there was nothing he wanted to change about the arrangements by which he sees his father.
The children currently see him at a privately owned and operated commercial children’s contact facility located on the Gold Coast called the P Contact Centre. The owner/operator of this facility is known to the Court, having given evidence in the Court many times. The children currently see the father there for two hours each second weekend and the father pays for it. I consider there to be no particular reason to change the arrangements from these that already exist.
I respectfully reject the submission that was made by counsel for the ICL that the visits should transition to unsupervised time in the father’s care after another year. I do not consider that the unacceptable risk the children would face in the unsupervised care of the father would be ameliorated simply by the passing of a year’s time from now. At the moment, I am persuaded that the supervision of the children’s time with the father should continue indefinitely into the future. It is often said that long-term supervision of children’s time with a parent is not something the Court should lightly order. I do not order it lightly.
B is only 8 years old and C is only 4 years old. I consider, on all the evidence that is before me, that they need the protection offered by supervision for an indeterminate time into the future, whilst at the same time having the opportunity to continue the relationship with their father that the supervision provided so far has facilitated. Such a regime will surely test the father’s resolve to maintain a relationship with his children and if he does then at some point in time when the children are old enough and mature enough to be able to act protectively in their own interests if they were to spend unsupervised time with him the subject is bound to be able to be revisited by the mother, the father and the children and, if necessary, the Court.
Should the father prefer to move the supervision of the children’s time with him to a government funded, not for profit children’s contact centre (of which there are examples on the Gold Coast) and the mother agrees with that proposal, or if the P Contact Centre no longer offers this family the service that it currently does, then such a move to a children’s contact centre (still to be paid for by the father) will be provided for in the Orders that I make.
The orders that I will make will also permit the father to take his partner, who gave evidence in his case at the trial, along to the visits where he sees the children if he wants to take her along. They will also permit him to take any member of his immediate family with him, if they are visiting Australia from India and do wish to meet the children, but they will not permit him to take any other person without first obtaining the mother’s written approval. Although the evidence left me far from satisfied of the honesty and accuracy of the father’s evidence that his family in India are fully aware of all of the circumstances currently confronting the father and his relationships with his children, I have no reason to consider that it would not be proper and in the best interests of the children, if the service providing the ongoing supervision approves such a proposal in advance, for the father to take any member of his immediate family who is visiting Australia to meet and spend time with the children during his supervised visits if he wishes to. However, I do not consider it appropriate for him to take third parties along who just happen to be his friends or acquaintances, unless the mother agrees in advance.
I make the Orders set out at the commencement of these reasons.
I certify that the preceding one hundred and eighty-eight (188) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 24 October 2017.
Associate:
Date: 24 October 2017
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