SHELBY & SHELBY

[2013] FamCA 73

FAMILY COURT OF AUSTRALIA

SHELBY & SHELBY [2013] FamCA 73

FAMILY LAW – CHILDREN – With whom the children spend time – where the children live with the mother - where the father initially spends supervised time with the children graduating to alternate weekends and half school holidays after a year – where the children did not have a meaningful relationship with the father – where there would be a benefit to the children in having a meaningful relationship with their father – where the father did not pose a risk of psychological or physical harm to the children - where the mother is unable to encourage a relationship between the children and the father – where the mother remained critical of the father for a  past incident of family violence in front of the children

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where the mother is allocated sole parental responsibility for a year and thereafter the parties to have equal shared parental responsibility due to the parties’ demonstrated inability to communicate  about issues effecting the children - where the presumption of equal shared parental responsibility does not apply due to allegations of child abuse – where  the parties consented to attend counselling to improve their communication

FAMILY LAW – CHILDREN – Child Abuse – where there was no positive finding the father had sexually abused the children – where the mother’s and children’s allegations were found to be inconsistent and unreliable

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 64B and 60CC

McCall & Clark (2009) 93-405

APPLICANT: Ms Shelby

RESPONDENT: Mr Shelby

FILE NUMBER: SYC 1182 of 2008

DATE DELIVERED: 19 February 2013

PLACE DELIVERED: Newcastle

PLACE HEARD: Sydney

JUDGMENT OF: Cleary J

HEARING DATES: 19, 28 and 30 November and 14 December 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lee

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Tockar

SOLICITOR FOR THE RESPONDENT: Aaron Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Fermanis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Gonzales & Co

Orders

1. For a period of 12 months the mother shall have sole parental responsibility of T born … March 2005 and S born … July 2006 (“the children”) save that the mother shall, prior to making the sole ultimate decision about any long term issues during that period:

   (a)advise the father in writing of the decision intended to be made;

   (b)seek the father’s written response in relation thereto;

   (c)consider by reference to the best interests of the children any such response prior to making any such decision;  and

   (d)advise the father in writing as soon as reasonably practicable of her ultimate decision.

2. Thereafter the parents shall have equal shared parental responsibility for the children.

3. The children shall live with the mother.

4. The father shall spend supervised  time with the children as follows:

   (a)for a period of two months from the date of these Orders for two hours per week and such time to take place at a Contact Centre;

   (b)

   thereafter for a period of three months each alternate Sunday from

   
   

   10.00 am to 3.00 pm supervised by his mother Ms N.

5. Thereafter the father shall spend time with the children unsupervised as follows:

   (a)

   for a period of two months each alternate Sunday from 9.00 am to

   
   

   5.00 pm;

   (b)

   thereafter for a period of two months each alternate weekend from

   
   

   9.00 am Saturday to 5.00 pm Sunday;

   (c)thereafter for a period of three months each alternate Friday at the conclusion of school (or 5.30 pm if not a school day) to the commencement of school on Monday (or 9.00 am if not a school day).

6. Thereafter during school terms each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday, extending to the commencement of school on Tuesday if Monday is a public holiday.

7. During school holidays commencing not before 2014:

   (a)For one half of the school holidays as agreed in writing between the parties and in default of agreement:

   (i)the first half in odd numbered years, suspended for the children to spend time with their mother between 2.00 pm Christmas Day and 2.00 pm Boxing Day when the father has the first half of the Christmas school holidays;

   (ii)the second half in even numbered years, with the mother’s time to be suspended to enable the children to spend time with their father between 2:00 pm Christmas Day and 2:00 pm Boxing Day when the mother has the first half of the Christmas school holidays.

8. On special occasions:

   (a)on Father’s Day, if the father is not otherwise spending time with the children in accordance with these Orders, the father shall spend time with the children from 9.00 am to 5.00 pm.

9. The father’s time with the children in accordance with Order 4(a) and 4(b) or any special occasion which takes place during the time in which the father will ordinarily be spending time with the children in accordance with Order 8, shall be supervised by the paternal grandmother, Ms N.

10. The father’s time with the children in accordance with Order 5 or any special occasion which takes place during the time in which the father will ordinarily be spending time with the children in accordance with Order 8 is to occur generally in the presence of Ms N, but not supervised by her.

11. Changeovers shall occur as follows:

    (a)The mother or her nominee shall take the children to and collect the children from the Contact Centre to facilitate the father spending time with the children in accordance with Order 4(a);

    (b)The father or his nominee shall collect the children from the mother’s home (or the children’s school, where appropriate) at the commencement of the time that he is to spend with the children (other than those times in accordance with Order 4(a)) and the mother shall collect the children from the father’s home (or the children’s school, where appropriate) at the conclusion thereof.

12. BY CONSENT and forthwith the mother and the father are to do all things and sign all documents to make arrangements for the children and themselves to attend therapeutic counselling sessions with Dr V or an alternate counsellor or therapist if both parties agree to that counsellor or therapist with a view to:

    (a)re-establishing the relationship between each child and the father;

    (b)improving the communication between the parents and their co-parenting relationship;  and

    (c)addressing any other matter considered necessary by the counsellor.

13. The counselling shall continue until such time as the counsellor or therapist recommends it cease.

14. The parents shall equally bear the costs of any counselling involving the children (or either of them) and shall each bear the costs of their own individual counselling.

15. The parents shall follow all reasonable directions of the counsellor or therapist.

16. The parents shall each take all reasonable steps to implement any recommendations of the counsellor or therapist in a timely manner.

17. The parents shall equally bear the costs of any counselling involving the children (or either of them) and shall each bear the costs of their own individual counselling.

18. The parents shall ensure that the counsellor or therapist engaged has a copy of:

    (a)these Orders and Reasons for Judgment;

    (b)the report of Dr R;  and

    (c)the family report of Ms B.

19. The parents are to communicate by email and by telephone calls and text messages and are to provide each other with their email addresses and mobile and landline numbers for that purpose.

20. The parents shall advise each other of any change of email address, telephone number or residential address within 24 hours of such change occurring.

21. The parties be and are hereby restrained from denigrating the other in the presence of or within the hearing of the children or either of them and causing or permitting other to do so.

22. Except as otherwise provided for in these Orders the parties be and are hereby restrained from:

    (a)showing any documents produced for the purposes of these proceedings;

    (b)discussing any issues or evidence arising from these proceedings;

    (c)discussing the allegations arising from the disclosures made by the children to the mother on 18 February 2011 and 7 April 2012 which were the subject of an investigation by JIRT

    in the presence of or within the hearing of the children or either of them and causing or permitting the other to do so AND FURTHER

    (d)the mother is restrained from doing those things at Orders 22(a), (b) and (c) in the presence of or within the hearing of K and C and causing or permitting the other to do so.

23. The parents shall encourage and shall not undermine each child’s relationship with the other parent.

24. The parties be and are hereby restrained from physically chastising or physically disciplining the children and shall ensure that third parties are similarly restrained.

25. The father be and is hereby restrained from drinking any alcohol or using illicit drugs when he has the care of the children and for a period of 24 hours before spending time with the children.

26. The mother shall keep the father advised in writing at all times of the names of any school attended by the children and ensure that his name and contact details are included in any school documentation.

27. The mother shall authorise any school at which the children attend to provide to the father in respect of both children, copies of all school reports, newsletters, order forms for photographs and relevant information usually sent to parents and authorisation will be deemed effected by the mother providing to any school a copy of this order.

28. The parties are at liberty to:

    (a)communicate directly with the school authorities for the purpose of arranging to attend for and attend parent teacher interviews (separately to the mother) in regard to both children;

    (b)attend all school functions and extra-curricular activities to which parents are invited in the usual course in respect of the children.;

    (c)communicate directly with school authorities from time to time to discuss all matters relevant to the welfare and educational progress of the children, save that the father shall not attend school for this purpose during school hours or whilst the children are present unless this is with the prior written agreement of the mother.

29. The mother and father shall keep each other advised in writing of a current residential address and telephone number and advise in writing of any intended change at least 14 days prior to any change.

30. The parties are at liberty to communicate with the children’s medical professionals for the purpose of obtaining information as to matters relevant to their health and welfare including information about any treatment recommended or undertaken or medication prescribed.

31. The mother and father shall advise each other immediately in the event that the children suffer a significant illness or injury or requires hospitalisation whilst he/she is in their respective care.

32. The mother is to do all she can to ensure that K and C do not undermine the time the children spend with the father by negatively speaking about the father or discouraging the children from spending time with the father in anyway.

33. Pursuant to s 65LO of the Family Law Act 1975 (Cth) Ms B or a Family Consultant nominated by the Manager of Child Dispute Services of the Sydney Registry of the Family Court be appointed for a period of 12 months from the date of this Order to supervise the parties’ compliance with these Orders and to assist as is reasonably requested, in relation to compliance with and the carrying out of these parenting orders.

34. The appointment of the Independent Children’s Lawyer shall continue for a period of 12 months after the making of these Orders.

THE COURT NOTES:

(A)Mr M is willing to attend a Parenting after Separation programme and would be most assisted by information about managing the role of step-parent.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC1182 of 2008

Mr Shelby

Applicant

And

Ms Shelby

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. This is a dispute over the parenting arrangements for two children, T now almost eight years and S aged six years.  The applicant is the mother Ms Shelby, aged 42.  The respondent is the father, Mr Shelby, aged 41.

2. The parties began living together in October 2003.  The mother’s two children from a previous marriage C and K, then aged eight and seven, became members of the household. The parties married one year later in October 2004. They separated in February 2008, having lived together for about four and a half years.  They are now divorced. 

3. The applicant mother seeks sole parental responsibility and supervised time for the children with the father for a period of two years, with the possibility of unsupervised time thereafter.  The father seeks a short period of supervised time, graduating to unsupervised time.

Short history of the marriage

Final separation on … February 2008

1. The events of this day have significance in the proceedings.

2. At the time the children were aged almost three and approximately 18 months.  It was an eventful day.  The parties’ relationship was at breaking point.  The mother had attended a doctor’s appointment in the morning and there was a discussion between the parties, by telephone, about a possible mortgage redraw for property settlement.

3. At 2.30 pm the mother came home and the parties had a significant argument about finances.  The mother contacted her own mother to arrange for her to collect the two older children from school and to take them to the grandmother’s home.  Probably this was to protect them from witnessing the dispute between their mother and stepfather. 

4. The father left the family home and returned to it in a state of distress.  The mother rang for the police.  Whilst both parties were waiting for the police to arrive, the paternal grandmother rang, spoke to the mother and advised her that she was coming to the home. Soon after the paternal grandmother and the paternal aunt arrived.  The parties continued to argue about money. 

5. At 4.30 pm on that day the police arrived, the mother mentioned to them that there were guns in the father’s wardrobe.  The mother was asked by the police to attend the police station to make a statement, at which time the paternal grandmother and aunt left the home.

6. At 6.45 pm the mother again rang the maternal grandmother and asked her to come to the home.  The maternal grandmother travelled to the parties’ home with the two older children. 

7. Once the maternal grandmother had arrived, the mother left to attend at the police station, all four children remaining in the home with the maternal grandmother.

8. The father returned to the house and finding a new lock on the front door smashed several of the windows before forcing the front door open.

9. Once inside the father took a knife from the kitchen and proceeded to stab himself. After giving her statement to police the mother found the paternal grandmother cleaning up the blood and debris of the incident involving the father’s behaviour. 

10. Subsequently an Apprehended Violence Order (AVO) was made for the protection of the mother and the children.

11. Almost five years have passed since that incident. The mother herself was not present she learned what happened from her mother. I accept that she was horrified and appropriately concerned for her four children .The father properly conceded that his actions were “inexcusable”.

12. I am unable to determine whether the two children witnessed the father’s actions. Their older half brother and sister probably did at least to some extent. Nevertheless on the evidence of the mother these events loom large in the minds of the children.  It is a matter of concern that the children do not appear to have been adequately protected from these adult discussions over the years.

Events after separation

1. The parties have not lived together since the events of that day.  Shortly after the incident the mother and children moved in with the maternal grandmother.

2. The father was immediately admitted to hospital. He was discharged after two days and then went to live with his mother.

3. On … February 2008, 11 days after separation, the mother filed an Initiating Application for final property and parenting orders.

4. On 19 March 2008 interim orders were made by consent, providing for the father to have supervised contact on one day each week at a contact centre.  However, supervised contact could not be organised until June 2008.

5. On 25 July 2008 a final AVO was made for the protection of the mother and all four children including the condition that the defendant father not come within one hundred metres of the mother or children. That order was for the period of two years.

6. On 21 October 2008 a Report by Dr R was released. Various recommendations were made including (in summary)[1]:

   ·    The children have supervised contact with the father for 12 months (initially three months at a contact centre and then a further period of nine months supervised by the father’s sister or mother) while he re-engages with his psychiatrist Dr L and sees a psychologist for cognitive and dialectical behaviour therapy with daytime unsupervised contact to follow.

   ·    Restrictions on the use of drugs and alcohol

   ·    Neither parent denigrate the other in front of the children

   ·    Parents attend mediation on a regular basis to assist the resolution of the issues between them

   ·    Supportive counselling for the mother

   [1] Single Expert Report of Dr R dated 21/10/2008, pages 18 - 20

7. The following year the father complied with all the recommendations relating to him.

8. On 3 March 2009 a further set of interim orders was made by consent providing for the children to spend time with the father for four hours each alternate Monday and in the other week on Sunday supervised by the paternal grandmother.

9. During 2009, the supervised time spent by the children with the father was slightly extended through negotiation. The children spending a few hours more with the father on Sundays and the two older children spending time with the father on alternate Mondays.

10. In 2009 the mother formed a relationship with Mr M who is now her husband.

11. On 28 January 2010 interim orders were made by consent with the children’s time graduating to unsupervised daytime contact.

12. On 17 September 2010 final property orders were made and soon after in December 2010, the father moved out of his mother’s home into his own accommodation.

First allegations of sexual misconduct 18 February 2011

1. In view of the submission for the mother that the court could make a positive finding of sexual abuse or misconduct by the father I have considered the allegations in some detail. The father denies all and any wrong doing.

2. The mother says that T and S were playing together.  T was just six and S was four and a half years. T came to her  and said:

   Mum, [S] just said to me do you want me to tickle your vagina?

   Mother:         What did you just say to me?

   After, which T repeated her earlier statement.  The mother states she then called S in and said to him:

   Where did you hear this kind of thing?

3. In my view there must be something missing from the evidence at this point, because the mother’s affidavit does not indicate that S had been told what T said.  In any event S then said:

   Daddy told me to do it.

   T nods her head and says:

   Daddy said it to [S].

4. The mother then questioned the children further.  T said she had heard the father speaking to S next door, and had gone in and challenged the father about his statements.  T’s ultimate statement was that nothing had happened to her:

   Daddy just wanted [S] to do it but I wouldn’t let him.

   According to the mother S then went on to make this statement whilst grabbing at his own testicles:

   Every time I go to the toilet daddy touches me down there.

   S then gave further detail of his father squeezing his penis “to get the wee off”.[2]

   [2] Affidavit of Mother filed 9/11/2012, paras 60-77

1. On 18 February 2011 the mother contacted the police about the disclosures made by the children.  Thereafter the mother withheld the children from contact. She did not say anything to the father about the children’s statements. She told him they were sick before contact visits.

2. On 1 March 2011 there was a JIRT interview with both children.

3. On 4 May 2011 the father filed a Contravention Application. 

4. On 11 July 2011, the current interim orders were made providing for the father to spend time with the children between 10.00 am and 4.00 pm each Sunday. Supervision was re-instated in view of the allegations.

5. On 15 August 2011 the Magellan Report was delivered.

6. JIRT did not substantiate sexual harm. Inconsistencies in the statements of the mother as to where and how disclosures were made were taken into consideration. Also reports from the children’s school/childcare centre and an interview with the father.

7. The  concluding statements in the Magellan Report were[3]:

   [Family and Community Services NSW (FACS)] will not have any ongoing role with this family as no significant child protection concerns have been identified during this assessment which would require continued FACS intervention.

   The allegation against the father of him sexually assaulting the children has not been substantiated. The mother may have legitimate concerns in relation to the father’s mental health which should be assessed further however; there is insufficient evidence to restrict contact due to sexual harm.

   [3] Magellan Report dated 15/08/2011

8. There was a specific denial in the Magellan Report of an assertion by the mother made in a contemporaneous affidavit[4].  The assertion by the mother was that she had been advised by JIRT officers that contact with the father should be supervised.

   [4]  Affidavit of Mother filed 8/07/2011

9. It is significant that the same assertion was repeated by the mother in her affidavit filed in these proceedings[5]:

   I was informed ‘do everything you can to only let him have supervised contact’.

   [5] Affidavit of Mother filed 9/11/2012, para 71

10. However, there was no reference by the mother in her most recent affidavit to the specific denial by JIRT of any such advice being given.  The inclusion of that statement was in my view misleading and included to attempt to persuade the Court that JIRT had held a concern about the safety of the children, but were somehow hamstrung by lack of physical evidence. No such inference is available.        

11. I conclude that the determination of the mother to convince the Court that the father is a danger to the children overwhelmed her judgment.  I therefore am unable to accept the mother as a reliable witness in this area.  I further conclude that she has not reconsidered her position at all since making her statement to police on 20 February 2011.

12. In September 2011, the father again moved out of his mother’s home into his own accommodation.  Supervised contact continued until March 2012.

13. On 17 January 2012 interviews were undertaken by Ms B for a Family Report.

14. The Report was released in April 2012.  The recommendation was that absent an updating psychiatric assessment of the father his time with the children should continue to be supervised by a family member.  There was also a recommendation that changeovers be through a Contact Centre to minimise the exposure of the children to parental anxieties.  

Further allegations of sexual misconduct 7April 2012

1. On this day, the mother alleges that the children made further disclosure to her, in particular that T had told her that S had “tried to touch her rude parts.”  Further, the mother says that both children had reported to her that “the father had pushed [T] down on the bed and directed [S] to touch her genital area.”  The children are reported to have said that the father had his hand over T’s mouth and that the paternal grandmother was in the kitchen when these events were occurring.  The mother contacted the police and there were subsequent JIRT interviews with the children on 12 April  2012.

2. The JIRT officers reported that the children had given them very different accounts in the father’s home to what had been relayed by the mother.  JIRT closed the matter after interviewing the father in July 2012.  The mother was aware that JIRT held no concerns for the safety of the children. 

3. The mother has not made the children available since April 2012.

4. On 20 October 2012 the mother moved with the children to live with her fiancé, Mr M.

5. The mother proposes ongoing supervised time between the children and their father, despite expressing a lack of confidence in her proposed supervisor, the paternal grandmother, to adequately supervise.  T has declined in recent months to speak to the father on the telephone.  The relationship between the children and the father is clearly at risk.

The evidence

Evidence of the mother, Ms Shelby

1. The father was unrepresented on the first day for reasons beyond his control. The mother was briefly questioned by the father and cross-examined by counsel for the Independent Children’s Lawyer.  She appeared calm and composed.

2. The mother has four children.  Her two older children from her former marriage to Mr Z are now aged 17 and 16.  These children have not seen their biological father for at least eight years, although apparently he lives in their local area.  Consent orders for the children to live with their mother and spend time with their father were made in the Federal Magistrates Court in April 2004.  The mother said in her oral evidence, that Mr Z had simply not bothered to spend time with his children, or indeed do anything other than to send an occasional card or gift and it was an inexplicable choice so far as she was concerned.

3. The parties to these proceedings were married about six months after the orders concerning the older children were made. Those children referred to Mr Shelby as dad and used the surname Shelby at school.

4. Since separation in February 2008, the older children have not seen Mr Shelby at all. The mother asserted that they are terrified of him.  Accordingly, the older children lost contact with their own father in 2004 and then lost contact with their step-father in 2008. 

5. The mother married Mr M in December 2012.  He takes a fatherly role with all four children as well as his own.

6. In relation to parental responsibility, the mother said she did not want to actually exclude the father from decision making on long term issues affecting the children, but seeks sole parental responsibility because they cannot agree on anything.

7. The mother said that the parents were not on speaking terms and she had not consulted the father about T’s enrolment at school, because she assumed that he would know that T would attend the school her older siblings had been enrolled in.  The mother did not include the father’s details in T’s enrolment but did so for S.

8. The mother described her daughter T as good academically, but shy and timid socially.  When asked about a reference to the school counsellor in August 2012, the mother said that T had been bullied by a class mate and had therefore been moved to a different group.  She said she did not realise that she should have mentioned in her affidavit the difficulty that T was having at school.

9. The mother is studying for a role in the financial industry and certainly seemed to be a highly organised, intelligent and articulate person. I formed the impression that the mother has been a loving and attentive parent, but has regarded herself as a sole parent. It appears to be her view that the father has somehow disqualified himself from parental involvement, that he is not good enough to be their father. This is a profound misunderstanding. Provided that the father does not represent an unacceptable risk to the safety and welfare of the children they are entitled to have a meaningful relationship with him as with their mother.

10. The unfortunate consequence of the mother’s attitude towards the father is that she has failed to focus on the independent needs of the children. One example of this is her expectation that the children should accept Mr M as a father because she is married to him and obviously considers him to be a better husband and father than Mr Shelby.

11. The children know who their father is and S in particular wants to see more of him.  They have almost certainly heard the father being discussed in less than favourable terms within the family.  Because they love him, such disrespect hurts them.

12. The mother conceded that time between the children and their father supervised at a Contact Centre between August 2008 and January 2011, had generally gone well, that mostly there were no problems.

13. The mother was taken to aspects of the Magellan report[6]. The mother described herself as frustrated by the JIRT response to the allegations raised by the children that there was no physical evidence to rely on.  The mother described herself as knowing there was no physical evidence, knowing that it was hearsay, but wanting the father to be investigated.  The Magellan Report in my view does not support what the mother says about a lack of physical evidence being the issue.  The final paragraph of the report says this:

    The allegation against the father of him sexually assaulting the children has not been substantiated.  The mother may have legitimate concerns in relation to the father’s mental health which should be assessed further.  There is insufficient evidence to restrict contact due to sexual harm. 

    [6]   Magellan Report dated 15/08/2011, page 2 “Allegations of Sexual Abuse”

14. The basis for that conclusion is contained in the body of the report.  The children were interviewed by JIRT on 1 March 2011.  T stated that the reason she had come to speak with JIRT was because:

    … her father had been naughty. 

    … the father had told [S] to tickle her on the vagina and also that the father had squeezed [S] on the doodle and this had hurt him.

15. T went on to say that she had “heard the father to tell [S] to tickle her on the vagina when she was in [S’s] bedroom looking for her bangle.”  T said that she went to the father and told him that she had heard him tell S what to do, that the father had replied “no you didn’t” T then stated that the father said, “please, please, please, [S] do it, I will be your best buddy forever.”  T is described as then holding up her arms as if she was cheering and stated that this was what the father was doing at the time.

16. It is easy to see why the statement of what T thought she had heard her father say was not substantiated as constituting abuse. Further, the fact that T had been participating in the activity of cheer leading as a sport is the most probable explanation for the actions she attributes to the father when he is said to be effectively begging S to do as he asked.

17. In relation to the next allegation, T stated that the next thing that happened was that “the father squeezed [S] on the doodle.”  When asked where this happened, T stated “that happened at McDonalds in the babies’ toilet.”  When asked if T had seen this happening, she said, “No, she did not see anything she was in the ladies’ toilet.”  When asked how she knew what the father had done to S, T stated, “that [S] had told the mother whilst they were in the JIRT playroom prior to her coming into the interview.”  T was clear to say that she did not know this information before she heard S tell the mother whilst they were in the JIRT office.  However the report to JIRT, made 10 days before this interview, reports the mother telling the police that T had told her that the father was squeezing S’s testicles.  S himself reported that every time he goes to the toilet, the father “squeezes his doodle when they are at McDonalds.”  S stated that his father squeezed his penis and when asked why he does that, S replied, “to get the wee off.”  S was aged four at the relevant time. 

18. Taken at its highest, the statements made by S are consistent with the father assisting S in a public toilet.  Indeed in his interview with JIRT, the father stated that although he did not recall a time when he touched S on the penis, he had shown S how to use the urinals and toilets by standing next to him, that he had on occasions wiped S’s bottom.  Again, unsurprisingly, this allegation of abuse was unsubstantiated.

19. T stated that she had fun when she was at the father’s home, however “does not want to go anymore.”  When she was asked why she doesn’t want to go, she stated, “because she loves mummy more.”  The mother was taken to this statement of T’s in her evidence and said she did not know and could not answer as to why T would say such a thing.  There is significance in my view in the fact that T said that she had fun at dads and that she would choose not to go because she loved mummy more.  Clearly T felt she must choose one parent over the other.  The Magellan Report states that the class teachers for each child had not noted any changes to T’s behaviour prior to the disclosures of 18 February 2011. 

20. In respect of S, the mother had been spoken to about the possibility of S having a bladder infection, as he had been playing with his penis and toileting more frequently.  The Contact Centre stated that they did not consider that S could have been abused until the mother informed them of allegations, as they did not notice any changes in S’s behaviour.  He was reported to be a happy child and not very emotional when the mother left him at the Contact Centre.

21. The mother stated that the female police officer and Department of Family and Community Services (“the Department”) case worker advised her to get contact supervised after these events.  There is no evidence before me of that advice.  In fact, contact did not take place for five months until further interim orders were made providing for a return to supervised contact.  I formed a very clear impression that the mother was dissatisfied and disappointed with the Magellan Report and unpersuaded by the possibility of innocent explanations for anything the children may have said about their father’s conduct.

22. Contact started again on a supervised basis pursuant to the orders and continued until March 2012.

23. On 7 April 2012 the mother says the children made further allegations[7]. These allegations were similar to those made in 2011.  The allegation by T was that the father had forced S to touch her genital area during a period of supervised contact.  T said that her father had pushed her back onto the bed, held her down and made S touch her and that “dad was laughing and jumping around on the bed.”  She also said that her father had “held his hand over her mouth, that her grandmother was in the kitchen cooking, that [S] was laughing and doing what dad told him to do”.

    [7]   Affidavit of Mother filed 09/11/2012, paras 104-106

24. There is an affidavit by Ms N, the children’s paternal grandmother, filed 23 October 2012.  In that affidavit, she denied allegations of any failure by her to supervise her son with his children that the wellbeing of her grandchildren was paramount to her and she took her responsibilities as a supervisor “most seriously.”  The current proposal by the mother is that Ms N once again be the supervisor.  It is hard to reconcile this proposal with the mother’s statement that she believes what her children told her about events in the grandmother’s home on 18 March 2012, including the grandmother being oblivious to both children being in a room with a closed door, while the father directed S to inappropriately touch his sister. 

25. The disclosures of T and S to the mother on 7 April 2012 were three weeks after the alleged event.  Neither child had said anything to their mother before that time and asserted that they had also said nothing to their paternal grandmother after the events which had apparently taken place early on a Sunday morning.  It seems unlikely the children would not have expressed their distress either directly or indirectly at all for those three weeks.

26. The JIRT officers advised the mother that S and T had told them a very different account and they had nothing to go on.  The mother asserts that they also told her that T’s account appeared to be very violent and that she may have been saying things to stop having to go on contact with her father.  They also mentioned that S was being “quite comical” and telling them about attending the Easter Show and riding on the dodgem cars.

27. Clearly the mother challenged the children in the car on the way home about what they had said.  The mother reports herself saying to S[8]:

    Can you tell me about the dodgem cars. 

    S defended himself by saying

    I didn’t tell them anything because they were taping it.  Dad would find out and we would be in trouble.

    [8]  Affidavit of Mother filed 09/11/2012, par 124

28. Subsequently, the mother received advice in July 2012 that the matter was closed.  Nevertheless the mother did not make the children available for contact again after that time.  There was a legal aid conference where the mother says she asked the father for supervised time to be reinstituted.  The father did not agree.  Accordingly, the mother has simply chosen not to comply with the orders.

29. During her cross-examination by the father, the mother conceded that during the marriage she had left all four of her children in the care of the father and that he had been an involved father when he and the children were together. 

30. The cross examination of the father reached far back in time and left no perceived failing unexamined. Convictions in his teens, drug use in his twenties, use and occasional abuse of alcohol throughout his life, a past tendency to gamble.  His honesty in all settings was put under the microscope.

31. One particular instance of this approach was the questions the mother directed to the father about the relationship with his 16 year old son, D, from an earlier marriage. D has lived in rural New South Wales with his mother for many years.

32. A short while after D and his mother moved away, in around May 2004, the father attempted suicide. The mother was supportive of the father at that time, attending at the hospital. This was six months before the parties married.

33. The father was accused of having lied about the loss of regular time with D as being a contributing factor to his attempt to take his own life because too much time had passed since the child and his mother moved away for that to be true.

34. The father was shown an application for an AVO by D’s mother from 2000 to establish that the father had lied when he referred to an amicable relationship between himself and D’s mother.

35. The mother, through her counsel, accused the father of exaggerating the level of contact he had with D in order to encourage Dr L his treating psychiatrist to make recommendations favourable to the father’s parenting proposals in a report for these proceedings. She further accused him of lying about the quality of the relationship with his son because there has been no face-to-face time for the last two years.

36. This was but one occasion throughout the mother’s cross-examination of the father in which I was left with the overwhelming impression that the mother stopped supporting a relationship between the children and their father from the date of separation, and certainly had no present commitment to restoring one.

Evidence of the maternal grandmother, Ms A

1. Ms A is presently living with her daughter, the children and her daughter’s fiancé.  Her evidence was somewhat vague.  In relation to the disclosures made by the children, Ms A said that she couldn’t be sure what went on in the family and she couldn’t honestly remember; that the mother had told her something and she thought in February 2011, S had said words to the effect “daddy said I had to tickle [T] on her vagina.” 

2. She agreed there had been a good relationship between herself and the father, that the two older children had called him dad and that she had been a regular visitor in their home.

3. Ms A was actually present on … February 2008, when the father broke into the house and injured himself.  She was in the house with all four children.  I accept she had never seen anything like the events of that day before and thereafter lost confidence in the father. She is supportive of her daughter and grandchildren. In my view she does not have an objective view of the children’s need for a relationship with their father.

Evidence of the mother’s husband, Mr M

1. Mr M gave evidence in response to an invitation by the Court for him to do so. The mother had not filed an affidavit from him.  There has been a relationship between the mother and Mr M since early 2009.

2. Mr M separated amicably from his first wife with whom he has four children.  He enjoys an excellent relationship with those children, aged 15, 12 10 and eight and is able to work with and cooperate with their mother in relation to the arrangements for their care. They presently spend alternate weekends with him.  Accordingly, there are times when there are eight children between the ages of 17 and six in the mother’s household with Mr M.

3. Mr M conceded that his information about the father came from the mother.  In his view, the mother had always encouraged the children to see their father because she told him she had.  Nevertheless he shared the mother’s view that T and S should not be staying overnight with their father.  Mr  M accepted that there had been incidents of aggression by the father whose conduct was responsible for bed wetting and nightmares experienced by T and S. 

4. There has been no reason for Mr M to understand the complex reaction of children caught in hostile conflict between their parents as that has not been his experience of separation.  He has accepted all that he has been told by third parties about the father and is critical of him.  T and S call him dad and there is no evidence he has resisted that.  I note that T said to him, “You’re my step-dad.”

5. Likewise it was apparent that Mr M had never had the experience of being involved in a child making an allegation of sexual misconduct by a parent.  There is no reason at all why he should have such experience.

6. In April 2012 he said that the mother’s older son C had told them that S had grabbed him on the testicles.  Mr M’s comment was, “we had to work out where that was coming from.” I accept the evidence of Mr M that there were discussions between himself, the mother, the maternal grandmother and both C and K about these events.  S was apparently punished.

7. The mother did not raise this incident in her affidavit although there is considerable material about other allegations made at that same time

8. It seems to me that Mr M has unquestionably accepted all of the criticism that has been laid before him in relation to S and T’s father and in that context of a belief in his being a dangerous and risky father for the children, has accepted that this particular misconduct of S’s somehow related to the father.

9. Mr M was asked about the children’s allegation that he smacked them.  He denied smacking the children entirely, “Totally untrue, I never smacked them, I totally disagree.”  I have no reason not to accept his evidence about that.  However the significance of his reaction was that he was quite willing to accept the proposition that the children may have lied to their father about his conduct (smacking), but has not asked himself whether the children might have lied or misrepresented events in the father’s household when they are speaking to him and the mother.

10. Nevertheless Mr M impressed as a straightforward man and I accept his willingness to assist in the arrangements for the children.  He also expressed his willingness to participate in a Parenting After Separation program, or something similar.

11. I accept the evidence of Mr M that he would assist if necessary in changeover arrangements, driving them to a Contact Centre, or being present when the children moved between the two households. Mr M volunteered the information that he and the mother were being married in December  2012.  He now has an even more significant role to play in the lives of the children. 

12. Mr M is now the step-father of four children, none of whom are presently spending time with their respective fathers.  The children will benefit from Mr M attending a program of information to assist him in this complex position.

The father, Mr Shelby

1. The cross-examination of the father appeared to be designed to persuade the Court to close down all time between he and the children, rather than in support of a graduated program of increasing time as proposed by the mother.

2. The father has an older son who lives with his mother in rural New South Wales.  The evidence of the father is that he has not seen very much of D for the last year or two and has had some limited communication with him by telephone and text.  The father said and I accept that this was not his choice, but that he himself accepted that D was a teenager with his own life and that he was old enough now to make his own decisions.  The father was challenged on his assertion that he had enjoyed a reasonably amicable relationship with his former partner. 

3. He was taken to an AVO taken out by D’s mother 12 years ago and the statements apparently made by her at that time.  The basis for the cross-examination related to conversations the mother had with D’s mother, who was not called as a witness.  I do not draw any adverse conclusions from the father from the fact that he is presently not spending face to face time with his 16 year old son.

4. The father was also extensively cross-examined about the events of … February 2008. One aspect over which there were many questions was whether or not the mother had found a bullet in the husband’s shorts when she was doing the washing.  The bullet was said to be in the father’s wallet in the pocket of his shorts.  This line of questioning was in reference to the father having said there had been no ammunition for the guns in his possession at the time of the incident in February 2008.  It was uncontentious that the firearms had been given to the father after his own father’s death.  Other than the possibility of there being a bullet which was not asserted to be live in the father’s wallet in his shorts when the mother did the washing, there was no other evidence that suggested that the father kept ammunition in the home.  I do not draw any adverse conclusions about the father’s credit in relation to guns and ammunition, or as a safety risk for the children arising from this proposition.

5. Another line of questioning of the father was about his sister Ms E, who he proposed as an occasional fill-in supervisor when his mother was unavailable.  The mother was vehemently opposed to Ms E being a supervisor for the children.  The reasons for that opposition do not appear to be particularly child focused.  Rather, the mother was offended and angered about the contents of an email which was critical of her as a mother.  The father denied on behalf of his sister, that the email in question had come from her.  Investigations had been undertaken by the mother as to the source of the email.  The father asserted that the organisation from whose computer the email was sent from a company where the mother’s sister worked.  Whether a critical email was sent to the mother by the father’s sister, or her own sister, or a stranger, has limited bearing on whether or not Ms E would be an appropriate supervisor if one were needed.  In any event it seems her health is uncertain and she would be unlikely to be called on in the immediate future.

6. Another topic was the father’s episode of mental ill health in May 2004 and suicide attempt by him.  I am unable to see the relevance of this incident.  It occurred five months before the parties married.  At the time the mother was supportive and assisted the father in his recovery.  Post separation orders have been made which saw the father having time with the children, including unsupervised time.

7. There was a minute focus of the details of this attempted suicide by the father, part of which came from subpoenaed material from a hospital, but part of which inevitably came from the mother’s personal knowledge, she having been present at the hospital after the event.  There was actually a challenge to the father’s stated reasons for having attempted to take his own life.  The intensity of the attack did not reflect particularly well on the mother’s motivation. 

8. There was a meticulous trawling of events in the father’s life, at times going back to late teenage years which might contain an element of future risk.  This approach suggested to me that the mother is profoundly opposed to the children maintaining a relationship with their father and has been since February 2008.  Having found happiness in her new relationship in 2009, she has wanted to put the events of her marriage to the father behind her.  Unfortunately it appears she has also wanted to close the door between the children and their father.  This is a failure to recognise the independent needs of the children to know and have a meaningful relationship with their own father. 

9. I draw no comfort from the fact that the mother’s two older children have no relationship at all with their father, which effectively came to an end when the mother remarried to the father in these proceedings.  He too was called dad by the older children and no effort was apparently made by the mother to encourage or challenge her older children’s father to maintain a relationship with them.  It is apparent to me that the mother does not understand that because her new relationship, now her third marriage, puts an end in her mind to her two previous marriages, that this process of moving on does not simply include the children as well.  Their needs are being overlooked by the mother.

10. The father was also questioned about his gambling and he conceded that he had experienced a lack of control over his own gambling.  He agreed he had contacted the Gambling Helpline, as he had been advised to do by a counsellor.  He was taken item by item to occasions in February 2008 when there had been a pattern of many small withdrawals on the same day from automatic teller machines.  These events were in the days leading up to the parties’ separation in February 2008.  The parties were clearly then in dispute about the father’s tendency to gamble, which the mother strongly disapproved at any level. 

11. In his oral evidence the father said that on … February 2008 he had put a proposal to the mother that she pay him a certain sum to effect a division of property between them.  The mother in her affidavit refers to this but includes this statement, “I was extremely worried that [the father] would waste money by gambling.”  At no time does the mother refer to the reason why the father was talking about a redraw on the mortgage account[9].  To the extent that she was inferring that the father had intended to draw $120,000 to gamble with, I reject that inference.  Rather I find that there was a dispute which came to its culmination on … February 2008 about property settlement.  On that day, on his own evidence, the father behaved badly and in a way that was frightening to those present at the house, but in the context of the father’s gambling I accept his evidence that he did gamble, that he considered that he had a lack of control and that it was one of the reasons that gave rise to the parties’ separation.  The father says that he has now stopped gambling.  He has his own business and there is no evidence before me which would cause me not to accept his evidence about that.

    [9]  Affidavit of the mother filed 09/11/2012, para 16

12. The father was also questioned about previous drug use.  He has certainly had some difficulties in that regard.  As a young man he used marijuana and became dependent on codeine after an injury that required heavy pain relief.  The father freely conceded that he had told Dr R in a past assessment that he had used ecstasy in the past.  A proposition was then put to him, “Did you tell [Dr R] about speed, ice and cocaine use?”  The father said, “No” and there was ultimately no evidence of those illicit drugs having been used by the father.  The mother does not assert that she saw the father use such drugs and I was left with the impression that the mother was simply hopeful that the father would make admissions adverse to him. 

13. In a similar vein the father was asked about alcohol and agreed that when he had been drinking, was when he made mistakes.  It was suggested to him that he had been a binge alcohol drinker since the age of 12 and had told Dr L so.  The father denied that and said rather that he had his first alcoholic drink at the age of 12 and that is what he told his psychiatrist, Dr L.  Subsequently Dr L confirmed that in his own oral evidence.  Again, I was left with the clear impression that the mother, who could not have known about the father’s use of alcohol at the age of 12, was simply hoping for damaging admissions by the father.  I accept the evidence of the father that he was a binge drinker as a young man and that his judgment was adversely affected at times when he was affected by alcohol.  I also accept that he has given up alcohol from time to time, but continues to drink from time to time.

14. In relation to the events of … February 2008, many of the questions intensely critical of the father, related to events when the mother was not present in the home.  Indeed she was away at the police station dealing with the removal of the father’s guns, when the father returned to the home, broke windows, came into the house and injured himself.  The mother had put a bolt on the door and then left for the police station with her mother and all four children in the home.  I draw from this, that although the mother could not have anticipated the events that happened, she probably anticipated an adverse reaction from the father to a bolt on the front door.

15. The children are apparently aware of these events.  They were aged three and 18 months at the time.  It must be the case that the adults have kept the incident alive for the children. This has not been helpful for them.  The father made the statement that what he had done was inexcusable.  I agree.

16. I also find it concerning that the events of that day have not been allowed to fade from the children’s memory.

The sexual assault allegations

1. The father was taken through the allegations which have been made in the past and was closely questioned about them.  The father denied any wrong doing with the children and that is consistent with the outcome of the JIRT investigations.  The father was asked in cross-examination whether he had been sexually abused as a boy aged 10.  He agreed that he had and that he told Dr  L about that when he had been asked.  There was no apparent reason for the father to be questioned about that.  To the extent that it was being inferred that the father’s experience would more likely to have made him abuse one of his own children, I reject that inference.  There is no evidence to support it.

2. The father now has a new relationship which is not as well advanced as the mother’s with Mr M.  The father described a happy situation and a good relationship with his new partner’s young children aged four and 12.

Equal shared parental responsibility

1. In answer to questions from counsel for the Independent Children’s Lawyer, the father expressed a strong interest in sharing parental responsibility for the children in relation to their future school and health.  The father expressed a fear about contacting the mother to discuss such long term issues:

   She’ll call it harassment, she’ll get an AVO to keep me away from the children longer. 

2. The father readily agreed that he had not been involved in the enrolment of either child at school and had not made contact to the mother about it.  The line of questioning of the father was of criticism of his failure to negotiate or to communicate with the mother about those matters.  The father representing himself had asked the mother no questions about her approach to shared parental responsibility.  I accept the evidence of the father that he would like to communicate amicably through text and telephone calls. 

3. The father concedes that the children should live with the mother and that she is able to provide them with a reasonable standard of care, no matter how disappointed he may be about her unwillingness to promote a relationship between themselves and him. There is an order by consent for the parties to participate in a therapeutic intervention.  During that time an arrangement where the mother makes decisions and reports to the father on matters of education, health and other long term issues is less likely to lead to destructive conflict than an obligation on the parties to communicate.  Varying orders for parental responsibility have been made accordingly.

Future contact

1. The father agreed that seeing the children at a Contact Centre would reduce the likelihood of further allegations of misconduct being made about him.  However he expressed some concerns, which I consider are legitimate.  He said that continually seeing the children at the Contact Centre for a year made it a depressing place and he thought the children were beginning to know that something was going on.  He thought it would have an effect on the children after five years of both supervised and unsupervised contact, to return yet again to supervised visits at a Contact Centre. 

2. The father was able to describe both children in a way that suggested he does have a genuine interest in them.  He said T was an anxious girl, loud noises had always frightened her and she was scared of dogs and would say “pick me up” when she was scared.  He said that on the other hand “not much worries [S], he’s pretty full on, he’s not scared or anxious.  He’s a bit of a risk taker.”  The father expressed his willingness to attend for family therapy, especially if it involved both parents and the children.  He was hopeful although not optimistic about this process.  He has attended the program Keeping Kids in Mind and courses on communication. 

3. I consider it likely that the way these proceedings was conducted might discourage the father from thinking that the mother is looking to work with him to improve their communication for the benefit of the children.  However both parents say they are willing to try, and the relevant order has been made by consent

Family Consultant, Ms B

1. Ms B was asked about the mother’s proposal being one year of visits for two hours on alternate Sundays at a contact centre, followed by one year of visits supervised by the paternal grandmother for four hours on alternate Sundays, ultimately increasing to eight hours, with a further report to be prepared in 2015 and if favourable, a movement towards unsupervised time.  Ms B was clear to say that supervised time is not a long term solution.  I accept that opinion in these proceedings.

2. Ms B had not been aware of further disclosures having been made by the mother of reported sexual misconduct in April 2012, with the consequent suspension by the mother of time between the children and the father.  I had the impression that Ms B considered that the relationships between the children and the father are at breaking point.  That is certainly my view.  Ms  B considered that if supervision continued at a Contact Centre, it would only be helpful if there was a therapeutic component offered by that service which would support the children and help them to understand why they have not seen their father.  She considered that the children needed to be carefully and sensitively reintroduced to their father, or orders would again fail. 

3. Ms B expressed the view which I accept, that whether after a year of supervised visits the relationship would be improved, is quite uncertain, “Contact alone will not ensure that.”  Ms B believes that the children would likely pick up on the mother’s vigilance and fears and that whether intentionally or not time between the children and the father would be undermined.  In my view the father believes that the mother has deliberately manipulated the children in order to keep the children away from him.  The mother believes that the father has nothing to offer the children and represents a risk.  It is easy to accept Ms B’s view that the children who have already been subjected to five years of changing arrangements, in an atmosphere of mutual hostility, would have a lesser capacity to cope with more of the same.

1. Ms B was strong in her concerns about the father’s level of insight. In her report she had recommended a further psychiatric assessment of the family, no doubt envisaging an updated report by Dr R who had assessed the family in 2008.  However, both parents agreed that they were unable to afford that.  The father provided evidence from his own treating psychiatrist, which I do take into account.  However I accept Ms B’s view that the whole family have adjustments to make.  The ideal she proposed is a consistent, predictable, well supported regime of time, with a therapeutic intervention in which the children and parents were supported, extending to other family members as required. 

2. On a practical level Ms B recommended that emails were the best form of communication, rather than a correspondence book.  Ms B accepted the proposition that sole parental responsibility to either parent allows practical parenting to happen but that the risk is that children might come to believe that the parent without that authority is unimportant or bad.  The risk is relevant in this case. 

3. Ms B put particular emphasis for therapeutic intervention if there was one, being concurrent with time taking place.  I take that to be a rejection of the proposition that there be a further period of time, supervised or unsupervised, before any further assessment or intervention was undertaken.  She clearly favoured short visits at first, initially through a Contact Centre with the therapeutic facility, or an outside therapist. 

4. Ms B was opposed to a paid supervision service mainly because of the likely turnover of supervisors, which would not provide the consistency the children require.  A short focussed three to six month period with a goal well understood, was her stated best arrangement.  I take that to be an affirmation of supervision for transition and not for its own sake.  I accept that view.  Indeed, if it were the case that there was an unacceptable risk to the children in the care of the father such that supervision was a permanent feature of the time they spent, it would be an indicator that the relationship was insufficiently meaningful to sustain in that way.  Ms B stated the goal in a child friendly way that is “one family in two homes”.

Dr L

1. Dr L is the father’s treating psychiatrist.  He was available by telephone with his notes.  An application for his evidence to be excluded on the basis that he was not available in person was refused.

2. Dr L in his affidavit filed 14 November 2012 found his patient, the father, to be as follows[10]:

   It is my assessment that [the father] does not suffer from a primary depressive illness. I can find no sign or symptom to convince me that [the father] suffers from any psychiatric condition or illness.

   I am happy to support [the father’s] application to spend more time with his children [T] and [S] on an unsupervised basis, as I do not believe he poses a risk to his children.

   [10] Affidavit of Dr L, filed 14/11/2012, paras 2-4

3. Dr L was extensively cross-examined and did not resile from his opinion, based on his consultations with the father between October 2007 and October 2012, that the father does not suffer from any psychiatric condition or illness and would not represent a risk to his children. 

4. In his two affidavits and reports forwarded from time to time, there appears to be reflected a respectful, professional relationship between the father and Dr L and steady progress as the father grappled with misuse of drugs and alcohol, gambling and the depressive illness that he has suffered from at times in the past.

5. Dr L was unconcerned that the father is presently not spending face to face time with his 16 year old son D, “Teenagers like to do their own thing.”  Dr L also noted that although factual inaccuracies or untruths might affect his decision a little, that in his experience, “people don’t tell everything truthfully” and he was not particularly concerned about some factual inaccuracies. 

6. I had the clear impression that Dr L based his opinions on his own clinical work with the father and his observations over that five year period.  He confirmed that the incident in February 2008 was insufficient for the diagnosis of Intermittent Explosive Disorder and was clear to say that the father did not have a pathological gambling disorder.

The paternal grandmother, Ms N

1. Ms N was an impressive witness.  She has now retired from all occupations, but has previously been employed by the … Department and has a practised understanding of the needs of children, in addition to her own experience as a parent.  She forthrightly said that she did not believe that there was a need for supervision of her son, but would be guided by the Court.  She made appropriate concessions about her knowledge of her son’s episodic misuse of both alcohol and drugs in the past and his habit of gambling when he was drinking.  She expressed the view that he did have a problem with anger control 10 years ago, but “not now”.

2. Ms N gave evidence that she was vigilant throughout her supervision and I accept her evidence.  She denied having ever left the children alone with the father and gave details of what happened when the family was shopping and undertaking other activities.  I consider that Ms N very much has her grandchildren’s best interests at heart and is willing to go on assisting them with priority even over her own son’s views in the matter. 

3. Her experience as a supervisor employed for the … Department, was revealed in her pragmatic and detailed answers about managing supervision of two children at once and skills at distracting and engaging children if they become distressed during supervised contact periods.  She described a “nodding relationship” with Mr M and my impression is that the personalities of Ms N and Mr M would be of assistance to the children in any arrangements for them to spend time with their father.

The law

1. These are applications for parenting orders pursuant to s 64B(2) of the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) the Act.

Section 60CC - best interests of the child

1. In determining what is in a child’s best interests the Court must consider the following matters.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both of their parents.

1. The mother’s evidence attempted to establish the father as a destructive influence towards his children. However, that evidence was too focused on the father’s past and failed to recognise the significant progress he has made since 2008. It has been established that in considering the benefit to the children of having a meaningful relationship with their parents the Act mandates a prospective approach be taken (see McCall & Clark (2009) FLC 93-405 at [118]–[120]). I consider the evidence at the date of hearing establishes that the children will benefit from having a meaningful relationship with their father.

2. I accept that the children’s relationship with their father is fractured, but that is not a reason to deny them the benefit of developing a stronger connection to their father. I do take into account the concerns of the family consultant that the children’s time with the father ought to coincide with therapeutic intervention involving both the children and the parents. This will assist the family to repair the current rift between the children and their father and to assist each of the parents in doing so. 

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm from being subjected or exposed to abuse or family violence.

1. The evidence does not support a finding of abuse of the children by the father. The evidence suggests that the mother and children have told several different versions of the same events, which brings the reliability of their statements into question. There was no physical evidence of injury at all.  That was conceded. Furthermore I find the children have had innocent motivations for having said what they have, including a desire on the part of T not to damage the relationship with her mother.

2. It is clear that following the incident on … February 2008 the mother has believed or at least consistently expressed the belief to others that the father poses a high risk of physical and/or psychological harm to their children if they are left alone in his care.  She has not interacted with the father in the five years since separation. In those five years the father has complied with recommendations of Court experts and done all he can to ensure that he will be a supportive father and stable influence in his children’s lives.

3. Accordingly, I am satisfied that the father does not presently pose an unacceptable risk of physical or psychological harm to the children either by reason of abuse or family violence.

Section 60CC(3)(a) - any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the children’s views

1. The children are young at almost eight and six. T is expressing a wish not to see her father.  I do not give weight to her expressed view which to some extent is based on her apparent belief that she has to choose between her parents.  She is a rather fearful child in a big household.

2. S is expressing a wish to see his father. He has a bolder personality than his sister.  Both children are too young to understand the events which have affected their parents.

Section 60CC(3)(b) - the  nature of the relationship of the children with each of their parents and other persons

1. The children are most closely attached to their mother.  They have close loving relationships with both grandmothers and their older brother and sister from their mother’s first marriage.  They have not had the opportunity to get to know their brother D from their father’s earlier relationship.  They should have that chance.

2. There already exists an important relationship with their stepfather. The children are also developing friendships and bonds with his four children from his first marriage.

3. The children have enjoyed a good relationship with their father in the past.  It is  presently under pressure and needs careful restoration

Section 60CC(3)(c) - the willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship

1. The mother does not have a present capacity to encourage a close relationship between the children and their father.  She is a loving mother and may develop that capacity through family therapy.  She is likely to presently facilitate the relationship whilst ever time is supervised.  She will need professional assistance before she will do so for unsupervised time.

2. The father concedes that the children need their mother.

Section 60CC(3)(d)  - the likely effect of any changes in the children’s circumstances

1. The gradual re-introduction of the children to their father will enable them to feel part of his family and should not have an adverse impact on their place in their mother’s household.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent

1. There will be expense involved in family therapy.  There are no other practical impediments. The paternal grandmother and Mr M will facilitate arrangements in the best interests of the children

Section 60CC(3)(f) - the capacity of the children’s parents and any other person to provide for the needs of the children

1. Both parents have the capacity to meet the children’s needs for love and attention and physical care.  The capacity of the father appears to have increased over the past five years in that he is less distracted by past addictions and his overall mental health has improved and stabilised.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background of the children

1. The children are a girl of almost eight years and a boy of six.  There have been many changes in their family life over those years.  Their ability to cope with emotional challenges is assessed by Ms B to be diminished.  T has been bullied at school.  S’s behaviour  at home has been challenging at times.

Section 60CC(3)(h) - if the children are Aboriginal or Torres Strait Islander.

1. Neither the parties nor children identify as Indigenous Australians.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents.

1. The mother has had the whole of the day to day care of the children since separation.  She has accepted that responsibility and looked after them well. She has underestimated the significance of the children’s relationship with their own father.

2. The father has made consistent efforts to adopt recommendations likely to consequentially benefit his children.  He has persevered with supervised contact despite its restrictions.  He has kept his children in mind.

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family.

1. There are no current family violence orders.  There have been since separation.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings in relation to the children.

1. The orders for family therapy are directed to supporting the children and their parents through the process of restoring relationships.  It would be destructive for the children to again build up a relationship with their father only to have it break down inexplicably to them.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

1. The children would benefit from a change of focus away from the events in their parents’ marriage towards their own future as confident children of separated parents.  They require the love and support of both their parents each of whom has the capacity to provide it.

I certify that the preceding one hundred and sixty-five (165) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 19 February 2013.

Associate: 

Date:  19 February 2013