Sheenan and Laumea

FAMILY COURT OF AUSTRALIA

SHEENAN & LAUMEA

[2017] FamCA 719

FAMILY LAW – CHILDREN – Whether unacceptable risk exists – Family violence – Allegations of sexual abuse – Change of name – Basis for reliance on psychological testing

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth) s 140

M v M (1988) 166 CLR 69

APPLICANT:

Mr Sheenan

RESPONDENT:

Ms Laumea

INDEPENDENT CHILDREN’S LAWYER:

Mr Guterres

FILE NUMBER:

SYC

4828

2015

DATE DELIVERED:

15 September 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Gill J

HEARING DATE:

28 August - 1 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Bell

SOLICITOR FOR THE APPLICANT:

Korn Macdougall Legal

COUNSEL FOR THE RESPONDENT:

Ms Reheby

SOLICITOR FOR THE RESPONDENT:

Rafton Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Suburb W Family Law

Orders

All previous parenting orders in respect of the children:
B born … 2008
C born … 2009
D born … 2010
E born … 2012
F born … 2013
are discharged.
The children shall live with their mother.
The mother shall have sole parental responsibility for the children.
The father’s time shall be as follows:
4.1For a period of 4 weeks, each Saturday for 6 hours as agreed and in default of agreement, from 10am to 4pm.
4.2Following order 4.1, for a period of 8 weeks each alternate weekend from 10am Saturday to 10am Sunday.
4.3Following order 4.2, for a period of 8 weeks each alternate weekend from 10am Saturday to 4pm Sunday.
4.4Following order 4.3, for a period of 8 weeks each alternate weekend from the conclusion of school Friday (or 3pm if a non-school day) until 4pm Sunday.
4.5Following order 4.4:
4.5.1Each alternate weekend from the conclusion of school Friday (or 3pm if a non-school day) until the commencement of school Monday (or 9am if a non-school day);
4.5.2On the Father’s Day weekend from 4pm Saturday until the commencement of school Monday (or 9am if a non-school day).
4.5.3From 10am on Christmas Eve until 3pm on Christmas Day each odd numbered year.
4.5.4From 3pm Christmas Day until 6pm Boxing Day each even numbered year.
4.5.5Such other times as agreed between the parents.
The father’s time with the children shall be suspended and the children shall instead live with the mother:
5.1On the Mother’s Day weekend from 4pm Saturday until the commencement of school Monday (or 9am if a non-school day).
5.2From 10am on Christmas Eve until 4pm on Christmas Day each even numbered year.
5.3From 3pm Christmas Day until 6pm Boxing Day each odd numbered year.
5.4Such other times as agreed between the parents.
That in relation to the children spending time with their father, changeover shall occur:
6.1If the start or end of a school day, at the children’s school(s); and
6.2On all other occasions at the McDonalds located at G Street, Suburb H or such other location as agreed between the parents.
Each of the parents shall be and are hereby authorised to obtain directly from the children’s schools all information and documents ordinarily made available to parents or guardians or children in attendance at such schools, including but not limited to assessment reports, newsletters, school reports, incident reports, school photo order forms and invitations to parent teacher interviews:
7.1This order does not require the parents to simultaneously attend a single parent teacher interview;
7.2This order authorises the provision of information to each parent upon request at their own cost without any requirement to notify or seek the consent of the other parent, and regardless of whether the children are in the care of that parent at the time of the request.
That the father is hereby authorised to, without any requirement to obtain the mother’s consent to do so, request that his name and contact details be recorded by the school as a parent of the children for the purposes of their student file/records and enrolment forms.
That in the event the children suffer an accident, injury or medical condition which requires emergency, specialist or ongoing medical attention whilst in either parent’s care, that parent shall as soon as practicable and within 24 hours:
9.1Advise the other parent by text message to their nominated phone number the nature of the child’s condition including any diagnosis, prognosis and treatment plans or directions issued or recommended, and the name and contact details for any medical professional or service that may assess or treat the children;
9.2Advise any medical professional or service that may asses or treat the child that they are hereby authorised and requested to provide to both parents such information as they may request in relation to the child’s diagnosis, treatment and prognosis, and provide the other parent’s nominated contact phone number and email address to facilitate same.
That the parents shall be restrained from:
10.1Hitting, striking or using any forms of physical discipline in relation to the children;
10.2Discussing with, or in the presence or hearing of the children these proceedings or allegations raised in these proceedings.
That the father shall be restrained from bathing, showering, or sleeping in the same bed with the children.
That the parents shall within 48 hours advise one another, whether directly or through their legal representatives, in writing their nominated contact telephone number(s) and email address for the purposes of communicating with one another in accordance with these orders.
In the event of any change to the parents contact details nominated pursuant to order 12, the parents shall advise one another within 48 hours in writing, whether directly or through their legal representatives, of such changed contact details.
The appointment of the ICL shall be extended for a period of 6 months from the date of these orders for the purpose of assisting the parties in facilitating the implementation of 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 Sheenan & Laumea 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 CANBERRA

FILE NUMBER: SYC4828/2015

Mr Sheenan

Applicant

And

Ms Laumea

Respondent

REASONS FOR JUDGMENT

Background

These proceedings involve the Applicant father, Mr Sheenan born in 1983, the Respondent mother, Ms Laumea born in 1978, and their five children, B born in 2008 (8 years), C born in 2009 (7 years), D born in 2010 (6 years), E born in 2012 (5 years) and F born in 2013 (3 years).
The parties met in January 2003, married in 2007, and separated on 10 October 2014.
The father commenced proceedings in the Federal Circuit Court on 21 July 2015, seeking interim and final orders that the children live with the mother and spend defined significant and substantial time with the father. At final hearing the husband sought, in the event that there was a finding the mother poses an unacceptable risk to the children, that they live with him and spend time with the mother. If there is no such risk his position is that they should remain living with the mother.
By her Response filed 10 August 2015, and her Amended Response filed 2 November 2015, the mother seeks final orders that the children live with her, that she have sole parental responsibility, and that she be able to change F’s name to J. She asks that the father have only supervised time with the children on the basis that he presents an unacceptable risk to them. By her case outline the mother said that if there was no finding as to unacceptable risk in respect of the father, then unsupervised time graduating to overnight time. The mother also sought orders for the children to attend sexual assault counselling, along with a restraint on physical discipline of the children and denigration of the parents.
At the end of the case the Independent Children’s Lawyer sought that the mother have sole parental responsibility, that the children attend for counselling by a sexual assault service, with time with the father transitioning to alternate weekend time.
Interim orders, entered into by consent on 5 November 2015, provided for the children to live with the mother and have supervised time with the father each alternate weekend for a period of no less than two hours on days and at times as allocated by the Contact Service.
The last time the father had unsupervised contact with the children was in September 2014. Except for the period 19 April 2015 - May 2016, the children have been seeing the father under supervision each fortnight.
The husband relied upon his affidavit of 22 March 2017, that of Ms K, dated 22 March 2017, the father’s aunt-in-law, Ms L, dated 22 March 2017, and a friend of the father, Mr M, dated 4 April 2017.
The wife relied upon her affidavit of 22 March 2017, Ms N, dated 23 August 2017, Ms O, dated 24 March 2017, and Ms P, dated 22 March 2017 (who was not required for cross examination).
The issues in this case primarily revolve around whether any of the children are at risk of physical or psychological harm, resulting from being subjected to or exposed to abuse, neglect or family violence in the care of either parent. In particular, the mother’s case was of sexual abuse of the children by the father, and violence by the father against the children and the mother. The father’s case was that the mother psychologically abuses the children, manipulating them against the father.

family violence

The mother and father each alleged violence on the part of the other. The father says it was the mother who was violent towards him, although he points to no specific examples of such. He says that whilst they would both raise their voices, she would raise hers to the extent that the neighbours could hear. On occasion he called the police or the wife’s friend Ms P because he was unable to stop the mother crying. These incidents were not explored in detail. They at least show both extreme upset on the part of the mother and that the husband did not conceal the upset from either the police or the wife’s sister. The incidents of upset are neutral in relation to determining issues of family violence.
The father accepted that close to the end of the marriage an argument occurred between the father and the mother on their way home from attending a wedding, with their five children in the car. He explained that the mother was unable to calm herself down and wished to jump out of the car. He stopped the car so that she did not jump out whilst it was moving and then drove away. He asserts he drove away a short distance to drive around the block and collect her but was unable to see her. He later accepted in his evidence that he did see her and that he observed her to be entering a car with men unknown to him and presumably unknown to the mother. He understood that later the mother had Ms P collect her from the Suburb Q railway station after she had been delivered there by the men. This incident occurred somewhere between 11pm and 2am, with the mother being left on the side of R Street. The mother was at a point of such distress in the presence of the father that she engaged in potentially harmful behaviour. The reasons for the upset were not explored in the evidence. Whatever they were, the incident demonstrates a high degree of volatility between the parties, that the children were exposed to, and that was likely to have been highly upsetting for the children. Whatever the cause of the upset, the incident is also indicative of some vulnerability on the part of the mother to extreme upset in dealing with the father.
The mother alleged that in arguments the father would punch her to the arm or push her to the wall causing bruising to her arm. He says that he took steps to physically prevent her from attacking him. This, he said, never involved grabbing or pushing her away but could possibly have caused bruises to her. Again, these issues were not explored in a manner so as to allow findings to be made, other than that there were physical altercations between the parties.
The mother said that during the relationship she had packed bags and driven away with the children in an attempt to leave the father. On each occasion she returned to the home after a very short time, only getting as far as driving around the block. She did not know where she could go, nor what services she might be able to access for support in such circumstances. She thought that she was locked into her marriage. She did not talk to her sister, who worked for DoCS, about the problems she was facing. Given the support the mother now has from her sister, it is unclear why the mother did not speak to her about what was going on. While it may be accepted that family violence may not be reported to even close family members, this tended to undermine the mother’s account of packing and leaving for such short periods because she did not know where she could find support.
Importantly, the father accepted that he had punched walls and a door causing damage on three to four occasions. On each of the occasions the children were in the house. The father was unable to say whether or not these actions would have caused fear in the children, although he accepted that they may have been frightening to the mother. While the father denied that the children became aware of the holes that he had punched in the walls and door, by virtue of the fact that he said that they were covered up, he accepted that they may cause the children to ask questions about whether they or the mother were safe with the father. He accepted that this would be harmful to the children. The father further accepted that while the mother was pregnant with their first child he had punched her car. His explanation was that this had occurred out of frustration rather than anger, although he later accepted that the reactions came from anger which later became frustration. He was unable to identify what it was that had triggered any of these events, although he asserted that they had on each occasion been the result of a “very minor” argument. This description was inconsistent with his assertions that he made that he had no problem with controlling his anger, nor that he is not a violent person. He accepted that it may be that his view that he is not a violent person is wrong. He further accepted that if the argument was something major he might do something more serious than punching the wall. Ultimately these were significant concessions. At the same time the process by which they were extracted revealed either a lack of candour or a lack of insight on the part of the husband as to why he had behaved in a violent manner toward the wife.
The husband thought that he had learnt much since the end of the relationship, in part through the courses that he has undertaken. He thought this meant that there should be confidence that he would not behave in the same manner in the future. This was undermined by the matters identified above regarding a lack of candour or insight.
The father accepted that, on 6 November 2014 shortly after the parties had separated, he sent a number of texts to the mother. He did this after attending at the mother’s home and finding a number of his relatives there helping with work around the home such as mowing the lawn. The texts were as follows:
You know what happens in the TV in the news when the man kills his wife? That is what i want to do to you right now.
I will fucking murder u ur sister and those fuckwits!! U cunt!! Ur fucking lost cunt!!! U know what I don’t care bou nothing alright!!! If I want to take my fucking kids then I have all the fucking rights!!! U can’t stop the kids from coming to me u fucking dumb shit!!! U lucky I wasn’t home when I got there I would of murdered them u fucking cunt!! Nice to know ur group of friends are now!!! Aikae Lou ufa I wanted to be with my kids!!! Fuck u.
I will fucking murder u ur sister and those fuckwits!!! Fuck off now I’m moving to Brisbane on the 15 dec I got my house now so fuck off I don’t want to see your fucked up face ever!!! Kefe u cunt.
Nothing will soften my heart when it comes to u mate!!! Ur just fucked!! U and ur new fucking sisters!!!! I hate u all!!! I just want my kids!! But u? U can fuck off I don’t want u in my life!!! Fuck ur holiday!!!
On the mother replying to explain that the father’s relatives were at the house to mow the grass the father responded:
It’s THE FUCKING PRINCIPALS U MOTHERFUCKING DUMB BITCH FUCK OFF U STUPID CUNT!!
Under cross examination the mother accepted that both she and the father swore at each other during the relationship. This may ameliorate the impact of the language used to some degree but does not lessen the seriousness of the messages sent by the father to the mother.
The father said that there was no intent contained in those texts and that he regretted sending the texts. He handed himself into the police, was criminally charged and pleaded guilty to criminal offences relating to the sending of the texts. He said that he did not read the Statement of Facts before he was sentenced, although it is not clear what the significance of this is. An AVO was made and accepted by him. He was placed on a Good Behaviour Order.
Again, he said that the texts were sent as a result of frustration on his part, although the precise reasons for the frustration were not made clear by him. He later appeared to accept that they had commenced with anger and moved into frustration. Whether it was frustration or anger, the seriousness of the texts was not diminished. More than a day after the texts were sent the mother messaged him offering him the chance to apologise. His response was:
No fuck off I’m not sorry
trust me mate what I’m going to do to you
Whether or not these matters were fuelled by frustration or anger, and whether or not the father intended to carry through with any of the matters contained in the texts, they represent serious threats and serious incidents of family violence directed towards the mother over a short period of time.
The Independent Children’s Lawyer questioned the father regarding the impact upon the mother of his conduct toward her. The father said that he could not understand why, in the context of the threatening texts sent to the mother, she would not want anything to do with him. While, eventually, he said that he could understand such a position, and accepted that the mother may be scared, may think that she might be killed by him and might be worried as to what he might do to the children, his late acceptance that the mother may fear him did not lead to confidence as to genuine insight into the impact of his actions, nor to a confidence that he has developed sufficiently since the end of the relationship to mean that he is unlikely to behave in such a manner again.
On the issue of violence directed toward the children, the father was questioned about the use of a belt to discipline the children. The mother’s evidence[1] was that the father “hit the children with the belt, if they did not go to bed straight away. He would yell and scream at them “go to bed now”.” B told police that the father had smacked her “on the bottom with a belt 20 times”, while the mother was in hospital giving birth[2]. He accepted that he had used the belt “once in a blue moon” and while he identified that it was C or D who he had used the belt upon, he subsequently asserted that it was only D. The variation in the answers gave reason to doubt the veracity of his answers on this matter. His description that the belt was not used to cause fear but rather was waved around, causing laughter amongst the children in the context of getting them to go to bed so that they could read stories to the children and play games with them lacked credibility. While it remains unclear as to the use of the belt I am satisfied that the father minimised his use of the belt. Given the other, admitted, examples of anger on the part of the father, I accept the mother’s description as being closer to the truth of the matter.
[1] Mother’s affidavit dated 22 March 2017 at [24].
[2] Exhibit ICL 4.

The evidence supported a conclusion of violence to the mother, in particular the striking and damaging of walls and doors, along with strong and abusive threats of violence to the mother. The texts shown above give the mother good reason to be concerned as to violence on the part of the father. It is likely that the children have been exposed to this violence, as well, to some degree, to excessive physical discipline on the part of the father.
The mother, under cross examination, expressed hope that the father could do better than he had in the past. She looked forward to the possibility of therapy being recommended by the Single Expert in the hope that it would help the parties. Her hope was that in a year’s time the parties would be better able to communicate.

Sexual allegations

The mother said that the children have engaged in sexualised conduct and have made comments attributing responsibility to the father. She says that they have told her that the father has touched them sexually and caused them to touch him. She says that the behaviour and statements by the children have been so widespread that it would take a book to record them. The father denies any sexualised conduct towards the children and disputes that any such statements have been made by the children to their mother.
The mother alleges that the following matters have occurred that have caused her to think that the father has behaved sexually to the children.
The only matter that the mother was able to identify to indicate any sort of misconduct on the part of the father sexually toward the children during the relationship was to suggest that when B was 3 years old, she heard the father and B in another room, with a music video channel playing. She heard the father say to B “you look sexy”. She did not consider this was appropriate, but did not record it in her affidavit material as she did not think anyone would take it seriously. In any event, such a matter is not of such a nature as to enable any inference to be drawn as to impropriety. It is not indicative of sexual abuse of the child.
This conclusion is reinforced as the mother agreed that she had not been concerned about the father sexually dealing with children during the relationship. This is emphasised by the fact that in August of 2014 she agreed for the children to stay with the father for a period. The mother accepted that she could not have been too concerned at that time. She now believes that there were incidents occurring during their relationship that she did not observe, in particular because of her exhaustion involved with giving birth to and raising five children. There were none that she was able to recall.
The mother stated that B complained of having sore private parts during the relationship and that the boys, D and C also said that their bottoms were sore. Although the mother initially thought that this was during the relationship, she thought that it may have been shortly after separation. These comments were not identified as to either place or time.
In 2014 B told the mother that another girl, S, had touched B’s private parts at school. The mother raised this with the school at the time. She said that she called the school to see if it had really happened, although she attempted to subsequently correct this evidence, saying that this had come out wrong and that she believed her daughter, although she accepted that a child might lie. It seems that at the time the mother had some doubt about B’s account. In hindsight the mother thought that it was really B trying to tell the mother that something was happening with the father. However, it appears that the mother did not have any concerns about the father sexually dealing with the children until December 2014.
Ms P, a close friend of the mother’s, prepared an affidavit and was not required for cross examination. Her affidavit related to wrestling between the children that included C grabbing B’s crotch. The ensuing conversations with C, wherein he said “dad says it is alright” are as attributable to the wrestling as they are to the grabbing of the crotch and do not enable an inference to be drawn that the father was teaching the children to grab each other’s crotches. The further aspects of disclosure appear to be Ms P recounting what she was told by a third party who was not called. I do not place any weight on that evidence under that circumstance.
The incident that prompted the mother to consider that the father may have done something sexually to the children was in December, some months after they separated and some time after he ceased to see the children on an unsupervised basis. The mother deposed that on 24 December 2014 B grabbed her brother’s testicles while playing on the veranda of the holiday house they were staying at. B explained to her mother “Daddy taught us to do that at night” that is, “when (the mother) was at work”. B is then said to have told the mother “Daddy rubs me after the shower in my private parts and I feel wobbly” and further that her father keeps doing it, that it hurts her and she says “Stop Daddy, but he doesn’t stop.” B said that this occurred while the mother was “downstairs in the shower”.[3] This was the subject of a report to DoCS on 21 January 2015 where B was also reported as telling her mother “that her father had asked her to do it to her younger brother to get his thing bigger”.[4] The mother could not explain why this statement did not form a part of her affidavit. If this had been said, this would have been the first occasion that there was any indication by any of the children as to the involvement of the father’s genitals with the children. The case was referred to JIRT[5].
[3] Mother’s affidavit dated 22 March 2017 at [31].
[4] Exhibit ICL2.
[5] The part of the NSW police service that deals specifically with sexual abuse cases.
The mother subsequently described this to a case worker, Ms T in 16 June 2015, as the “mother discovered [B] handling [C’s] penis and scrotum roughly one day with his pants down.”[6] Under cross-examination from the Independent Children’s Lawyer the wife described that B grabbed C’s testicles. C was wearing pants and this was apparently done by B as retaliation for something as B was angry. The mother then said that she did not see the grabbing, but rather was told afterwards by the children that is what had happened. The mother then explained that there was a window, apparently to suggest that she was able to see. She asserted that she had a clear recollection. The mother said that she asked B “where did you get this from?” with B responding “daddy told us to do that at night.” B subsequently told her mother about her father rubbing her while in the shower. The mother took this to be B explaining that the father had done something inappropriate.
[6] Exhibit F4.
The accounts of this first incident, which the mother says caused her to be concerned that the husband had sexually interfered with the children, are highly inconsistent. Aside from a reference by B to the rubbing in the shower in an interview with JIRT, there is no evidence of this event except through the mother. In this there is conflict in the evidence as to whether the mother saw anything happen or was merely told that something had happened. Given the mother’s varying evidence about whether she saw it, along with the varying evidence about whether C’s pants were down or up, there is insufficient evidence to satisfy that the mother saw the interaction between B and C. The mother’s uncertainty about whether she saw the incident further leaves uncertainty as what may have been said by B to the mother, either to describe the incident or to explain the incident. As to what is attributed to B (apart from “that her father had asked her to do it to her younger brother to get his thing bigger”), the statements are too equivocal to imply sexually abusive behaviour by the father. The variation in the descriptions of what was said by B, the failure by the mother to set out how this assertion is said to have come about, combined with the variations in the mother’s description of the incident mean that a conclusion that B said “that her father had asked her to do it to her younger brother to get his thing bigger” should not be made.
This event however marks the beginning of the mother’s assertions that the children, or at least the four older children, were sexually dealt with by the father.
In terms of the sequence of dealing with professionals about the allegations, the mother saw a sexual assault counsellor, “Mr U”, in Suburb Q in early 2015, following the incident she describes while on holidays at Christmas time 2014. Mr U made a report to DoCS over the telephone. The mother understood that the JIRT investigation was inconclusive.
The older three children attended V Group for counselling for a period of two to three months following the mother’s contact with Mr U, commencing in January or February 2015. There were about eight sessions.
When attending on Suburb W V Group on 3 February 2015 the mother expressed a concern regarding sexualised behaviour by the children, observed since separation, and that she suspected the father. She expected that the children should disclose everything to the counsellor on the first session[7].
[7] Exhibit ICL 1.
The mother accepted that by 9 February 2015 she was desperate for someone to see the children’s behaviour, and that she “couldn’t wait” for the children to disclose regarding sexually inappropriate behaviour[8]. The mother denied that she told V Group that she “couldn’t wait” for the children to disclose. The V Group counselling ceased because of a JIRT investigation.
[8] Exhibit F6.
After engaging with V Group at Suburb W, the mother had contact with another organisation dealing with sexual abuse, X Group. While she says that one of those workers observed the behaviour of the children, they were unable to assist as the matter had been referred to JIRT, or required some sort of police report. The mother said that on the occasion of this visit the person from X Group observed the sexualised behaviour. No material was led to support this, either through the calling of the relevant worker from X Group or from the production of records.
In May 2015 the mother was still seeing V Group from Suburb W. She told a counsellor there, Ms T, that she had received a proposal from the father’s solicitors regarding the children spending time with him. She expressed a fear that the husband or his family would harm the children and was reported as “very stressed as she cannot produce evidence as her children did not disclose anything to me…her expectation of our service is hope that the children will disclose something re: their father.”[9] The mother agreed that she wanted the children to make a disclosure rather than for her to have to raise the allegation.
[9] Exhibit F2.
The mother said that there was no particular trigger (such as a disclosure) leading her to engage at this stage with V Group. It was because of the behaviour of the children.
Exhibit F5 shows a meeting between the mother, her sister and Ms T on 15 June 2015, in which it was reported that D had disclosed the previous week that the father used to “rub his penis on his face” and that when he did this his “bottom was stinking”.
The mother had further contact with Ms T in 16 June 2015, regarding this report of a disclosure. Ms T indicated that she would report the matter. The mother was resistant to this, not wanting to make a complaint to the police.[10] It was said that on the day before, D told the mother that the father would place his penis over D’s face and body and threatened to cut his fingers off and make him go to gaol if he told anyone, while holding a knife.[11]
[10] Exhibit F4.
[11] Exhibit ICL3.
Exhibit ICL4 contained notes from JIRT interviews with B and C on 1 and 2 July 2015. There, B told the police that she was there to tell them about “bad stuff that we did”, and that her mother says “what Dad did to you at the old house”. B explained to the police that the bad stuff was fighting, and had something to do with cigarettes, and something to do with not touching private parts. During the interview B was asked whether her father had touched her private parts. She indicated on a body chart that he had touched her vagina, indicating that it is “used for wee and poo”. She said she had been smacked there by the father. She said that he had touched her vagina during bath time. She said that “he scrubbed hard it was sore-tummy”, and that “she was going to grab the soap herself but that her father had scrubbed her private part hard with the soap, then her belly, back and legs and washed her hair”. Her siblings E, C and D were also in the shower at the time, and the father also used soap to scrub their private parts, bodies and wash their hair. The father was naked at the time, and was also having a shower. B said that apart from the smacking and the washing in the shower the father had not touched her any other time on her private part.
In response to what was described by the questioner as leading questions, where B was told that someone said she had touched her brother’s private part, B initially said that she did not remember, then said that her dad told her to touch her brother D while the mother was in hospital giving birth to her youngest sister. This would place this incident as approximately two years earlier, with B aged 5 and D 3. B said she thought that her father would smack her with a belt if she shook her head. The context of prompting of B, the dated reference made by B and the lack of any sense that can be attributed to it leads me to place no weight upon this comment.
C was also interviewed and was asked if he had told his mother that someone had touched his private parts. He told the police “no, because no one has touched my private parts”. Whilst D was also interviewed, he was a little over 3 year old at that point, and was unable to give clear answers. In response as to being asked whether anyone was allowed to touch various body parts, including his penis, he replied “no” to each.
At [38] the mother describes an incident on 18 September 2015 where E, then aged three, was described as poking out her tongue and attempting to insert it into F’s mouth (then aged about one and a half). In addition to what is recorded in the affidavit, she says that E was telling F to open her mouth. She thought E was trying to kiss F. In her affidavit she said “E what are you doing?” with E responding “Daddy taught me to do. Daddy likes to lick me everywhere”. At that point E pointed to her bottom and to her vagina when she said this.
At [39] the mother recounts that on 19 September 2015 at about 8:30am when she was getting F and E ready for day care that E said “Daddy sometimes likes to eat my vagina and he would cry”. The mother reports saying to E “When did daddy to do this to you?” E said “When we go to bed at night” the mother said “What do you say to daddy when he does this?” E said “I don’t say anything but sometimes I feel sad” and that E said “he rubs his penis on my bum and then he would wee on the floor. I would cry but daddy would hit me with a belt and tell me to shut up” and “sometimes daddy makes holes in my bum and in my vagina”. In cross-examination by the Independent Children’s Lawyer the mother was asked what was happening at the time that E had made this statement. The mother said that she was unable to recall, and did not know if it was bedtime. Her affidavit asserts that it was happening while she was getting the children ready for day care. It was suggested to her by the Independent Children’s Lawyer that previous accounts given by the mother had indicated that E had said that the father had made holes with a knife. This was the account that she had given to the General Practitioner but it was not the account contained in her affidavit. She attributed this failing to her previous solicitor. This is a significant inconsistency in the account. At the point of cross-examination it appears that the mother did not have a clear recollection of the circumstances of the statement.
E was aged about three and a half years old. She had not had unsupervised time with her father since she was about two and a half years old.
The Single Expert thought that the phrase “eat my vagina” was an odd manner of expression for a child describing cunnilingus, but accepted that whether it could constitute a description by that child of such was dependent upon that individual child’s use of language. She did not assess E’s use of language.
The Independent Children’s Lawyer then took the mother to an incident that she describes at [41] of her affidavit on 22 September 2015. In her affidavit she describes that “[C] and [D] were in their bedroom and I could hear them laughing. I walked into their room and I observed both boys touching others penis”. When asked about this incident she said that she could hear the boys giggling. She found them clothed in their pyjamas and asserted that they were rubbing each other from behind. She said they were standing; they were jumping on the bed. She then said they were not jumping on the bed but were standing on the bed. Although in her affidavit she described the boys as touching the others penis, in oral evidence when cross-examined by the Independent Children’s Lawyer she indicated that the boys were both facing the wall, that she could see them from their side, D was standing behind C and D was touching C on his penis while C was trying to reach behind to D’s bum. The mother then asserted they were touching each other’s bums. She then said that she assumed that they were trying to touch each other’s bum. She then said that C was trying to touch D’s bum while D was touching C’s penis and that C actually touched D’s bum. She said that this was momentary. In her oral evidence she asserted that they ended up on top of each other wrestling. This does not form part of the account at [41]. At [41] the mother says that she said to the boys “who taught you to do this?”.
There are significant inconsistencies between the oral evidence of the mother and the affidavit evidence. These inconsistencies range from differences in the detail, for example whether the children were jumping on the bed or standing on the bed, which may be a matter of little significance on its own, but importantly contain significant variation about the matters of substance reported within the paragraph. It is apparent that the children were not touching each other’s penises. When taken through the detail the mother’s account as to where they were trying to touch, where they were touching each other, and whether they touched each other, varied.
The mother further reports C as saying “Daddy always plays with our penis and we are playing too” he further said “He throws us on the bed and he squeezes our penis really hard. Sometimes he squeezes me right here (indicating his testicles)”.
In September or October 2015 the older three children attended on DD Group for some counselling.
The mother was next taken by the Independent Children’s Lawyer to [42] of her affidavit, which records an incident on 26 September 2015. In the affidavit it is described as follows, that the mother walked in on the children playing in the garage and saw E
“poking [C’s] Bottom. [E] pulled out [C’s] pants down then placed her right hand between [C’s] legs and began feeling his penis. [E] was standing behind [C] as she did this”.
C then said
“But, daddy touches my penis and my whole body and kisses me everywhere. He shakes and punches me all of my body. He kissed my penis”.
In her oral evidence the mother says that she was walking past the garage door and looked through the door, seeing E behind C with her hand inside his pants feeling his testicles from behind. She says that C stood there enjoying it for a few seconds.

While there are common elements, what was described in the mother’s oral evidence differed significantly from what was described her affidavit. For example, there was no pulling down of C’s pants and no poking of C’s bottom. On the mother’s account what she saw was the hand already inside the pants when she commenced to observe. This is starkly different from what is contained in her affidavit.
In October 2015 the mother says that she found E attempting to insert a pencil rubber into her anus and explained to her mother “But daddy puts toys in my penis (she sometimes uses the word penis instead of vagina)” she said that “He does it at night-time”.
The mother’s sister reported to Family and Community Services that on 26 October 2015 B told her that the father’s female cousin had told her to stand naked, had touched her bottom and vagina while the father touched her vagina[12]. Absent knowing what other conversations have taken place with B, taking into account the inherent unlikelihood of what was described, and the dated time frame in which there was even an opportunity for it to occur, I do not accept that this describes an actual incident.
[12] Exhibit ICL7.
Ms O was the Director at Y Centre, the childcare facility that each of the children have attended. She was present when E was brought to the childcare centre in October 2015 following an interview with JIRT. This was an interview which E is recorded not to have made any disclosures to JIRT. Shortly after her arrival at the centre, E had a conversation with Ms O and one of the other staff members. The other staff member took notes whilst Ms O spoke with E. Those notes appear at annexure H of Ms O’s affidavit. Approximately eighteen months after the taking of the notes, Ms O recorded a typewritten version, relying upon the notes to assist her memory, for the purpose of preparing an affidavit for the proceedings. The conversation occurs at [10] of her affidavit. The most significant aspects of the conversation recorded here are:
e. [E]: “He put his finger in my body and put his finger in my bottom.”
r. [E]: “he closed the door and locked me inside the room. I said stop. Daddy is crying and smacked me on the face. He touched my private are with a fork. I was getting bleeding.”
s. [M]e: “where is your private area?”
t. [E]: “Here (she pointed to her front private area). He lick me down here with his tongue.”
Exhibit ICL6 was tendered, which Ms O accepted reflected a conversation she had with the Department in October of 2015. In that record, Ms O recorded that E told her that her father had put his “finger on my bottom” as opposed to in the bottom. Otherwise the records were broadly consistent.
Although there are a number of inconsistencies between the handwritten notes and the typed version of the conversation, they are broadly consistent. While it is unlikely that what is recorded is word for word accurate as to what E said (the direct quotes being set out for the first time in full when the affidavit was produced about 18 months after the conversation), what is recorded regarding the most significant aspects is consistent as between the notes and the body of the affidavit.
It was put to Ms O that the mother had told her something about the father placing his penis on one of the child’s bottoms. Ms O indicated that she had no recollection of this. This matter does not appear in either her typewritten notes or her handwritten notes, or what it is that she was said to have said to the Department.
There can be reasonable confidence that E said those things that are identified above as most significant to Ms O. This constitutes the clearest example of one of the children making what could be a disclosure to someone other than the mother. The significance of this matter will be dealt with further later in the judgment.
Exhibit ICL8 was an email from the mother to her solicitor and to her support workers on 31 October 2015. On that occasion the mother said that she found B jumping on her bed with a rope around her neck. The mother asked B who showed her how to do that, a question suggestive that B should nominate someone. B explained to her mother that her father would do it, would tell her to laugh, would then jump up and down and that if she did not laugh he would take her away from mummy, and that he pinched her vagina.
On 2 November 2015 (exhibit ICL9) the mother emailed her solicitor and support workers claiming that B had told her that Ms Z (the father’s cousin who the mother believed was having an affair with the father) would smell B’s
“bum and punch it so her bum would jiggle and wiggle and make her bum sore… touch her vagina… would laugh and tell [B] that she would never see mummy again if she told (the mother)”.
On 5 November 2015 Judge Monaghan made orders restraining the mother from taking the children to see counsellors. She reports that it is rare now for any disclosures to come from the children. The mother accepted that she had been given advice by the paediatrician that having the children recount sexual abuse was potentially traumatising. The mother viewed the children as being traumatised.
On 13 November 2015 the mother reported to her solicitor and support workers that on 4 November 2015 she observed E and F kissing each other. She told them to stop and E told her that her father and Ms Z put a spoon in her vagina.
This did not form a part of the mother’s affidavit material. She indicated that she did not know if it was true, then asserted that she believed everything that she had been told by the children[13].
[13] Exhibit ICL10.
The mother was asked by the Independent Children’s Lawyer whether she had been concerned that the father and another adult were involving the children in sexual activity. She indicated that she was concerned because she was told by one of her daughters in 2015 that the father and his girlfriend were touching each other in front of the children, and kissing each other and had one of the children between them in the bed. The mother said she had not put this in the affidavit because she thought that she would be looked at as making up stories, or being bitter because of an affair.
The mother said that the children told her that they had not told the JIRT investigators what had happened because they were scared as there was a camera there. The mother denied that she has spoken to the children about what to say to persons in authority, other than they are to share their feelings, including what they are not happy about, or do not feel safe about.
The mother accepted that she was frustrated and disappointed that the children had not told these things to authorities such as to JIRT. She believed that it would have been best for the children to have made disclosures and thought that it was important that they should do so. However she could not recall whether she had told the children that they needed to tell the various interviewers about their father. She then accepted that she had told the children that they would be discussing their father with the Independent Children’s Lawyer, and that it could result in them going to live with their father. The mother denied that the children knew of the court proceedings until they met with the Independent Children’s Lawyer.
The mother indicated that she was aware that the Apprehended Violence Order was to expire on 25 November 2015 and that she was concerned about that expiry, as she was worried about attempts being made by the father to see the children.
The mother says that she believes that what the children have told her is the truth. She says that this is reinforced by the behaviours she has seen in the children, for example their touching of each other’s private parts. The mother explained that she has had to correct this behaviour. While initially indicating that the latest example of one of the children “feeling...up” had happened recently she clarified that she did not mean that this had happened “the other day”, but that it occurred in September-October 2015. She was concerned that the manner of touching, involving reaching into the pants and touching of the genitals, and apparent enjoyment of that, must be a taught behaviour. She said however that a few weeks prior to the hearing the boys were touching each other’s “bums” twice each week for three weeks. This was corrected to the last occasion occurring a couple of weeks ago, maybe once a fortnight. Prior to that the last incident was about two months ago, again involving the touching of “bums’. These last descriptions were highly inconsistent with each other.
The effects of the inconsistencies in the mother’s descriptions of what was said and what happened, of the uncertainty of the circumstances surrounding some of the comments reported by Ms O and the mother’s sister, the context of limited time with the father and the time passed since there was unsupervised time, along with the nature of the comments attributed to the children on the assessment of a sexual risk will be dealt with later in the judgment.
The mother was questioned as to whether she would be prepared to accept findings made by the court that did not reflect her position that the children are at risk from the father. She said that she would trust the court’s decision on this matter.
The father was questioned about whether he had engaged in any of the behaviours alleged by the mother. He denied that he had. He denied that he had engaged in any activities or games that could be misconstrued by the children to lead to what is alleged they have told their mother. While accepting that he showered at times naked with the children, and that he had washed and dried B’s private parts, he did not accept that there was anything that could mistakenly lead to the assertions attributed to the children.
The father says that the first that he knew of allegations of a sexual nature being made against him was following the commencement of proceedings in mid-2015, when he was told by his lawyers. He denied any prior notice from the police, schools or DoCS.

The Single Expert

The Single Expert prepared a report which became exhibit C1 and gave oral evidence.
Her assessment process involved spending time with each of the parents, and spending time with each of the parents with the children at a park. The mother attended the park with the children along with her sister for support. On observing the children with the mother she noted that the children were “unhappy, anxious and distressed”. Ms AA saw the mother to be very upset on leaving the park (when the father was arriving). Her interactions with the children were controlling, with the mother yelling and suffering some distress. She thought that the mother’s emotional state was driving the children’s behaviour towards the mother. She was not able to manage her distress which led to dysfunctional interaction with the children. Ms AA’s view was that this would not be the way that the mother behaved with the children all the time. Ms AA thought that:
It was also clear that the children’s behaviour escalated in a negative way in response to their mother’s anxiety and fearfulness in relation to the upcoming contact visit with their father.
In contrast, there was no issue of concern from the presentation of the children in relation to their father. They displayed no fear. She observed the two youngest children to throw themselves at him. D, E and F appeared happy to see him. C and B did not at first want the mother to leave, although B indicated that she wanted to see her father but found it difficult when the father asked questions about the mother. The interaction with B, C and D involved laughter and physical interaction. It was generally a positive interaction, although at times disrespectful to the father, without bringing a negative response from him.
Ms AA thought that the children were attached to each other and securely attached to each parent. Her view was there would be psychological and emotional harm if the children were separated from either parent, from their siblings or from their extended family. However, she thought that future and ongoing contact with the father would require cooperation between the parties. Conflict between the parties would make it difficult for the children to separate from the mother and experience security with the father.
On the question of a risk of sexual violence from the father Ms AA noted that the father displayed no cognitive distortions when assessed, denied hyper sexuality and denied the allegations. He gave no history of sexual violence.
Ms AA administered two psychological tools in order to assist with the assessment of risk. The first is the Static-99R tool, which is a statistically based tool that, on its terms, does not relate to the personal risk of any one offender. Rather, it measures a person to place them into a category and then assesses the risk generally posed by members of that category. In applying this tool the Expert was not aware that the father had a criminal conviction in respect of violence in respect of the mother. She indicated that this would have elevated his risk level to low – moderate, that is from 3.8 per cent to somewhere in the vicinity of 5 per cent.
For material such as this to be relied upon it is necessary that the court be placed in a position that allows it to assess the capacity of the evidence to go toward the proof of a fact in issue in the proceedings. At its most basic this involves the capacity to answer the question of why it is that this material can have such an effect.
Significant questions arise as to what, if any use can be made of the application of this tool. Evidence was not led as to the underpinnings for the statistical assessment. In the absence of evidence persuasive as to the use to be made of this statistical tool I place no weight upon the results.
Ms AA also assessed the father using the Risk of Sexual Violence Protocol (RSVP Hart, Kropp and Laws 2003) psychological assessment tool. This is a tool said to use structured professional judgement based upon the individual. It was asserted to assist in identifying an individual’s risk for sexually abusive behaviours. According to this testing the father represents a low risk (there is not a no risk category) in relation to sexually offending. This appeared to be on the basis that he did not present as
inherently antisocial, he has no prior criminal charges or convictions for sexual matters or other criminal history; he does not endorse attitudes and values supportive of child sexual abuse; he does not present with a history of substance abuse or significant mental health concerns; he maintains stable employment; and the allegations are made known to the Joint Investigation Response Team and Department of Family and Community Services.
Ms AA noted that:
[Mr Sheenan] did not endorse a history of entrenched hypersexuality, deviancy, excessive masturbation as a means of emotional coping, or the use of pornography. He denied hebephiliac or paedophilic interests. He does not impress as inherently antisocial in either attitude or lifestyle.
It was not explained why these particular factors that were identified go towards establishing a level of risk in respect of the father in relation to these children. There was no explanation as to the degree to which these matters are reliant upon the self-report of the person being assessed and the degree to which they are of any greater assistance than the denials made by the father in relation to engaging in the behaviour. I do not place any weight upon the results of the RSVP assessment.
What was also not dealt with is the impact of the alleged behaviour by the father upon the assessment. The report did not include an assessment of the purported disclosures made by the children, nor the effect that they would have on this assessment if true.
In her oral evidence Ms AA accepted that if one of the children may have said that the father placed his penis on that child’s face, then this would be concerning. She thought that unless it was concluded that that this was not said a question of risk was raised.
In the event that there is a risk of sexual abuse, her position is that initially there should be no time spent with the father, although this could change if he was to undertake treatment programmes.
Potentially undermining the disclosures, Ms AA indicated that repeated questioning of children suggests to children that they have got the initial answers wrong. It also enables the children to draw a link as to what the desired answers might be. This could play upon a child’s natural desire to please the child’s parents. Against that, and in the context where the children have not made full disclosures to other authorities, it was noted that it is not always the case that children will disclose behaviour. It appeared to be the case that B at least was expecting to speak to Ms AA about such matters, saying to her “when are you going to ask me the question?”
In this case this effect leads me to be particularly cautious in accepting those limited disclosures reported by a third party such as JIRT or Ms O. That is, whatever has been heard by them appears to be in the likely context of broader, repeated, unrecorded discussions between the mother and the children. The mother repeatedly asserted that the behaviour by the children, and their disclosures, were extensive and beyond what was recorded in the affidavits.
Ms AA raised a question of a risk of exposure to psychological harm from the mother. Her belief that the children have been sexually abused, or at risk of sexual abuse, were known to the older children. They expressed concerns during the assessment process of being separated from their mother. Their behaviour, in response to the mother’s fear and anxiety during the assessment process escalated. Ms AA was of the view that
The children are at risk of exposure to psychological harm from their mother at this present time. [Ms Laumea’s] belief that several of her children have been sexually abused by their father and that all the children are at risk of future sexual abuse by their father is known to the older children.
Presumably, although not specifically stated, this opinion is predicated upon there not being a risk of sexual abuse. If the disclosures reported by the mother are made up by the mother then the children are not at risk from the father and rather risk a loss of family, of not knowing where they come from and of blaming themselves for the end of the relationship with their father. Further, again if made up, it would become difficult for the children to be able to, in the future, trust their own judgement about things. There is a likelihood that they would suffer from physiological alert with an increase in anxiety. This can lead to an increased risk of self-harm. Further, problems could arise in their relationship with their mother. That is, the mother’s position could be detrimental to them. It could cause a division of loyalty between the parents and ultimately lead to a conclusion, on the part of the children, that the mother had betrayed them by removing their relationship with their father in their later years.
If it was the case that their disclosures were invented, Ms AA’s recommendation is that the mother would require support. It would not mean that the children should not remain with the mother as clearly the mother loves the children and they love her. Further she described it as being a “big leap” to go into the primary care of the father, despite the positives which had been demonstrated by his persisting for so long with supervised time.
In her report, dealing with risk of exposure to family violence, Ms AA said:
[Ms Laumea] disclosed family violence in her relationship with [Mr Sheenan] and that the children were exposed to family violence. During my observation of the children with [Mr Sheenan] there was no evidence of anger or violence toward the children or any comments indicating anger or violence towards their mother during the contact visit.

During cross-examination, Ms AA was taken to the particular features of the evidence involving the violence by the father upon the mother. Rather than being confined to a period surrounding the breakdown of the relationship, as she had initially thought, it was apparent that incidents had occurred through the relationship. Ms AA thought that this could lead the children to being exposed to the father when he is being violent and concluding that he is dangerous when angry. This has a consequence that it can lead to anxiety in the children. She thought that the earlier they experience anxiety, the risk of harm to them increases. This harm can take the form of future drug and alcohol abuse, future sleep problems, impact upon their education and the long-term consequences that flow from that. This caused Ms AA to consider that it would be desirable that there be further assessment.

Father’s proposals

The father sought three different sets of orders dependent upon the findings the court makes in respect of unacceptable risk. In the event that it is found that the father presents an unacceptable risk to the children then the father seeks orders that he is still able to spend time with the children on a supervised basis. If there is no finding of unacceptable risk then the father seeks orders for equal shared parental responsibility, with the transition towards the children spending time with each parent on a 9/5 basis favouring time with the mother. In the event that the mother is found by the Court to present an unacceptable risk to the children then he proposes that they should live with him and spend supervised time with the mother.
These orders reflect that he expressed that if all was well in respect to the parties then the best outcome is that they should live with the mother and spend time with him. It is the making of allegations against the father that he says changes this position.
The father was questioned as to how these outcomes might affect the children. He did not think that, if the children were restricted to supervised time only with their mother, they should find it difficult at all. He did not accept that B derives comfort from her mother. He did not think that the children would struggle at all. This seemed in part to be upon his view that he has built a “massive relationship” involving showing love to the children over the two hour periods of time that he has with them. He thought that they would be able to go to their mother at any time and that he would take them over to their mother if necessary.
Although he asserted that at about the time of separation the mother was not mentally fit to look after all of the children, asserting that she had said “I can’t care for the kids”, leaving him with the care of the youngest two children for a couple of weeks while she cared for the elder children, he accepted that he then acquiesced to all of the children living with her. He accepted that he could not have been too concerned at that point about her capacity to care for the children.
When questioned about whether or not it would be traumatic for the children to spend significant time away from their mother the father said that he was unable to answer. He said he was only able to speak of his relationship with the children but not the children’s relationship with her mother.

The mother’s proposals

These are set out at the start of the judgment and seek that the mother have sole parental responsibility, with the father to have supervised time. In the absence of a finding of unacceptable risk on the part of the father the mother seeks a transition to overnight time for the father.

The Independent Children’s Lawyers proposals

These are set out in broad terms at the start of the judgment. They seek that the mother have sole parental responsibility with an obligation to consult with the father. They seek that the children live with the mother and following specialist counselling from a sexual assault service transition to unsupervised time with the father. They will be annexed to this judgment.

Name change

The mother seeks to change F’s name to J. F’s middle name is BB. However, it appears that for a number of years now the mother has called F by another name, J. The mother explains in her affidavit that this is because ‘BB’ (F’s middle name) is a composite of Ms N’s (the mother’s sister) and Ms Z’s (the father’s cousin) names, however as the mother believes the father is having an affair with Ms Z, she refuses to use the name BB. The name J is the maternal grand-mother’s name.
The father was questioned about the mother’s proposed name change from F to J. The father accepts that the rest of the family has been calling her J and says that he is happy to use both F and J but that he would call her F. He thought it was in her best interests that she not be confused by a further name change and asserts that he has been using the name F.
The parties at present use the name J, to refer to F. Neither party proposes to disrupt the other in doing this. If the parties were calling her by different names, then there may be a need for a change. Given the sensitive approach from the father to the issue the circumstances do not make necessary a change of her name as being in her best interests, particularly where difficulties in relation to the use by the mother and siblings of the name F has not raised practical problems.

Discussion

Parental responsibility

The findings as to family violence in this case rebut the presumption in favour of equal shared parental responsibility. Parental responsibility will fall to be determined without recourse to the presumption. The strong history of family violence, including as it does threats by the father to kill the mother, tells strongly against placing the parties in the position where they are required to communicate and cooperate regarding significant decisions in the children’s lives. Such a requirement carries with it the risk that it presents the opportunity for one party to exercise control over the other. Whether that opportunity is taken up or not, a party who has been subjected to family violence, as the mother has been here, is placed in a vulnerable position. The seriousness of such a position is seen in the anxieties of the mother in relation to the father, anxieties that impacted on her capacity to interact with the children. The prime example was seen during the assessment process with the Single Expert.
In this case the sharing of parental responsibility is against the best interest of the children because of these effects. The allocation will fall to be determined by determining which parent the children will primarily live with.

Parenting arrangements

The key aspects of each party’s case rest upon an assessment of the primary considerations. They are as follows:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

The key additional factors in this case dovetail with the primary considerations and relate to the nature of the relationships between the children and each parent, considered with the capacity of each to emotionally care for the children, given their particular characteristics. There is limited evidence about each child’s characteristics. This in turn incorporates the degree to which each parent deals with the responsibilities of parenthood, including the promotion of the relationship with the other parent, particularly where the mother asserts that the father presents as an unacceptable risk. The outcomes will involve a consideration both of the practical difficulties, and of the fact that they may involve a change of the children’s circumstances, either through difficulties of having supervised or unsupervised time, or a reversal of residence.
Much of the case revolved around the question of whether the father presents an unacceptable risk of sexual abuse to the children, or alternatively the mother presents a risk of psychological harm to the children. Whatever the outcome of this assessment, the history of family violence presents as a strong factor in assessing the best interests of the children, both in assessing the risk of further exposure to violence and the effects of the previous history on the mother now.
The case law, from M v M[14] onward, emphasises that the key fact in issue in a child case always remains the best interests of the child. The primary fact in issue relates to this determination of what is in the child’s best interest which, in a case involving issues of risk to the child can also be understood through asking the question of whether there is an unacceptable risk to the child. The term ‘unacceptable risk’ is a qualitative term which, by its use of the term ‘unacceptable’ seeks to answer the question of whether the risk is such that a particular outcome is not in a child’s best interest, when viewed in the context of the whole case. An outcome which poses an ‘unacceptable risk’ cannot be in the best interests of a child.
[14]M v M (1988) 166 CLR 69.
In such matters M v M’s focus on the question of unacceptable risk as being key to the role of the court rather than necessarily the making of intermediate fact findings (although these may become necessary depending upon the characteristics of the individual case) reflects the fact that the case to be determined is what is in the best interest of the child. In some cases intermediate questions, such as whether or not a particular incident took place may need to be resolved to answer this question. In other cases they do not.
Where the court is resolving such a case, s140 of the Evidence Act 1995 requires that the case[15] be determined on the balance of probabilities.
[15] The Dictionary to the Evidence Act 1995 specifies that case of a party means the facts in issue in respect of which the party bears the legal burden of proof.
The veracity of the claims made by the mother that the children have made disclosures that their father sexually dealt with them is central to the determination of each party’s case.
If the disclosures have been made as asserted by the mother, there is a significant question of risk of sexual violence to the children and the deep harm that follows such violence. If the disclosures have been made then there is strong reason for the mother to be anxious at the prospect of the children spending time with the father because of the risk of sexual abuse.
If the disclosures have not been made there is no material from which a risk of sexual harm arises. Further, if the disclosures have not been made, there is a risk of psychological harm to the children from the mother, and there is less basis to determine that the mother is anxious at the prospect of the children spending time with the father. There is still a basis to find such anxiety given at least the less controversial history of family violence by the father to the mother, and the potentially genuine yet misplaced belief on the part of the mother that the children are at risk.
Despite the assertion by the mother that the behaviour and disclosures made by the children were widespread, there is almost no record of any disclosure that is independent from the mother. This is despite the children engaging with relevant services and being interviewed by JIRT. The evidence in relation to the alleged disclosures has been set out in some detail above. Examining them within the overall context of the case, it can be seen that the suspicion is reported by the mother as flowing from an incident she says occurred during the Christmas 2014 holidays. Until this point, in her mind, there was no issue of risk of sexual abuse. The mother had previously agreed to the children being in the father’s primary care for a period of time around the end of the relationship in 2014, which she agreed was indicative of the fact that she did not have such concerns at that time.
From this point it appears that the mother formed a view that the father had sexually dealt with the children. Her accounts of what she saw on this occasion have varied significantly. Her accounts of what was said by the children have also varied. The mother’s report of this first incident is unreliable both as to what she saw and what was said by the children. As indicated previously, I do not accept that B said that “her father had asked her to do it to her younger brother to get his thing bigger.” The balance of the conversation reported as coming from the children does not lead me to conclude that it is a report of misconduct on the part of the father. Leaving aside for the moment uncertainties as to what precisely was said, the comments from B regarding the rubbing of her private area sit with her later account to JIRT of showering. In a context where, on the mother’s oral account B was retaliating in anger against her brother the comments by B attributing the behaviour to daddy, where the parents are separated, is consistent with B deflecting when in trouble for hurting her brother. It is also not clear that B was referring to touching her brother’s private areas as opposed to retaliating. I do not find this evidence to be supportive of unacceptable risk.
Despite the children being taken to counselling, in the hope, on the part of the mother, that there would be a disclosure made, none was forthcoming. The mother set out further alleged disclosures to her at about the time that the father, who then had not spent unsupervised time with the children for about 9 months (June 2015), sought time with the children through his solicitors. JIRT interviewed B, C and D in relation to whether they had been sexually touched. B’s comments to the police are generally consistent with either being smacked or bathed. To the extent that they go further, I have already assessed them as not having any weight in the matter. C specifically denied any touching of his private parts. D was too young for me to take anything out of his interview.
The mother reports further disclosures and behaviours occurring in September 2015. At this stage the children had not spent any unsupervised time with their father since about September of 2014. A number of highly sexual statements are attributed by the mother to E, who was then aged three and a half years. The mother reported E as saying “Daddy likes to lick me everywhere” pointing to her bottom and to her vagina when she said this, and that “Daddy sometimes likes to eat my vagina and he would cry”. It is difficult to understand, particularly absent context for the discussions, how it is that these matters are referable to a time before supervised contact. In relation to the “eat my vagina” conversation the mother was unable to recall the circumstances of the conversation. Her affidavit recorded the conversation as taking place when getting the children ready for day care. Her oral evidence was that she thought it might be at bed time. When these deficiencies are seen in the light of the significant inconsistencies in the mother’s testimony regarding the other incidents between the children that she says were occurring at about that time, as outlined above, I am lead to conclude that the mother is unreliable in her account of both the comments and the behaviours to the extent that I do not accept that the comments were made or the behaviour of the children occurred.
In October 2015 E, immediately following a JIRT interview that reportedly led to no disclosures being made, made a number of statements to her long-term child care worker, Ms O. A number of those comments were sexual in nature and potentially pointed to the father as sexually dealing with E. Of the comments that I have identified above as being the most significant, I accept that the conversations occurred more or less as reported by Ms O in her affidavit, although, given the conversation as reported by FaCS, it seems more likely that E said her father had put his finger on her bottom rather than in her bottom. On the balance of the significant matters, the reference to the fork and the bleeding makes no particular sense, and the reference to licking is in a context where it is unknown what has otherwise been said to E, particularly in the context of being taken to the JIRT interview. Again, it is in a context where E, aged about three and a half has spent no unsupervised time with her father since she was about two and a half.
I am not prepared to put any weight upon the conversation between E and Ms O in assessing unacceptable risk.
Given the assessment as to the unreliability of the mother in relation to disclosures and behaviour on the part of the children, I do not otherwise accept her assertions of either sexualised behaviour by the children, or comments attributing sexualised behaviour on the part of the father.
The consequence of these findings is the conclusion that there is no unacceptable risk of harm posed by the father toward the children in regards to sexualised dealing with the children.
In such a case the father raises the issue of whether the mother presents an unacceptable risk of psychological harm to the children. This risk is said to flow from the mother’s belief that the children have been sexually abused by the father. The risks flowing from this identified by Ms AA relate firstly to deprivation of relationship with the father, being the risk a loss of family, of not knowing where they come from and of blaming themselves for the end of the relationship with their father. Against this risk, if orders are made to provide time between the father and the children this issue appears to be ameliorated. There is no suggestion that the mother has been non-compliant with orders so far. Further, the mother’s evidence was that she would abide by the determination of the court in relation to this matter. This enables a result that, if otherwise appropriate, gives the children the opportunity to benefit from relationship with their father.
Secondly, according to Ms AA, the risks relate to the direct impact upon the children, it being difficult for the children to be able to trust their own judgment about things in the future. This leads to a likelihood that they could suffer from physiological alert with an increase in anxiety. This can lead to an increased risk of self-harm. Thirdly, problems could arise in their relationship with their mother. That is the mother’s position could be detrimental to them. It could cause a division of loyalty between the parents and ultimately lead to a conclusion, on the part of the children, that the mother had betrayed them by removing their relationship with their father in their later years.
The father’s solution is for the children to live primarily with him. However, the children have not lived with him for approximately three years. They have had supervised time with him during most of this period. His view that it would not present difficulties for the children to be separated from their mother displayed a significant lack of insight on his part, indicative of some limitation on his capacity to care emotionally for the children. Such a result was seen by the Single Expert as constituting a ‘big leap’, despite the positives in the relationship that have flowed from the supervised time to date[16].
[16] The positives being seen in Exhibit ICL 14- the Contact Centre Records.
The Single Expert thought that the appropriate manner to deal with this circumstance, given the nature of the relationship between the mother and the children, would not be for a reversal, but rather for some support to be offered to the mother to assist her in dealing with the children having time with the father. The Single Expert’s view was that support mechanisms are available in each local health area, and are provided by NSW Health to assist people in dealing with situations where sexual issues are raised. On the basis of this evidence, there are facilities available for the mother, should she avail herself of them.

In the past the mother has engaged extensively with different services. This is suggestive that she would again do so.
Despite there being some risk to the psychological well-being of the children in living with their mother, given the nature of their relationships with the mother, and the limitations in their relationship with their father, it is in their interests that they remain living with her. That is, the risk is neither unacceptable, nor outweighs the relative benefits of the children living with the mother.
This conclusion is reinforced when issues of family violence are added in to the balance. There is a significant history of violent and threatening behaviour by the father toward the mother, of a nature that has the potential to cause the children to fear the father. Even if they do not fear him at present, his limited insight into his behaviour, into the relationship between his anger and the behaviour and, given the minor nature of the matters that were the precursors to his violent conduct, the low threshold for his violent behaviour, means that the children are at some risk of exposure to family violence when with the father. This impacts not only on the assessment of the primary consideration of the protection of the children from harm caused by exposure to family violence, but also on the capacity for the father to emotionally care for the children. This too means that it is inappropriate that the children live with the father.
It also raises a difficult question as to the nature of the time the father ought spend with the children. The difficulty of that question is reflected in the observations made by the Single Expert during the assessment process. There was significant warmth between the father and the children, reflected in his interactions with them, even in the artificial circumstances of the assessment. He managed the children well and dealt with at times difficult behaviour. When seen in the context of the commitment he has shown in persevering in supervised time over an extended period, it can be seen that the children have much to benefit from spending time with him.
Against that, the assessment process also raised the question of the adverse impact on the mother of her dealing with the father, who has previously threatened to kill her, spending time with the children, even in the context of that time being spent in the company of the Single Expert. That adverse impact affected the manner in which the mother related to the children.
While that adverse impact does not outweigh, in this case, the benefits to the children of spending time with the father, arrangements should be in place to ameliorate both the risk of exposure to family violence and to ameliorate the mother’s concerns regarding the father spending time with the children.
This case calls for incremental change in the time that the father spends with the children, both to allow him to adapt to greater periods of time, and to allow the mother to adapt to him spending longer periods of time with the children. It also means that there will necessarily be a restriction in the overall time that the father spends with the children. The greater the period of time, the greater the need for cooperation and ease of communication between the parents. In this case where there has been significant violence and threats of violence, that cooperation cannot be expected nor required. However, the gradual transition to each second weekend means also that by the end of term 1 2018 it will be appropriate for the children to spend a part of each school holiday with him.
In this case orders will be made that provide for the children to live with their mother. The mother will hold sole parental responsibility. While it may be beneficial to the children if the parents discuss long term decisions with each other, orders will not be made to require that, given the findings that I have made in relation to family violence. If the mother, in due course, is able to discuss matters with the father, then she should do so. I do not intend to compel her to do so, in order to combat the additional risks of anxiety to her, and of the potential impact of that anxiety upon the children.
Given the findings as to risk, there being no risk of sexual harm but some risk in respect of family violence, the children will gradually transition in their time with their father. While the Independent Children’s Lawyer sought that this would occur following counselling by a sexual assault service, my findings do not render that necessary. While it would be preferable for the mother to obtain some counselling for herself, the material is inadequate for this to be the subject of an order.
While there is some sense in the restraint suggested by the Independent Children’s Lawyer in relation to having recourse to mental health practitioners for the children, the broad application of such orders, and the many circumstances that may confront the children and the mother, mean that this order should not be made. However, given the findings that I have made in relation to risk of sexual abuse, it is appropriate that such matters no longer be the subject of discussion with the children and, accordingly the parties will be restrained from doing so.
There will however, in terms of the orders sought by the Independent Children’s Lawyer, be orders allowing the parties to obtain information from schools and the like and to cause the parties to provide each other with information in a manner that is appropriately protective of the mother. There will be restraint as to the use of physical discipline, and a restraint upon the father showering, bathing or sleeping in the same bed as the children. This is not because he poses a risk to the children, but rather because refraining from such may alleviate future concerns for the mother.

I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 15 September 2017.

Associate:

Date: 15 September 2017

Annexure

All previous parenting orders in respect of the children:
B born … 2008
C born … 2009
D born … 2010
E born … 2012
F Sheenan (also known as J Sheenan) born … 2013
are discharged.
The children shall live with their mother.
The mother shall have sole parental responsibility for the children.
The mother shall advise the father, within 14 days notice, in advance of any decision she intends to make in exercising sole parental responsibility for the children by way of email to the father’s nominated email address; shall take into account any reply made by the father and shall thereafter advise the father in writing of the decision.
The parents shall within 7 days contact the Child and Family Health Counselling Services (“CC” sexual assault service phone:…) (“the Service”) and shall do all things necessary to obtain such counselling or therapeutic support services for the children and the parents as recommended by the Service, whether offered by the Service directly or another service provider:
5.1To provide education and support to the children including in relation to age appropriate protective behaviours and sex education;
5.2To provide education and support to the mother to support the children’s relationship and time with their father and to assist her to understand and accept the findings of the Court
5.3To provide education and support to the father in relation to appropriate parenting of the children including but not limited to appropriate boundaries and practices and to assist in better managing the children’s behaviour;
5.4To support the parents with post separation parenting and communication;
5.5To support the children in relation to understanding and managing their parents’ separation and parental conflict.
That the father shall spend time with the children (subject to orders 7, 8 and 9) supervised by a professional supervision agency or centre for a period of up to 4 hours each alternate weekend, as agreed and failing agreement on Saturday:
6.1The mother shall within 7 days of receipt of request to do so, by email to her nominated email address, contact the supervision agency or centre nominated by the father and complete at the first available opportunity any intake assessment procedures required by the service or centre in order to assess suitability for, and thereafter provide, supervised spend time services.
6.2The parties shall use their best endeavours to make arrangements for additional occasions of time between the father and the children to coincide with or fall proximate to Father’s Day, Easter and Christmas and each of the children’s birthdays.
The father’s time shall continue to be supervised until such time as the children and parties are engaged with the “CC Service” sexual assault service (or any service recommended by that Service) and thereafter shall be as follows:
7.1For a period of 4 weeks, each Saturday for 6 hours as agreed and in default of agreement, from 10am to 4pm.
7.2Following order 7.1, for a period of 8 weeks each alternate weekend from 10am Saturday to 10am Sunday.
7.3Following order 7.2, for a period of 8 weeks each alternate weekend from 10am Saturday to 4pm Sunday.
7.4Following order 7.3, for a period of 8 weeks each alternate weekend from the conclusion of school Friday (or 3pm if a non school day) until 4pm Sunday.
7.5Following order 7.4:
7.5.1Each alternate weekend from the conclusion of school Friday (or 3pm if a non school day) until the commencement of school Monday (or 9am if a non school day);
7.5.2On the Father’s Day weekend from 4pm Saturday until the commencement of school Monday (or 9am if a non school day).
7.5.3From 10am on Christmas Eve until 3pm on Christmas Day each odd numbered year.
7.5.4From 3pm Christmas Day until 6pm Boxing Day each even numbered year.
7.5.5Such other times as agreed between the parents.
The father’s time with the children shall be suspended and the children shall instead live with the mother:
8.1On the Mother’s Day weekend from 4pm Saturday until the commencement of school Monday (or 9am if a non school day).
8.2From 10am on Christmas Eve until 4pm on Christmas Day each even numbered year.
8.3From 3pm Christmas Day until 6pm Boxing Day each odd numbered year.
8.4Such other times as agreed between the parents.
The parties shall follow any recommendations of the Service provider in respect of the father’s time with the children including in respect the need for supervision, and the frequency and duration of his time with the children.
That in relation to the children spending time with their father, changeover shall occur:
10.1Where time continues to be supervised, at such location as directed by the supervision service or centre;
10.2Where time is unsupervised:
10.2.1If the start or end of a school day, at the children’s school(s); and
10.2.2On all other occasions at the McDonalds located at G Street, Suburb H or such other location as agreed between the parents.
The parents shall be restrained from causing the children to attend upon any counsellor, therapist, psychologist, psychiatrist or other mental health care practitioner unless:
11.1In accordance with these orders;
11.2Such attendance occurs in the course of an admission to hospital;
11.3Such attendance is upon the child’s school counsellor, at the initiative of the child or request of the child’s school.
That the mother shall be restrained from making reports to NSW Police or the Department of Family and Community Services or any person or service provider who to her knowledge is a Mandatory Reporter, of alleged disclosures of sexual abuse of the children by the father or of sexualised behaviour by the children unless and until:
12.1the mother first raises such alleged disclosures with the Service provider(s) engaged pursuant to order 5;
12.2the mother complies with any recommendations and directions issued by the Service provider(s) in respect of such disclosures.
Each of the parents shall be and are hereby authorised to obtain directly from the children’s schools all information and documents ordinarily made available to parents or guardians or children in attendance at such schools, including but not limited to assessment reports, newsletters, school reports, incident reports, school photo order forms and invitations to parent teacher interviews:
13.1This order does not require the parents to simultaneously attend a single parent teacher interview;
13.2This order authorises the provision of information to each parent upon request at their own cost without any requirement to notify or seek the consent of the other parent, and regardless of whether the children are in the care of that parent at the time of the request.
That the father is hereby authorised to, without any requirement to obtain the mother’s consent to do so, request that his name and contact details be recorded by the school as a parent of the children for the purposes of their student file/records and enrolment forms.
That in the event the children suffer an accident, injury or medical condition which requires emergency, specialist or ongoing medical attention whilst in either parent’s care, that parent shall as soon as practicable and within 24 hours:
15.1Advise the other parent by text message to their nominated phone number the nature of the child’s condition including any diagnosis, prognosis and treatment plans or directions issued or recommended, and the name and contact details for any medical professional or service that may assess or treat the children;
15.2Advise any medical professional or service that may asses or treat the child that they are hereby authorised and requested to provide to both parents such information as they may request in relation to the child’s diagnosis, treatment and prognosis, and provide the other parent’s nominated contact phone number and email address to facilitate same.
That the parents shall be restrained from:
16.1Hitting, striking or using any forms of physical discipline in relation to the children;
16.2Discussing with, or in the presence or hearing of the children these proceedings or allegations raised in these proceedings save and except for in accordance with the recommendations of the Service provider(s) engaged pursuant to order 5.
16.3Encouraging the children to repeat prior disclosures, or make further disclosures, of sexual abuse or inappropriate sexualised behaviours whether to the parents or any third party.
16.4Discussing with, or in the presence or hearing of, the children either parent’s adult interpersonal relationships save and except for in accordance with the recommendations of the Service provider(s) engaged pursuant to order 5.
That the father shall be restrained from bathing, showering, or sleeping in the same bed with the children.
That the parents shall within 48 hours advise one another, whether directly or through their legal representatives, in writing their nominated contact telephone number(s) and email address for the purposes of communicating with one another in accordance with these orders and in relation to the children’s care, welfare and development.
In the event of any change to the parents contact details nominated pursuant to order 18, the parents shall advise one another within 48 hours in writing, whether directly or through their legal representatives, of such changed contact details.
The appointment of the ICL shall be extended for a period of 6 months from the date of these orders for the purpose of assisting the parties in facilitating the implementation of these orders.

Upon obtaining a referral for counselling from CC Service sexual assault service, the parties shall advise the ICL and the ICL shall provide to the service a copy of these orders and a copy of the judgment of the Court.

[2017] FamCA 719

15 September 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Procedural Fairness

Remedies