SIMPSON & HAHN
[2014] FamCA 674
•21 August 2014
FAMILY COURT OF AUSTRALIA
| SIMPSON & HAHN | [2014] FamCA 674 |
| FAMILY LAW – CHILDREN – Best interests – two children of the marriage aged nine years and six years – older child refusing to spend time with father at contact centre since September 2012 – younger child diagnosed with autism – younger child has begun to refuse to spend time with father – allegations of father sexually and physically abusing mother and older child – allegations of sexual abuse of the older child by the paternal uncle during the marriage – allegations made by the mother of domestic violence by the father during the marriage – where the children should live – whether the father’s time with the children should be supervised – whether the mother has unduly influenced the children in their refusal to spend time with the father – children to live with the mother and spend unsupervised daytime with the father on alternate Saturdays –children not to be in the presence of paternal uncle and paternal grandfather unless actively supervised by the father. FAMILY LAW – COSTS – Mother’s application for the father to pay half the costs of the family report granted – father’s application for the mother to pay the father’s costs of the proceedings dismissed – father’s application that the mother be declared a vexatious litigant dismissed. |
| Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 61B, 65DAA, 65DAC, 117, 118 | |
| Briginshaw v Briginshaw (1938) 60 CLR 336 M & M (1988) 166 CLR 69 Rice & Asplund (1979) FLC 90-725 | |
| APPLICANT: | Ms Simpson |
| RESPONDENT: | Mr Hahn |
| INDEPENDENT CHILDREN’S LAWYER: | McCormack & Co |
| FILE NUMBER: | DGC | 550 | of | 2010 |
| DATE DELIVERED: | 21 August 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Thornton J |
| HEARING DATE: | 11 – 14, 17, 24 – 28 March 2014 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr O’Connell |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | McCormack & Co |
Orders
All previous parenting orders be discharged.
The mother and father have equal shared parental responsibility for decisions relating to the long term care, welfare and development of the children J Hahn born … 2004 and D Hahn born … 2009 (“the children”).
The children live with the mother.
The children spend time and communicate with the father each alternate Saturday from 10.00 am to 6.00 pm commencing on 30 August 2014; or as otherwise agreed between the parties.
Changeover for the purposes of paragraph (4) shall be at B Contact Centre or at a location as agreed between the parties or nominated by the Independent Children’s Lawyer.
The parents shall forthwith sign all documents and do all things necessary to arrange for changeover to take place at the contact centre as provided for in these orders.
The father shall be at liberty to include in the time referred to in paragraph 4, his mother and his partner, Ms K.
The father is restrained from allowing the children or either of them to be in the presence of Mr X H or Mr Y H unless actively supervised by the father who shall be physically present at all times.
The children be at liberty to telephone either parent at all reasonable times and the parent having the care of the children shall facilitate such calls.
The father be at liberty to obtain kindergarten and/or school reports, correspondence, photographs, newsletters and other like documents from the child's kindergarten and/or school at his expense.
The father be further at liberty to attend at all functions, activities, and events at the child's kindergarten and/or school at which parents are ordinarily invited or attend and a copy of these orders shall serve as evidence of the mother's authority to give effect to this Order and the father immediately make arrangements with the Proper Officer of the kindergarten, to attend the kindergarten and introduce himself.
The parents:-
(a)Keep each other informed of their residential addresses, email addresses, and contact telephone numbers and notify each other of any proposed change of address 28 days prior to any change and any change to their telephone numbers within 24 hours of any change;
(b)Communicate, where practicable, by email with respect to issues relating to the children's care, welfare, and development; and
(c)Immediately implement a communications book, to be supplied by the mother in the first instance, to canvass in greater detail any issues relating to the children's care, welfare, and development.
Each of the father and the mother be and is hereby restrained, and his or her servants and agents be restrained by injunction from criticising, belittling, or otherwise denigrating the other in the presence or hearing of the children and/or criticising, belittling, or otherwise denigrating the other in any form that may be reasonably likely to be accessed by the children.
IT IS REQUESTED THAT Victoria Legal Aid fund the Independent Children’s Lawyer’s appointment for a further six months from the date of these orders.
The Independent Children’s Lawyer cause a copy of the reasons for judgment and orders to be forwarded to the following:
(a)Any contact centre where the children attend;
(b)The Department of Human Services;
(c)W Counselling Service for the attention of J’s counsellor.
The father pay the mother the amount of $2,475 being one half of the costs for the preparation of the report of the family consultant, Mr P, within 28 days of the date of these orders.
The father’s application for costs of the trial to be paid by the mother is dismissed.
The father’s application to have the mother declared a vexatious litigant is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Simpson & Hahn has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 550 of 2010
| Ms Simpson |
Applicant
And
| Mr Hahn |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings concern two children and competing proposals for parenting orders,[1] following final consent orders made three years ago in the then Federal Magistrates Court.
[1] Under Family Law Act 1975 (Cth) Part VII.
The child J is nine years of age and the child D is six. The interests of the children were represented by an Independent Children’s Lawyer. Each parent sought orders for the children to live with them and the mother sought an order that the father’s time with the children be supervised indefinitely, alleging that the children need protection from the father. The Independent Children’s Lawyer proposed that the children live with the mother and have unsupervised time with the father.
The mother is 39 years of age and is engaged in home duties. She has relinquished paid work because the younger child was diagnosed with autism in December 2012 and she receives a benefit as his carer. The father is 38 years of age and is a self-employed cleaner. The parties were married in 2000 and separated on 29 May 2009. They divorced on 10 April 2011.
The child J was aged four and the child D aged two months when the parents separated. Since separation the children have lived with the mother. At times, the mother and children lived with the maternal grandparents in Town U. The children now live with their mother in Town U.
The father re-partnered shortly after separation and has a child of that relationship, Z, who is two years of age. The father does not live with his new partner and daughter, but stays with them sometimes during the week and on weekends. He lives with his mother and brother, the paternal uncle, Mr X H (“the paternal uncle”). The paternal uncle also has a child who stays with him regularly.
The child J has spent no time with his father since September 2012 when J refused to see him at the B Contact Centre. Until then, J had only spent supervised time with his father fortnightly at the Contact Centre for approximately two and a half years. J’s time spent with the father since the parties separated in 2009 has been limited by orders made in the Federal Magistrates Court. There was also a period of about nine months after separation when the father did not see J regularly.
The child D has spent supervised time with his father for approximately one and a half hours fortnightly at B Contact Centre for almost four years but, at the time of the hearing, he had been refusing to spend time with his father at the contact centre from February 2014.
Allegations
Approximately 12 months after separation, when the older child was five years old, the mother made serious allegations about the father to the police. When the allegations were reported to police, the father had already filed an application for parenting orders on 22 February 2010 in the Federal Magistrates Court. The mother had also already made arrangements for the children to spend supervised time with the father at B Contact Centre.
The mother alleged that on Easter Sunday, 4 April 2010, she had been discussing with the child J how he would feel about staying with his father in the future because of the forthcoming court hearing when J told her “out of nowhere” that the father had touched J’s penis in the shower.[2] The following night, the mother questioned the child further about the incident after he woke from a nightmare. The mother stated that J told her that the father had touched J’s penis in the shower and he had “made my penis go hard and it felt fizzy”, “like a fizzy lollypop going off in my penis”. The mother told police that the child also said that his paternal uncle X H had touched him on the bottom on one occasion and that two of his other paternal uncles had been present.
[2] The mother’s affidavit sworn 28 January 2014 at Annexure 1.
The mother also alleged that the father was verbally and physically abusive towards the child J and her during the marriage and that the father had raped her on two occasions.
Procedural History
Final orders were made by consent by Federal Magistrate McGuire on 20 May 2011. The orders provided for the children to live with the mother and spend supervised time with the father at B Contact Centre until his completion of various courses and parenting programs. One of those courses was an anger management course with Centacare or W Counselling Service, which the father could not ultimately access. There was also an order restraining the father from allowing the children to be in the presence of his brother Mr X H or the children’s paternal grandfather Mr Y H until the children attained the age of 10 years and thereafter only to be in their presence when actively supervised by the father. The children were then to commence spending unsupervised time with the father so that ultimately they would be spending time with the father from 5.00 pm Friday until 5.00 pm Sunday on alternate weekends.
The mother subsequently disputed consenting to these orders. However, the dispute between the mother and her legal representative for that hearing was not a matter which required determination for the purposes of the trial in this Court.
The father filed a contravention application on 29 November 2011. Federal Magistrate McGuire dismissed the father’s application on 2 April 2012 and ordered that the final orders made 20 May 2011 continue.
On 14 June 2012 the father filed an application seeking to vary the orders made 20 May 2011 because the anger management course he had agreed to complete was not available. He had engaged in an alternate behaviour change course conducted by the HM Counselling Service.
The case was transferred to this Court on 10 July 2012 by order of Federal Magistrate McGuire of the Federal Magistrates Court.
On 28 November 2012 Senior Registrar FitzGibbon made orders providing for the father’s time to continue to be supervised but extended if possible and for the mother to suspend the children’s counselling at the local Centre Against Sexual Assault (“local CASA”). Senior Registrar FitzGibbon also ordered that Mr Mr P, psychologist, prepare a family report. The cost of this report was reserved by the Senior Registrar but has been paid by the mother and is now the subject of an application by the mother.
On 5 June 2013, Cronin J made procedural orders listing the matter for trial and nominating the mother as the applicant.
Orders were made by Registrar Field on 20 September 2013 whereby the Department of Human Services (“DHS”) were requested, in accordance with s 69ZW of the Family Law Act 1975 (Cth) (“the Act”), to provide information to the Court in respect of the children.
The trial was listed before me on 23 September 2013. However on that date the mother, the Independent Children’s Lawyer and DHS, who appeared as amicus curiae, applied for an adjournment so that Ms R could complete a psychosexual assessment of the father. This assessment had been ordered by the Children’s Court for a different proceeding which was still on foot, involving the father’s daughter, Z. The mother, the Independent Children’s Lawyer and DHS sought to consider this report before the trial. I granted the adjournment.
The mother then made an urgent application for interim orders permitting her to return to Town U from outer suburb M with the children and to change the children’s schools. The father opposed the application. The mother’s application was granted and reasons for judgment published the following day.[3] DHS were ordered to provide the Court and the parties with a copy of the psychosexual assessment of the father once completed.
[3] [2013] FamCA 773.
This trial commenced on 11 March 2014 and proceeded over 10 days.
DHS had initially indicated that an application to intervene in the trial was being considered but did not ultimately participate in the trial.
The Applications
The mother sought sole parental responsibility, that the children live with her and spend supervised time with the father for one and a half hours each fortnight on a Sunday subject to the children’s wishes and provided that the father completed an anger management course dealing with men’s behavioural issues.[4] The mother also sought orders requiring the father to complete a parenting course for parents of autistic children and a parenting course about health and hygiene. She also sought that the restrictions upon the children having contact with the paternal grandfather and paternal uncle continue.
[4] By her Amended Initiating Application sworn 28 January 2014.
By his case outline[5], the father sought orders for the children to live with him and eventually his new partner or, in the alternative, that the children live with the mother and spend substantial unsupervised time with him. By implication, he did not agree to the mother having sole parental responsibility for the children. He also sought that the previous orders restricting the children from having any contact with his brother, Mr X H, be removed. In his final written submissions,[6] the father sought an order that the mother be declared a vexatious litigant.
[5] The father’s case outline document filed 4 March 2014.
[6] The father’s final written submissions filed 28 March 2014.
At the conclusion of the trial, the Independent Children’s Lawyer submitted that there was no justification for the rebuttal of the presumption of shared parental responsibility. The Independent Children’s Lawyer supported the father’s application for unsupervised time and proposed that the children spend time with the father from 10.00 am until 4.00 pm for eight consecutive Saturdays and then commence spending alternate weekends with the father from after school on Friday until 5.00 pm on Sunday. He proposed that the paternal grandmother and the father’s partner be included in the spend time arrangements.
Further, the Independent Children’s Lawyer also submitted that the father should spend unsupervised time with the children commencing Christmas holidays 2014/2015, for a period of two weeks from 5.00 pm Boxing Day in each year and commencing in the school year 2015, from 5.00 pm on the last day of the school term until 5.00 pm on the second (middle) Saturday of each school term holiday. The Independent Children’s Lawyer agreed with the mother’s concern that any time spent with the father should take account of the limitations of 63 days respite annually for the mother’s eligibility for carer’s benefit.
The Independent Children’s Lawyer also proposed that the children not come into contact with the father’s brother or the paternal grandfather until each child is 10 years of age and then only under supervision by the father, which was consistent with the orders currently in place.
Regarding changeover, the Independent Children’s Lawyer proposed B Contact Centre and school at the beginning of contact and, eventually, G Contact Service at the conclusion of time spent with the father. He also sought that the mother be restrained from interfering with the staff at B Contact Centre or any other contact centre including determining whether protocols have been met. He also sought that the mother at all times actively encourage the children spending time with the father irrespective of their wishes.
Both parties also made an application for certain costs.
Preliminary Issue – The rule in Rice & Asplund
The rule in Rice & Asplund (1979) FLC 90-725 should be considered where an earlier parenting order has already been made. The rule essentially requires that there be some changed circumstance, new factor arising or some factor which was not disclosed at the previous hearing which would have been material for the court to consider afresh how the welfare of the child should best be served, to reverse any earlier parenting order made.
All parties agreed that this was not in issue. The father did not argue this point having regard to his claim that the mother had failed to comply with court orders.
The Independent Children’s Lawyer submitted that there had not been a full and adequate hearing of the issues previously, as envisaged in Rice & Asplund, when orders were made by consent and that the issues needed to be considered and the evidence tested.
The mother claimed to have taken measures to rescind her signature on the proposed consent orders which were filed on her behalf in the Federal Magistrates Court on 20 May 2011. The mother maintained that the evidence was never tested and the father agreed.
The new circumstances here include that Detective S subsequently recovered video evidence from the family laptop, which the mother claimed was made by the father, of the father masturbating in a car. The father on affidavit denied that he had made a video of himself masturbating in a car. The mother alleged that this video file was found on the computer by the child J, who brought it to her attention. The father, when he was cross-examined in the trial, subsequently admitted that he had made the video of himself masturbating in his car. There was, on the mother’s case, also significant refusal by the children to attend contact with the father and subsequent to the making of the final orders the child D was diagnosed with autism.
For all of these reasons the rule in Rice & Asplund does not apply.
The Evidence Relied Upon
The documents relied upon by each of the parties are listed in Annexure A to these reasons.
The parties were cross-examined, as were the following witnesses:
·Detective S, … Criminal Investigations Unit;
·Ms V, team leader at B Contact Centre;
·Ms DD, psychologist/counsellor/advocate at … Centre Against Sexual Assault;
·the maternal grandparents;
·Dr N, consultant paediatrician;
·Mr P, psychologist and family consultant; and
·Ms K, the father’s new partner.
The following reports were in evidence:
·family report of Mr T dated 4 August 2010;
·psychological assessment of the father by Dr E, clinical and forensic psychologist dated 3 December 2010;
·psychological assessment of the mother by Dr E dated 24 February 2011;
·family report of Mr P dated 25 March 2013;
·psychosexual assessment of the father by Ms R dated 4 December 2013;
·DHS Response to request for information about suspected abuse dated 20 September 2013;
·B Contact Centre reports, detailing supervised time reports from the first supervised visit on 22 February 2010 to 18 August 2013, compiled by Ms V, team leader at Anglicare Victoria; and
·two letters from Dr N, consultant paediatrician dated 10 December 2013 and 21 March 2014.[7]
The expertise of the witnesses was unchallenged and I accept the expertise of Ms V, Ms DD, Mr T, Dr E, Ms R, Mr P, and Dr N.
[7] Exhibit G.
A number of other exhibits were also tendered in evidence. These included:
·the police interview with the child J conducted on 9 April 2010 (VARE);[8]
·the book which the mother deposed she had been reading to J on Easter Sunday in 2010 when he told her that his father had touched J’s penis in the shower;[9]
·five pages of diary notes which the mother deposed were written by J and given to his counsellor Ms DD;[10] and
·a handwritten letter from the mother which J read to this counsellor dated 7 May 2012.[11]
[8] Exhibit ICL1.
[9] Exhibit C.
[10] Exhibit D.
[11] Exhibit E.
I had the opportunity to observe and assess the witnesses over a 10 day period. The parents were under some stress having regard to the fact that neither party was legally represented. The nature of the serious allegations against the father and the fact that in order to test his case the mother was required to be
cross-examined by the father exacerbated the stress for both parties.
The maternal grandparents, representatives from Court Network and representatives from the mother’s church intermittently supported the mother.
The father was supported by his partner, the paternal uncle, the paternal grandmother, and other family members.
The Issues
The issues for determination can be summarised as follows:
·whether the father has sexually and physically abused the child J and the mother and whether the father presents an unacceptable risk to the children such that his time should continue to be supervised;
·whether the mother will support the children’s relationship with the father if they continue to live with her;
·whether parental responsibility should be shared between the parties;
·with whom the children should live;
·how much time the children should spend with the other parent and under what circumstances;
·whether the children would be at risk in the unsupervised company of their paternal uncle Mr X H; and
·whether the children would be exposed to family violence by the maternal grandfather whilst in the care of the mother.[12]
[12] This was not a major focus in the trial but an issue peripherally raised by the father.
The mother alleged that the father had not been frank with the professionals who assessed him. She alleged the children are at risk from the father because of his conduct during the marriage which included the following:
·his sexual and physical abuse of the child J;
·his violence towards the mother by raping her on two occasions, one of which the mother claimed was witnessed by J;
·his lack of control and angry outbursts resulting in him frequently throwing things and damaging property in the home on numerous occasions;
·his denigration of both her and J;
·his inappropriate masturbation in front of windows;
·his masturbation in the presence of J;
·his obsession with pornography;
·his conduct in recording a video of himself masturbating in his car and transferring the movie file to the family computer which was accessed by J;
·his exhibitionism in the home in the presence of J by engaging in naked games involving his penis which he called “puppetry of the penis” and the “turkey dance”;
·his negligence in parenting; and
·his two court appearances for indecent exposure in 1994 and 1996.
The mother’s evidence during the trial was that she was not aware of the father’s criminal history until she was informed in late 2010.
The mother’s case was also that the notes completed by the staff at B Contact Centre were inaccurate and misrepresented her in favour of the father. It was her case that the inaccurate reporting in these notes tainted the reports compiled by the family consultant Mr P and Ms R because the notes formed the foundation for the opinions of those report writers. She also complained of a lack of supervision of the children by the staff.
It was not challenged that the paternal grandfather was convicted of “exhibit obscene article and indecent assault” in 1984 and convicted of two counts of indecent assault of a child under 16 in 2002. It was also not challenged that the paternal uncle, Mr X H, was convicted in 2003 of wilful and obscene exposure and in 2007 was convicted of possession of a prohibited weapon and stalking another person.[13] However the father proposed that there be no restriction on the children having any contact with his brother X H. He did not take issue with the proposal of the Independent Children’s Lawyer that the children not come into contact with the paternal grandfather until the age of 10 and then only under supervision by the father. The mother deposed that she was not aware that the paternal grandfather had been charged with abusing children approximately seven years ago until she read the report of Dr E in 2010.
[13] Ms R report dated 4 December 2013.
The father conceded:
·his historical prior court appearances for indecent exposure and that he had not disclosed this to the mother;
·he had serious problems with adult pornography since childhood but that he believed the professionals were aware of this; and that
·he had recorded a video of himself masturbating in his car at an old quarry and that he had transferred the movie file to the family computer.
The father vehemently denied the allegations made by the child J. The father’s case was that the professional reports supported the view that he was a low risk of further sexual offending. He relied upon the fact that the police had investigated the complaints made and no charges had been laid. He pointed out that the allegations by J were made largely or exclusively to the mother, some significant time after separation and in the context of an environment influenced by the mother and maternal grandparents who have a preoccupation with sexual matters and what they see as his sexual deviancy.
He maintained that a proper evaluation of the evidence, including his denials, would lead to the conclusion that the allegations of sexual abuse of J were unfounded and that the children’s best interests would be served by the children living with him or in the alternative spending significant and substantial unsupervised time with him. He further submitted that unless the children had significant and substantial unsupervised time with him there would be a likelihood of causing significant long-term harm by preventing them from having a meaningful relationship with him.
The father submitted that the mother does not have the best interests of the children as a primary consideration because she has undermined his relationship with them. He suggested that given his lack of contact with J since September 2012, any difficulties with J’s behaviour could only be attributed to the mother and possibly the violence of the maternal grandfather reported to DHS. The father raised an allegation of family violence on one occasion by the maternal grandfather against the mother witnessed by the children when the children were in the care of the mother. He also maintained that the mother effectively kept him uninformed about J’s schooling and the children’s medical issues and did not support or comply with the court orders.
Legal Principles
In deciding to make any parenting order the child’s best interests must be the paramount consideration under s 60CA of the Act.
In determining what is in the best interests of the child, the Court must consider the primary and additional considerations set out in s 60CC(2) and s 60CC(3) of the Act.
Any determination of what is in the best interests of the child must be made in a way that is consistent with the objects and the underlying principles set out in s 60B of the Act.
The primary considerations
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.
In applying the primary considerations greater weight must be given to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[14]
Abuse and family violence[15]
[14] Family Law Act 1975 (Cth) s 60CC(2A).
[15] In proceedings such as these initiated after 7 June 2012.
The term ‘abuse’ is defined in s 4 of the Act in relation to a child as:
(a) an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
‘Neglect’ is not defined in the Act.
Family violence means:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.[16]
[16] Family Law Act 1975 (Cth) s 4AB(1).
The Act provides that a child is exposed to family violence “if the child sees or hears family violence or otherwise experiences the effects of family violence”.[17] Some examples of situations that may constitute a child being exposed to family violence include:
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
…
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family.
[17] Family Law Act 1975 (Cth) s 4AB(3).
Central to this case are the issues of sexual and physical abuse of the child J. The child D is not the subject of any allegation of physical or sexual abuse but the allegations raise the question of whether he might also be at risk of sexual and physical abuse.
Although Part VII of the Act has been amended, the substance of the principles expressed in the decision of the High Court in M & M (1988) 166 CLR 69
(“M & M”) apply in determining parenting orders in a case involving allegations of sexual abuse.
The fact that a case involves an allegation of sexual abuse does not alter the Court’s paramount obligation to determine what is in the best interests of the child and make orders that will best promote them. The High Court in M & M pointed out that the determination of the best interests of the child should not be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.[18]
[18] Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 76.
An allegation that a parent has sexually abused a child is often easy to make but difficult to refute. As the High Court stated in M & M:
there will be many cases…in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.[19]
[19] Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ at 77.
A positive finding that the allegation is true should not be made unless the court is so satisfied on the balance of probabilities and having regard to the factors mentioned by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336.
The factors are:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.[20]
[20] Dixon J at 362.
In considering the wider question as to whether there is a risk of sexual abuse occurring if the children live or spend time with the father, the court must determine:
(a)whether, on the evidence and circumstances, there is a risk of sexual abuse occurring in future; and
(b)the magnitude of that risk; and
(c)whether and how that risk may be addressed; and
(d)whether, because of the nature and magnitude of the risk, there would exist an unacceptable risk that the children would be exposed to sexual abuse by the form of parenting orders made.[21]
[21] M & M (1988) 166 CLR 69 at 77.
Unacceptable Risk
In M v M, the High Court referred to the protection of the child’s paramount interests by endeavouring to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. The test to be applied in considering the magnitude of the risk was expressed as “a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”.[22]
[22] Ibid at 78.
The Independent Children’s Lawyer also submitted that there was an unacceptable risk of sexual abuse of the children by the paternal uncle and the paternal grandfather if the children were in the care of the father and were brought into contact with either of them without supervision. The Independent Children’s Lawyer relied upon the criminal histories of both of these family members as the foundation for this risk.
Standard of Proof
The relevant standard of proof is the balance of probabilities. Without limiting the matters the court may take into account in applying that standard of proof, the court must take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.[23]
[23] Evidence Act 1995 (Cth) s 140.
I have applied the Briginshaw standard[24] in considering the evidence regarding the family violence, sexual and physical abuse allegations against the father. This takes account of the seriousness of the allegations made, the inherent unlikelihood of the occurrence of the allegations made, and the gravity of the consequences flowing from a finding of sexual or physical abuse.
The Evidence
[24] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 per Dixon J.
The mother
The mother deposed that she lives in a two-bedroom dwelling in Town U where the children share a bedroom. She deposed that she was making arrangements for schooling specific to the child D’s autism and he was commencing kindergarten. The child J is in grade 4 and is doing well at school. The mother deposed that she was not working but has the support of her parents and a strong supportive community of the same faith. She attends gatherings twice-weekly with the children and her parents who are all of a particular Christian faith.
Allegations of abuse of the mother
The mother essentially deposed that the father had mistreated her sexually from the beginning of the marriage and that sex was often painful and forced. She deposed that she did not know that she had the right to say no. She alleged two episodes of rape by the father during the marriage.
She alleged that she was raped by the father in June 2008.[25] She deposed that this occurred two and a half weeks after she had gallbladder surgery and had gone to bed after dinner when the child J was down the hallway in bed asleep. Her evidence was that the child D was conceived that night.
[25] Although the police report refers to June 2004 which the mother stated was a mistake.
The mother deposed that in early May 2009 she was again raped by the father just prior to separation. She deposed that she was sobbing and crying at the time because she was in a lot of pain. She deposed that this occurred when she had ongoing minor bleeding from D’s birth and the following morning she woke up lying in a pool of blood.
The mother gave evidence that she told her parents about the rape, two nights later, on 21 May 2009 and that her parents took her to the clinic where she saw a doctor. She maintained that she told the doctor about the rape but when challenged about any records, she conceded that there was no record of this. The mother conceded that she had subpoenaed the records but only found a reference to excessive bleeding. The mother stated that she had subsequently complained about the doctor and suggested in her evidence that the doctor had “resigned or been sacked” because of several complaints.
The mother deposed that during the marriage the father would explode and become angry and aggressive over trivial matters. She gave examples of episodes where he damaged property in the home by throwing a mobile phone, throwing a tumbler towards her head, kicking in a side glass panel of the front door because he had locked his keys in the house, smashing television equipment, punching the wall behind the bed, throwing a computer monitor whilst J was in the room, throwing remote controls at her head and smashing the front bedroom window causing the father to slash his wrist with the glass.
The mother deposed to the child J witnessing the father kicking the pet rabbit and hitting the cat with his fist. She also gave evidence that the father frequently yelled and swore at J and her and denigrated J, calling him “stupid” and an “idiot”. She deposed that J would become fearful when the father was enraged and she was upset.
The mother deposed that prior to separation the father physically abused the child J giving examples of the following:
·shoving the child across the floor when he was five months old so that his head hit the wall and he started screaming;
·dragging the child across the floor causing carpet burn when he was aged 14 months;
·when the child was about two and a half years old, she heard screaming and a thud on the wall and found the father standing over the child in a threatening pose with the child slumped against the wall;
·between 2008 and 2009 seeing the father hit the child in the chest with an open hand, winding him for several minutes; and
·in May 2009 she walked into the bedroom and found the father standing over the child in a threatening manner and holding a closed fist to his head.
The mother deposed that the father engaged in concerning sexual conduct and that he had an “exhibitionist streak”. This behaviour included masturbating around the house in front of windows open to the street or at the front door where he might be in public view. In cross-examination she claimed that he frequently masturbated in front of the television with J in the room. She also stated that there was an occasion where J discovered the father holding a pornographic magazine and masturbating in a back bedroom in mid February 2009. The mother stated that when J drew this to her attention and took her to the bedroom, the father continued to masturbate with a silicon vagina, showing no concern for J or the mother’s presence.
In her evidence the mother also complained that the father frequently left the bathroom door open. After separation, she stated that J told her that during the marriage he had often seen the father “pulling on his penis” in the shower so that she was obliged to explain to J the meaning of masturbation.
Mother’s allegation that the child J witnessed the first rape
The mother gave evidence that she took the child J to counselling in July 2009, when he was four and a half years of age. She stated this was because his kindergarten teacher showed her drawings made by the child which depicted male figures with long penises and the kindergarten teacher suggested that the drawings may indicate that J had been sexually abused. The mother produced an example of the drawings.[26] Her evidence was to the effect that after two or three sessions of counselling his counsellor, Ms L, said something which led her to conclude that J had witnessed the first rape, which she claimed occurred when the child was three and a half years of age. The mother denied having previously spoken to J about the rape.
[26] Exhibit B.
The mother said she questioned the child and J stated that he remembered that he had gone to the toilet and could hear his mother saying to his father to “get off me” but that he didn’t go to the doorway of the bedroom because he was too scared.
The mother’s evidence was that the bedside light was on and the bedroom door was open at the time of the rape. She also stated that her bedroom door was usually closed when there was consensual sex. She stated that J told her that he was too scared to go to the toilet and so he went back to bed and wet his bed. She also testified that at the time of the incident, J had been toilet trained for approximately 10 days, but that from this time, J’s bedwetting regressed and he has continued to wet his bed. The mother attributed this bedwetting to the child having witnessed this episode of rape.
The mother maintained that she overheard the child J commenting to his brother D: “I know how you were made. Mum never wanted to have you. I saw how Dad pushed you into her.”
The child J’s sexual abuse allegations
The mother deposed that J told her on Easter Sunday in April 2010 that the father had “touched him” while he was in the shower, that his father had touched his penis with his bare hand and made it “hard” and that it felt like a “fizzy lollipop going off” in his penis. She stated that she asked him how many times this had happened and J held up 10 fingers and said 10 times and she understood this to mean “lots”. She also deposed that J told her that “dad stuck his finger up my bum”.
The mother made a number of concessions about the events leading up to and the context of the conversation when J told her about his father touching him in the shower. She conceded the following:
· Immediately before J told her, she had been reading to him from a Christian publication for children, which explained in simple terms about boys moving to adulthood and the effects of puberty.[27] The child was five at the time. She denied talking about sex with J but said that she paraphrased the references to puberty and told him not to be scared about growing up. She stated that J had wanted to talk about the pains he had in his arms and legs.
· The mother also agreed that she had concerns about J before Easter Sunday 2010 because J’s counsellor was concerned that the child had been inappropriately touched by someone. However, the counsellor’s notes record that on 14 September 2009 “[J] had stated that no one has ever touched him inappropriately”.[28]
· She conceded that the child was aware of the pending court proceedings and was present when she visited her lawyer to discuss the case. She also conceded that she had been asking J how he would feel in respect of the possibilities about the court case which involved arrangements with his father.
· She conceded that when the child had first mentioned his father touching his penis in the shower she thought it was innocent, but decided to question him further about it the following night when he had a nightmare about his father taking him away.
[27] Exhibit C.
[28] The father’s affidavit sworn 6 September 2013 at Annexure MVH-33.
The child J’s allegations made to the mother against the paternal uncle Mr X H
The mother also deposed that J told her that the paternal uncle X, had touched J on the bottom. She also stated that she did not ask J about the paternal uncle touching him because she “didn’t want to hear it” and “didn’t know whether to believe it…I assumed these things happened in the shower”.
In cross-examination, the mother referred to an occasion during her pregnancy with the child D where she remembered the father’s brothers being in the bathroom when J was being showered by his father. The mother gave evidence that she heard voices and laughter from the bathroom and that she told them to get out. She stated that the child was visibly distressed, “his eyes were bulging”, and that afterwards he was sobbing.
The child J’s interview with police (VARE)
The child J’s interview with the police was video recorded on 9 April 2010.[29] In response to questions during that interview, the child stated that his father touched his bottom and his penis. The context of J’s allegations of his father touching his penis and his bottom were not clear. The child claimed his father punched him into a wall when he “weed on the carpet”. When this occurred was unclear but the child ultimately said it was when he was about two years of age and that it was at Town WW.
[29] Exhibit ICL1 – Visual and Audio Recorded Evidence (VARE) of the child J’s interview dated 9 April 2010.
The child stated that:
…he touched my bottom and my penis. I don’t remember anything else. It was hard and tingly and then uncle [X] did that and they played tiggy in the bath.
He mentioned two uncles and said they “didn’t touch my penis or my bottom” and they were helping him to wash himself.
He later said that his father touched his bottom and penis again and just touched the inside of his bottom. The child also said that his parents were in the bathroom watching him. He said that his penis was hard and tingly like a fizzy lolly. He stated that his father punched him when the child D was little in Suburb M too.
He also stated that his father punched him in the nose and it was bleeding in Suburb M. Towards the end of the interview, he agreed that his father touched him on the penis and bottom and Uncle X did it too. He then stated that “Uncle [A H], Uncle [X H] and Uncle [I H] and my Dad were doing it as well” in reference to touching him in the shower. During the interview, he explained that they opened the shower door and touched him.
The child was also asked where his mother was and he said that she was watching her favourite show and he told his mother that they were saying “silly billy and poopy head” in Town WW. This was confusing because the question previously referred to the child telling his mother that the father had touched his penis and bottom and the mother rang the police.
During the interview the child can be seen at times hitting himself in the head.
The father was interviewed by police but no charges were laid.
The child J’s statements after his police interview
The mother deposed that the child J made further disclosures to her after he was interviewed by police. She deposed that in March 2011 the child told her that the father had pulled down his nappy pants and started touching his penis and then licked his penis. The child told her that this occurred when the father was putting him to bed one night prior to separation. In a type of reconstruction of events, the mother deposed that from the child’s account she recalled that she was bedridden at this time, just prior to the child D’s birth. She believed the incident occurred on the same evening when the father had been playing a violent video game and she had yelled out to him to turn it down. She deposed that she did not know that the child was awake at the time.
The mother deposed that she took the child for counselling with Ms DD at … CASA in March 2011. The mother deposed that Ms DD expressed concern if the children were to be left unsupervised with the father.
The mother deposed that after separation the child J told her that he feared being left alone with his father and, after the supervised visits at B Contact Centre began in 2010, the child continued to tell her that he was frightened of his father and did not want to visit him. The mother continued to take him to B Contact Centre until September 2012 when he told the staff that he was frightened that his father would come to his house and kidnap him and he refused to stay at the contact centre.
The mother deposed that in January 2012 the child told her that during the marriage, he saw his father “on his knees pulling his penis backwards and forwards with one hand, with his finger of the other hand being stuck up his bum”. The child told her that he was in the room with the father when this happened and the mother was not in the room.
She also deposed that the child told her that after a supervised visit at B Contact Centre that his father had “swiped his penis with his hand” when he had taken him to the toilet. The father denied this and maintained that whenever the child was taken to the toilet the supervisor was visible. He stated that at the child’s request “one time I helped him wipe his bottom”.
The mother deposed that she filed a notice of child abuse on 5 July 2012 about the child J’s further disclosure and that DHS expressed concern about the children being left unsupervised with the father.
The mother also gave evidence that, after the child had been interviewed by Mr P on 6 March 2013, “[J] was upset because he told the family consultant that he didn’t want to see his father but he made him.” She stated that the child was traumatised by the interview, sucking his thumb and was very quiet and dejected during the trip home in the car. When she asked him what happened, he kept saying “I hate my dad”.
The mother deposed that the following morning after that interview she had found the child curled up in a foetal position and rocking to and fro crying, saying that he was scared of his father.[30] In cross-examination she provided further detail of the child’s reaction, which included refusing to go to school, staying at her workplace and then being taken to the doctor after work because he was sobbing uncontrollably in the car on the way home. She stated that, whilst being seen by the doctor, the child was mumbling and saying that he hated his dad and that the doctor advised her to take him to hospital. She stated that at the hospital the child saw a social worker and told her that he was afraid of being kidnapped by his father.
[30] The mother’s affidavit sworn 28 January 2014 at [71].
The mother conceded that at the time she was very stressed and upset about the child but also because of her responsibilities at work. She conceded that she did not think of reassuring the child that he would not be kidnapped by his father because she did not want to put herself in a “legal bind”.
The mother’s evidence was that three to four weeks after this hospital visit, at about 5.00 pm, she was on the telephone in her bedroom to her solicitor with the door locked and her mother told her that the child had held a knife to his ribs and said that he wanted to kill himself. The maternal grandmother deposed to this incident.
The mother was ultimately referred to Ms Q at DHS who then spoke to the father. Ms Q told the mother that the father had consented to her taking the child to a counsellor notwithstanding that there had been court orders specifying that the child should not be taken to any other counsellors.
The mother then took the child for confidential counselling at W Counselling Service, having informed the Independent Children’s Lawyer. The mother had a one hour session with the counsellor and conceded that she told her about some of the father’s shortcomings as a parent.
The mother deposed that the child said that he “wanted to kill himself” in May 2013 and she took him to the Hospital Emergency Department where he was treated and referred to Early Learning Mental Health Service. She deposed that because of a waiting list, the child was ultimately referred to the XX Centre Against Sexual Assault.
The mother deposed that in July 2013 the child J slipped a note under her bedroom door at night which described a wish list. She stated that the note read:
I wish I was dead. I wish I was never born. And I want it to all end. I wish I was sucked up by a tornado. I wouldn’t have to put up with Dad trying to take me. Dad told me that before we left [Suburb M]. He made me promise that I would not leave him.
She deposed that the child has maintained a real fear of his father and continued to tell her that he was fearful of being taken by him.
In cross-examination the mother explained that the child J is now having counselling for his anger issues.
The mother in cross-examination stated that when she discovered through the Child Support Agency that the father had a child from his new relationship, she told the child J about his half-sister. She stated that J was stunned and later said to her that he was scared for his sister because “if Dad has done what he has done to me, what will he do to a sister” and that she was amazed that he was still thinking about this. She stated that in response she confirmed that she had listened to the child and said: “these things happen”.
I accept the evidence of the mother about J’s behaviour after he saw Mr P and the evidence of the mother about the child’s distress when he wrote the notes and made threats with the knife.
I do not accept, however, that the only explanation for the behaviour is that the father has sexually abused the child J. The behaviour is also consistent with the child feeling conflicted, powerless and anxious about the parental disharmony and the imminent court hearing. It would not have escaped the child’s attention that the interview with the family consultant was related to the court hearing and if it did, I have no doubt that the maternal grandparents and mother would have made it known to the child.
In cross-examination the mother confirmed that the child J is doing well at his new school and his confidence levels have increased dramatically. He is interested in hockey and football and spends time reading and on the computer.
The child D
I accept the evidence of the mother in her observations of the child D in the following terms.
D was diagnosed with autism by Dr N in February 2013. He has speech pathology for speech delay. D spontaneously screams, punches and kicks out. He frequently has a tantrum when he is required to go to the contact centre. D is having trouble with his language, counting, and reading and frequently has tantrums where he yells out but cannot tell the mother what is wrong. Recently, D has become more physical, hitting and punching other children and his brother for no apparent reason.
She intends to continue her role as D’s carer when he starts school. D is settled and progressing well at kindergarten where he has a teacher's aide to assist him.
The child D has improved very slowly over the last six months and can articulate about 30 clear words. D has occupational therapy for nerve system sensitivity. He is aware of numbers, games and logic but gets very frustrated and very angry. D frequently has meltdowns and temper tantrums to the point where he will not look at the mother and it is difficult to reason with him.
I accept the evidence of the mother that visits to B Contact Centre were cancelled on two occasions in January 2014.
The mother stated that the child D first refused to see his father on 5 January 2014. She stated that D refused to get dressed and to get ready to go to church after he was reminded that they had to leave the meeting early because he was due to see his father at B Contact Centre. Her evidence was that D screamed and went under his bed and refused to come out. She testified that D came out briefly to pat the dog but then went back under the bed when she attempted to go back into the room. She stated that the child did not eat for about four hours and would not respond to her. She testified that she had never seen him so distressed before and he was quiet and completely shut down. He eventually came out and sat watching his brother playing a game on the computer. He seemed more relaxed but was very quiet and not talking.
The mother’s evidence was that on 14 January 2014 D punched her and shut down for about one and a half hours when she asked him if he was going to be happy to see Dad tomorrow.
The child D refused to see his father at the contact centre on at least two other occasions in February 2014.
The mother argued that the reports from B Contact Centre noted that the father had “stuck his hand down [D’s] nappy” four times allegedly to check whether it needed changing and that this was inappropriate. The mother deposed that according to the subpoenaed material from DHS, a case worker spoke with a worker at B Contact Centre suggesting that a carer only needed to feel the nappy from the outside to know whether it needed changing. The father accepted that he was inexperienced in changing nappies and on the evidence of the mother it would appear that this issue was addressed through DHS and B Contact Centre. I do not place any significant weight on this issue having regard to the father’s limited opportunity for spending time with the child D.
Episode of violence by maternal grandfather against the mother witnessed by the children
The mother in cross-examination conceded that the children were exposed to an act of family violence perpetrated by her father upon herself in May 2013 at a time when the mother and children were living with the maternal grandparents.
The mother stated that the maternal grandfather punched her with a fist to her left cheek. She stated that this had never occurred previously. The punch was witnessed by the children and caused a bruise to her face. The mother immediately moved with the children and stayed with a friend for two weeks.
The mother reported the incident to DHS where it was recorded that the mother witnessed the maternal grandfather losing his temper and having the child against the wall with his hands around his neck. The mother stated that this was incorrect and could not say how this aspect of the report came to be recorded. She complained of the report being inaccurate. She testified that her father was very stressed at the time and she had been arguing with her mother about the court case. She said that her father had hit her because she had asked her mother to stop talking about the case and to leave her alone.
The mother no longer resides with the maternal grandparents, although the children regularly spend time with them. The mother emphasised in her evidence that her father apologised and was remorseful. The mother stated that her father’s conduct was never repeated and she had no concerns about a recurrence because she and the children now had space where they were living.
The maternal grandparents
Both the maternal grandmother and the maternal grandfather were cross-examined during the trial and presented as a united force against the father.
The maternal grandfather
The maternal grandfather deposed that since separation, his observations of the child J were that he engaged in unusual sexualised behaviour, repeatedly exposing his penis, pulling his pants down at school, swimming pools and a religious meeting in front of young children displaying his anus.
He observed that J continued bedwetting daily, experienced frequent nightmares, fits of anger and aggression towards his brother and hit himself in the head on many occasions calling himself “stupid” or “bad”. He stated that the child was afraid at night of being alone without his mother, worrying that his father would come through the window to take him away.
Costs
Mother’s application for costs of Mr P’s report
There is an application by the mother for the father to pay half of the costs of the preparation of the family report by Mr P which amounts to $4,950. These costs were reserved by Senior Registrar FitzGibbon on 28 November 2012.
The parties agreed to share equally the cost of Mr P’s attendance at court for the trial.
The father relied heavily upon the evidence of Mr P in the trial but argued that it was the mother who insisted on pursuing a further family report despite the fact that a report from Dr E had already been undertaken and another family consultant, Mr T, had previously compiled a family report in August 2010.
The father maintained that the additional assessment was superfluous and an unnecessary expense. He also referred to the report of Ms R but this had been ordered by the Children’s Court after an order had been made by Senior Registrar Fitzgibbon for a further family report. The report of Ms R was undertaken at the request of DHS and was used for both the children’s court proceedings and this trial. That report was not anticipated when the mother sought the report from Mr P.
Both parties have had difficulties in funding to the point where neither party could afford legal representation. The father was in arrears for his child support payments and finds it financially convenient to reside with the paternal grandmother. The mother is dependent upon government benefits and child support. She is also in a difficult financial position.
The general rule is that each party should bear his or her own costs of proceedings under the Act. However, pursuant to s 117(2) of the Act, if the Court is of the opinion that there are circumstances that justify it in doing so, the Court may make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the Court considers just.
Section 117(2A) of the Act mandates the factors to which the Court should have regard in considering what order (if any) should be made. The factors are:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
In considering whether there are circumstances which justify an order for costs being made, the weight to be attached to any of the considerations in s 117(2A) is wholly discretionary.
Section 117(2A) must be read having regard to the primary position in s 117(1) that each party to proceedings under the Act ‘shall bear his or her own costs’.
I see no reason to depart from the general principle of s 117 of the Act that each party should bear their own costs. I have taken into account the factors under
s 117(2A), but see no reason why the parties should not share equally in the costs of the preparation for the report of the family consultant. Accordingly I make an order that the father pay costs to the mother in the amount of $2,475.
Father’s application for costs of the proceedings
The father also made an application for costs under s 117(2A)(d) on the basis that the proceedings were necessitated by the failure of the mother to comply with previous orders of the court.
I note that the father’s previous applications for contraventions were dismissed in the Federal Circuit Court on 2 April 2012 and his application for variation was transferred to this court. Procedural orders were then made by Cronin J making the mother the applicant.
I am not satisfied that the mother has failed to comply with previous orders and in all the circumstances, particularly in the light of the father’s concession that the rule in Rice and Asplund was not applicable, it is not appropriate that any order for costs be made. The father’s application for costs is refused.
I certify that the preceding five hundred and twenty-two (522) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thornton delivered on 21 August 2014.
Associate:
Date: 21 August 2014
ANNEXURE A
Documents relied upon by the mother:
·amended initiating application sworn 28 January 2014;
·affidavit of Ms R sworn 27 February 2014;
·affidavit of the mother sworn 28 January 2014;
·affidavit of Ms XX sworn 28 January 2014;
·affidavit of Mr XX sworn 28 January 2014;
·affidavit of Mr P sworn 26 September 2013;
·affidavit of Ms V sworn 18 September 2013;
·affidavit of Ms DD sworn 20 November 2012; and
·subpoenaed notes of Detective S.
·two letters from Dr N, Consultant Paediatrician dated 10 December 2013 and 21 March 2014 (Exhibit G)
Documents relied upon by the father:
·affidavit of Ms R sworn 27 February 2014;
·affidavit of the father affirmed 10 February 2014;
·affidavit of the father affirmed 6 September 2013;
·affidavit of Ms V sworn 18 September 2013;
·affidavit of Ms K sworn 6 September 2013;
·affidavit of Mr P sworn 26 September 2013;
·reports of Dr E dated 3 December 2010 and 24 February 2011; and
·family report of Mr T dated 4 August 2010.
Documents relied upon by the Independent Children’s Lawyer:
·affidavit of Ms R sworn 27 February 2014; and
·affidavit of Mr P sworn 26 September 2013.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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