Stevens and Stevens

FAMILY COURT OF AUSTRALIA

STEVENS & STEVENS

[2014] FamCA 192

FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply – Where it is the children’s bests interests that the parents have equal shared parental responsibility – With whom the children live –Where the children have a primary attachment to their mother – With whom the children spend time – Risk – Where the children have made disclosures of sexual abuse – Where the father has been spending supervised time with the children – Where there is a finding of no unacceptable risk should the children spend unsupervised time with the father – International travel – Where the mother seeks to travel internationally with the children – Where it is determined that it is not in the children’s best interests that they have a prolonged time away from spending time with the father prior to December 2015.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 64B, 65AA, 65D, 65DAA 65DAB, 65DAC.

Cox & Pedrana [2013] FamCAFC 48.
M v M (1988) 166 CLR 69.
MMR v GR (2010) 240 CLR 461.

Vigano & Desmond [2012] FamCAFC 79.

APPLICANT:

Mr Stevens

RESPONDENT:

Ms Stevens

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

FILE NUMBER:

BRC

11273

2011

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

24 - 26 February 2014; 7 March 2014

REPRESENTATION

FOR THE APPLICANT:

Mr Stevens in person

COUNSEL FOR THE RESPONDENT:

Mr Todman

SOLICITOR FOR THE RESPONDENT:

James & Co Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Queensland

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous Orders and Parenting Plans are discharged.
The Father and the Mother have equal shared parental responsibility for the major long term issues of the children, R born … 2007 and N born … 2009 (“the children”) including in respect of:
(a)     the children’s education (both current and future);
(b)     the children’s religious and cultural upbringing;
(c)     the children’s health;
(d)     the children’s names;
(e)changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with or live with either parent.
The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility and make a genuine effort to come to a joint decision.
Each party has responsibility for daily decisions about the day to day care, welfare and development of the children while in his or her care.
The children live with the mother.
The children spend time with the Father at all times as may be agreed by the parties in writing but, failing agreement as follows:
(a)commencing Saturday, 29 March 2014:
(i)from 9.00 am to 3.00 pm on Sunday 29 March 2014, 12 April 2014, 26 April 2014, 3 May 2014, 17 May 2014 and 24 May 2014;
(b)commencing Saturday, 31 May 2014:
(i)from 9.00 am to 3.00 pm on Saturday 31 May 2014, Sunday 1 June 2014, Saturday 14 June 2014, Sunday 15 June 2014, Saturday 28 June 2014, Sunday 29 June 2014, Saturday 12 July 2014 and Sunday 13 July 2014;
(c)commencing Saturday, 26 July 2014:
(i)from 9.00 am Saturday 26 July 2014 to 3.00 pm Sunday 27 July 2014 with such time to be spent in the Town B/Town C District; and
(ii)from 9.00 am Saturday 9 August 2014 to 3.00 pm Sunday 10 August 2014, 9.00 am Saturday 23 August 2014 until 3.00 pm Sunday 24 August 2014, with this time to be spent in the Town B/Town C District;
(d)commencing Saturday, 6 September 2014:
(i)from 9.00 am Saturday 6 September 2014 to 5.00 pm Sunday 7 September 2014;
(e)for four (4) consecutive nights during the period from after school on 19 September 2014 to 6 October 2014 (the Queensland Gazetted September/October School holiday period) with such dates to be nominated by the Father via text communication to the Mother no less than 28 days before the time commences;
(f)commencing Saturday, 4 October 2014:
(i)each alternate weekend from 9.00 am Saturday 4 October 2014 until 5.00 pm Sunday 5 October 2014;
(g)from 9.00 am Saturday 13 December 2014 to 9.00 am Saturday 20 December 2014, (being the first week of the Queensland Gazetted Summer School holiday period);
(h)from 9.00 am Saturday 10 January 2015 to 9.00 am Saturday 17 January 2015 (being the fifth week of the Queensland Gazetted Summer School holiday period);
(i)commencing Friday, 30 January 2015:
(i)from 5.00 pm Friday until 5.00 pm Sunday each alternate weekend;
(j)from the Easter school holidays in 2015:
(i)for the first week of the Easter, Winter and September/October Queensland Gazetted holiday period in odd numbered years, and for the second week of the Easter, Winter and September/October Queensland Gazetted holiday period in even numbered years;
(ii)for the first half of the December 2015/January 2016 summer Queensland gazetted holiday period and each alternate year thereafter and for the second half of the December 2016/January 2017 gazetted school holiday period and each alternate year thereafter.
Until 5 September 2014, changeovers shall occur at the D Contact Centre in Town C and:
(a)each parent shall be responsible for one half of the cost of supervised changeover at the Contact Centre;
(b)each parent shall deliver the children to and collect the children from the Contact Centre and promptly leave the building and the vicinity;
(c)in the event the Contact Centre offers supervised changeovers only at times which are earlier or later or less regular than specified in this Order, then time will be spent at the times and with the changeover times offered by the Contact Centre;
(d)the time provided for in these Orders may be varied by reason of the closure of the Contact Centre services during school and public holiday periods and, if this occurs, time will be spent and changeovers will occur at times when the services can be provided by the Contact Centre.
From 6 September 2014, changeovers shall occur in Town A at a public place nominated by the mother in writing.
The weekend time the children spend with the father shall be suspended during each school holiday period and shall resume:
(a)on the first weekend of school term if the children have spent time with the father in the first half of the holiday period; or
(b)on the second weekend of school term if the children have spent time with the father in the second half of the holiday period.
Each party shall:
(a)contact the D Contact Centre, Town C within seven (7) days of the making of this order;
(b)arrange an appointment for assessment for suitability for supervised changeovers;
(c) attend any assessment required by the Centre;
(d)comply with any appointments made by the Contact Centre for supervised changeovers;
(e) comply with all reasonable rules of the Contact Centre; and
(f)comply with all reasonable requests or directions of the staff of the Contact Centre.
The parent with whom the children are living or spending time shall ensure that the children telephone the other parent each Tuesday and Thursday between 6.30pm and 7.30pm.
The children are at liberty to call either parent at all reasonable times and the parent whom they are with shall assist the children to make any calls they request.
Neither parent denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children and failing their compliance with such a direction shall remove the children from that environment immediately.
Neither parent shall discuss these proceedings or the allegations made therein with the children.
During the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children; and
(d)use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Each party keep the other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this Order shall serve as such authority.
Each party inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
Each party keep the other informed of any daycare, school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase school photographs and this Order shall serve as such authority.
If there is a cost associated with the provision of any information or documents under these Orders from the children’s doctors, health care and other treatment providers or daycare, school, educational facility or extracurricular activity provider the expense shall be borne by the parent requesting the information.
Each parent keep the other parent informed at all times of their residential address and contact telephone number and notify the other parent at least seven (7) days prior to relocating their residence beyond a 20 kilometre radius from where they currently reside.
Neither party shall attend at the other party’s residence unless that party gives prior permission in writing.
Subject to the conditions imposed by the children’s schools, these Orders authorise both parents to attend school functions to which parents are ordinarily invited including but not limited to carnivals, sports days, fetes, concerts, plays and parent/teacher interview.
The parties shall keep one another informed of matters such as schooling, extra curricula activities, medical issues and any other issues that may arise with respect to the children via a Communication Book that travels with the children.
The child R not be taken to further counselling with the E Sexual Assault Service.
Each of Mr Stevens born … 1966 and Ms Stevens born … 1972 and their servants and agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of R, a male born … 2007 and N, a male born … 2009 from the Commonwealth of Australia before 31 December 2015.
R and N be and are hereby restrained from leaving the Commonwealth of Australia before 31 December 2015.
It is requested that the Australian Federal Police give effect to the preceding Order by placing the names of the said children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watch List until 31 December 2015.
Upon expiration of the period referred to in Clause 25 and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the children’s names from the Watch List.
The Independent Children’s Lawyer is discharged.

IT IS FURTHER ORDERED THAT

All outstanding applications are otherwise dismissed and removed from the list of cases requiring finalisation.
After the expiration of the appeal period, all subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

NOTATION

A.If after the expiration of the period set out in Clause 25 above any parent seeks that the children’s names remain on the Watch List for a period beyond the period specified that party must file and serve an application and an affidavit setting out the evidence which supports that application in the Family Court of Australia or the Federal Circuit Court of Australia.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stevens & Stevens 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 BRISBANE

FILE NUMBER: BRC 11273 of 2011

Mr Stevens

Applicant

And

Ms Stevens

Respondent

REASONS FOR JUDGMENT

These proceedings concern R, born in 2007 (about 6½ years of age) and N, born in 2009 (about 4½ years of age) (the children).
Their parents met online in about April 2004. At that time the father was living in Australia and the mother, a Peruvian national, was living in the United States of America. The parties met in person in the United States in about May 2004 and, after travelling together, announced their engagement in June 2004. By August 2004, the mother had travelled to Australia. The parties married here in August 2004.
The parties first separated in about September 2011 after the mother contacted the police to allege that the father had been physically abusive toward her and R. On 13 October 2011, a Domestic Violence Protection Order was made, on a “without admission” basis, in the Magistrates Court.
The parties reconciled in late October 2011 and the mother and children returned to live with the father in the former matrimonial home at Suburb F. The mother said that she did so on the basis that the father do parenting courses and learn how to manage his anger, his short-tempered behaviour and his aggression, violence and verbal abuse toward her and the children.
In December 2011 the mother’s sister, Ms G, travelled to Australia to spend time with the family. She clearly did not then, and does not now, think much, in a positive sense, of the father as a person. As a consequence of interactions between them – which she outlines in her affidavit material – she considered then (and now) that he was rude, domineering and controlling of the mother and the children.
After a discussion with R, Ms G told the mother that he had told her about “bad secrets”. After speaking with R and reflecting upon other events and behaviours by the father – discussed below in more detail – the mother concluded that R had been sexually abused by him.
The father has strenuously and consistently denied he sexually abused R or N.
The mother and Ms G removed the children from the former matrimonial home on 12 December 2011. They attended at the Suburb H Police Station that day and, following a police referral, R was subsequently seen at the J Hospital (the Hospital).
Thereafter, with the assistance of a domestic violence service, the mother and children moved, in mid-December 2011, to Town B where accommodation was available for them. They have remained living in Town B since this time.
The children did not spend any time with the father from December 2011 until October 2012 when, for the purpose of the preparation of the first Family Report[1], they were observed with him by Mr I, a psychologist.
[1] Affidavit of Mr I filed 17 December 2012, Annexure “C” – Report dated 12 December 2012.
As a consequence of the terms of an Order made by consent on 18 February 2013, the children started spending supervised time with the father at the Town C Contact Centre (the Contact Centre) for up to 3 hours per fortnight in March 2013. They speak with him by telephone two evenings per week. This regime persists today and the mother acknowledges that the children enjoy their time with the father.
The face to face interaction between the children and the father has necessitated both parties travelling from their residences to the Contact Centre at Town C each fortnight: the father, from his home at Suburb F in Logan City (which takes about three and half hours) and the mother, from her home in Town B on the Central Coast (which takes about twenty five minutes).

Principles

In these proceedings, being proceedings for a parenting order (section 64B of the Family Law Act 1975 (Cth) (the Act)) in relation to the children, I may, subject to s 61DA (presumption of equal shared parental responsibility) and s 65DAB (parenting plans) and Division 6 of Part VII of the Act, make such parenting order as I think proper: s 65D of the Act. I must have regard to the Objects of Part VII of the Act and the principles which underpin those Objects: s 60B of the Act. In deciding whether to make a parenting order, I must regard the children’s best interests as the paramount consideration: s 60CA and s 65AA of the Act.

The proposals

Each parent seeks an order which would see the children live primarily with that person. Each also seeks an order conferring sole parental responsibility for the major long term issues in relation to the children.
Both parties now seek that, in the event that the children are living primarily with that party, the children spend time with the other parent in the manner particularised in Exhibit “A” – that is, for increasing periods of time on an unsupervised basis, culminating in alternate weekend time.
Both parties also agree that the children should spend holiday time with the parent with whom they are not primarily living:
a)for four consecutive nights in the September 2014 school holiday period; and
b)for one week in December 2014 and one week in January 2015 (during the summer school holiday period); and, thereafter,
c)for half of all school holiday periods.
The father seeks, by way of alternative, that, in the event the children remain living primarily with the mother, they do so in Brisbane so their time with him does not require significant travel.
The mother does not agree that a change in the children’s residence from Town B to Brisbane is in their best interests because:
a)she feels safe there;
b)the children are well settled in school and day care there;
c)she and the children have the benefit of an established support network there;
d)it is more expensive to live in Brisbane;
e)the costs of relocation would be relatively significant;
f)there is really no “need” to relocate the children to Brisbane as the children’s relationship with the father can be maintained and develop in a meaningful way notwithstanding the distance between the households and the cost of facilitating alternate weekend and holiday time with him.
The mother’s acceptance that the children should spend time with the father in the manner outlined in Exhibit “A” was conveyed for the first time when the trial commenced on 24 February 2014.
This represents a very significant change of position. The mother’s previous attitude has been:
a)that the father have “no contact” with the children;[2] and then
b)that the children spend only supervised time with the father.[3]
[2] Response to Initiating Application filed 9 July 2012; Case Information filed 12 June 2013.
[3] As expressed during the second Family Report interview in July 2013.
The mother’s previous positions were based on her assertion that the father posed an unacceptable risk to the children because he had sexually abused R, physically abused both children, and perpetrated domestic violence against her.[4]
[4]Affidavit of the mother filed 11 June 2013; Notice of Child Abuse or Family Violence filed 14 August 2012.

The mother’s case at trial

Counsel for the mother informed the Court that she accepted that the evidence did not support a conclusion that there was an unacceptable risk that the children would suffer sexual or physical abuse if they spend unsupervised time with the father.

The mother has not in any way changed her belief that the father sexually abused R. She believes that “something has happened there with touching and kissing”: by this, she means touching and kissing of R’s ‘private parts’. N has never made any disclosures about any inappropriate touching.
She maintained a position that the absence of medical or physical proof that the father had sexually abused R did not ‘put aside’ the ‘grooming’ (a term she learned during her contact with the E Sexual Assault Service) she believes the father had done with and to the children.
By ‘grooming’ she meant that the father had toys in his office with which the children could only play if they had done ‘jobs’ for the father first. She also considered the father was ‘grooming’ when he played video games with R but wouldn’t let him win. Without further evidence, I am not persuaded that this behaviour is anything other than unremarkable parental interaction.
When challenged why, given her belief, she sought the orders she did, the mother said she had been advised by her lawyers the evidence regarding the allegations was not ‘sufficient’ to support her earlier proposal that the children’s time with the father continue to be supervised.
The mother said: “I personally – I wouldn’t. I still feel very uncomfortable to give [the father] unsupervised contact.” When challenged further that the effect of an order in the terms she sought would be that she, personally, would have to provide the children for unsupervised time with the father, the mother said she would deal with this as she had when the children first began supervised time with the father: that is, whilst she was initially reluctant, both she and the children had coped. I accept the mother’s evidence that she can cope with the children having unsupervised time with the father in the future.
The mother denied she supported the children having unsupervised time with the father because she was worried they may not live primarily with her after the trial if she did not do so.
She explained her support for the children having unsupervised time with the father by saying:
a)she hoped, as occurred with supervised time, the children will cope with unsupervised time with the father;
b)as the children are older now, have attended counselling with the E Sexual Assault Service (the Sexual Assault Service) and know the correct anatomical names for ‘those areas,’ they will speak up if anything like what she believes has happened ever happens again: this gives her a little peace of mind that the children will be safe and fine;
c)graduated increasing time with the father will give the children an opportunity to speak up about anything untoward; and
d)the future risk of harm was minimised because ‘everyone’ is aware of ‘what happened’.
It may be tempting, in these circumstances, to treat the evidence about R’s disclosures in a broad-brush manner: after all, the children’s primary care provider has, to all intents and purposes, accepted that it is in their best interests that they spend increasing periods of unsupervised time with the father.
However, to do so would fail properly to consider the father’s case.

The father’s case

The father submits that the children should live primarily with him because, without such a change to their primary care arrangements, they will remain living primarily with the parent who “coached” R to make false disclosures of sexual abuse.
A secondary part of the father’s case is that given:
a)the mother’s actions in removing the children and preventing them from spending time with him after separation; and
b)the allegation that he has sexually abused R; and
c)the mother’s continued belief about this;
further allegations of inappropriate behaviour may well emerge if the children continue to live primarily with her and spend unsupervised time with him.

The allegations of sexual abuse

The resolution of an allegation of sexual abuse is “subservient and ancillary” to this Court’s determination of that parenting order which is in the children’s best interests.[5] However, a consideration of such allegations is clearly necessary when the prescribed statutory framework imposes an imperative of protecting children from harm.[6]
[5] M v M (1988) 166 CLR 69.
[6] Section 60CC(2)(b)
In a manner consistent with authority, Counsel for both the Independent Children’s Lawyer and the mother submitted that the Court is not compelled to make a determination about whether the father sexually abused R or not. Both Counsel submitted that the Court would, however, conclude that there is no unacceptable risk to the children if they spend unsupervised time with the father.
The father would prefer that the Court reach a firm conclusion in relation to the allegations that he sexually abused R. However, he also understood that this may not occur and that the Court’s determination may be limited to a consideration of whether or not there is an unacceptable risk to the children of sexual and/or abuse if their time with him is unsupervised.
In assessing the allegation that R has been sexually abused by the father it is vital that close attention is directed to the manner and circumstances in which R’s statements were made.

How did the first “disclosure” come about and what did it entail?

Ms G was home with the father and the children on 11 December 2011. The mother was absent. An issue arose at lunch. The father put R into his room. R, who was then 4 years old, became upset. The father told Ms G not to say anything to her sister about how he had handled this event. The father also told R not to say anything to his mother because this was one of ‘their secrets’: his comment must be seen in the context of the parties’ earlier separation after a significant disagreement about the manner in which the father disciplined the children.
Ms G’s interest was sparked by the father’s request that R keep a secret from his mother. She had already seen R in the lounge-room with the father either early that morning or the morning before in what she thought – but I do not consider – were suspicious circumstances. She asked R whether he had secrets with the father. He told her that he had ‘bad secrets’. This was the extent of the detail she provided in her affidavit.
However, during her cross-examination, Ms G recounted that she then asked R what he meant by ‘bad secrets’. He said: “In the dark, in the beach, in the office, in the [KKs]”. Ms G did not know at that time that ‘KKs’ was the word the father had taught R to use when referring to his genitals.
Despite this, she determined that what R had told her was ‘enough’ to establish that ‘something’ inappropriate involving the father and R had happened. She did not ask R any further questions about this issue and resolved to speak with her sister about ‘KKs’ and ‘bad secrets’.
That night, after dinner, the sisters spoke.
The mother was upset when Ms G told her how the father had handled the lunch event. Ms G told her R had spoken about ‘secrets’ – she asked the mother whether she had noticed anything strange about the father’s behaviour in the last year because R had spoken about ‘bad secrets’. She asked what ‘KKs’ meant and the mother told her. The mother also told her about an occasion where she found a gel-like substance in N’s nappy and that the word ‘pedo’ had been painted onto their front fence. The mother did not know what this word meant until Ms G told her it was ‘not good’ and meant a person who is ‘a danger to children’.
Ms G then told the mother she thought the father was a paedophile as it was not “normal” to keep secrets with a child.
The mother said that, when she asked her sister to tell her what secrets R had spoken about, Ms G told her that he was talking about “kisses – kisses in the ‘[KKs]’, kisses down there, touching down there.” Ms G did not recount this detail in either her affidavit or during her cross-examination.
The mother said she was shocked when Ms G told her this. She had no idea what her sister was referring to – she couldn’t believe it. Until this evening, the mother had never entertained any thoughts that the father had ever acted in a sexually abusive way toward the children. In fact, according to her, at that stage she trusted him, respected him and believed him. She had returned after their first separation to keep the family together.
Ms G kept asking the mother whether R had ever told her about these things and whether he had ever mentioned anything to do with touches or kissing. He had not.
The mother said that, at this point, she decided to talk to R about ‘it’ and ask him and “confirm” what her sister had told her.
The mother took R into N’s room. Ms G was present. Whilst the mother initially said she asked R “Is it true that – that your daddy has touched you there?”, she later recounted that, while pointing to his genital area, she asked him very specific questions based on what her sister had told her: “Has Daddy touched you in the ‘[KKs]’ or kissed you in the ‘[KKs]’ or touched you down there?”. She said that R, who had hopped up onto the bed, curled up and tried to hide his head between his legs, nodded his head and said ‘yes’ to each proposition.
Ms G explained that, during this conversation with R, the mother asked him if it was true and whether he had told Ms G what she (his aunt) said he had - he replied ‘ yes’. I think, at four years of age, his response to such questioning was highly unlikely to be anything else.
The mother also said that R did not use the words “secret places” – rather, he talked about bad secrets and KKs. She asked him whether the ‘bad secret’ was about touching and kissing and ‘what places?’. When he replied: “in the office, in the park, in the beach, in the [KKs]”, she interpreted this as meaning that he was talking about being touched or kissed in the genitals at those places. This interpretation is rendered doubtful given the mother’s evidence that the father so hated going to the beach that the family had only been there twice.
After the children were settled for the night, the mother and Ms G spoke again. The mother had decided to leave and take the children from the former matrimonial home.
Despite all that had happened, the mother, children and Ms G accompanied the father to Southbank the next day. She said they did this because they didn’t want to raise his suspicions or alert him to their planned departure. They were not entirely successful, it seems, as on the night of the Southbank visit, the father told the mother he wanted a Court order in place to prevent her taking the children with her (as she had done in September 2011) if she left.

On the way to the police station and what happened there?

At 5.00 am the next morning (12 December 2011) the mother and Ms G took the children to the Suburb H Police Station. The mother was crying and upset during the drive.
Whilst Ms G said there was no conversation about the issue in the car on the way to the police station, I accept the mother’s evidence that she asked R again about what had happened. Her question was framed in the following way: “[R], are you sure, baby? Are you sure your daddy has kissed you down there, he has touched you down there, are you sure, baby?”. R said ‘yes’.
The mother told the police she was concerned that ‘touching and kissing’ had happened. Whilst the mother recounted in her police statement, dated 23 December 2011, that R had told her things that made her ‘scared for his safety’, the reality is that, apart from agreeing with propositions she put to him, he had only said: “ in the office, in the park, in the beach, in the [KKs]”.

What happened at the hospital?

After attending at the police station, the mother, Ms G and the children went to the hospital. The mother accepted, during cross-examination, that when she went there, she knew the purpose of the visit was to address her concern that R had been sexually abused by the father. She said she told the staff, as specifically as she could, what she knew so they knew what to look for and what to start investigating. She gave them all the detail she had and told them all that she knew. She told the staff everything R had told her at that time.
Against this background, the mother accepted that, as the hospital notes record the information that “[R] admitted to her last night that his father has kissed him in secret places”, [7] this was all that R had told her at that time.
[7] Exhibit 1, page 3
Clearly, this differs to the account summarised above. There is no reference to ‘touching’ anywhere, nor to genitals, however described.
An examination of R revealed no redness, bruising or scratches to his genitalia. He made no disclosures of sexual abuse. In case it is thought that the absence of a complaint at this stage is of limited importance, it is important to note that R did say something about the father: namely, that he smacks him [on the bottom] when he is naughty. This suggests, to me, that he was not inhibited from telling others about behaviour by the father which he found concerning.

What happened during the time in the refuge?

The mother and children moved to the refuge on 15 December 2011. Whilst there, the mother asked R whether there was anything ‘else’ that had happened to him: whether there was anything other than touching and kissing. She had seen him put all his fingers inside his mouth and thought this strange.
The mother said R said “fingers in the bum”. She assumed, from this comment, that he was referring to the father’s fingers being inserted into his bottom - despite the fact R did not say “daddy’s fingers in his bum” or refer in any way to the father. Consistent with her assumption, the mother then asked R “Did daddy put his fingers in your bum” – he replied “Yes”.
The mother also said that, when R was touching his own genital area and she asked him to stop and tried to redirect his behaviour, he told her it was “okay” because his father did that too. She asked him whether he remembered how “that” happened and when “that” happened – he said he was in their bedroom, lying on the bed and that the father would lie down next to him and he would do “it” at the same time.
The mother accepted, during her cross examination, it was possible R’s response to her attempts to redirect his behaviour in this way was a sort of “don’t get me in trouble” response. This possibility had not occurred to her before.
The mother said during cross-examination that after they had moved into the refuge she observed R to rock, masturbate and have nightmares. She said he also put his hand on her genital area and when she attempted to redirect him he said “why not? You know daddy did”. These behaviours started to appear after the separation.
The mother said that she noticed more of the rocking behaviour – that R would lie down on his tummy and rock and rock until he fell asleep. She regarded this behaviour as further corroboration of her belief that he had been sexually abused by the father. The mother maintained this view, even after reading and hearing Mr I’s evidence that such behaviours are not uncommon for a child of R’s age. She expressed difficulty in accepting his view because of the frequency with which R was exhibiting this behaviour. She noted that he was not doing this behaviour with the same frequency now as he had been immediately after separation.
The mother discounted completely that the significant changes to the child’s life – separation from the father, a move from his home and living in a refuge – and her distress at the time could have in any way influenced the frequency in which he acted as he did. I do not discount the possibility that these very significant changes impacted upon R’s behaviour, especially having regard to Mr I’s evidence, which I accept.

What role have the authorities played?

R was interviewed by police on 23 December 2011. During this interview he informed them that: he twists his “[KK]” around his daddy’s “[KK]” and his daddy says “eee eee”. He just does it nice and soft, not hard like I twist my dad’s.
It is unsurprising given this recounting that the police decided to take no further action.
The Department of Communities, Child Safety and Disability Services (“the Department”) was also involved in investigating the allegation that R had been sexually abused by the father. They determined not to intervene.
During an interview with Departmental officers on 20 January 2012, R said: “I get scared with my dad because he does naughty things. He smacks me and I go to him when he says come here.” He said “[KK] is where wee comes out. No one touches [KK] except me and my mum. Dad does not touch my [KK].”
This is the first time R himself actually said something about who had touched his ‘KK’. It is a strong refutation of the assertion that the father touched his genitals.
R was interviewed again by Departmental officers on 25 January 2012. Whilst he spoke of being physically disciplined and being scared of his father, he did not make any disclosures of sexual abuse.

What has the mother told others?

The mother said, during cross-examination, that before she had suspicions that the father had sexually abused R, she hadn’t noticed R holding his genitals. She clearly relied on her later observations of this behaviour as an indicia of sexual abuse.
However, hospital notes record: “Mum reports that over the past year she has noticed [R] clutching at genitals, but he has not complained of anything, so was assumed to be normal for-year-old behaviour”.
Whilst I fully accept that the passage of time is likely to have impacted on the mother’s ability to recollect what she had, in fact, seen before the events of late 2011, the disparity in her reporting to the hospital and her evidence at trial provides a clear example of the manner in which her belief about what is alleged to have happened has influenced her recollection of past events.
The mother was interviewed by Departmental officers on 20 January 2012. She said she believed:
a)the father had shown R how to masturbate;
b)R knew about oral sex – because of the way the child put all of his fingers down his throat;
c)R had stuck his fingers up his bum.
She also told the Department she was convinced R had been raped - by which she meant fingers had been inserted into his anus. She said she held this view because of the “things” he had told her and because, when she asked him why he had not told her about those “things” before, he said the father would not let him talk to her about them because bad things would happen to him and the mother.
The child has not made any disclosures to anyone – other than the comments to the mother as recorded in paragraphs 62 to 65 – to support the mother’s belief that the father showed R how to masturbate, exposed him to oral sex or inserted his fingers in R’s bottom.
The mother also told the Department that R had disclosed to the doctor at the hospital about the sexual stuff. It is clear from a perusal of the records produced by that hospital that he did not make any such disclosure. Either the mother deliberately lied to the Department or, as I suspect, the accuracy of her recollection of events was so overwhelmed by her retrospective view and beliefs about the father’s alleged behaviour that it was completely lost.
The child attended at the Sexual Assault Service after a referral from a domestic violence service. Details of the referral include that he was referred after “disclosing” to staff at the domestic violence service that his father had “touched his private parts”. Save for this reference, there is no evidence before me from the domestic violence service. The mother was not present during the time of this asserted disclosure.

What happened at E Sexual Assault Service?

The Sexual Assault Service proceeds on the basis that the children to whom it provides support have, in fact, been the victims of sexual abuse. It provides therapeutic support and information about safe behaviours but does not engage in an investigative process.

An intake session/information occurred on 25 January 2012. R’s referral by the Department was on the basis that he had disclosed to police and hospital staff that the father had touched him on the private parts. This is clearly inaccurate, given what happened in the police interview on 20 January 2011 and the contents of the hospital records.
The mother said that apart from telling the child to tell the truth if the counsellor asked him any questions she said that she did not have any discussions with him about what to say to the counsellor at the Sexual Assault Service.
Ms M, from the Sexual Assault Service, had no particular independent recollection of her sessions with R. However, she accepted that if he had been upset or distressed, she would have recorded this in her notes. No particular upset or distress is recorded.
R participated in play-based therapy. Notes of his attendance reveal that:
a)at the end of a session on 8 February 2012, he said that the father would touch his “[LL]” - the mother said that the child referred to his genital area as his “[LL]” after separation – touching his penis and testes to indicate;
b)in a session on 20 February 2012, he “spoke of being touched sexually by the father” – no further detail is recorded, nor was any provided during Ms M’s evidence;
c)during a session on 12 March 2012, he said the father had hit and touched him and N;
d)during a session on 19 March 2012, he spoke about his father couple of times and said he had hit him and his brother (demonstrating by hitting the therapist on the bottom);
e)during a session on 2 April 2012, he demonstrated how his father had hit him on the bottom;
f)during a session on 16 April 2012, he expressed frustration that “some people” are asking him “the same questions over and over” which made him angry.
During the time R was engaged with the Sexual Assault Service, he did not make any further disclosures to the mother about inappropriate touching by the father. He stopped attending at the Sexual Assault Service in about April 2013.
Whilst R said, during the 8 February 2012 session, that the father would touch his ‘LL’, there is insufficient detail to determine whether any such touching was abusive. Similarly, the notes of the session on 20 February 2012 do not enable me to assess what R in fact said on that occasion – I do not know the basis upon which the author of the note decided to summarise whatever he said in the manner that they did.
R’s engagement with the Sexual Assault Service was lengthy. At no time did he make any comments about the father kissing his genitals, oral sex, or the insertion of a finger into his bottom. He said nothing to suggest that he had been exposed to or involved in such events. The Sexual Assault Service did not record any observed behaviour which may suggest that he has been exposed to such events.

The first Family Report interview: 10 October 2012

The mother told Mr I that before R’s “disclosure” to Ms G, he had not spoken to her about the alleged sexual abuse.[8] She had noticed he wasn’t eating well and wasn’t sleeping well but, whilst wondering why, had not thought about sexual things.[9] There is nothing in the evidence to support a conclusion that these behaviours were causally linked to any alleged abusive behaviours by the father rather than being a reflection of the clearly tense environment which existed in the house in the latter half of 2011
[8] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 6.
[9] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 32.
The mother told Mr I[10] in October 2012 that she had seen R:
a)masturbate with his hand;
b)take her hand and place it on his penis;
c)touch the outside of his mother’s vagina – which was a reference to him putting his hand on the outside of her clothing; and
d)simulate ‘sex’ on one occasion with N.
[10] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 9.
I accept Mr I’s advice that these reported “sexualised” behaviours are in the “normal” range for a child of R’s age. I accept that “normal” behaviours for a child of R’s age may include self-stimulation, peeking at others whilst undressed, and possibly doing some exploratory touching of another child or person.
The mother accepted that R’s rocking behaviours lessened after the father commenced spending time with the children at the Contact Centre. Whilst it is, of course, impossible to conclude definitively that there is any correlation between R’s re-engagement with the father and a decrease in the behaviours, it is of some relevance that his behaviour did not deteriorate.
It is also relevant, I think, that when R engaged with the father for the first time since separation in mid-2011, he made immediate accusations towards the father about physical abuse but did not make any allegation about sexual abuse or being touched or kissed in the genitals.

The second police interview: 8 June 2013

The mother took the child back to the police after running into one of the Departmental interviewers at her gym. This person told her that, if the child made any disclosures to her, she should take them back to the police.
The mother said there was a “new” disclosure she thought needed to be revisited by the police at that time: namely R had “reaffirmed” his father had touched him in his penis and testicles. He knew the correct anatomical terms after his involvement with the Sexual Assault Service.
This “reaffirmation” occurred in the following context: R wanted to touch N in the genital area and when the mother told him to stop, he told her it was “okay” and said “but my daddy does it [Present tense] – it’s okay”. When she asked him “to [N] too?” he said “yes to [N] too”. Given that the mother clearly introduced the concept of the father behaving inappropriately toward N, I’m not prepared to place any weight on these comments.
Despite the fact that this could not be a “new” event since the children’s time with the father had been supervised, the mother returned the children to the police. I consider that R had previously been interviewed by them about exactly the same thing – namely, an allegation the father touched his genitals.
Police interviewed both children on 8 June 2013.[11] R said that he was living in “dad’s house” when “bad stuff” happened. When asked to say more about the “bad stuff that happened” at the father’s, he said he (the father) “whacked me” when he had won a game played on the Wii. R also said if he and his brother were playing the father would “whack” him as well. He said he was whacked on his bottom with his father’s hand.
[11] Exhibit 2.
The account R provided to the police is consistent with a child of his age reporting being physically disciplined by way of smacking with an open hand on his bottom. I also accept that, from R’s perspective, he was smacked “really hard” by the father and it is likely this was the distinction which caused him to describe it as a “whack”.
After the police officer told R he (the police officer) had heard that R had told the mother he (R) had seen the father touching N, R said he “didn’t know what happened in the beginning when he touched my private places”.
When asked to tell more about the father touching “private parts”, R used the words “testicles, penis, bottom”. When asked how the father touched those areas and what he had done, R said he was “not quite sure”, that “I think he done it” but “I don’t know.”
R also said, when asked about the father “kissing” him – a matter he had not raised at that point during the interview – that “I think, but I don’t know”. In response to a question about touching his testicles or penis he said “I’m not quite sure… not quite sure but I think he kissed or tickled but I’m not sure”.
When the police asked him where he had said the father touched N, R said he (the father) touched him in “private places”. When asked whether he could remember how the father had touched N, he said he thought “tickle or kiss” but he wasn’t sure.
It is clear that R was vague and uncertain during the police interview. I am not persuaded that his comments to the police during it amount to disclosures that the father had acted inappropriately toward either child.
With prompting R said if he felt unsafe he could talk to the mother but not to the father “because he was the one who done the mean things to me and to my little brother”. This comment is equally consistent with the father’s use of physical discipline.
Since the June 2013 interview, R has not made any further disclosures to the mother.

The second engagement with the Sexual Assault Service

R re-attended at the Sexual Assault Service in 2013. He last attended on 31 May 2013. The mother arranged this after the further alleged disclosures, referred to above.
I accept Ms M’s evidence that, after his engagement with the Sexual Assault Service, R is aware of personal safety and is confident enough to speak to someone if he feels unsafe at any time.

What other matters does the mother rely on as founding her belief that the father sexually abused R?

The mother relied on a number of events which predated the asserted disclosure by R to Ms G as informing her conclusion that the father sexually abused him. She has clearly reflected upon these in hindsight and within the context of the information conveyed by her sister – she regards the following as matters which support her belief that the father sexually abused R.
Whilst saying that she thought it strange the father never wanted to use the correct anatomical terms to refer to the genital area – he taught R the word “[KK]” - the mother used the word “pee pee” to refer to the children’s genitals.
The mother gave oral evidence about an event which occurred prior to R’s birth: that when she was working as an “extra” in a movie, the father took photos of her and, when he sent them to her, they included one of a child she did not recognise. When asked why he had taken such a photo, the father told her that that child’s mother had forgotten to bring her camera and had asked the father to take pictures of him. The mother accepted that at the time she thought nothing of it but, after her “belief” and her “suspicions” she doubted the veracity of the father’s explanation. There is nothing inherently implausible in the father’s explanation to the mother on this occasion.
She also relied on the father’s reluctance to wash the children’s genital areas during bath time, that he didn’t want the children in the bath with him and that he took R into his office early in the morning when the child woke up.
I am not persuaded that any of these behaviours provide any support for a conclusion that the father sexually abused either child.

N’s nappy

The mother says that, in late November 2011, she noticed N’s nappy was saturated with a clear gel which was odourless and slippery like oil. She raised the issue with the father who denied any knowledge of the substance and asserted the child must have obtained the liquid from the bathroom – she searched the bathroom and couldn’t find any substance.[12]
[12] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 7.
The father denies the mother asked him about this and denies having knowledge about the alleged substance.[13] During cross-examination the father said that the first occasion on which he learned of this incident was when it appeared in the mother’s affidavit material.
[13] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 8.
There is no record that the mother told the J Hospital of this incident or the police when she first attended on them in December 2011. This is despite her telling Ms G about this only two nights before.
The mother said that she had never seen anything like this in the nappy of R on any occasion or of N on any occasion before or after this.
Even if this event occurred as the mother recounted, I am not persuaded it provides any support for a conclusion that the father sexually abused either child.

The graffiti

The mother told Mr I that, earlier in their relationship, the word “pedo”, (presumably short for “paedophile”), was spray-painted on their fence. The mother did not know the meaning of this word until well after this event occurred. She appeared, on reflection, to integrate this event into her broader concerns, formulated in or around December 2011, and to interpret the father’s concern about removing the word as quickly as possible as an indicia that he had acted inappropriately toward R.
The father said the spray-painting was an unconnected and random event.
There is nothing suspicious or concerning in the father’s behaviour in wanting to remove the graffiti as quickly as possible or in installing surveillance cameras after this vandalisation occurred.
There is nothing to suggest that the event was anything but a random act of vandalism.

The lounge room

Ms G says that, in the early hours of 10 December 2011, she saw an event involving the father and R which she suspects involved sexual abuse. She said, as she walked near the lounge room, she heard the father tell R to be quiet: the child responded ‘Is it ok like this, Dad?”. She said, in her affidavit, that she saw R’s head on the father’s lap. In her cross examination, she said R was lying ‘face down’.
She said what ‘caught’ her attention about the scenario was that once the father noticed she was there, everything “went dead quiet right away”.[14] I am not persuaded that there is anything particularly sinister about this.
[14] Affidavit of Ms G filed 21 November 2012 , paragraph 41.
The lounge room was dim. The light was cast by an aquarium. Ms G could only see “the shadows”.
In these circumstances, it would be extremely ‘tenuous’[15] to conclude from Ms G’s observation that night that the father was sexually abusing R.
[15] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 22.
I am strengthened in this conclusion by the knowledge that Ms G went to her sister’s room that night, woke her and told her the father had R with him on the couch in the living room. She said the mother told her they could do nothing then. It is highly improbable, if the mother genuinely thought R was at risk, that she would not have acted to protect him at this time.

Conclusions about the allegations of sexual abuse

In the circumstances as outlined above, I have no difficulty at all in concluding that the children are not at an unacceptable risk of sexual abuse in the event that they spend unsupervised time with the father.

Are the children at an unacceptable risk of physical harm from the father if they spend unsupervised time with him?

On 13 September 2011 the Department was notified that, on 7 September 2011, after R ran into the father’s car with his scooter, the father lifted him off the ground and hit him repeatedly (some ten to fifteen times) on the back of the leg.

The scooter incident

The mother was in the toilet during this incident. When she came out, she saw the father smacking R on the bottom with open hand. She walked toward the father, took R from him and called him (the father) a “psycho”. The father chased her and the child into the house. When he caught up to her, he grabbed the top of both arms.
The father denies that he physically reprimanded R because he ran into his car. He does, however, admit that he physically reprimanded him that day and that he smacked him four to eight times. He says he did so because R, then just four years of age, showed him “gross disrespect.”
When asked to outline the level of disrespect which warranted him smacking R four to eight times with an open hand on the buttocks/back of the leg, the father said R had responded negatively – with a very disrespectful and defiant tone – to a direction not to do something.
The father’s intention at the time was to ensure this was a dramatic incident for R so he remembered it and learned a lesson.
The father achieved this objective. When at the hospital on 12 December 2011, R told the nurse ‘dad smacks him’ (pointing to his buttocks) and does ‘time out’ when he is naughty. He made no other allegations of inappropriate physical discipline or behaviour by the father to the nurse that day.
However, R returned to the issue of being smacked by the father during his interaction with the Sexual Assault Service and in his interview with Mr I in October 2012.
When interviewed by the police in June 2013, R again returned to the issue of being physically disciplined by the father. He spoke at length of his father ‘whacking’ him and N as punishment.[16]
[16] Exhibit 2.
The father denied that he had made any concession to Mr I about physical discipline, as Mr I indicates in his report.[17] Rather, he said that he had told Mr I that the physical discipline he used was moderate and not excessive. The father did not cross-examine Mr I about this matter nor suggest to him that he was mistaken in his conclusion that the father had conceded using inappropriate/excessive discipline. I accept Mr I’s evidence.
[17] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 24.
Conclusion about risk of physical harm
I consider the father achieved his objective of ensuring R retained a strong memory of the physical discipline administered to him in September 2011. The child has continued to recall this event over time.
Given the father’s own evidence of his intention in administering physical discipline that day, I am not persuaded R has continued to remember being “whacked” by the father because he has been “coached”, by the mother, to do so. It is more likely than not that R retains an independent memory of the discipline – as his father intended at the time it was administered.
Whilst I accept the father’s evidence he has entered into an undertaking ‘with himself’ not to administer physical discipline in the future, I intend to order that neither parent discipline the children in a physical manner in the future. I am confident that both parties will abide this order.
I conclude that the children will not be at an unacceptable risk of physical harm from the father if they spend unsupervised time with him in the future.
Given the conclusions I have reached, I turn now to consider whether the children’s best interests are met by them continuing to receive their primary care from the mother or by moving to live with the father.

What Orders are in the children’s best interests?

Authority emphasises,[18] that a finding there is a benefit to the children of a meaningful relationship with both parents does not depend simply on there being a lack of danger of physical or psychological harm to them arising from time and/or communication with that parent.
[18]Vigano & Desmond [2012] FamCAFC 79, [128]-[129] per Bryant CJ, Strickland & Murphy JJ.
Neither parent now seeks to assert that there is no benefit to the children of having a meaningful relationship with both of them. The mother accepts the children like the father and know that he is their father. Whilst at the beginning of their time with him at the Contact Centre the children were a little apprehensive, their time with him is currently very good.
I consider that both children would benefit from having a meaningful relationship with both of their parents. They clearly are strongly attached to the mother and have a strengthening attachment to and relationship with the father.
Even after the lacuna in their time with him after separation, R sought the father out and made multiple ‘bids’ for his attention during the first interview with Mr I in October 2012. He also made bids for future engagement with the father at the end of the interview. N had no recollection of the father.

Neither child disclosed any sexual abuse to Mr I during the first interview. [19] R was focused upon telling him about the physical discipline he had received from the father.
[19] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 56.
Whilst in October 2012 the father behaved somewhat defensively when R criticised him, told the children that they had been ‘programmed’ and created a sense of loss by speaking with the children about whether they missed things – and otherwise acted as described by Mr I in his report – these behaviours were absent from his interaction with the children during the July 2013 interview.
I accept Mr I’s evidence that R’s behaviours toward and request that he know when he would next see the father was incongruent with the statements he made. I accept that R made repeated bids for positive interaction with the father establishes that, at that time, he had some secure relationship with the father.
Mr I’s evidence of his observations during the July 2013 interview clearly establishes that the children now have re-established a “healthy enough” relationship with the father who was assessed as being emotionally available to them.
Mr I noted that the children told him the following:
a)that they were seeing the father at D Contact Centre so that he did not do anything bad to them – R said that he did a long time ago, he could only remember a bad thing when he was three: “he teased me and said Ha Ha”; that the father “whacked me then, worse he smacked me”;
b)when asked to talk about advantages and disadvantages of seeing the father R said “and daddy touches me in private parts. I don’t remember how he touched me but I know he did.” He could not particularise further.
I accept that, from his observations of and interaction with R on this occasion, Mr I formed the view R felt “obligated” to add this information. I also accept that R’s expressed negativity about the father was incongruent with his observed behaviours toward him.[20]
[20] Affidavit of Mr I filed 4 September 2013, Report dated 4 September 2013, paragraph 67.
I accept Mr I’s evidence that, as at July 2013, the children had benefited from supervised time and telephone communication with the father,[21] and had manifested an improved relationship with him.[22]
[21] Affidavit of Mr I filed 4 September 2013, Report dated 4 September 2013, paragraph 67.
[22] Affidavit of Mr I filed 4 September 2013, Report dated 4 September 2013, paragraph 43.

The mother’s parenting capacity

The father accepts that, in “most areas”, the mother is a good mother – she provides good care, plays with the children and “definitely” looks after their nutrition.
I accept the mother’s evidence that she will not question the children on their return from spending time with the father nor specifically ask them about physical discipline. I also accept that she wants them to have a relationship with the father that is built up without any influence or questioning from her.
Those members of the extended paternal family and friends who gave evidence in the father’s case consider that the mother’s approach to disciplining the children was lacking. Save for this, however, all considered she seemed to be a caring parent. Given their support for the father, it is understandable that they express disbelief about the allegation he had sexually abused R and that, following the making of such allegation, feel constrained to describe her as an “appropriate” parent.
The father relied on an incident – the spirex book incident – as demonstrating the mother’s aggressive behaviour toward the children and indicating deficiencies in her parenting capacity.

The spirex book incident

In approximately late October 2011, R threw a spirex book at the mother, grazing her on the face. I accept that, in attempting to demonstrate to him why he should not throw books, the mother threw the book back at the child; he moved in front of it and was struck.
Despite witnessing this event, the father took the trouble to video record a conversation with R about it the next day.[23] He did so whilst N was present. He said R had a mark under his eye. My viewing of the video recording[24] does not reveal any mark, but if there was one, it must have been very minor.
[23] Exhibit 4.
[24] Exhibit 4.
It is clear the father interviewed R about this incident to gather ‘evidence’ adverse to the mother in case it could be useful in proceedings if she left the shared residence with the children again. It is ironic, given the father’s allegation the mother coached R to make false allegations of sexual abuse against him, that this recording captures the father prompting R to recount the incident in circumstances where he (R) clearly had no recollection of it until prompted to tell the father about ‘the book’.
I accept the mother’s evidence that she had no intention of hurting R on this occasion. I am not persuaded that the children are at risk of physical harm in her care. Nor am I persuaded that this event typifies any fundamental parenting deficiency.

Has the mother ‘coached’ the children?

The father continues to assert the mother has actively and deliberately ‘coached’ R into making statements about sexual abuse to others. He alleges she has attempted to alienate the children from him. He does not claim the children have been “alienated” from him but rather that she has engaged in what he described as “a very serious attempt” to alienate him from the children.
In concluding the mother has coached R, the father relies on statements made by the child at the Contact Centre to the effect “you’re not to touch my private parts.” It cannot be forgotten, however, that R had been counselled by counsellors, employed by the Sexual Assault Service where the standard practice is to teach children protective behaviours. I consider the comments reported by the father detailed here are likely to fall into the category of ‘protective behaviours’.
I accept Mr I’s evidence that he did not see behaviours consistent with, or of a nature which might commonly be seen in both the children and the mother if the mother had been actively coaching the children.
I accept that Mr I did not get a sense that the mother had coached R.
He explained his use of the phrase “obligated to add information” in relation to R in his report as arising from a combination of overhearing discussions between the mother and others, exposure to counselling, the child’s own construction of what his parents are arguing about and an attempt to balance internal feelings about how he thinks he is to relate to the father. I accept this and consider it likely.
I consider Mr I’s evidence that N’s interaction with the father was much more positive during the second observation that the first – as a consequence of his increased familiarity with the father in that period of time – favours a conclusion that it is unlikely that the mother coached N to engage in negative behaviours and/or reactions toward the father.
I am not persuaded that the mother has deliberately, falsely and maliciously sought to sever the children’s relationship with the father by encouraging R to make false allegations of sexual, and other, abuse.

Will the mother’s belief about the sexual abuse allegations impact negatively on her ability to support the children’s on-going relationship with the father?

I accept the mother’s evidence that she can “cope” with the children spending unsupervised time with the father.
Mr I expressed concern that the mother’s “level of commitment” to her belief the children have been sexually assaulted by the father, could lead her to expose R, or both of the children, to unnecessary supportive counselling and interviewing. This concern has been met by the parties’ agreement that R will have no further counselling from the Sexual Assault Service.
I accept the mother attempted to facilitate the children’s telephone communication with the father before this was mandated by a Court order. Further, she suggested Skype communication but this has not occurred because of decisions made by the father.

The father’s parenting capacity

The mother relies on the ‘scooter incident’ as a demonstration of the father’s difficulty in managing his anger. I accept that the father admitted to Mr I that he was inappropriately physical in his discipline practices with R.[25]
[25] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 24.
I accept that the improvements in the interactions between the father and the children observed by Mr I indicate that the father has the capacity to establish a trusting relationship with the children. Ongoing interaction between the children and the father will provide a forum within which they can continue to develop this trust.
I accept that by the time Mr I saw the children in July 2013 there had been a significant, positive movement in their relationship with the father. The father was less hostile and less intrusive in his interaction with the children and demonstrated a reduction in the expression of negative behaviours whilst in the children’s presence. I accept that the father had improved in his parenting skills in the time between the Family Report interviews.
He has completed a parenting course. I accept the father’s evidence that he tells the children to listen to the mother and do what she says. I also accept he believes that to do anything which would imply to the children that the mother was other than the person who they love and idolise would not be good for their “health”.
The father accepted, during cross-examination, that it would be difficult for him to continue to run his business and be the primary parent for the children. Whilst possible, it clearly is likely to involve the father needing the assistance and support of others.
I accept the father has the capacity to make the appropriate arrangements for the children’s schooling in the event that they live primarily with him. However, I consider that his failure to:
a)think about whether R should finish the current school term; and
b)make current enquiries about whether R could be enrolled at a particular school or N could be re-enrolled at his previous day care,
demonstrates the reality that he has not ever undertaken the primary parenting of the children alone.
I accept that, since separation in December 2011, the father actively sought to be involved in the children’s lives. He commenced proceedings on 15 December 2011 and pursued the means available to him to locate the children. He actively sought orders for the children to spend time and communicate with him.
The father believes that the mother has mental health issues and, consequently, he needs to have the children live with him to keep them safe. There is no evidence to support this assertion. I accept Mr I’s evidence that the mother did not evidence a psychological or personality type disorder.
Despite the allegations made by each parent against the other, relatively recent text correspondence between them establishes that they are capable of communicating in a polite and courteous manner. In this text communication both parties express a wish that their cooperative manner continue. Both resisted the urge to allow the communication to deteriorate into a recitation of past allegations and counter-allegations. This is to their credit.
Both parties also demonstrated an ability to remain focused upon matters beneficial to the children. They appeared to be able to negotiate the exchange of possessions with this focus in mind. The mother extended the father the courtesy of apology in circumstances where, because of their involvement in social activities, the children had not telephoned him. The father extended the mother the courtesy of acknowledging her apology and offer that the children call when available. If maintained in the future, this respectful discourse can only be beneficial to the children.
I am confident, therefore, particularly provided that the parties continue to use written communication as the predominant form of communication between them, that they will be able, in the future, to discuss and negotiate about issues relating to the children.

What would be the likely impact on the children of orders in the terms sought by the father?

The children have always lived with the mother. I accept she has adequately met their needs for safety, protection, education and development. They have a healthy relationship with her and she is emotionally available to them.
Save for the issue of the sexual abuse allegations, the father really acknowledged as much. He accepted that, if the children lived primarily with him, they would need to spend significant time with the mother.
The father said he thought the children might experience “a little bit of confusion” if they lived with him rather than the mother. He said this would “probably have some effect” upon them. I consider these comments vastly underestimate the significant impact a change of their primary care arrangements would have on the children. I accept Mr I’s evidence that the emotional impact on them of such a change would be “enormous”. It would have a significant and harmful impact.
The children have not yet spent overnight time with the father in the absence of the mother. I accept Mr I’s evidence that it would take time for the children to feel safe in the father’s company in such a circumstance – not from abuse or neglect, but because of their removal from the support of their primary carer.
I accept that they have not yet experienced the internal feeling that the father is “there and available” to them. I accept that it is necessary for the children to establish, what Mr I described as “internal working models for trust” with the father. A change in the children’s living arrangements in the absence of this is highly likely to be significantly detrimental to them.
I also accept Mr I’s evidence that an arrangement which saw the children live with the father and spend time with the mother would increase the children’s level of stress and distress. The short-term result of such a significant change to their historical care arrangements would result in the children experiencing grief, shock, anger and denial. Further, in the short term, there is an increased prospect the children may suffer from childhood depression if such a change to their care arrangements was forced upon them at this point.
I accept Mr I’s evidence that, from a long-term perspective, there is a risk, if the children interpreted a change to their living arrangements as their mother abandoning them, that they may experience difficulties in peer relationships, including an increased level of compliance and neediness.
I accept Mr I’s evidence that, in the absence of substantiated maternal neglect and abuse, it could be very detrimental to the children’s development if the father’s proposal was fully adopted. I am not persuaded that there has been substantiated maternal neglect and abuse of the children in this case.

Allegations of domestic violence

The mother alleges that the father was controlling, coercive, belittling, demeaning, and physically abusive of her during their cohabitation. She says he:
a)threatened her life;[26]
b)attempted to choke her;[27]
c)inflicted bruises to her arms and around her neck;[28]
[26]         Notice of Child Abuse or Family Violence filed 14 August 2012.
[27]         Notice of Child Abuse or Family Violence filed 14 August 2012.
[28]         Notice of Child Abuse or Family Violence filed 14 August 2012.
The mother told the triage nurse at the hospital on 12 December 2011 about “verbal aggression towards herself and that she has been grabbed by the shoulders but denies any other violence towards herself.”
The domestic violence report[29] contains the mother’s account that her head was pushed against a wall whilst she was holding N and her glasses were damaged. Police documents record that the mother displayed a bruising to her right arm and left upper chest.[30] Mr O, who gave evidence in the father’s case, described the bruising in photographs taken at the time by members of the paternal family as showing “mild bruising” to the mother’s upper arms.
[29] dated 12 September 2011.
[30] Affidavit of Mr I filed 17 December 2012, Report dated 11 December 2012, paragraph 41.
The father accepted he grabbed the mother deliberately on the upper arms: he says he did so to prevent N from “being in danger”. I do not accept this explanation. I consider it more likely than not that, in the context of the mother’s verbally expressed disagreement with the extent of the father’s physical discipline of R, the event escalated beyond that which either party intended. I think it quite possible that the father grabbed the mother’s hair and pushed her against the wall.
It was suggested to the father that he had subsequently sent threatening text messages to the mother: texts in which he threatened to kill her. No such texts were produced. In the absence of the text I am not persuaded to conclude that the father acted in the manner alleged.
I am not persuaded that the father’s actions in managing N’s introduction to water at Southbank on the day prior to separation amounted to any form of physical abuse. Rather, the whole incident provides an insight into each party’s different approach to parenting: for example, the mother described the father’s action in dunking N into the water as ‘abusive’ while the father described the mother’s action in slowly lowering N into the water as “torturing” him. Neither description is accurate.

Conclusions about future parenting arrangements

The mother is the parent by whom the children have been primarily parented, particularly since separation in December 2011. The effect on the children of a change to this primary parenting arrangement at this time is so significant that it cannot be considered to be in their best interests.
I consider that the children can have a meaningful relationship with both parents if they remain living primarily with the mother and spend unsupervised time with the father in the manner outlined in ‘A’.
Mr I does not support the making of an order which would require the children to be removed from their current living arrangement, schools and attachments in the local community. I accept his evidence that a relocation of the children to live in Brisbane would remove them from their settled day care and kindergarten environments and would require the mother to leave her network of established peer relationships. I further accept that a change to this arrangement would not provide any particular benefit to the children given that they can continue to spend time with the father as proposed in Exhibit “A”.

Parental responsibility

When making a parenting order I am bound to apply a presumption that it is the children’s best interests that their parents have equal shared parental responsibility (the presumption) for them: s 61DA of the Act.
The presumption is rendered inapplicable by the matters prescribed in s 61DA(2) of the Act or may be rebutted by evidence that satisfies the Court that it would not be in the children’s best interests for their parents to have equal shared parental responsibility for them: s 61DA(4).
Section 61DA(2) of the Act provides that, if the Court is satisfied that there are reasonable grounds to believe that either of the children’s parents have engaged in abuse of them or another child or family violence, the presumption does not apply.
I am satisfied, that there are reasonable grounds to believe that the father engaged in family violence when he grabbed the mother’s arm in September 2011 with sufficient force to bruise her.
Consequently, the presumption does not apply and “the power to make parenting orders pursuant to s 65D of the Act is ‘at large’ (albeit subject always to the best interests of [the children] being the paramount consideration – see s 60CA; s 65AA).”[31]
[31] Cox & Pedrana [2013] FamCAFC 48 at [19].

Mr I assessed both parties as displaying traits of suspicion and chronic mistrust. He thought there was no indication that they could negotiate or consult in relation to the children’s best interests on both occasions he saw them. However, I consider that the contents of more recent text messages suggest that the parties have moved on since then.
I accept the parties have the foundation to communicate. The recent interaction suggests that both are now more willing to do so.
I accept the father’s evidence that the current state of communication between the parties was not really very good. However, I also consider that, as the parties have previously communicated very well in a polite and courteous manner, it is more likely than not that they will be able to do so again in the future.
I accept the father’s evidence that, for the sake of the children, he will try to move past the allegations which have been made so the parties can discuss matters about the children.
I accept Mr I’s evidence that an order for sole parental responsibility may empower one parent to the exclusion of the other, in a manner likely to maintain the acrimony which has previously existed. This will not benefit the children. I consider it more likely than not that an order providing the mother with sole parental responsibility for major long term issues in relation to the children may reinforce and maintain the conflict between the parties.
The contents of the relatively recent text messages establish that each party has the capacity to communicate in a respectful manner. I am confident in concluding that both parties have the children’s best interests as their primary focus. I am also confident that, once the litigation is at an end, both parties will continue to endeavour to communicate in a respectful manner with a focus upon the children and their best interests.
This relatively recent text communication persuades me that the parties are likely to be able, by using written communication, to reach joint decisions about those matters necessary to be decided in the exercise of parental responsibility. I am confident that, with effort, they can discharge the obligation imposed upon them to reach decisions jointly.[32]
[32] Family Law Act 1975 (Cth) s 65DAC(2).
I have concluded, therefore, that it is in the children’s best interests that the parties have equal shared parental responsibility for them.
It follows from this conclusion that, in making a parenting order, I am required to consider whether the children spending equal time with each parent is in their best interests and reasonably practicable.[33]
[33] MRR v GR (2010) 240 CLR 461, 465-467.
I accept Mr I’s evidence that he could not envisage the children spending equal time with the parties. I consider, based on the children’s primary attachment to the mother and the geographic distance between Town B on the Central Coast and Suburb F in Logan City that it is neither in the children’s best interests nor reasonably practicable that they spend equal time with each parent.
Whilst it would be, I consider, in the children’s best interests that they spend substantial and significant time (as that term is defined in s 65DAA(3) of the Act) with each of their parents, the geographic distance between the respective residences is such that it is not reasonably practicable for this to occur.
I accept Mr I’s evidence that the progressive reintroduction of the children to the father as envisaged by an order in the terms expressed in Exhibit “A” will reduce their negative experiences of grief – caused by an absence from the mother, their primary carer, for too long – and provide them with the opportunity to continue to develop an increased trust in the father.

How frequent should the children’s time with the father be?

The father raised concerns that the travel associated with alternate weekend time with the children may impose so significant a cost that it may become unviable in the future. Against that background, I explored with Mr I the likely effect on the children’s relationship with the father if time occurred, for example, every third weekend as opposed to each alternate weekend. I accept Mr I’s evidence that, at this stage of the relationship between the children and the father, the frequency of weekend time is important. I accept that if there had already been “regular” time between the children so that they had established an internal working model of the father as someone to rely upon, time with him every third weekend would be sufficient to ensure the continued development of a meaningful relationship between them.
I accept that, because the children are yet to have developed this relationship, alternate weekend time is appropriate to provide them with the best opportunity of developing the best relationship they can with the father.
Where should changeover occur?
Whilst the father raised concerns about the financial impost of such time given the geographic distance between the parties, I consider that arrangements which see the mother undertake some of the travel for the purpose of changeover will ameliorate this. Further, the father will no longer have to bear the costs of supervision which will provide him with additional financial capacity to continue to undertake the necessary travel.
The mother said during cross-examination that she is no longer “scared” of the father. I understood this response to mean she did not necessarily see the necessity for changeovers to continue to occur at a Contact Centre. However, given that the children will be moving, for the first time since separation, to a regime of spending unsupervised time with the father, I think it preferable that, initially, changeovers continue to occur at a place familiar to the children.
I consider that the term of the order outlined at the start of these Reasons balances the practical difficulties associated with the children’s time with the father and the necessity gradually to increase this time. The children will initially spend unsupervised time with the father in familiar surrounds as they continue to develop their internal trust of the father. Once this has happened, however, they will be able to benefit from spending time with the father in his home.
As the mother accepted that she could drive the hour or so to Town A for the purpose of change over, the Order provides that in about 6 months, the parties will meet at a location nominated by the mother in Town A for changeovers.

Is it in the children’s best interests that an order be made permitting them to travel outside the Commonwealth of Australia?

The mother wants to be able to take the children to visit her family in Peru. The father opposes an order permitting the children to leave Australia on the basis that, at present, he is concerned the mother may take the children to Peru and, in essence, disappear. His concerns are not ameliorated by the fact that Peru is a convention country.[34]
[34] Family Law (Child Abduction Convention) Regulations 1986 (Cth), Schedule 2, Regulation 10.
I accept the father considers the children’s heritage is very important for them. I also accept he thinks it could be very good for the children to have a future opportunity to visit Peru.
Mr I said he came away from his interactions with the mother quite convinced she is settled in Australia. However, he also accepted that he had not undertaken a risk assessment in relation to the prospect that she might not return. The father had told him that the mother had threatened to take the children to Peru and remain there.
I accept that the mother’s cultural identity is an important component of the children’s development. I further accept it is more likely than not that the children, who have been taught to speak Spanish by their mother, would benefit from the opportunity to travel to Peru to spend time there with members of their extended maternal family.
Whilst the mother says that she would like to take the children to Peru at the end of the year she has no specific travel plans. She says she may struggle to meet the financial costs of travelling to Town A for changeover.
The mother’s change of position from proposing that an order for no or supervised time with the father is in the children’s best interests to supporting orders for unsupervised time between the children and the father is very recent. It occurs in the context of the final hearing and against a background that, as recently as July 2013, she expressed the firm conviction to Mr I that R had been sexually abused by the father – a belief she continues to express.
There has already been a significant hiatus in the children’s opportunity to spend time with and develop a meaningful relationship with the father: they did not spend any time with him from December 2011 until about March 2013. It would be very detrimental to their ongoing relationship with the father if there was any further interruption to the regular time that they will spend with him pursuant to the terms of the Order outlined at the commencement of these Reasons. I consider that, at present, the primary focus for the children should be on regular and consistent time with the father and on the continued development of their relationship with him.
In these circumstances and for these reasons, I am not persuaded that it is presently in the children’s best interests that they leave the Commonwealth of Australia unless the parties are otherwise able to reach agreement about this.
I consider that, by the end of December 2015 the children’s relationship with the father will have solidified. It is hoped that by then, the parties’ co-parenting relationship will have settled, that some level of trust will have been re-established and that the children are more secure in their relationships with the father.
After the end of 2015, it is hoped that, upon provision of appropriate information about proposed travel, the father may act to ensure that the children are able to travel overseas to maximise the benefits to them of their heritage. If the parties cannot reach agreement about international travel then, it will, of course, be open to either of them to bring the appropriate application, supported by the appropriate evidence, before the Court at that time.
For the reasons expressed above, I make orders in terms of those outlined at the commencement of these Reasons.

I certify that the preceding two hundred and thirty-four (234) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 28 March 2014.

Associate:

Date: 28 March 2014

[2014] FamCA 192

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Intention

Remedies

Procedural Fairness