Tasker and Tasker

[2017] FamCA 1153

FAMILY COURT OF AUSTRALIA

TASKER & TASKER [2017] FamCA 1153

FAMILY LAW – CHILDREN – Best Interests – Where there are allegations the father poses an unacceptable risk of sexual harm – Where the father was charged with sexual assault of his daughter from a previous relationship in 1996 – Where those charges were not pursued – Where the parents began a sexual relationship when the mother was 13 and the father was 20 years older – Where the children are particularly vulnerable to sexual harm – Where the parents associate with known sex offenders – Where the father has exhibited grooming and predatory behaviour – Where the father poses an unacceptable risk of harm to the children – Where there are allegations of family violence – Where the father was charged with and plead guilty to stalking and intimidating the mother – Where there are concerns about the mother’s parenting capacity – Where the mother is engaging with support services to address those concerns – Orders made for the mother to have sole parental responsibility for the children and for the children to live with the mother and spend no time with the father.   

Evidence Act 1995 (Cth) ss 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAA

Deiter v Deiter [2011] FamCAFC 82
G & C [2006] FamCA 994
Johnson & Page[2007] FamCA 1235
Jones v Dunkel (1959) 101 CLR 298
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92  
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Mr Tasker

RESPONDENT: Ms Tasker

INDEPENDENT CHILDREN’S LAWYER: Mr Ng

FILE NUMBER: PAC 5182 of 2014

DATE DELIVERED: 28 July 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 10,11 & 12 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self Represented

COUNSEL FOR THE RESPONDENT: Ms Mahony

SOLICITOR FOR THE RESPONDENT: Mahony Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rebehy

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Adams Partners Lawyers

Orders

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for C born … 2001, D born … 2003 and E born … 2007 (“the children”).

3. That the children live with the mother.

4. That the children spend no time with the father.

5. That the father shall be permitted to communicate with the children in writing via letters mailed to the mother’s residence at Suburb T and for this purpose:

   (a)       All such correspondence shall be first opened and read by the mother prior to being passed on to the children;

   (b)       That the mother has the discretion to refrain from showing the children any correspondence from the father which she considers inappropriate; and

   (c)       In the event the mother relocates her ordinary place of residence she shall inform the father in writing via the last known return address noted by him on his correspondence to the children.        

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Tasker & Tasker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1234  of 2014

Mr Tasker

Applicant

And

Ms Tasker

Respondent

REASONS FOR JUDGMENT

Introduction

1. This Judgment concerns parenting proceedings between Ms Tasker (“the mother”) and Mr Tasker (“the father”).  Their children, C who is 15, D who is 14 and E who is 10 (“the children”) are particularly vulnerable as a result of susceptibilities related to their mother and their individual experiences.

2. The parents began a sexual relationship when the mother was 13 and the father was in his thirties and facing charges of sexual assault of his daughter from a previous relationship.  After living together for about 16 years the parents separated in August 2014 when the mother left the family home with the children.  The father has spent limited time with the children since separation due to serious threats of violence he made to the mother at that time. 

3. The father seeks orders that would see the children spend substantial and significant time with him.  The mother contends that the father poses an unacceptable risk of harm to the children and proposes various orders including that the father spend no time with the children. 

4. The Independent Children’s Lawyer (“ICL”) supports the mother’s position and submits that the harm posed to the children by the father cannot be mitigated by supervision and outweighs any benefit to the children in having a relationship with him. 

5. The questions for me to determine are whether the father does pose an unacceptable risk of harm to the children and whether it outweighs any benefit to them in having a relationship with him.  If such a risk does not exist and there is a benefit to the children in having a relationship with their father I must determine whether it is in the children’s best interest to make the orders he proposes.

Background

1. The father is 53 years old.  He met the mother who is 34 in 1990 when mother was seven years old and living with her parents (“the maternal grandparents’”) next door to him.  The father was then 27.  At that stage the father had four children from two previous relationships.  In 1993 the father’s fifth child was born from his relationship with his third partner. 

2. In about 1993 the father moved to K Town, on the mid north coast of New South Wales.  When living in K Town the father had regular contact with two of his children from his relationship with a former partner.  Those children, Mr P and Ms F, spent alternate weekends with the father at his home for around one to two years until the father moved back to Sydney in early 1995. 

3. The father’s daughter Ms F subsequently complained that during the period he spent time with her in K Town when she was eight or nine years of age the father sexually assaulted her.  In May 1996 the father was charged with having sexual intercourse and attempted sexual intercourse with Ms F the previous year and was committed to stand trial in July 1996. 

4. From the time the father relocated to Sydney in early 1995 and including the period after he had been charged and was facing trial he rekindled his relationship with the mother’s family.  By this stage the father was living about ten kilometres from the mother’s family home.

5. In 1996 the father told the mother’s father (“the maternal grandfather”) about the charges he was facing and the maternal grandfather told the father he was not to be alone with the mother.  Despite this direction the father, who was in his early thirties, continued to pursue a relationship with the mother who was about 13 which at that stage had been ongoing for a couple of years. 

6. The nature of the father’s relationship with the mother at this time began as one in which the father was a confidant for the mother who revealed to the father that she had been sexually assaulted by the maternal grandfather.

7. When the mother was about 14 she was removed from the care of the maternal grandparents and placed into foster care.  It appears that this occurred because the Department of Family and Community Services (“the Department”) was satisfied that the maternal grandfather had sexually assaulted the mother and although being aware of that conduct the maternal grandmother allowed him to return to live in the family home.  While the mother was living in foster care at the age of about 14 she and father continued their relationship which by that stage was a sexual relationship.

8. At around the same time, in January 1997 the Director of Public Prosecutions (“the DPP”) decided to no longer continue with the prosecution of the father for sexual assault.  The court records (Exhibit 1) indicate that many adjournments had been sought in the father’s trial and ultimately the DPP decided not to proceed further on the charges. 

9. In 1998 when the mother was aged between 15 and 16 she and the father who was in his mid-thirties began living together. 

10. The parties’ first child, a daughter named C (“the older daughter”), was born in 2001. 

11. In about 2000 or 2001 the father informed the mother that his daughter Ms F had made an allegation against him some years previously that he had sexually assaulted her but that the charge against him had been dismissed.

12. The parties married in October 2002 when the mother was 19 and the father was 38. 

13. The parties’ second daughter, D (“the second daughter”), was born in 2003. 

14. The parties’ third child, a son named E (“the third child”), was born in 2007.

15. From the time of the birth of the older daughter the mother was responsible for the primary care of the children.  The father provided financially for the family and worked hard and for long hours, though he did participate in caring for the children when the mother was unavailable.  In particular as the children grew older the father became involved in the children’s extra-curricular activities such as sport.

16. The girls started having lessons in a sport they appeared to have particularly enjoyed and excelled at, in 2010, at a sports club in Suburb X.  The family’s social activities revolved around other people they knew through the sports club.

17. From around 2014 the parties experienced difficulties in their relationship which began to break down.  The parties separated on a final basis on 5 August 2014 after a series of arguments in which the father threatened to kill the mother if she left him including telling her over the phone “I will just end it, I will go get a gun and shoot all of us, then shoot myself. If I can’t have you then no one will.”  Following this statement the mother attended a Police Station and the father was charged with stalking and intimidating the mother and an Apprehended Domestic Violence Order (“ADVO”) was sought and made for the protection of the mother and children.  No conviction was recorded against the father for these charges as he was found to be suffering from a mental illness, namely depression, based on a psychiatric assessment.  

18. On 15 September 2014 a final ADVO was made protecting the mother and children from the father for two years.  The father did not spend any time with the children for around 16 months following separation.

19. On 30 October 2014 the father commenced these parenting proceedings.

20. In November 2014 it was observed that the older daughter had been intentionally harming herself.  In the same month the father made contact with this child on two occasions in contravention of the ADVO.

21. In December 2014 the mother filed a Notice of Risk and the proceedings were allocated into the Magellan program.  A Magellan Report was ordered [1] and an ICL was appointed. 

    [1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of The Department with the family.

22. On 12 February 2015 interim orders were made for the children to live with the mother and spend time each week with the father supervised at a contact centre.  The contact centre subsequently refused to facilitate the father’s contact with the children due to his previous charge of sexual assault of Ms F. 

23. In August 2015 the family attended interviews with a Family Consultant as part of the Child Responsive Program.  As a result of matters of concern raised by the Family Consultant in September 2015 the Department were invited to intervene in the proceedings.  The Department declined to do so. 

24. When meeting with the Family Consultant in the Child Responsive Program concerns were also raised about possible risk posed by the children’s sports coach and on 21 September 2015 interim orders made in the matter included a restraint on the mother from allowing the children to come into contact with the coach.

25. In September 2015 the second daughter also began harming herself and subsequently all three children began engaging with services to address their symptoms of psychological distress.

26. In November 2015 orders were made for the father to spend time with the children supervised by a private supervision service for two hours each alternate Saturday commencing in January 2016. 

27. The father spent supervised time with the children in accordance with the orders up until the last day of the final hearing when he consented to an order suspending his time with the children.

The areas of dispute

Does the father pose an unacceptable risk of harm to the children?

1. The mother and ICL contend that there is an unacceptable risk that the father may sexually abuse the children and that they will be physically and psychologically harmed as a result.

2. In Deiter v Deiter[2] the Full Court explained in the context of interim parenting orders that risk assessment comprises two elements.  The Court said at [61]:

   Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. 

3. So far as the first element is concerned, the mother contends that the father’s behaviour in the past indicates that there is a real risk in the future he may sexually abuse the children.  In particular she relies upon evidence concerning the father’s conduct towards his then eight year old daughter Ms F in about 1995, his conduct in engaging in a sexual relationship with herself as a child of about 13 and the father’s conduct towards the children prior to and following separation. 

   [2] [2011] FamCAFC 82.

4. In M v M[3] the High Court said when discussing allegations of sexual abuse at [23] – [25]:

   No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….

   In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, 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. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.

   [3] (1988) 166 CLR 69; [1988] HCA 68.

5. In M v M (supra), the High Court also said at [18]:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

6. In Johnson & Page[4] the Full Court agreed that reference to the Evidence Act1995 (Cth) (“the Evidence Act”) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.

   [4] [2007] FamCA 1235 at [72].

7. I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk.  One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[5] in which the Full Court noted at [111]:

   We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [5] (2005) FLC 93–235.

Sexual abuse of father’s child from a previous relationship

1. The first question therefore is whether I am satisfied that the father sexually abused his daughter Ms F in about 1995 on the balance of probabilities taking into account the matters set out in s140(2) of the Evidence Act.

2. Although the father who was unrepresented was directed to file a single consolidated affidavit for the purposes of the final hearing, he did not do so and was permitted to rely upon a number of affidavits that had been filed in the proceedings over the years. 

3. In none of the various affidavits filed by the father, does he set out any account of the alleged sexual assault of Ms F other than to say in his affidavit filed 29 January 2015 “I did not sexually abuse my child and her allegations were untrue.  The matter was dismissed.”  This issue is not addressed in any other affidavit filed by the father and other relevant evidence only emerged under cross-examination. 

4. The father stated under cross examination that Ms F was born in March 1985 and was four to five years old when he and Ms F’s mother separated (sometime between 1989 and 1990).  The father said that following separation he moved to Sydney and lived with his mother in the property next door to the mother’s family.  Initially the father did not regularly spend time with Ms F.

5. The father says that he moved to K Town in 1993.  Ms F and her brother came to the father’s home in K Town every second weekend during this period though on occasions Ms F came alone.  The father agreed that in 1996 Ms F made a statement to police alleging that he had sexually assaulted her and he was subsequently charged.  He agreed that it was alleged that the sexual assault occurred at his home in K Town and that the description Ms F had given about the house and its location was accurate.  Although the father said that he was provided with a copy of Ms F’s statement and had read it, he could only recall some of the details of the allegation made by Ms F and said she had lied in parts of her statement.

6. It was put to the father that on a particular evening he had got into bed with Ms F and shown her a pornographic magazine.  He denied ever doing this though agreed there were pornographic magazines in the home.  It was put to him that he said to the child [with reference to pictures of female genitalia in the magazine] “that’s what yours will look like when you get older”.  He denied having said anything like that to the child at any time and said that she had lied (in alleging that he had done so).

7. It was also put to the father that he had entered Ms F’s bedroom, unzipped her sleeping bag, pulled her underwear off, lay behind her and penetrated her.  He denied doing any of these things and said he “never touched her”.  It was also suggested to the father that during the assault he asked Ms F if she “liked it”, that she said “no” and he said “well I’ll stop in a minute”.

1. According to the father, all of Ms F’s account of the incident was fabricated.  He said that her motivation to lie was because he then moved away at a stage when she was just getting to know him which made her upset.  The father agreed that he was suggesting that Ms F was trying to “get back at” him, [for moving away] and agreed that (making such an allegation) would be a very extreme action for a child of nine.

2. The father then specifically nominated 2 January 1995 as the date he moved back to Sydney for a job and said that after he left he ceased spending time with Ms F because he “couldn’t get time to go back” to see her.  When it was put to the father that the reason he did not return and see Ms F was because he had sexually assaulted her, he denied there was an assault.  

3. It became clear under cross-examination that the father was unaware that Ms F had reported the alleged sexual assault to other authorities including the Department in addition to police though he did know that she had spoken to staff at the school and that her brother also reported to staff that the father had sexually assaulted Ms F.  The father also had no knowledge of documents produced on subpoena in these proceedings in relation to this criminal charge and claimed he had not sought to inspect those documents as he couldn’t get time off work. 

4. The father was cross-examined about Ms F’s account of the sexual assault given to the Department and when it was suggested to him that she was truthful he said it “never happened”.  The father agreed that Ms F had given a descriptive statement of the alleged abuse having regard to her age and then suggested that she was telling the truth about being sexually assaulted but not about him being the perpetrator.  The father then said (for the first time) that another person, a friend named Mr Q was also at the home when Ms F was there and seemed to imply that this friend may have assaulted her.

5. This issue, that the child may have been sexually assaulted by another person was also explored under cross-examination.  The father was informed that the child had also alleged that when she was about seven years old a person known as “Uncle G” who was drunk at the time had his “doodle outside of his pants” and was rubbing it on Ms F.  It was put to the father that in reporting this to Departmental officers the child was able to distinguish between different incidents of sexual assault. The father agreed that this showed that the child was not confused as she was able to distinguish between the actions of “Uncle G” and the actions of her father. 

6. The only other explanation for the child’s description of sexual abuse offered by the father is that Ms F may have accessed books [at his home] containing details of sexual activity (and had attributed those actions incorrectly to him).

7. The father could offer no explanation why there was no further reference to Ms F’s allegations against him in his affidavits or why he had not inspected the documents produced on subpoena by various authorities during almost two years prior to the final hearing including at a time when he had been legally represented.   

8. The father claimed that he had spoken to and seen Ms F after the sexual assault charges were withdrawn.  He gave an extremely confusing account of that contact in which the dates on which he says the contact occurred and the age of Ms F at the time are significantly at odds with the actual age of the child at the time.

9. The father also maintained that he had spoken to Ms F about the allegations when she was an adult and including by telephone two days prior to giving evidence in the final hearing.  The father agreed that he did not intend to call evidence from Ms F and that he had not arranged for her to participate in the assessment by the Family Consultant.  He also gave contradictory evidence about whether he understood that Ms F still maintained that he had sexually assaulted her. Initially he said that he did not know whether Ms F would confirm the sexual assault.  He then said that when he discussed the allegations with Ms F she did not maintain them but told him she did not want to “have anything to do with the courts”, seemingly as an explanation for not calling her in these proceedings.

10. The father also claimed to have a very poor recollection about the criminal proceedings including being unsure about the offences he had been charged with.  He agreed that the proceedings first commenced in the Local Court and he was committed to stand trial in the District Court.  He also agreed that the charges were dismissed in January 1997 and that on a number of occasions he was required to go to court.  He agreed that on more than one occasion the prosecution asked for an adjournment but ultimately the court was not prepared to grant an adjournment (and the DPP decided not to proceed with the prosecution in this context).

11. The court file in relation to the prosecution of the father includes a copy of Ms F’s interview with police in February 1996 when she was nine.  In that interview the child’s account of the incident was as follows:

    Well Dad was looking at all these magazines in bed and when I went to sleep Dad came in and um I was in my sleeping bag and I think it was done up and then Dad came in and un-zipped it and pulled off my undies when I was half asleep, um he came up from the back of me and then pulled up my nightie and tried it and then I was still half asleep, a while later he asked me if I liked it and I said, No.” and he said, “Well I’ll stop in a minute.” It happened when my brother wasn’t down there.

12. The interview also contained the following questions and answers:

    Q15.    Did he touch you anywhere?

    A.       Nowhere besides the rude part and my legs and cuddled me.

    Q16.    Do you know another word for you (sic) rude part?

    A.       Vagina.

    Q17.    What did he do when he touched you on the vagina?

    A.       I could feel all this juicy stuff.

    Q18.Can you help me understand what you mean when you said before he tried it?

    A.Um, like he tried rape or something.  Opened my legs up and put his doodle on my rude bit.  I’m not sure if it went up my hole or not.  I think it went inside me.

    Q31.You told me about some books before.  What books are they?

    A.Magazines.  He showed them to me and then I wen (sic) to bed.

    Q32.Can you tell me anything about these magazines?

    A.Well he was looking at rude part on these girls, there (sic) vaginas and everything.  He said to me, “That’s what yours would look like when you get older.”

13. The Department’s file with respect to the alleged sexual abuse of Ms F was also produced on subpoena.  The Departmental records indicate that an investigation into the allegation began in February 1996 when Ms F’s brother Mr P first made the allegation that their father “raped his sister Ms F”.  Ms F was subsequently interviewed and gave an account which is summarised in Departmental documents.  The account is in very similar terms to that subsequently given to police.  In this interview Ms F also reported that some years earlier when she was seven years old and living at [K Town] “Uncle G” her step father’s uncle had his “pants off” and his “doodle on [the] outside and was “dry rubbing” her when she had her clothes on. 

14. A Magellan Report of February 2015 indicates that the Department substantiated the allegations made by Ms F against her father, that is Departmental officers considered that the allegations were true. 

15. A Family Consultant who prepared a Family Report in April 2016 also gave the following opinion with respect to this allegation:

    Subpoena material has produced a clear disclosure by [Ms F] of grooming (showing the child pornography), followed by sexual assault (intercourse).  She said [Mr Tasker] was the abuser.  It is the writer’s opinion that [Ms F] at aged eight or nine years, would not have been able to provide the detail that she did unless she had endured that experience.

16. Under cross-examination the Family Consultant was steadfast in her view that Ms F would not have been able to provide the detail that she did to police and the Department unless she had experienced a sexual assault.  The Family Consultant noted that the child’s account was extremely detailed, that she gave a clear sequence of events and was able to answer additional questions when interviewed as opposed to children who have invented or have been told to give a particular story.  Particular features of the child’s account that indicated authenticity to the Family Consultant include the child giving an accurate description of ejaculation, information about being shown pornographic magazines and the particular words said to have been spoken by the father in the course of the assault.  Overall the Family Consultant said she had no doubt that the child had had the experience she described. 

17. The Family Consultant is highly qualified and experienced.  She holds two relevant tertiary qualifications being a Bachelor of Social Work and Bachelor of Social Science and has held positions with the Department and at the Family Court for 13 years.  She has experience interviewing children who have been abused.  The Family Consultant interviewed family members on two occasions and had access to a wide range of documents including records of police, the Department and the father’s District Court file.  She was cross-examined by both parties and the ICL and was unshaken and particularly firm in her evidence expressing a view about the authenticity of the experience described by Ms F when nine years of age.  For the foregoing reasons I accept the evidence of the Family Consultant in relation to this issue and generally and attach significant weight to it. 

18. The other evidence in relation to this allegation comes from the mother.  Although she clearly cannot give any evidence of the events in question, the mother said under cross-examination that Ms F had contacted her earlier in 2017 and said she wanted to see the mother and tell her what happened because she wanted the mother to “protect the kids from their father”. The mother indicated that Ms F travelled to Sydney [from her home outside Sydney] to see her but met with the father first.  After meeting with the father the mother said Ms F was quiet and withdrawn and failed to tell her what had happened. The mother said she didn’t depose to this in her affidavit as she didn’t think it was important because Ms F didn’t actually tell her anything. When questioned further about her contact with Ms F the mother agreed that she understood from Ms F’s phone call that Ms F had been telling the truth when she reported that the father had sexually assaulted her as a child.

19. There is considerable evidence which in my view indicates that the child Ms F was sexually assaulted by the father as alleged.  The evidence includes the consistent version of events given by the child to the school, the Department and police. I also attach weight to the detail of the account, the fact that the Department substantiated the allegation, the Family Consultant’s opinion concerning the authenticity of the child’s account and that the father was charged and committed for trial.

20. However, the father has consistently denied that he sexually assaulted Ms F including in his affidavit and under cross examination.  Importantly, although the father was committed to stand trial, he was never convicted as the trial did not proceed and the evidence was not tested.  There is also no direct evidence from Ms F herself about the alleged incident and the indirect evidence is not capable of testing through cross-examination in these proceedings.

21. Having regard to the matters set out in s140 of the Evidence Act as discussed earlier in this judgement, in particular the gravity of the allegation under consideration, I cannot positively find that the father sexually abused his daughter Ms F.  However, the evidence with respect to this allegation will be considered together with other matters raised by the mother in determining whether the father does pose an unacceptable risk of harm to the children.

The father’s relationship with the mother as a child

1. There is no dispute between the parties that the father first met the mother in about 1990 when the mother was seven years old and living with her parents next door to the father who was then 27.  Although neither parent deposes in their respective affidavits to the circumstances of their meeting at this time or the father subsequently rekindling his friendship with the maternal grandparents the father gave oral evidence under cross-examination about these matters. 

2. The father gave the following evidence about reconnecting with the mother and her family in 1995 following his return to Sydney from the North Coast.  He said that at that time when he was in his early thirties and the mother was [11 or] 12, he formed the impression that the mother “had a crush” on him.  The mother had carved his initials in her arm and shown this to him but he had not reported this to the mother’s parents.  At about the same time after showing him her arm the father says that the mother “would come over [to his home] all the time”.  The father agreed that this action by the mother was odd and he was concerned but he did not report it to her parents as she asked him not to say anything to them. 

3. The father said that he did not understand the concept of “grooming behaviour”, that is behaviour by an adult to prepare a child to participate in sexual activity. However, when it was explained to him he agreed that upon reflection his relationship with their mother which included him maintaining secrets with her at the age of about 12 may fall within that definition.  The father also agreed that by giving evidence that the mother had a crush on him, he was trying to explain that the relationship was instigated by the mother, that she wanted it and pursued it.

4. The father gave evidence that after he moved back to Sydney in 1995 he would assist the mother’s family in dropping off and picking up the mother and her brother from activities.  At this stage he no longer lived next door to the mother but his home was about ten kilometres from the mother’s family home.  He agreed that he had an uncle-like relationship with the mother and her brother and that the family trusted him.  Under cross-examination the father said that after he told the maternal grandfather about the allegations made against him by Ms F, the maternal grandparents said they did not want him to be alone with the mother.  Despite this, the father acknowledged that he continued to spend time with the mother as she would catch a train and walk to his house after school and then catch a bus and make her own way home.

5. Under cross-examination the father stated that when the mother was 13 and he was living about ten kilometres from her home, the mother also called him and asked him to take her to school.  She then reported to him that her father had sexually assaulted her.  The father was also aware at this time that the mother was intentionally harming herself.  He initially denied that he had taken advantage of the mother’s vulnerability but then conceded that he had done so.  The father ultimately agreed that his relationship with the mother was an inappropriate one but that he did nothing to stop it.  He also did not inform the police or confront the maternal grandparents about the mother’s allegations against them.

6. The father was firm in his position that he did not want a relationship with the mother when she was 13 but it was the mother who contacted him and pursued the relationship. 

7. Although the exact sequence of events is not able to be ascertained, it is common ground that at about this time the mother was removed by the Department from her family home and placed in foster care as the maternal grandmother permitted the maternal grandfather to return to the family home following an investigation into the allegation of sexual assault of the mother by her father.  The father agreed under cross-examination that during the time the mother was in foster care at aged 14 and he knew where she was staying, he would pick her up from that location and spend time with her.  He also agreed under cross-examination that a sexual relationship with the mother [was established at this time as it had] begun when she was about 13. 

8. Although the father at first maintained the mother was nearly 15 when the sexual relationship began he subsequently agreed that she would have been 13 in 1996 when the relationship began and that at the time he was facing criminal charges for sexually assaulting his daughter.

9. Although the father conceded that the mother was not of an age where it was legal for him to have a sexual relationship with her, he did not accept that he had sexually assaulted the mother.  The father agreed that in his mind the relationship with the mother was fine as the mother wanted it, willingly participated in and pursued it and that the relationship only occurred because of her behaviour.  The father agreed that in his own mind he did not think he had done anything wrong and still had the same opinion. 

10. The father did not agree that he is a risk to his daughter C who is 14 because he had been in a sexual relationship with a child of the same age.  The father did agree that he thought it would be “wrong” for a child of his second daughter’s age to be having a sexual relationship with someone 20 years her senior but could not explain why this was so.  He only begrudgingly conceded that if it is wrong for his daughter to have a sexual relationship with a man 20 years older than her as a 14 year old that it was also wrong for him to have been in such a relationship himself. 

11. Although the father maintained that it was the mother who pursued the relationship and he still did not think he had done anything wrong at the time, he agreed that he had then fallen in love with the mother, continued the relationship without the knowledge of her parents and at the age of 16 the two began living together. 

12. In a Memorandum prepared in August 2015 (Exhibit 9), the Family Consultant reported on her interviews with family members in the Child Responsive Program.  In that document the mother is reported (when speaking of the commencement of her relationship with the father) as saying that “age does not matter” and indicating that she would be supportive of her daughters if they became involved in a relationship with an older man. When interviewed again by the Family Consultant in April 2016 for the purposes of a Family Report (Exhibit 3), the mother seemed to have shifted in her view and described the relationship between herself and the father as unequal, commenting that she felt “she did not have a say in anything”. 

13. The mother said in oral evidence that when she began the relationship with the father as a child she did not see any problem with it but now she understood that the relationship had started in inappropriate circumstances that the father had treated her like a child and she did not feel she was the father’s equal. 

14. The mother said that she began having conversations with the father [about personal matters] when she was 11 or 12 in 1993 and 1994.  According to her at that time it was the father who always suggested that she spend time with him alone and that he was “always there for her”.  She said she thought this attention was “great” and it did not occur to her that there was something wrong with this relationship until many years later, around two years before she ended the relationship (in 2014).

15. The mother said that the first time she had heard about the concept of “grooming” was through the Family Consultant and that this had educated her about what had occurred in her relationship with the father when she was a child.

16. On the basis of the foregoing evidence, I am satisfied that the parents first met when the mother was seven and the father was her neighbour and almost 20 years her senior.  I am also satisfied that when the mother was aged about 11 and the father rekindled his relationship with the maternal grandparents, it was a relationship in which the maternal grandparents initially trusted the father to assist them with their children and permitted him to be alone with the mother. 

1. I am satisfied that subsequently when the maternal grandparents became aware in about mid-1996 of the allegations that the father had abused his daughter, they told the father that he was not to be alone with the mother.  Despite this direction the father continued to meet with the mother who was then about 12 permitting her to attend at his home alone after school.  The father at this stage knew that the mother enjoyed the attention he was giving her and “had a crush on him”.  He was also aware that the mother was self harming and was a troubled young person. 

2. I am satisfied that the father provided no assistance to the mother following her disclosure to him that she had been sexually abused by her father.  I am satisfied that the father began a sexual relationship with the mother when she was about 13 which continued after she was removed from the care of her parents and placed in foster care at the age of about 14.

3. I am satisfied that the father’s conduct towards the mother who was extremely vulnerable was exploitative and devoid of empathy for her needs.  He opportunistically took advantage of the mother’s vulnerability to meet his own needs and excused and justified his behaviour on the basis that the mother, who was a child, wanted the relationship, willingly participated in it, and pursued it. 

4. I am satisfied that the father’s conduct in befriending the maternal grandparents, assisting them with their daughter which led to him having the opportunity to be alone with her and becoming her confidant was grooming behaviour typical of child sex offenders.  After the maternal grandparents told the father that they did not permit him to be alone with her, the father’s culpability was exacerbated by allowing the mother to secretly meet with him.  In these circumstances the father was able to exploit the mother as a vulnerable child in beginning a sexual relationship with her.

5. I accept the following opinion of the Family Consultant concerning the circumstances in which the parents began a sexual relationship which set the framework for the parties ongoing relationship:

   Ms Taylor said that she was sexually assaulted by her biological father. Mr Taylor said that her parents used to beat her. She was extremely vulnerable. As an adult, Mr Taylor took advantage of that vulnerability and entered into a sexual relationship with her rather than provide appropriate support.

   Ms Taylor then described living in a relationship with Mr Taylor that was characterised by inequality, fear and intimidation. Coming from a history of physical and sexual abuse, and not having the appropriate support in dealing with those issues, is likely to have left Ms Taylor with little expectation with regard to how she should be treated.

The parent’s social context and associates

1. Although the mother does not rely upon evidence concerning the parents’ social milieu and associates in relation to the risk of harm posed by the father I am of the view that it is relevant to this issue. In the course of the Family Consultant’s first assessment, in addition to noting the allegations in relation to the alleged sexual abuse by the father of his daughter Ms F and the circumstances in which the parents’ relationship commenced, the father raised concerns about men that he believed the mother was exposing the children to since separation.  In particular the father raised concerns about the children’s sports coach, suggesting that the coach posed a risk of sexual harm to the children.

2. Although the father’s allegations are not directly relevant to the risk posed by himself they provide context for issues of risk of sexual abuse and relate to the environment in which the children were raised where sexual boundaries between adults and children were blurred.

3. The father complained when interviewed by the Family Consultant in August 2015 that the sports coach licks the children’s faces and gives them “wedgies”[6] at coaching.

   [6] The online Oxford Dictionary defines "wedgie" as "an act of pulling up the material of someone's underwear tightly between their buttocks as a practical joke.”

4. Under cross-examination the mother confirmed that she had seen the sports coach lick the children’s faces.  She said that she thought that it was “yuck” but said that all the children do it [to each other] and did not think that there was any sexual connotation to it.  The mother also said she had observed the sports coach grab the children’s clothing at the back and lift it up and that he had on an odd occasion done this to her daughters.  The mother denied telling the Family Consultant that the sports coach did “wedgies” to the children.  When asked whether she had ever seen him grab the children’s underpants, she said that she had only seen him flicking their underpants if the underpants were showing. 

5. The father told the Family Consultant about an occasion when the sports coach gave a young girl named “[Z]” a “wedgie” at a party and then gave her a “front wedgie” by putting his hand down the front of the girl’s pants and pulling on them causing them to break and causing the child to cry.  He said that everyone else including the child’s parents laughed.  Under cross-examination the father confirmed the accuracy of this complaint about the sports coach’s conduct and the adults present including Z’s parents laughing about the incident.

6. The mother said she was present at this party and was intoxicated and did not recall the incident at all.  She confirmed however that she was told “years ago” of an incident along those lines.  She said she did not say anything and had understood that the child Z thought the incident was funny.

7. In his affidavit the sports coach denies grabbing any children by their underwear and giving them a “wedgie”.  He deposes that it is customary in sports “to be grabbed and lifted by the [sports] costume” which consists of sports pants and a jacket.  In oral evidence the sports coach agreed that on occasions he licked the children on the side of the face “while everyone was mucking around and it was all in good fun at the time”.  He acknowledges that this was inappropriate and said he had subsequently refrained from licking children on the face. 

8. The sports coach said he had never received any complaints from parents or anyone in relation to his conduct as a sports teacher.  He also deposed to being employed at a primary school and is required to undertake a “working with children” check as part of this job and also is required to undertake a yearly police check to teach sports at a Police Citizen and Youth Club (“PCYC”). 

9. The sports coach remained firm as to his evidence under cross-examination that he had not given the children “a wedgie”.  He then agreed that under cross-examination he may have given the students “a wedgie” through their sports garments but denied ever touching or flicking their underwear and said this was not a proper thing to do.  He also added that it was not ever proper for an adult to grab the underwear of a child.

10. The sports coach adamantly denied ever pulling the child Z by the underwear causing it to break in any situation.

11. When interviewed by the Family Consultant, the older daughter confirmed that the sports coach licks the faces of some of the students and gives them “wedgies” but she did not consider it inappropriate.  She also said that her father told her that “[the sports coach] fucked [Z]”, (who was by then 16 years old).

12. The father said under cross-examination that some years previously when they were together at a party the sports coach pointed out “[Z]” [who was then about 12 – 13] and told the father that he wanted to have sex with her.  The father said that this conversation occurred at the mother’s 30^th birthday or his 50^th birthday [in 2013]. The father said that his response to the sports coach’s comment was, “you wouldn’t be Robinson Crusoe”.  The father clarified that this meant that he believed many people would have thought about having sex with Z.  The father agreed under cross-examination that this response suggested to the sports coach that he thought it would be alright [for the sports coach to be thinking about having sex with an adolescent]. The father conceded that following this discussion he continued to allow his children to associate with the sports coach. 

13. The sports coach adamantly denied the allegation made by the father that he told the father in the course of a conversation that he wanted to have sex with the young girl “[Z]” when she was an adolescent. He agreed that it was possible that he might have made an “off the cuff” remark about one of his female sports students developing breasts. When pressed as to why he would have made such a remark the sports coach insisted he did not recall having a conversation to that effect but if he had he didn’t really know why he would have made such a comment. 

14. Under cross-examination the mother said that the father had not ever expressed concerns to her about the sports coach prior to separation.  She also said she had not heard about the alleged conversation in which the sports coach said he wanted to have sex with the female student, Z at the time the conversation was said to have occurred.

15. I am satisfied that the children’s sports coach did engage in some inappropriate behaviour around children which included touching their underwear.  Although the mother who I generally found as an acceptable witness denied that the sports coach did give the children “wedgies” at their sports class I do not accept her evidence or the evidence of the sports coach as to his matter.  The Family Consultant recorded in her Memorandum that the mother agreed in her interview in August 2015 that the sports coach had engaged in this conduct and it was not put to the Family Consultant that she has inaccurately recorded the mother’s remarks.  Further, the mother conceded under cross-examination that the sports coach flicked at the students underwear if it was showing which is inconsistent with the sports coach’s denial that he had done this.  The Family Consultant also records that the older daughter said that the sports coach did give the students “wedgies”. 

16. In my view it is more likely that the coach did grab hold of the student’s underwear from time to time and that none of the adults at the time recognised this as inappropriate conduct.  I am also satisfied that the sports coach engaged in behaviour of a similar kind at a social occasion at the parent’s home which all of the adults present found amusing. 

17. I am not satisfied however, that the sports coach did inform the father that he wanted to have sex with the female student “[Z]” as the only evidence that he did say it comes from the father. The father is well documented as being not favourably disposed to the sports coach who he believes is partly responsible for the breakdown of his marriage.

18. In my view of much greater significance to the issue under consideration is the father’s evidence of his own remarks to the sports coach, effectively telling him that he was not alone in wanting to have sex with an adolescent.  In relation to this topic the father also gave the following critical evidence under cross examination by counsel for the ICL:

    Counsel: … the idea of adults having sexual relationships with adolescents is fairly normal within the circle you move in, isn’t it?

    The father: It is.

    Counsel: It’s not that shocking?

    The father: No.

19. The Family Consultant was asked about the father saying “you’re not Robinson Crusoe” to the sports coach when he commented on an adolescent girl’s breasts and said he wanted to have sex with her.  The Family Consultant agreed with the propositions put to her by counsel for the mother that the father’s risk as a perpetrator of sexual harm is high and that the father had, by his own admission, demonstrated sexually predatory behaviour.

20. In her first assessment of the family in August 2015, the Family Consultant expressed the following opinion:

    The histories provided, and concerns raised during interview, tend to give an overall sense of vulnerability of all family members living in a potentially predatory environment.  The court may deem it appropriate to invite FACS [The Department] to intervene given the additional information obtained in relation to the mother’s vulnerability and the potentially predatory behaviour of both parents’ associates.

21. The associates referred to by the Family Consultant included other people identified by the father.  In addition to reporting to the Family Consultant his concerns about the children’s sports coach, the father also reported that there were two other men known to both parents who are allegedly on the “sex offenders” register and who he believed the mother continued to associate with, though the mother denied that was the case. 

22. When further interviewed for the purpose of the Family Report in April 2016 the mother said that the people alleged by the father to be on the sex offenders register were known to both parents and that the children’s contact with them was very limited.

23. The father also raised concerns with the Family Consultant about inappropriate sexualised behaviour by the mother which the children had copied.  He specifically referred to an incident where the mother deliberately bent over while wearing no underwear directly in front of the older daughter’s face.  He claimed that a mutual friend, (a 47 year old man) reported that the second daughter copied this behaviour to him.  The second daughter allegedly said that she did this because her mother had done it to her sister.  The mother confirmed to the Family Consultant that she had engaged in this behaviour and said she regretted it.

24. The Family Consultant also observed that the Magellan Report (Exhibit 14) indicated that there were two notifications of possible sexual abuse of the older daughter in 2006 and 2014.  It subsequently came to light that the allegation in 2006 related to the maternal grandmother’s partner and that despite the maternal grandmother’s conduct toward the mother as an adolescent which resulted in the mother being placed in foster care the mother continued a relationship with the maternal grandmother as an adult.  The allegation that the maternal grandmother’s partner had sexually abused the older daughter in 2006 was not investigated by the Department and according to the Magellan Report “closed [due to] current competing priorities”. 

25. When interviewed about his relationship history the father gave information to the Family Consultant that the Family Consultant regarded as concerning.  The father expressed doubt that he was the father of the younger child born to his first relationship because “[his first partner] got passed around the football team”.  The father also reported that this child of his first relationship was murdered when he was 14 by an associate of the child’s mother and that the child’s genitals were removed and his “backside cut out” by his killer so that police could not determine whether or not he had been sexually assaulted.  The father also told the Family Consultant that he had not seen his third partner (with whom he had his fifth child) since his child with her was three months old because the woman’s father intervened and ended the relationship.  The father explained that this woman had an acquired brain injury after having been severely beaten, possibly by people her father owed money to.  As a result of this brain injury the woman apparently suffered seizures and the father related to the Family Consultant a conversation about what he would do if she had a seizure by saying “put her in the bath and throw my washing in”.  The Family Consultant took this as an attempt at humour by the father and said he seemed oblivious to both the poor taste of the joke and the inappropriateness of the joke in this particular setting.

26. In the Family Report the father confirmed his association with people on the “sex offenders list”.  He said that on one occasion when he attended a social event with one particular man and the children were present “there was supervision and everyone made sure that this man was not alone with the children”. 

27. In her evaluation in the Family Report, the Family Consultant described the older daughter as confused and wary but also “as a child who likes to please adults”.  She said this child “did not present as a child who might have the confidence or cognitive ability to protect herself against predatory behaviour”. 

28. The second daughter told the Family Consultant she was not aware of the concerns her father had about the sports coach which the Family Consultant felt was unlikely and increased any risk that she may be exposed to.  The Family Consultant opined “children often find it difficult to tell people when they feel uncomfortable and this can leave them open to abuse”. 

29. The Family Consultant also observed that the documents produced on subpoena concerning the youngest child who was then a boy aged nine indicated that concerns had been raised that he had been touching girls at the school on their bottom and breasts. The Family Consultant expressed the opinion that the youngest child was just as vulnerable to predatory behaviour as his sisters adding that “in terms of sexual abuse, many paedophiles will take advantage of vulnerability regardless of the sex of the child”.  She was concerned about what the child may have been exposed to due to him exhibiting sexualised behaviour at school. 

30. Having regard to all of the matters raised by the parents the Family Consultant was very concerned about the predatory environment in which the children were being raised.

31. Under cross-examination further matters of concern in relation to the father’s conduct and attitude emerged.  The father agreed that he had made the remarks about his former partners as reported by the Family Consultant but did not agree that his third partner was a vulnerable person having regard to her acquired brain injury.  It also came to light that his first partner had a mental health problem as she engaged in regular glue sniffing. 

32. When asked whether he was aware that the youngest child was exhibiting sexualised behaviour at school and what the cause for this may be, the father said that he became aware of it about three months prior to separation and thought that it may have arisen because he would “muck around in the kitchen” and touch the mother on her breast and backside and that the child may have seen it. 

33. The mother confirmed that the father did touch her in view of the children including fondling her breast and grabbing at her bottom and vagina and that this was not unusual behaviour.

34. At one point during cross-examination the father was asked about the number of paedophiles within his social circle.  He admitted it troubled him that a number of people he associated with would be considered paedophiles but that he had “never really given it a thought” that the mother may still associate with those people. 

35. I am satisfied on the basis of the foregoing information given by the parents to the Family Consultant and the additional evidence that emerged under cross-examination that the father has had a history of relationships with vulnerable women and has had a long history of association with a range of people who have breached sexual boundaries with children.  I am also satisfied that he did not recognise or express any concerns about a risk of harm posed by these associates to children until the parents had separated. At that stage he only raised such matters in an attempt to criticise the mother and did not identify that it also adversely reflects upon him.

36. I am also satisfied that both parents exposed their children to adult sexualised behaviour.  I find that on at least on occasion the middle daughter copied the mother’s behaviour in the presence of other adults and that the youngest child’s reported sexualised behaviour is likely to be a result of being exposed to sexualised behaviour in his household.

1. Under cross-examination the Family Consultant remained firm in her opinion that the constellation of adult behaviour and lack of protection around the children made the children vulnerable to sexual abuse.  In addition to the particular concerns arising in relation to the mother’s own childhood experience and lack of support, the Family Consultant considered all of the other foregoing concerning matters.  She agreed that a lack of sexual boundaries was obvious in this family and that both parents were aware that in their friendship group there were sex offenders.  She said that both parents felt that their presence when such people were around was sufficient to keep the children safe.  I accept the Family Consultant’s opinion that parents cannot be present at such occasions at all times and her agreement to the proposition that these occasions set up the opportunity for adults to groom children.

The father’s conduct with his children

1. In the various affidavits relied upon by the father, he gives very little detail concerning his relationship with his own children, except to say that is was a close relationship and that he had been involved in their day to day activities up until the parties separated.

2. In her trial affidavit under the heading of “child abuse related matters” the mother refers to the allegation that the father had sexually abused Ms F as a child and her own history of having been sexually abused as a child by her father.  She then deposes to the following:

   I had not observed any behaviour with [the father] that caused me to believe anything like this had occurred with our own children or any other children since we had been together.

3. However, the mother then deposes to the father being particularly close to the older daughter C, describing her as the father’s “favourite”.  The mother says that during the time the ADVO was in place following separation and prior to any orders being made for the father to spend time with the children, the father on two occasions made contact with his older daughter.  On both occasions the mother says that her daughter reported that the father had parked his car in a side street that the child walked past on her way to the bus stop to take the bus to school.  On the first occasion the father approached the child and attempted to speak to her and on the second occasion offered to give her a lift to school which she refused.

4. The father agreed under cross-examination that this had occurred and said that on both occasions his daughter did not want to engage extensively with him as it may have “got [me] in trouble”.  The father agreed that his approaching his daughter this way might have upset her and caused her to be frightened.

5. The mother deposes to initially agreeing to the father spending time with the children after the parties separated which included overnight time each alternate weekend. 

6. In August 2015, the family were assessed by a Family Consultant for the first time as part of Child Responsive Program.  In the Memorandum concerning this assessment the Family Consultant records that the mother initially proposed that the court determine whether or not the children spend time with the father but also said she would be guided by the children’s wishes.  The father at that stage sought orders along the lines that the parents had previously agreed to, that he spend time with the children on two afternoons each week, each alternate weekend and half of the school holidays. 

7. In that initial assessment the older daughter said that she was very close to her father when the family lived together, that she used to go fishing with him and generally spent a lot of time with him.  The second daughter described herself as “close but not close” to her father when they all lived together.  The father agreed under cross-examination that this was an accurate description of his relationship with his daughters.

8. In the Memorandum, the Family Consultant described both parents as presenting as “quite vulnerable” during the interview and noted that the mother said she did not really want the children to spend time with their father but that she “was quite suggestable and seemed easily persuaded”.

9. In November 2015 orders were made with the consent of the parties for the father to spend time with the children supervised by a professional agency and this commenced in December 2015.

10. Generally the contact reports prepared by the supervisor on each occasion of the father’s time with the children are in positive terms describing the father’s physical contact and play interaction with the children as appropriate.

11. According to the mother’s affidavit however, the children reported to her that in the course of spending time with them on 19 December 2016 the father whispered in the older daughter’s ear “the reason why I stopped you from seeing [Mr N] [the children’s sports instructor who at that time was prohibited by court orders from having contact with the children] is because he fucked [Z]”.  The father stated that he whispered this in his daughter’s ear as he wanted to warn his daughters about the sports coach.

12. The father agreed under cross-examination that he had spoken the words to his older daughter as reported by her and when asked how he had had the opportunity to do this under supervision he said that he cuddled his daughter and whispered in her ear. 

13. According to the records of the supervision service there were other occasions on which the father whispered to the children including on 12 March 2016 where it is recorded that when the time together was ending “as [the father] hugged [the older daughter] he whispered, “I don’t want you to go”.  On 2 April 2016 the following is recorded by the supervisor:

    At one point during the contact visit the father whispered something to [the older daughter].  I asked the father to repeat what he had said.  The father replied, “I was telling [the older daughter] to be careful of that boy.  I once found them under the covers together when [she] was eight and he was 16”.

14. The Family Consultant agreed that there were concerns about the older daughter’s relationship with her father.  She also said that the father’s claim that the mother had pursued him [in wanting a relationship when she was a similar age] caused her a great deal of alarm and that he would continue to pose a risk of harm to the children.

15. The Family Consultant was also asked about the possibility that the father may use the opportunity of having contact with the children even under supervision to his advantage.  The Family Consultant said that the father “absolutely” may take advantage of a situation to groom the children and that this may not be brought to the attention of a protective adult as a majority of the population are very loath to question adult behaviour. 

Conclusion – whether the father poses an unacceptable risk of harm to the children

1. In determining whether there is an unacceptable risk that the father may sexually abuse one or more of the children, I attach weight to the following matters.

   ·The Department substantiated the complaint of sexual abuse made in 1995 by the father’s daughter from a previous relationship, Ms F.

   ·The father was charged with sexually assaulting Ms F and committed for trial.  Those allegations were not tested at trial.

   ·Despite remaining in contact with Ms F, the father does not adduce evidence from her about the charge and the inference may be drawn that this evidence would not assist the father[7]. 

   [7]Jones v Dunkel (1959) 101 CLR 298.

   ·The Family Consultant is of the opinion that Ms F’s account of the sexual abuse could only have been the result of the child’s experience.

   ·Ms F made similar detailed allegations to her school, the Department and police.

   ·The father “groomed” the mother between the ages of 11 and 12 in preparation for a sexual relationship with her which began when she was about 13.

   ·The mother was a particularly vulnerable 13 year old having confided in the father that she was the victim of sexual assault and physical abuse by her parents and was subsequently taken into foster care for this reason.

   ·The father continues up until the present to hold the mother responsible for the formation of the relationship with him as in his mind she pursued him.

   ·The father remained of the view that he had not done anything wrong in having a sexual relationship with the mother from the age of 13 until the hearing.

   ·There was a significant power imbalance between the mother and father from the outset which was pervasive throughout the relationship.

   ·As a result of the mother’s own vulnerability and childhood experience, she has a poor capacity to recognise and respond to potentially dangerous situations for herself and her children.

   ·Both parents associated with sex offenders within their social circle when they were in a relationship and neither parent identified this as problematic.

   ·The father continues to hold beliefs which demonstrate poor sexual boundaries and potentially predatory behaviour. 

   ·The children are particularly vulnerable due to personality features such as wanting to please adults and due to their childhood experience.

   ·The Family Consultant is of the opinion that there is a real concern that the father may take advantage of any time he spends with the children even if such time is supervised.

2. Having regard to all of the foregoing, I am satisfied that there is an unacceptable risk that the father may sexually abuse the children when spending time with him.

3. The harms associated with children being the victims of child sexual assault are beyond doubt. 

4. Taking into account the likelihood of sexual abuse and the severity of the impact caused by the abuse, I am satisfied that the father poses an unacceptable risk of harm to the children which cannot be mitigated by supervision.

The Law & Discussion

1. The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.

2. The objects are to ensure that the best interests of children are met by:-

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

4. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.

5. Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.

Primary considerations: s 60CC(2)

1. The primary considerations (under s 60CC(2)) 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. 

2. I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Benefit to the children in having a meaningful relationship with both parents

1. The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark[8] has approved the interpretation of the phrase by Brown J in Mazorski & Albright[9] and has also agreed with the reasoning of Bennett J in G & C[10].  Brown J in Mazorski & Albright (supra) said at [26], after setting out the definition of “meaningful” and “meaning”:

   What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.  

   [8] (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92

   [9] (2007) Fam LR 518

   [10] [2006] FamCA 994

2. This consideration has not been interpreted as creating a presumption that children do receive a benefit in having a meaningful relationship with both parents.

3. As the Full Court said in McCall & Clark (supra) at [117]:

   Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).

4. The Court continued at [122]:

   No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

5. Up until separation the children had a meaningful relationship with both parents.  Although the father’s time with the children has been supervised for the last 18 months it would still be regarded by the children as important or significant to them.  However, the question arises whether it would be in the children’s best interest for the court to craft orders that foster their relationship with the father in the future, in circumstances where I have determined that the father poses an unacceptable risk of harm to the children.

6. In my view it would be entirely inconsistent with the children’s best interest to bring them into contact with their father as he proposes or even to support their relationship with him through orders for supervised time.  For the reasons given, I am of the view that there is an unacceptable risk that the father may groom the children that is prepare them for the acceptability of a sexual relationship with him even during supervised time.  Although he would not have an opportunity to take positive steps to develop such a relationship during supervised time, the children may be vulnerable to other predatory behaviour by adults if sexual contact between adults and children is “normalised” through this process.

7. Further, the Family Consultant is of the view that if a risk to the child is found then it is confusing for the child and the parent who does not pose the risk if as potential “victims” they are required by court order to spend time with the parent who poses the risk.  In my view in these circumstances it is difficult to see any positive benefit to be derived by these children if orders are made that will foster their relationship with their father for the balance of their childhood.  Alternatively, even if it could be said that there is some benefit in such a relationship, consideration must be given to whether this is outweighed by the need to protect the children.

8. Although there are some risks in the mother’s household discussed earlier in these Reasons and to which I will return, I am satisfied that each of the children has a meaningful relationship with his or her mother who has been their primary carer throughout their lives and it will be to each child’s benefit for these relationships to continue in the future.

The need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence

1. The need to protect the children from possible sexual abuse is the most significant consideration in these proceedings.

2. My finding that the father poses an unacceptable risk of harm to the children which cannot be mitigated by supervision or any other order is so weighty in this matter that it is effectively determinative of the father’s proposal for orders that he spend time with the children. I am of the view that even if it could be found that there is some benefit to the children in having a relationship with their father, the risks posed by him inherent in physical contact are so great that they outweigh any such benefit.

3. Given the particular vulnerability of these children and the concerning number of paedophiles in both the parent’s social circle, the need to protect the children from possible sexual abuse while they are in the mother’s care also must be considered.  Having said that, it appears that the mother has gained some insight through the course of these proceedings about risk to the children of this nature in her care. 

4. Initially it appears that the mother did not appreciate the level of her own vulnerability to exploitation by the father when she was a child although she says she gained some awareness of it prior to separation.  At the commencement of the proceedings the mother proposed that the children spend time with their father including overnight time and when first spoken to by the Family Consultant did not express any concern if her daughters were to have a sexual relationship with a much older man as she did at their age.  She also knew of and had associated with some child sex offenders and had behaved in a sexualised manner in the presence of her children which had been copied by the younger daughter in the presence of an adult.

5. In the course of the proceedings the mother became aware of grooming behaviour engaged in by paedophiles and her change of attitude in the orders she now proposes demonstrates a growing awareness in her to the vulnerability of her children to sexual abuse. 

6. The greatest concern in relation to a risk of sexual abuse in the mother’s household at the commencement of the proceedings appeared to be posed by the sports coach with whom the mother continued to associate.  In these circumstances especially when the mother maintained that she was not in an intimate relationship with the sports coach, her resistance to orders restraining her from permitting the children to come into contact with the sports coach was potentially concerning.  It is equally concerning that the children were drawn into the conflict and expressed their own views opposing the restraint.  Further, despite the restraint being in place on an interim basis, the mother continued to pursue a social relationship with the sports coach and did not appear to recognise that the children may find this confusing when they were aware that the restraint had been put in place by the court for their protection. 

7. Following cross-examination of the parties and the sports coach, I am not satisfied that the mother’s continued association with the sports coach or the children returning to his sports school does give rise to an unacceptable risk that the children may be harmed by him.  Although for the reasons given, I am of the view that the coach did engage in inappropriate and distasteful behaviour in licking the children’s faces and touching their underwear on occasions, I am not satisfied that this amounted to sexual abuse.  

1. I also accept that there are a number of protective measures in place that mitigate any risk posed by the sports coach as a result of conduct that may be characterised as inappropriate but falls short of sexual abuse.  First, all of his activities with the children take place in a public venue, being a PCYC.  The sports coach also engages in activities at a school and is required to prove that he remains offence free for the purpose of this employment.  Of significance, I am not satisfied that the sports coach told the father that he wanted to have sex with an adolescent student at the sports school.  For these reasons, I am not satisfied that there is an unacceptable risk that the sports coach may sexually abuse the children or that the children will be exposed to an unacceptable risk of harm in their mother’s care due to having contact with the sports coach, with whom the mother continues to associate.

2. The mother also submits that there is a need to protect the children from psychological harm from being exposed to family violence.  It is her case that she was subjected to controlling behaviour by the father throughout the relationship[11] and a particularly serious incident occurred at the time of separation.  

   [11] Family violence is defined by section 4 of the Family Law Act 1975 (Cth) as “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”.

3. There is no dispute that there was a significant episode of family violence perpetrated by the father against the mother which led to the parties separating in August 2014.  The father was charged with and pleaded guilty to stalking and intimidating the mother and an ADVO was made for the protection of the mother and the children.  According to the Statement of Facts tendered in the Local Court throughout July and August 2014 the mother and the father had a series of arguments in which the father threatened to kill the mother, the children and himself if the mother left him culminating in the following incident on 5 August 2014:

   On Tuesday the 5^th of August, 2014, the accused and the victim were exchanging text messages, when the accused rang the victim. During this phone call, another verbal argument ensued. During this argument the accused said to the victim, “Might as well just end this shit, I should just put a shotgun to your head.” The victim yelled back at the accused before hanging the phone up.

4. The Family Consultant also reported that during the first interview with her, the older daughter said that the father “really frightened” her when he said he would get a gun and shoot the children and her mother.  Although she did not think that her father would hurt her “now” [August 2015] during the subsequent family report interviews in April 2016 the older daughter said she was still worried that the father “might do something to us while we are asleep” and said at that time she would not like to spend time with her father overnight.

5. Although the mother originally raised concerns about the threats made by the father to harm herself and her children (at the time of separation), the mother later indicated to the Family Consultant that she was not concerned about these matters.  The mother did not adduce any evidence in the proceedings of any ongoing concerns.  Without diminishing the significance of the incident that led to separation, the Family Consultant opined that this violence was associated with separation and was a desperate attempt by the father to prevent the mother leaving him.  To this extent she agreed that the father’s behaviour was coercive and controlling.  The Family Consultant also maintained the view that the father’s behaviour towards the mother at the beginning of their relationship exacerbated the mother’s vulnerability to the father’s control.

6. Ultimately, it was not submitted on behalf of the mother that the father continues to pose an unacceptable risk of perpetrating family violence to her to which the children would be exposed under the orders proposed by him.  Further, as I have already found that the father poses an unacceptable risk of harm to the children on another basis it is unnecessary to make any further determination in relation to the risk of family violence.

Additional considerations: s 60CC(3)

1. Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests. Given my finding that the father poses an unacceptable risk of harm to the children, few of the section 60CC(3) considerations are particularly weighty.

Views of the children and factors underlying those views

Nature of the children’s relationship with each parent and other significant persons

1. The mother described C as the father’s favourite to the Family Consultant who reported that the mother “indicated a general sense of unease and scepticism about their relationship, although she did not articulate this”.  The father also described to the Family Consultant that he had a close relationship with C.  The Family Consultant also reports that the father “appeared” to understand that C remains somewhat fearful of him because she overheard his threats to kill the mother and the children.  C told the Family Consultant that she got along “really well” with her father before her parents separated but said “he really frightened” her when he said he would get a gun and shoot the children and her mother.  When interviewed in April 2016 C said she would not like to spend time with her father overnight.

2. The mother told the Family Consultant that C is the most oppositional of the three children in relation to the father.  The father also described C as oppositional and told the Family Consultant that she is like the mother when she was younger.  C told the Family Consultant that she enjoys spending time with her father and does not think she and her siblings require supervision.  On occasions C has not wanted to spend supervised time with her father, and was not required to do so.  C told the Family Consultant that she would be happy to spend overnight time with her father every second weekend and during the school holidays (as he proposes).

3. The mother told the Family Consultant that E had spent a lot more time at home with the father than the other children when he was younger which was also confirmed by the father.  E told the Family Consultant that he likes visiting his father and would like to see him more.  He also told the Family Consultant that he would like [the parenting arrangements] to be “fair”.

4. The Family Consultant expressed the opinion that if the court determines that the children are to spend no time with their father they are likely to be unhappy initially as they have established relationships with their father. 

5. I am of the view that the children have an established relationship with the father and each have expressed the view that they want this relationship to continue by spending time with him.  In the circumstances of this case where the most salient and determinative consideration is the need to protect the children from harm and where I have found that the father poses an unacceptable risk of harm to them, I attach no weight to the views of the children notwithstanding their age in determining the parenting application.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children

1. When the parents’ relationship was intact it appeared that each of them jointly made the important decisions relating to long term issues and since separation all such decisions have been made by the mother alone.  The father agrees that it is in the best interest of the children for the mother to hold sole parental responsibility for them and the focus of his proposal relates to orders that provide for him to spend time with and communicate with the children. 

2. The father has been diligent in seeking to spend time with the children since separation.  Although his attempts to do this by engaging with C on two occasions on her way to school were ill advised, he then sought orders with respect to spending time with his children in the appropriate manner.  Ultimately, he spent time with the children for 18 months supervised by a private supervision agency up until the final hearing.

3. This is not a weighty consideration in this parenting application. 

Likely effect of change in the children’s circumstances

1. The children’s circumstances changed at the end of the final hearing when the father agreed to orders suspending his supervised time with them.  He did not however, abandon his application and seeks to spend substantial and significant time with them his proposed orders. 

2. The orders proposed by the mother and supported by the ICL will bring about a significant change in the children’s circumstances in that it will all but sever the children’s relationship with their father for the balance of their childhood.  Having regard to the established relationship between the children and the father and the views they express about wishing to continue to spend time with him it is likely that they will be initially unhappy as the Family Consultant opines.  She also expresses the view that it is likely that the children will each seek a relationship with their father once they are adults.  Once again this is also not a weighty consideration in the particular circumstances of this case.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

1. Under the father’s proposal of spending time with the children no practical difficulty or significant expense would be involved as the parents continue to live within close proximity of one another and he proposes that the time not be supervised.

Capacity of each parent to provide for the children’s needs including emotional and intellectual needs

1. The Family Consultant raises a number of concerns in her Family Report about each of the parent’s capacity to meet the needs of the children. 

2. The mother’s life experience including her personal history of physical and sexual abuse at the hands of her parents and the lack of nurturance she received has in the opinion of the Family Consultant “significantly impaired her own parenting capacity in terms of recognising and responding to potentially dangerous situations for her and her children”.  The Family Consultant expresses the view that although the mother “appears to have taken charge of her life to some extent, she is likely to remain somewhat vulnerable to predatory behaviour” which raises the vulnerability of her children. 

3. Although I am not satisfied that the sports coach does pose an unacceptable risk of harm to the children as a result of extensive cross-examination about his conduct in the hearing, when the proceedings commenced there was sufficient concern about the risk of harm posed by him to the children that orders were made restraining the mother from permitting the children to come into contact with him.  Although there is no evidence that the mother did not comply with this restraint and the children seem to have vociferously complained about it to their father, the mother remained in social contact with the sports coach herself and continued to undertake voluntary work at the sports Club where he is the coach.  The social contact included outings with the sports coach and other families with whom the children had also previously associated.  In doing so the mother prioritised her own need to continue a friendship with the sports coach at the expense of the feelings of her children who felt upset that they could not associate with the sports coach themselves.  In the opinion of the Family Consultant this “demonstrates a lack of empathy for the children’s feelings and an inability to put the children’s needs before her own”.

4. Under cross-examination the Family Consultant also said that the mother may need parenting assistance in managing the behaviour of the children and in particular D who appears to be more vocal and oppositional.

5. The Family Consultant also recommended that the mother receive therapeutic support herself to fully understand the level of breaches of trust in her own childhood that have led to her own vulnerability and potential risk for the children.  The Family Consultant felt that there was a good opportunity for the mother to obtain assistance and if she were open to it, to improve her parenting skills to benefit the children in the future.

6. Despite the concerns about some impairment in the mother’s parenting capacity as a result of her own experience, there is no evidence to suggest that such impairment puts the children at an unacceptable risk of harm in her care.  Although the Department were invited to intervene in the proceedings, the Department declined to do so and felt satisfied about the mother’s capacity to care for the children and appropriate engagement with support services.

7. The risks of harm to the children posed by the father discussed at length in this judgment clearly also support a finding of serious limitations in his capacity to meet the needs of his children.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. Features of the parents’ lifestyle and background such as associations with a number of potentially predatory people has already been referred to at length when considering the risk of harm posed by both parents and in particular the father to the children.

2. Both of the parents demonstrated a poor attitude to the responsibilities of parenthood in failing to recognise the dangers posed by their associates in this regard.  So far as the mother is concerned, this attitude has been shaped by her personal experience of abuse and lack of nurturance and there is some hope that with a growing awareness as to these issues in part arising from these proceedings that she will seek the appropriate therapy and ongoing education to assist her in being a more attuned and responsible parent in the future.

3. The father’s poor attitude is a matter of much more grave concern due to his lack of insight that persists to this day about the impact of his exploitative and potentially predatory behaviour upon the children.

Family violence including any family violence order relating to the children or a member of the children’s family

1. For the reasons given earlier when considering the need to protect the children from harm arising from exposure to family violence, I am satisfied that the father perpetrated family violence against the mother at the time of separation to which the children were exposed.  At least one of the children expressed her concern and fear arising from the father’s conduct to the Family Consultant and it can be inferred that this adversely affected each of the children.  For some time an ADVO was in place to protect the children from their father though this has since expired.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

1. The orders proposed by the ICL and mother are highly unlikely to lead to the institution of further proceedings as they do not provide for the father to spend any time with the children. They do allow the father to contact the children through letters but these are proposed to be subject to vetting by the mother.

2. Although it is always preferable to limit ongoing litigation with respect to the children, this is not a weighty reason of itself to make such an extreme order that almost completely severs the children’s relationship with a parent.  However, in these circumstances there are other powerful reasons related to the protection of the children from harm that require such an order to be made.

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. In Goode & Goode[12] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [12] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s 61DA.  This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.  The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. On the evidence before me, there are more than reasonable grounds to believe that the father has engaged in family violence so the presumption does not apply. 

6. Both parents seek orders that the mother have sole parental responsibility for the children and the ICL is supportive of such an order being made.  In these circumstances I am satisfied that it is in the children’s best interest for the mother to have sole parental responsibility for them.

7. Given that I have decided that the mother is to have sole parental responsibility for the children I need not turn to s 65DAA of the Act.

Conclusion

1. For the reasons given, I am satisfied that the father poses an unacceptable risk of harm to the children, which is the determinative factor in these proceedings.  The father does not propose that his time with the children be supervised and in any event supervision would not in my view mitigate the harm that is posed by him.

2. Although the children have had to date a significant relationship with their father it is difficult to find that there is any benefit to them in circumstances where he poses an unacceptable risk of harm.  Even if it could be said that there is some benefit, any order that provides for physical contact is outweighed by the risk of harm inherent in such an arrangement. The very limited written communication contained in the orders proposed does not give rise to the same risk of harm.   

3. For these reasons in particular and having due regard to the other relevant considerations, I am satisfied that it is in the best interests of the children for the orders to be made as proposed by the mother.  Accordingly the orders I make are set out in the forefront of these reasons.

I certify that the preceding two hundred and six (206) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 28 July 2017.

Legal Associate: 

Date:  28 July 2017