TURNER & ALEXANDER

[2014] FamCA 14

FAMILY COURT OF AUSTRALIA

TURNER & ALEXANDER [2014] FamCA 14

FAMILY LAW – CHILDREN – With whom the children live – with whom the children spend time –  where one child lives with the maternal grandmother – whether the mother’s husband poses an unacceptable risk of sexual abuse – where the mother’s husband is a registered sex offender – finding of unacceptable risk made – whether the mother is protective of the children – finding that the mother lacks the ability and insight to act protectively – best interests – relationship between siblings – both children to live with the father – father to have sole parental responsibility – children to spend time with the mother – the children be restrained from coming into contact with the mother’s husband.

Family Law Act 1975 (Cth)

APPLICANT: Mr Turner

RESPONDENT: Ms Alexander

INDEPENDENT CHILDREN’S LAWYER: McCormack & Co

FILE NUMBER: MLC 7872 of 2007

DATE DELIVERED: 8 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATES: 14 – 18, 21 – 25 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Werner

SOLICITOR FOR THE APPLICANT: Hutchinson Legal

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr O’Connell

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

ORDERS*

IT IS ORDERED THAT

1. All previous parenting orders in relation to the children R born … October 1997 (‘R’) and S born … February 2000 (‘S’) be discharged.

2. The father have sole parental responsibility for the children.

3. The father shall advise the mother as soon as practicable after making any decision in respect of any major long term issues for the care, welfare and development of the children.

4. The children live with the father.

5. The mother be and is hereby restrained by herself, her servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the children from the father’s care or the care of any other person with whom he has placed them save to exercise time with the children pursuant to an order of this Court or with the prior written consent of the father.

6. The children shall spend time and communicate with the mother as follows:

   a)from 14 March 2014:

   i.by telephone at times agreed between the mother and the children;

   ii.the second and fourth weekend of each month from 6.00 pm on Friday until 6.00 pm on Sunday;

   iii.from 6.00 pm the day preceding Mother’s Day until 6.00 pm on Mother’s Day;

   iv.in the event that the children’s time with the mother falls on Father’s Day, the children’s time with the mother shall end at 6.00 pm on the Saturday;

   v.from 3.00 pm on Christmas Day until 8.00 pm on Boxing Day in 2014 and each alternate year thereafter;

   vi.from 8.00 am on Christmas Eve until 3.00 pm on Christmas Day in 2015 and each alternate year thereafter; and

   b)from the 2014/2015 long summer school holidays;

   i.for four (4) weeks of the school holidays each year as nominated by the mother to the father by three (3) months written notice to the father.

7. All changeovers for the mother’s time with the children shall occur as follows:

   a)the father to deliver  the children to the mother at the car park of Business A in Suburb B at 6.00 pm on the Friday; and

   b)the mother to deliver the children to the father at C Church at D Street, Suburb E, at 6.00 pm on the Sunday; or

   c)at such other location and time as may be agreed between the mother and the father in writing.

8. For the purposes of changeovers pursuant to paragraph 7 hereof, the mother be restrained from allowing F born … June 1991 and/or G born … March 1995 to accompany her for the purposes of changeovers.

9. It is requested that the Family Consultant or her nominee in Child Dispute Services in this Registry meet with the children and explain to them the effect of the orders made this day prior to releasing the children into the care of the father.

10. The father liaise with the Manager of Child Dispute Services in this Registry as to the time he may collect the children from the child minding room following the pronouncement of these orders and the Family Consultant or her nominee meeting with the children to explain to them the effect of the orders.

11. The father forthwith do all acts and things necessary to facilitate the attendance by R upon a counsellor of his choosing for the purposes of supporting the child’s transition into his care.

12. The father thereafter ensure that R attend for counselling on an ongoing basis at such frequency and at such intervals as may be recommended by the child’s counsellor and further abide by any directions as may be made by the counsellor as he/she considers necessary to facilitate the counselling provided for the child.

13. The cost of R’s counselling be borne by the father.

14. The father be at liberty to provide to any counsellor the children attend a copy of all professional reports prepared in this matter, a copy of these orders and a copy of the reasons for judgment.

15. The father is at liberty to remove R from her current school and enrol her at I School, Suburb H, or such other school he shall determine, as soon as practicable and the father is at liberty to liaise with the principal of her current school and the school she is to attend as to matters relevant to the child’s education and welfare and seek advice as to how best manage the child’s transition to a new school.

16. The father be at liberty to provide a copy of these orders and the reasons for judgment to the principal of any school the children attend.

17. The father forthwith sign all documents and do all things necessary to ensure that any school which the children may attend forwards to the mother at the mother’s expense all notices, newsletters, reports and photographs normally disseminated to a parent.

18. The father as soon as practicable advise the mother of any significant illness or injury that effects the children whilst they are in his care and in the event of significant illness or injury the father authorise the treating medical professionals to speak to the mother about the children’s treatment save that the father alone shall be responsible for decisions relating to all treatment or other interventions undertaken by the medical professionals.

19. In the event that the mother takes the children to a medical practitioner when the children are spending time with her she advise the father within 24 hours of the name, address and telephone number of the medical practitioner and authorise the medical practitioner to speak to the father and in the event that no such authority is provided paragraph 2 of these orders shall stand as such authority and the father is at liberty to provide a copy of this order to the medical practitioner.

20. The mother, her servants and agents be and are hereby restrained from allowing the children from coming into contact with Mr J born … 1965.

21. Each of the father and mother be and is hereby restrained by themselves, their servants and agents from:

a)discussing the evidence adduced in these proceedings or the judgment with the children or in the presence of or hearing of the children or allowing any other person to do so; and

b)denigrating the other or the other’s family in the presence of or within the hearing of the children.

22. The order for the appointment of the Independent Children’s Lawyer be discharged.

23. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.

24. All extant applications, save and except any application for costs, be otherwise dismissed and the matter removed from the list of cases awaiting hearing.

25.  Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these orders create and the particulars of consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order, are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS CERTIFIED THAT
Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

*These orders have been amended where underlined to accord with the orders as pronounced by Justice Macmillan on 8 January 2014.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7872 of 2007

Mr Turner

Applicant

AND

Ms Alexander

Respondent

AND

Independent Children’s Lawyer

REASONS FOR JUDGMENT  

INTRODUCTION

1. During her evidence the mother said that she was a family person who wanted all of her children to be together. This statement was somewhat incongruous in light of the mother’s proposals and given the circumstances of this case, but it also highlights the issues at the heart of this case.

2. There are four children of the marriage – F who is 22 years of age, G who is 18 years of age, R who is 15 years of age and S who is 13 years of age. Only the children R and S are the subject of these proceedings. F and G, now adults, live with the mother, S lives with the father, although she previously lived with the mother, and R has lived with the maternal grandmother since February 2012. In recent months, the children have spent little time with each other. Both of the now adult children, who currently live with the mother, have also lived for various periods with the father. Although the father suggested that his relationship with F was not beyond repair, neither F nor G currently have any contact with the father. Not only does G not have any contact with his father, he has also changed his surname from the father’s to that of the mother’s new husband, Mr J.

3. This appears to be a family that has been torn apart or, as R is reported to have said, is “in bits” as a result of the parties’ separation and what has occurred since separation, including this hearing and the previous litigation. The parties separated in 2004 and divorced in 2006.  They have been involved in litigation in this Court or in the Federal Circuit Court, as it is now known, over what is a not insignificant period of time since their marriage came to an end.  

4. The family consultant, Ms K, aptly in my view described the mother’s relationship with her new husband, Mr J, and the risk he poses to the two children the subject of these proceedings as the “catalyst for the current dispute”. However, it was her view, and I agree, that the issues in this case are much broader. The question, given the fractured relationships within this family, is how best to protect the two children, S and R, from ongoing emotional and psychological harm and how to give them the opportunity to maintain their relationship with each other, their parents, and the other members of their family.

The parties

1. The father was born in 1966 and is currently 47 years of age. He is employed in the financial industry and is in good health. The mother was born in 1968 and is currently 45 years of age. She is self-employed in a healthcare role. There is no evidence to suggest that she is not also in good health.

2. The father and the mother were married in March 1989 and separated on 9 May 2004. A decree nisi of dissolution of their marriage was granted in April 2006.

3. The father remarried in June 2007. His wife, Ms T, is currently 41 years of age and is in good health. Ms T has three children from a previous marriage who are aged 21, 19 and 14, respectively. The father and S live with Ms T and her three children.

4. The mother remarried in February 2012. She lives with her husband, Mr J, and the two eldest children of the marriage. R lives with the maternal grandparents.

Documents relied upon

1. The father relied upon the following documents:

   ·his Amended Initiating Application filed 22 August 2013;

   ·his affidavits filed 22 August 2013 and 25 September 2013;

   ·the affidavits of Ms T (the husband’s new wife) filed 25 September 2013 and 18 April 2012 at paragraphs 1–6, 9–14 and 19–27;

   ·the Affidavit of Mr L filed 25 September 2013;

   ·the Family Report of Ms K dated 15 February 2013; and

   ·his Summary of Argument filed 9 October 2013.

2. The mother initially relied upon the following documents:

   ·her Response filed 29 March 2012;

   ·her Affidavit filed  11 September 2013;

   ·the Family Report of Ms K dated 15 February 2013; and

   ·her Summary of Argument filed 14 October 2013.

3. The mother had not filed updated affidavits from the maternal grandmother or Mr J nor did she initially seek to rely upon their evidence by way of affidavits filed for previous hearings. There was therefore an obvious deficiency in the mother’s case given that it was her proposal that R should continue to live with the maternal grandmother, and given the significance of the mother’s relationship with Mr J to the issues in dispute and the adverse inference the Court may have been asked to draw in the event that either the maternal grandmother or Mr J had not given evidence.  These were matters that were raised at the commencement of the hearing and both the father and the Independent Children’s Lawyer agreed that the mother should be permitted to rely upon the affidavit sworn by the maternal grandmother on 16 July 2012 and filed 18 July 2012 and the affidavit sworn by Mr J on 15 April 2012 and filed 17 April 2012 and that both the maternal grandmother and Mr J would be available for cross-examination.

4. The Independent Children’s Lawyer relied upon the following documents:

   ·the Family Report of Ms K dated 15 February 2013;

   ·the Addendum Report of Ms K dated 17 October 2013; and

   ·the Independent Children’s Lawyer’s Summary of Argument filed 11 October 2013.

5. During the hearing, there was also reference to and cross-examination on matters arising out of affidavits filed by the parties at earlier stages of the proceedings, although they were not documents formally relied upon by the parties. 

Legal principles

1. The objects underlying the provisions of Part VII of the Family Law Act 1975 (Cth) (‘the Act’) relating to children are set out in s 60B(1) of the Act as follows:

   The objects of this Part 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.

2. The principles underlying those objects are outlined in s 60B(2). They are that unless it would be contrary to the best interests of a child:

   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).

3. The paramount consideration when making a parenting order is the best interests of the child or children the subject of that order (s 60CA). In determining what is in that child’s or children’s best interests the Court must consider both the primary and additional considerations set out in s 60CC(2) and (3) of the Act. Section 60CC(4) requires the Court to consider the extent to which each of the parents has fulfilled or failed to fulfil their responsibilities as a parent and must have regard to the circumstances since separation (s 60CC(4A)).

4. The analysis of these statutory considerations of what is in the best interests of the child or children in question in the particular circumstances of the case must be made in a way that is consistent with the objectives and the principles underlying those objectives, the primary considerations directly taking up the first two of those objectives.

Standard of Proof

1. The relevant standard of proof is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides that in applying the relevant standard of proof the court must take into account:

   ·the nature of the cause of action or defence; and

   ·the nature of the subject-matter of the proceeding; and

   ·the gravity of the matters alleged.

2. In this case, I have had the benefit of listening to the evidence and observing the appearance and the demeanour of the father, the mother and their respective witnesses who were required for cross-examination. I have also had the benefit of hearing the evidence of Ms K. I have carefully considered the evidence of all of the witnesses in the case and make my findings to the requisite standard having regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations, the matters which I must consider and the consequences that flow from my findings.

Assessment of the Evidence

1. It was submitted by Mr Werner on behalf of the father that the Court should prefer the evidence of the father and his wife over that of the mother, Mr J and the maternal grandmother and further, that the Court should make adverse findings as to the credit of both the mother and Mr J.

2. Although a number of the examples of the evidence that I was referred to by Mr Werner, in my view, suggest a lack of insight on the mother’s part rather than demonstrate that she was untruthful, there were a number of aspects of the mother’s evidence which suggested that she was deliberately not telling the truth and which therefore undermined my confidence in her evidence generally. Without referring to each and every example, they include the following:

   ·In the summary of argument which the mother had prepared in anticipation of the first day of hearing on 3 June 2013, she stated that R was seeing Ms M, a psychologist, approximately every six weeks. It became clear when she was cross-examined, however, having conceded that her statement was “transparent, unambiguous and not open to alternative interpretation”, that R had seen Ms M twice between 21 December 2012 and 3 June 2013 and had not seen her at all since the mother had made that statement.

   ·Both the mother, Mr J and to a lesser extent the father were cross-examined about an incident in 2010 which was first raised by the father in his affidavit filed 1 March 2012. He deposed at that time as follows:

   On or about 11 July 2010 when I was picking up [R] and [S] for the weekend, I noticed [Mr J] taking photos of me. I waved to him, provocatively, and he marched over to remonstrate with me. An ugly exchange between us followed in which he puffed his chest hard up against mine and started pushing me backwards. No punches were thrown but heated words were exchanged while [S] and [R] sat in the car. They witnessed the incident and both were upset. [R], in particular, was petrified.

   The mother during cross-examination described the father as having given Mr J “the finger”. Although the mother did not put this version of what occurred to either the father or his wife, who was also present at the time, I am conscious of the fact that the mother was representing herself. That, however, does not explain why the mother had failed to mention the father’s alleged behaviour in her prior affidavits.

   The mother similarly had made no previous mention of what she described as the father moving aggressively towards the property boundary, which she did refer to in her trial affidavit but had failed to mention in her earlier affidavit, the suggestion being that Mr J behaved the way he did because of the father’s attempts to trespass upon the mother’s property.

   ·Although it is difficult to understand why the mother would do so and what might be achieved by her doing so, I am satisfied that, based upon Ms K’s evidence, the mother told Ms K that the maternal grandparents might be relocating to the country and that R would be very upset if that were to occur. It was the maternal grandmother’s evidence that this had not been a realistic possibility since the maternal grandfather had been diagnosed with cancer approximately three years before and the mother herself conceded in cross-examination that the maternal grandmother had not mentioned this possibility to her for at least 14 months and possibly longer. In these circumstances, it is clear that the mother knew what she had told Ms K during the course of her interview on 14 January 2013 was incorrect.

   ·Having heard the father’s wife Ms T give evidence about reading with R, the mother said in cross-examination that “when I asked [R], she said [Ms T] didn’t read to her”. Coincidentally, the mother had had dinner with R the evening of 16 October 2013, the day that Ms T had given evidence, but when cross-examined about when she had questioned R, her evidence was that although she could not say exactly when it had happened, it had been a long time ago. I do not accept the mother’s evidence. It is much more likely, in my view, that the mother questioned R after she had heard Ms T’s evidence.

   ·Ms K reported the mother as having told her that “her knowledge around sexual offending and identification of risk has developed significantly through her participation in joint counselling sessions with [Mr J].” However, it was clear from her evidence that she had only attended one session with Mr J.

   ·It is clear from the mother’s evidence that by the time Mr J swore his affidavit on 15 April 2012 she had sufficient knowledge of his offending to know that what he said in his affidavit was not the truth. Notwithstanding that to be the case, and with the knowledge that Federal Magistrate Curtain, as he then was, had made it very clear that Mr J should depose fully and frankly to what had occurred, the mother filed that affidavit or allowed it to be filed and relied upon it in support of her case.  

1. Other aspects of the mother’s evidence demonstrated either a lack of capacity or an unwillingness to reflect in any real sense on her own behaviour and how that has impacted upon the children and/or a total lack of insight into the needs of the children. In her report, Ms K described the mother as presenting “with fairly simplistic views of the dispute before the Court, perhaps reflective of emotional and/or cognitive immaturity, and she consequently lacked the capacity for complex exploration of the issues.” This description accords with my observation of the mother’s evidence. Although during some parts of the mother’s evidence I had the impression that she might have some understanding of the issues, she was ultimately unprepared to either acknowledge the significance of those issues insofar as they did not sit with her version of reality or her preferred outcome in these proceedings.  

2. I agree with Mr Werner’s submission that the mother was, at times, obtuse. For example, the mother questioned Ms K as to whether she could say that the mother was putting her own needs before her children’s needs when she was “standing up for them” in the proceedings in circumstances when, as she said, she was in an “up-front, awkward position that I am totally uncomfortable with”. The obvious point being made by Ms K was that the mother was putting her need to be with Mr J before R’s need to live with her. Another example was when the mother asked Ms K whether it surprised her that, given Ms K’s opinion that the mother lacked “the capacity for complex exploration of the issues”, she was in Court representing herself. In both these examples, the mother appears to have completely missed the significance of Ms K’s evidence, although it is not clear whether she was being deliberately obtuse or simply did not understand Ms K’s evidence. I am satisfied that the mother chose to misunderstand or ignore Ms K’s evidence as to do otherwise would require her to analyse and take responsibility for the decisions she has made. 

3. In her report dated 15 February 2013, Ms K described Mr J’s presentation as:

   … friendly and cooperative, albeit perhaps initially somewhat defensive. He was a confident and articulate man at interview, seemingly keen to present himself in a positive light, minimising, it seemed, his responsibility for his offences and, albeit subtly, attempting to control the direction of the interview.

4. Mr J’s evidence during the proceedings gave me little confidence that he has accepted responsibility for his actions.

5. I am satisfied that Mr J’s affidavit sworn 15 April 2012, setting out the circumstances of the offences for which he was convicted, was at best misleading and more likely to be, as was submitted by Mr Werner, “deliberately untruthful”. Mr J’s explanation, when confronted by his own admissions made when interviewed by the police, was that he could not remember the statements he had made and his admissions as to the circumstances surrounding the offences. This is particularly difficult to understand in light of the mother’s written closing submissions, which she says she prepared with Mr J’s assistance, that state “[h]e is devastated by his actions in committing these terrible offences and how they affected the victim, family, friends.” One telling example was Mr J’s evidence – which he could not remember until reminded during cross-examination – of his own admission that he had self-ejaculated twice in the victim’s presence.  

6. I am also satisfied that Mr J has misled the mother. Although it does not appear that she would have changed her position or made different decisions had she been fully informed, it is however clear that certainly at the commencement of their relationship Mr J gave the mother a highly sanitised version of what had occurred in relation to the offences he had committed. Whether it is because of a lack of insight or capacity to accept responsibility, or because he has been deliberately untruthful, the impact upon the reliability of Mr J’s evidence is the same and I have little confidence in his evidence.

7. The maternal grandmother, Ms N, with whom it is proposed by the mother that R should continue to live, also gave evidence and was cross-examined. It was clear from the evidence that neither the mother nor Mr J had ever adequately explained to the maternal grandmother the circumstances of Mr J’s offences or, for that matter, the outcome of the criminal proceedings. I have some sympathy for the maternal grandmother as it was clearly extremely distressing for her when she was confronted with Mr J’s own admissions made to the police. Although I am satisfied that she was attempting to give truthful evidence, I am also satisfied that her capacity to be objective was limited. The maternal grandmother’s reaction to the evidence of Mr J’s offences did not translate into any concern about Mr J’s relationship with either F, G, or for that matter, R, and she still seemed to attribute responsibility for the fact that, as R said, “we’re not a family, we’re bits” to the father rather than her daughter or her daughter’s relationship with Mr J.

8. Although the maternal grandmother said that R was frightened the father would stop her from seeing the mother and her brothers, it is clear from the maternal grandmother’s evidence that she had accepted that fear as a legitimate basis for R’s concerns, without having reflected upon the underlying basis of that fear. It is clear from the evidence, including the maternal grandmother’s own evidence, that R’s fears are primarily based upon what she has either been told by her brothers or her understanding of their attitude to the father. R’s concerns, and for that matter the maternal grandmother’s concerns, are not consistent with the evidence of S being permitted by the father to visit the mother.

9. On the other hand, I found both the husband and his wife Ms T to be considered and compelling witnesses. They were able to make concessions when it was appropriate to do so and were on occasions frank about matters which did not necessarily reflect well upon them. One example was the father’s evidence that, since the mother had pursued criminal charges against him, he had not discouraged S from spending time with the mother but he had equally not actively encouraged her to do so. Another example was the father’s concession that he had told F that he did not want F communicating with the mother following F’s decision to live with him in mid-2010. A less frank, or perhaps more schooled witness, would probably not have so readily made such concessions.

10. Ms T, for her part, readily conceded that her own daughter was bossy, albeit she denied that she or any of her children had ever bullied R. My observations of the evidence of Ms T’s son, Mr L, was that he was also an honest witness doing the best he could in a very unfamiliar environment. I accept his evidence that R was not teased or bullied by him or his siblings and his evidence about her inclusion in their family unit generally.  

11. Ultimately, whether there was a deliberate attempt by the mother or her witnesses to mislead the Court or she simply has no insight into the issues in this case, insofar as there is any conflict between the evidence of the father and his witnesses and the mother and her witnesses, I prefer the father’s evidence and that of his witnesses.

Background

1. The father first commenced proceedings in this Court in 2007. On 4 December 2008, final parenting orders were made by consent in the then Federal Magistrates Court which provided that G, R and S live with the mother and spend time with the father on alternate weekends, one day mid-week, during school holidays, and on special occasions. Prior to these orders being made, G had been living with the father.

2. The father deposes that he was not aware at the time that he consented to those orders that the mother was in a relationship with Mr J let alone that he was a registered sex offender. In her affidavit filed 11 September 2013, the mother described Mr J as “a known person and friend” but said that she was not in a relationship with him at the time the orders were made. In her affidavit filed 29 March 2012, the mother had painted a somewhat different picture, deposing that she first became acquainted with Mr J in December 2007, that their relationship had become more established by December 2008 but Mr J had not moved into her home until December 2011, prior to their marriage in February 2012. The mother said that although Mr J did not live with her prior to December 2011, he visited her home regularly.

3. In the course of cross-examination the mother gave evidence that although she met Mr J in late 2007 they did not commence a sexual relationship until after his criminal proceedings in June 2008, that thereafter they were what she described as “friends with benefits”, and that they did not commit to a relationship until late 2009. When it was put to her that Mr J had described them as being in a relationship in December 2008, she said that was what he wanted rather than the reality of the situation. I have little confidence in the mother’s evidence about her relationship with Mr J.

4. The mother did, however, concede that Mr J had told her about the criminal charges against him in or about March 2008, prior to the hearing of those charges. I am satisfied on the balance of probabilities that the mother and Mr J were in a serious relationship prior to the hearing of the charges against Mr J and that the mother committed to that relationship in the knowledge that he was either facing, or had been convicted of, two charges of committing an indecent act with a minor. I am also satisfied that the mother failed to disclose either the criminal charges or Mr J’s convictions to the father, and allowed the father to consent to orders ignorant of the fact that the mother was in a  relationship with a registered sex offender.

5. The father’s case was that the children spent time with him in accordance with the 2008 orders for about 18 months. He deposed, although it was denied by the mother, that he saw Mr J at the mother’s home on a regular basis when he collected the children, including times when the mother herself was not present, and that he had been told by F that Mr J lived with them at the mother’s home. The father also said that, on occasions, Mr J would drive to his home to collect the children at the end of his weekend time.

6. I accept the husband’s evidence and am satisfied on the balance of probabilities that Mr J was living with the mother for a significant period of time prior to the date upon which both Mr J and the mother say that he moved in. In any event, even if I am wrong, the mother permitted a man she knew was a registered sex offender to spend significant time at her home in circumstances where she had not notified the father of this fact.

7. The father says that in early 2009 G’s behaviour towards both he and Ms T became increasingly argumentative and that by June/July 2009 G had stopped spending regular time with him. The mother’s evidence was that the relationship between G and the father became strained as G was unable to relate to Ms T and that, from the time the 2008 orders were made, G had made his own decisions in relation to spending time with the father. G is now completely estranged from the father, so much so that in March 2013 he legally changed his surname from “Turner” to “Alexander”. G also attended Court on the first day of hearing with a view to supporting his mother throughout the proceedings.

8. The mother’s evidence is that in June 2010 she delivered F to the father’s home after what she described was an angry discussion, during which F punched a hole in the wall, attempted to punch her but did not connect, and hit Mr J. Although in cross-examination the mother initially said that she and Mr J had not laid a finger on F, when challenged, the mother added that she and Mr J had not laid a finger on him to “hurt and harm him.” Her evidence was that Mr J “took control of [F] physically as he had to do and the two ended up on the floor, with [F] being restrained by [Mr J] until he had calmed down. This took approximately five to eight minutes.” She said that F showed no outward sign of injury and did not complain of any injury.

9. The father’s evidence was that F said that he had been assaulted by the mother, but that the father had chosen not to report the matter to police because it was F’s word against that of the mother and Mr J, and that he did not believe that F, given his intellectual capacity, would be able to adequately put his case. The father did, however, take F to the hospital to have his injuries looked at. I am satisfied that it is unlikely that the father would have taken F to the hospital to have his injuries looked at if F had not, in fact, been injured, and I otherwise generally prefer the husband’s evidence about this incident.

10. This incident was followed shortly thereafter by the incident at the mother’s home on 11 July 2010, to which I have previously referred. The father, the mother and Mr J were all cross-examined at some length about this incident. The parties agree that on 11 July 2010 the father and Ms T arrived at the mother’s home to collect both R and S for the weekend.  The father says in his affidavit filed 1 March 2012 that when he noticed Mr J taking photos of him, that he waved to him, he conceded in cross-examination that he did so, somewhat provocatively, at which point Mr J marched over to remonstrate with him and that there was then a heated exchange during which Mr J puffed his chest hard up against the father’s and started pushing him backwards. The incident was witnessed by both R and S, who the father says were both extremely upset. The father described R, in particular, as being petrified.

11. In her affidavit in reply filed 29 March 2012 the mother said as follows:

    I say that during the period referred to I had lodged a claim to the Child Support Agency advising that [G’s] “shared care” status should be changed to record that the care of [G] was now 90% with me. [G] had only been to [the father’s] home on ten occasions during the preceding twelve months. [The father] had provided inaccurate information to the Child Support Agency concerning the number of nights spent by [G] in his care. The agency suggested to me that photographic evidence be obtained and this was the reason for the photographing referred to in these paragraphs …The situation only became confrontational when [the father] sought to provoke an altercation with [Mr J] …The children, who observed the scene, were certainly distressed by the situation. The situation would not have become confrontational but for the aggressive actions and attitude of [the father].

12. During cross-examination about this incident the mother described for the first time, notwithstanding her previous affidavits, the father giving Mr J what she described as “the bird” and, although she did not immediately say so, said it was with both hands. This alleged detail was also not referred to by Mr J in any of the affidavits he has filed in these proceedings.

13. In her affidavit filed 11 September 2013 the mother deposed that the father “verbalised abuse at both [Mr J] and myself, then moved aggressively towards the property line.” There was no mention of the father moving aggressively towards the property line in the mother’s affidavit filed 29 March 2012. Mr J, responding to the father’s allegations about this incident, similarly did not refer to the father moving aggressively towards the property line.

14. Although the mother could not see anything wrong with Mr J taking photos of the father, she conceded that, having taken the photo, he could have remained on the porch and that he could have taken a more child focussed option and said nothing at all to the father. She also conceded that Mr J’s behaviour in leaving the front porch and approaching the father was not child focussed and that he was driven by “his male ego”.

15. Notwithstanding those concessions, she still insisted that the father was 100 per cent responsible for this incident and the ultimate version of what she said had occurred, which she finally gave when offered the opportunity to do so during cross-examination, was that although she conceded that the father had not actually stepped onto her property, that Mr J only moved towards the father after he started to move aggressively towards the property line.  The mother was cross-examined in some detail about the distances the father would have covered as against the distance covered by Mr J. Even if I were to accept the mother’s evidence about the distance between the house and the footpath being 10 metres and not 15 metres as she initially conceded, Mr J would have covered 10 metres, as against 3.5 metres, which was the most the father could have covered from, according to the mother’s evidence, where he had been standing on the nature strip near his car and the boundary of her property. It is difficult to accept, in those circumstances, that Mr J was reacting to the father’s actions rather than acting as the instigator of this incident. In all of the circumstances, I prefer the evidence of the father and Ms T in relation to this incident.

16. I am satisfied that the act of photographing the father was itself provocative, and, if it was necessary to take a photo of the father, there was no reason given as to why it was necessary that it be done in full view of the father and, more importantly, the children. The father conceded that he had made a provocative gesture. However, I am satisfied that there was no reason for Mr J to approach the father and his actions and  the inability of the mother and Mr J to take any responsibility for their part in this incident reflect poorly upon their insight into and their capacity to consider the children’s welfare.

17. It was following this incident that R sent the father a card telling him that she no longer wanted to attend his house any more. The card said as follows:

    Dear Dad

    I don’t like coming to your home. When I am at your place I think to myself why am I hear (sic) when I want to be at mum’s home. There are a lot of things why I don’t want to come. People talk to me like dirt. I am in trouble for things I didn’t do. People tell me what to do, without thinking of my feels (sic). There are a lot more things that I can’t think of right at this very moment. I love you, I want to still talk to you but not visit. I’m not coming anymore because of all these things.

    From [R]

18. The mother acknowledged during cross-examination that R was not capable of writing this letter herself and that the words were not R’s words. She agreed that, although someone had helped R write this card, she did not know whom and said that she had not done so nor had Mr J. The mother was asked about where R would have obtained the card and stamp. Her response was that she did not know, but that she kept a box with several cards in it in her home and R would know where that was. She could not explain where R might have got the stamp and how she would have mailed the letter. I am satisfied that someone in the mother’s household both helped R to write the card and helped her to post it.

19. Notwithstanding R’s card to the father she continued to spend time with him, although her visits were irregular. All four children spent Christmas Day 2011 at the father’s home. F, G and R stayed overnight, returning to the mother’s home on Boxing Day. S stayed with the father and in early January 2012 asked the father and Ms T if she could stay with them for the whole of the school holiday period and after some discussion asked if she could live with them permanently. The father and Ms T told S that she could live with them during 2012 if the mother agreed.

20. On 30 January 2012, before the father was able to reach a concluded agreement with the mother in relation to where S should live, the father received a telephone call from Mr O from the Department of Human Services (‘DHS’). The father says that Mr O asked him questions about both S and R, that he advised Mr O that S had asked to live with him, and that Mr O had asked him whether R could also live with him.

1. On 2 February 2012 the father met with Mr O, at Mr O’s request, who advised the father that Mr J was a registered sex offender, he had been charged and convicted of a sexual crime against a female child when he was a government official, that he had received a custodial sentence which had been reduced on appeal to an 18 month suspended sentence, that he was required to notify the police of any change in his living circumstances, change of employment, email address or phone number and that he had notified the police just prior to Christmas 2011 that he had moved in with the mother. The father was also advised that Mr O had interviewed the mother, Mr J and R, that the mother was already aware that Mr J was a registered sex offender, that Mr J had undertaken to move out of the mother’s home while DHS completed their investigation and that Mr J had threatened DHS with legal action in order to prevent them from telling the father about his convictions. As previously discussed the father was unaware of any of these matters. 

2. The father deposed that when S returned home from school that day he asked her if Mr J had ever done anything that made her uncomfortable, to which she replied “he walks in on me and [R] when we’re getting changed and it’s embarrassing”. The father further deposed that he asked S if Mr J and R ever did anything that was like a girlfriend/boyfriend, to which he says she replied that Mr J “blows raspberries on [R’s] tummy”.

3. The father deposed that on 3 February 2012 he telephoned F to ascertain if he was aware of Mr J’s criminal offences and that F told him that Mr J was in the house and had stayed overnight despite having given an undertaking to DHS that he would not do so. The father also received an email from Mr J that day in which he said as follows:

   [The father’s given name]…

   You have been provided with information and how to deal with that is ultimately your decision.

   Aside from reminding you of the Requirements of the Privacy Act, which make it very clear that this information can only be used with the utmost discretion and amongst your immediate family, I ask that you also consider how any vindictive action would affect the kids mental welfare.

   The information provided to you is from the initial DHS report and you have not been provided with the full investigation, psychological assessments or court determination. The final court report provides a significant reduction to the initial allegations.

   For your information, I have attached a psychological assessment made by Australia’s foremost expert on psychosexual behaviour, [Mr P]. The incident, which is the only skeleton in my cupboard, occurred at a time when I was struggling with my life on many levels.

   I’m not a dangerous man or a risk to your children. I love the kids and would never do anything that would hurt them. I am somebody that simply wishes to rebuild my life and maintain normality. We as humans all make mistakes, and should not forever be judged on those mistakes, but how we learn from them.

   I kindly ask that you give due consideration to not making more from this than has already been dealt.

   [Mr J]

   (original emphasis)

4. The mother said in cross-examination that the two eldest children, G and F, were told by Mr J about his offending in January/February 2012, just prior to the father being notified by DHS. She said that it was Mr J who told them, although she was “in and out of the room”, that it took him about 30 minutes to explain his behaviour, and she described that explanation as being “direct without graphic details”. The explanation included that the victim had exposed her breasts to him, that he had touched her breasts and that she had touched his penis. She also said that the two boys had had the opportunity to ask Mr J some questions afterwards, but it is clear from the mother’s evidence that they were not shown any of the record of Mr J’s interview with the police officers.

5. On 3 February 2012 the father, after obtaining legal advice, emailed a letter to the mother requesting that she sign an undertaking that Mr J not have any contact with the children. On 6 February 2012, the father received a letter from the mother’s then solicitors requesting that he return S to her care within seven days or she would commence contravention proceedings.

6. The father says that on 13 February 2012 S spoke to he and Ms T and expressed her concerns about spending time at the mother’s home leading up to the mother’s wedding, that she was uncomfortable with the mother marrying Mr J, that she thought Mr J might harm her and that she thought the mother might prevent her returning to the father’s home to live. The father said that S had not spoken to the mother since her birthday in early February 2012 and that, although he had encouraged her to do so, she had refused to either visit her mother or speak to her by telephone. At the last minute, S decided to attend the mother’s wedding on … February 2012 and the father made arrangements with the mother’s uncle to enable her to do so.

7. On 16 February 2012 the mother’s then solicitors forwarded a letter to the father’s solicitors agreeing that S could live with the father and spend time with the mother at S’s request.

8. The father commenced proceedings in the Federal Magistrates Court, as it then was, on 1 March 2012. As he believed that Mr J was still living with the mother and the children notwithstanding the undertaking Mr J had given to DHS not to do so, the father engaged private investigators who reported on 2 April 2012 that on 30 March 2012 Mr J was observed leaving the mother’s home at approximately 7.07 am. The mother agreed that Mr J had stayed overnight at her home that night, but her evidence was that R had spent the night at Mr J’s parents’ home, because she had a school production practice until about 6.00pm and the mother was working until about 7.30pm or 8.00pm and that she returned to the mother’s home at approximately 7.30 am that day to get ready for school at a time when the private investigators were following Mr J. The mother deposed that, since Mr J had entered into the undertaking with DHS, he has resided at his parent’s home. She said that, because the majority of his belongings were still at her home, Mr J would stay there until approximately 11.00 pm and return at approximately 6.00 am the following day, and that because the children were in bed they would not have known that Mr J did not stay the night, which would explain why they may have thought he was living at her home.

9. The evidence of both the mother and Mr J in this regard was unconvincing and was not supported by any independent evidence. In my view it is much more likely that notwithstanding his undertaking to DHS Mr J continued to live at the mother’s home or at the very least spent time at her home when R was present.

10. On 4 April 2012, orders were made in the then Federal Circuit Court providing for S to live with the father and for R to live with the maternal grandparents. It was further ordered that Mr J have no contact with either R or S. On 19 April 2012, the matter was transferred to this Court and further orders were made providing for R to live with the maternal grandmother and spend from 5.00 pm on Friday until 5.00 pm on Sunday each alternate weekend with the father, that S spend each other weekend from 5.00 pm on Friday to 5.00 pm on Sunday with the mother, and that both the father and the mother be restrained from bringing either R or S into contact with Mr J. R has lived with the maternal grandparents since the orders were made, albeit that it is not her preferred option. 

11. The father says that initially, following the hearing on 19 April 2012, R spent time at his home pursuant to the orders, appeared relaxed, and enjoyed that time. This continued to be the case until the weekend of 15 June 2012, when the father describes R as becoming withdrawn, awkward and avoiding eye contact. R last spent time with the father on the weekend commencing 29 June 2012. He says that on or about 13 July 2012 he received a text message from the mother which was to the effect that R would not be attending her next weekend with the father, which was to commence on 13 July 2012. On 27 July 2012 the father attended at the maternal grandmother’s home to collect R despite an indication that she would not be spending time with him that weekend. S spent approximately 15 minutes inside visiting her grandmother and then she and R came out to the car. The father says that R spoke to him through the open passenger side window and told him that she had already told the Independent Children’s Lawyer that she was not going to be spending time with the father and therefore she did not want to “inconvenience” anyone by changing her mind.

12. The father says that after 27 July 2012 R stopped answering his calls and although both he and Ms T attempted to communicate with R either by telephone or text message, she either failed to answer the calls or they had had what he described as “unfortunate responses”.

13. Ms T gave evidence about a particular exchange of text messages. At 4.31 pm on 29 August 2012 she sent the following message to R:

    Hi beautiful girl :-) Just a reminder that its fathers day this Sunday and your Dad would love to see you!! Hope you are ok and that school is going good XOXO.

14. She received the following response:

    Just a reminder it’s my mums birthday and her weekend to have us girls. Her birthday is more important. What part off “I don’t want to see or talk to [the father]” do you not get. And plus I never want to speak to him or you. If I WANT TO SPEAK OR SEE YOU I WILL CONTACT YOU. All I want is to be left ALONE and never see the [Turner] family again. The only people I want to see and spend time with is [S], my brothers, [Q], Mum, friends and eventually [Mr J] my stepfather. You and [the father] or anyone else is not on that list so please leave me alone and never contact me again.

15. The mother says that she was shown this message by R after she had sent it, and that R had showed it to her because she was disgusted at the proposal contained in Ms T’s text message; that proposal being that R spend time with the father on Father’s Day and the explanation for R’s disgust being that it was her mother’s birthday. The mother, when cross-examined about this issue, conceded that her birthday was in the week after Father’s Day and not on Father’s Day itself.

16. Although the mother was prepared to concede that R’s message was contemptuous, offensive, inappropriate and worthy of an apology, she did not seem to have any problem with R having sent the text message to Ms T nor did she suggest that R apologise. In my view, the wording of this text message also gives rise to the same questions as the card, which the mother readily acknowledged R could not have written without assistance.

17. It is clear from the mother’s evidence that she perceived herself to be fighting for R and R to be fighting for her. Ms K, in her report, said as follows:

    Whilst Mr [J] does not believe that [R] is happy with the current situation, he believes that she “respects [the mother] for the stance she is making … she sees her mother is fighting for her”.

    The mother was asked about what Mr J had said to Ms K, and she said that she agreed with his description and that she would be proud, as a mother, to say she was fighting for her daughter. The mother described her relationship with R as one of “very strong” mutual respect and, although she would not agree with counsel for the father’s description of the father as a “common enemy”, she agreed that she and R “were supporting each other against a common problem”, which was, in this case, the father.

18. S similarly commenced spending time with the mother following the orders made on 19 April 2012. The father says that she was initially reluctant to go but went at his insistence. On 5 August 2012 he says he received a phone call from the mother mid-morning advising him that she could not cope with S, whom she said, among other things, had refused to shower. The father agreed to meet the mother at a store in Suburb B. He says that when the mother arrived with S, S ran up to him, and that when the mother started to tell him in front of S what a “spoiled little bitch” she had become since she had started living with the father, that S ran into the store in tears. Although the mother denied making the statement attributed to her by the father, it was clear from her evidence that she had had problems with S’s behaviour. She also did not deny that S had run off crying and did not proffer any other explanation for her behaviour, which in my view corroborates the father’s evidence that she was upset by something the mother had said. On the balance of probabilities, I accept the father’s evidence.

19. Notwithstanding this incident, S continued to spend time with the mother for the remainder of 2012 and although she was sometimes reluctant to do so, the father says he reminded her that they were all bound by court orders.

20. Neither the father nor the mother took any steps to enforce the orders with respect to either of the children spending time with either of them and would not appear to have prioritised the children’s relationships with the other parent or each other during this period.

21. In early December 2012 the father was interviewed by police in relation to allegations of assault and rape made by the mother which allegedly took place between 2001 and 2004. The mother reported to Ms K that she felt “unable to previously report these assaults to police as she felt controlled by [the father] and restricted by her belief that he ‘had the right to see the children’”. She explained to Ms K that in 2010 she decided to stop the father’s control of her life after what she described as his “attack on [Mr J]”, when she says she started seeking information from health and mental health practitioners whose records might lend support to her allegations against the father.

22. The father conceded that as a result of the allegations made by the mother he took the view that he would not prevent S spending time with the mother, but he would also not encourage her to do so. Although that was his position, S has continued to spend time with the mother, albeit on an irregular basis, until late July 2013. This included the weekend of 3 March 2013 when the mother, without first discussing it with the father or obtaining his consent, allowed S to have her belly button pierced. As a result of the breakdown in the arrangements for the children to spend time with the father and mother, R and S have not spent regular time together since mid-2012, when R stopped spending time with the father. Thereafter, their time together has been limited to those times when S has spent time with the mother, which have been irregular.

23. On 17 June 2013, the father was charged with recklessly causing injury and indecent assault of the mother. Those charges, which are denied by the father, are yet to be heard.  

Proposals

1. The parties’ proposals changed during the course of the hearing. The most significant change was that both the mother and the father went from having no specific proposals for R and S to spend time with the other parent and each other to detailed and specific proposals, a change which was supported by the Independent Children’s Lawyer. Both the Independent Children’s Lawyer and the mother provided a detailed written minute of their proposals, whilst counsel for the father made oral submissions as to the orders sought by the father and in reply to those sought by the Independent Children’s Lawyer and the mother.

2. The father sought an order that he have sole parental responsibility for the children. He proposed that S and R live with him, that R’s time with the mother be reserved for a period of eight weeks, and that R and S then commence spending time with the mother from 5.00 pm on Friday until 5.00 pm on Sunday on the second and fourth weekend of every month, as well as additional time on special days. The father’s reasoning was that S participates in a sport on the third Sunday of every month and the father and Ms T expected that R would also become involved in that sport. The father sought an order providing him with the option to suspend the mother’s time by providing reasonable notice and make-up time on the following weekend. The father also proposed that the children not spend any school holiday time with the mother until the 2014/15 long summer holiday. The father sought an order that the mother be restrained from bringing the children into contact with Mr J. The father’s proposal largely accords with the recommendations of Ms K in the family report.

3. The mother proposed that she and the father have equal shared parental responsibility for R and S and that R reside with the maternal grandmother and spend alternate weekends with the father from 6.00 pm on Friday until 6.00 pm on Sunday, as well as additional time on special occasions. The mother was in agreement with the father that S should continue to live with the father and proposed that S spend time with the mother on alternate weekends, being the same weekends that R would be in the mother’s care, thus enabling R and S to spend time together every weekend. The mother also proposed an order, without admitting the necessity of such an order, that the mother and maternal grandmother be restrained from allowing either of the children to be in the presence of Mr J, with an exception for Christmas Day provided that such time be actively supervised by the mother or maternal grandmother.

4. The Independent Children’s Lawyer for the large part adopted the father’s proposal, insofar as it was his submission that the father should have sole parental responsibility for R and S and that the children should live with the father and commence spending time with the mother on alternate weekends after an initial period of eight weeks. The Independent Children’s Lawyer was also opposed to the children having any contact with Mr J.

5. In relation to changeovers, the father proposed that, if I were to make orders as sought by him, he would deliver the children to the car park of Business A in Suburb B at the beginning of the mother’s time, and that the mother would deliver the children to the father at C Church in Suburb E at the conclusion of her time. The father also sought an order restraining the mother from bringing anyone other than the maternal grandmother to changeovers. The Independent Children’s Lawyer, in response, said that it would be preferable that any restraint name G and F as persons who cannot attend changeovers, thereby allowing the mother more flexibility as to who can assist her on such occasions. Although the mother ultimately accepted the husband’s proposals for the location of changeover, she proposed that G be able to attend changeovers with her.

6. During her cross-examination of Ms K, the mother put to her, as a hypothetical, the possibility of the children spending week and week about with each of the father and the mother, as follows:

   ... and I guess I need to just put this all into a hypothetical state, it’s still yet for the court to determine whether [Mr J] is a risk or not, but if it was possible, that the girls could attend the same school between both parents, not where [S] is now because that’s not between the pair of us. If it was a school in the middle of us, which we did for [G] going through 2008 court orders - if that was to happen and [R] and [S] were able to have one week with me, one week with [the father], that’s going to keep the girls together. It’s going to keep [R] happy if she’s seeing her mum. [S]: I can’t answer that one for her. I’m just sort of realistically looking at it from [R’s] point of view.

7. The mother said that although it was not a proposal as such, she was listening to Ms K’s evidence and that that was what came to mind.  

The Issues in the Case

1. The issues that I must determine in this case are, in summary, as follows:

   ·whether R should live with the father or continue to live with the maternal grandmother;

   ·what time the children should spend with each of their parents and together; and

   ·what, if any, time the children should spend with Mr J.

1. During her assessment for the purposes of the preparation of the family report,  Ms K identified the following issues:

   ·where the children will live and the amount of time they spend with each of their parents;

   ·the impact of the ongoing dispute on the emotional and psychological wellbeing of S and R;

   ·the mother’s ability and willingness to prioritise the needs of the children above her own;

   ·the impact upon the sibling relationship between R and S (and their relationship with their older siblings) as a result of parenting arrangements which require them to live apart;

   ·whether Mr J poses a risk to the children;

   ·the mother’s capacity to identify and act appropriately upon any risk to the children;

   ·the impact upon the children of ongoing exposure to information in relation to the dispute between their parents; and

   ·the parents’ respective abilities to support the children in their relationships with the other parent and with one another.

2. Although as I have already mentioned the parties altered their respective positions during the course of the hearing, the issues identified by Ms K are, in my view, still relevant for the purposes of the matters I must determine.

Best Interests of the Children

1. The issues identified must be considered having regard to the best interests of the children, which are informed by the primary and additional considerations in s 60CC of the Act. I will turn first to the primary considerations.

(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;

1. As the Full Court said in McCall & Clark (2009) FLC 93-405 at 83,476:

   … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is the “prospective approach” although, depending upon factual circumstances, the present relationship approach may be relevant …

   … we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. 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 to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.

2. In R’s interview with Ms K, seeing her sister S was the only positive aspect of spending time with the father that she identified. When observed by Ms K with the father, Ms K described R as initially providing “minimalistic responses to her father’s attempts to engage her in conversation” and “she was reticent and largely remained focused on her painting activity.” Ms K said the father asked appropriate questions designed to engage R and “appeared sensitive to her emotional discomfort”.

3. Notwithstanding what Ms K described as R’s “strong views around her relationship with her father and her refusal to spend time with him”, it was Ms K’s view that the strength of those views was not being regularly tested and that they were in fact “contradictory and lacking in conviction.” I have also taken into account the fact that at the time of interview R had seen her father briefly on only two occasions since July 2012. Leaving aside whether R has formed her own views independently of those of her mother or other family members, Ms K said that her views were easily challenged, with R readily agreeing to spend time with the father or even live with him subject to relatively minor conditions.

4. S was observed to be relaxed in her interactions with her father and was open to a relationship with her mother. She was described by Ms K as being receptive both physically and verbally to the mother’s affection and she “appeared to be comfortable talking to her mother about events and circumstances which had occurred at her father’s home”. R was similarly very comfortable interacting with her mother.

5. In all of the circumstances, I am satisfied that both R and S would benefit from having a meaningful relationship with both of their parents if permitted and encouraged to do so by their parents. In addition to what one might consider to be the general proposition that children are likely to benefit from a meaningful relationship with both of their parents, in this case that relationship would also have the benefit of allowing the children to reality test the views they have formed as a consequence of their exposure to the protracted dispute between their parents, the disruptive impact of that dispute upon their families’ relationships generally, and what Ms K described as their “apparent need to align with one parent or the other”.

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

1. There was a significant focus in this case on the risk of sexual abuse posed by Mr J to R and S and the need to protect them from any harm that he might present to them.

2. The wife relied upon the psychosexual assessment prepared by Mr P, in anticipation of the criminal proceedings and dated 3 December 2007, in which he concluded that:

   … the offending occurred at a time when Mr [J’s] psychological state was seriously disturbed and the offences were symptomatic of the disturbance rather than of any ongoing psychosexual disorder. That disturbance is now being addressed and thus, in my opinion with the continuation of treatment and in the absence of further psychological depression, there must be the basis for an optimistic prognosis.

3. In April 2012 Mr J was referred by DHS to Ms U at Z Psychologists for the purposes of assessing his future risk of sexual offending and, in particular, to assess the risk, if any, that he posed to R and S. Ms U concluded, based upon the various tests she performed, history review, and clinical interview that:

   … Mr [J] does present with few factors known to be associated with sexual reoffending. On the Static-99 his assessed risk level is Low and on the RSVP he is assessed as having a Low risk. Factors that contribute to his risk level are:

   ·Prior evidence of psychological coercion and partial evidence of frequency of behaviour

   ·Prior difficulties with stress and coping

   ·Evidence of past difficulties with mental health symptoms

   ·Having an unrelated victim

   ·Basic level of self awareness

   ·Difficulties with supervision

   The areas that are considered to contain his risk are:

   ·There is no evidence of pervasive sexual abuse pattern

   ·No indication of preoccupation with sex

   ·No evidence of a general anti social lifestyle

   ·Current evidence of relationship stability

   ·Accommodation stability

   ·Supportive non intimate relationships (parents and peers)

   ·No evidence of substance abuse issues

   ·Engagement and demonstrated ability to gain from treatment services and

   ·Capacity to obtain and maintain stable ongoing employment

4. Based on her assessment, it was Ms U’s opinion that Mr J presented a low risk of sexual offending against R and/or S. She did, however, make specific recommendations, which included the following matters:

   ·that Mr J and the mother formalise a safety plan with an appropriately qualified allied health professional;

   ·that if there are doubts regarding the mother’s capacity to act protectively or function as a supervisor of his contact with R and S that the mother be assessed to determine her protective capacity;

   ·that given the “significance of the dynamic risk factors of emotional dysregulation, difficulties with stress and coping and mental health symptoms”, that Mr J be engaged in psychological counselling so that the above facts can be monitored by a mental health professional; and

   ·that if there are further allegations of inappropriate sexualised behaviour or Mr J refuses to participate in accordance with these recommendations that there should be a review of his supervised time with his stepdaughters.

5. Ms U recommended that Mr J’s time with R and S be supervised until such time as he had complied with her recommendations.

6. Mr J did seek treatment and the mother relied upon a report prepared by his treating psychologist, Dr V, dated 13 July 2012. She reported that Mr J attended his first session with her on 17 May 2012. Although Dr V reported that Mr J had engaged well in treatment and had attended all scheduled appointments, on the basis of that report it appears that he had only attended a total of five sessions by the time that the report was written. Dr V also reported that the mother had participated in only one session. She described Mr J’s treatment as having focussed on exploring the factors that contributed to his emotional and psychological difficulties around the time of his offending and she said that he had demonstrated an “understanding of how these factors contributed to his prior offending, and an appreciation of how they relate to his future risk of reoffending.” She reported that Mr J had been working towards developing a self-management plan to ensure that he is able to monitor and manage the risk factors on an ongoing basis and that the mother had indicated that she would be willing to participate in further sessions and contribute to the development of this plan, which she anticipated would be completed within the next two to four sessions.

7. Mr J’s evidence was that he had attended about 12 sessions with Dr V, in total, and that his last session had been about two to three months before the hearing. He also said that he had spoken to her on the telephone a few times.  

8. Mr P said in his report as follows:

   His attitude to the offending is one of considerable remorse. In determining remorse it is in this case more than just sorrow because of apprehension on (sic) an offence. Indeed, it includes a very strong awareness of the potential impact of the offending on [the victim] …

   Thus, he has made admission of guilt and accepts responsibility. He has sympathy for the victim and is sincere in that. There is compatibility between his version of events and that of the investigator, as indicated in the record of interview and thus, his plea of guilty which in my opinion is a strong indication of remorse. He is contrite which is defined more by the issues relating to the act of the offence rather than self-evaluation. Certainly in terms of remorse he has a painful self-evaluation. He is self-deprecating and obviously wishes to (sic) offending had not been committed.

9. It is very difficult to reconcile Mr P’s observations and opinions with the evidence that I have heard in this case. Ms K said the following about Mr J:

   … it is noted that at interview, as has been noted in previous assessments, Mr [J] appears to distance himself from his offences and whilst readily ‘owning’ the label of “sex offender”, does so in a manner which appears to downplay his level of responsibility in the offences.

10. Mr J gave various versions of what he said had occurred. There was his record of interview by the investigating police in early 2007, what the mother says he told her in March 2008, what he said to Mr O in January 2012, what he deposes to in his affidavit filed in April 2012, what the mother conceded Federal Magistrate Curtain, as he then was, had made clear about Mr J needing to depose in detail to the circumstances of his offences, what he said to Ms U in April 2012 and, finally, what he told the maternal grandmother in January 2013. Leaving aside the victim’s version, there are many inconsistencies and, more importantly, what I consider to be glaring omissions in his later versions of the events that lead to the charges against him. I am satisfied that the version he gave to the investigating officers is the best evidence before me as to what occurred, being closer in time to the offending. I am also satisfied that the different versions he gave later and the details he omitted from those versions are a deliberate attempt on his part to minimise and abrogate responsibility for his actions and are not a result of any purported memory loss.

11. Ms K’s observations are consistent with my observations of Mr J’s evidence, and those observations are particularly significant given that he was aware of her views prior to giving his evidence before me. Mr J was reported to have said to Ms K, evidence which was not the subject of any challenge, that “I didn’t go looking for it or groom her, she presented a situation which I didn’t get out of.” It was submitted by Mr Werner that even seven years after the offending, and with the benefit of having read the family report, Mr J still assigns blame to his victim. Having heard his evidence, I am satisfied that, notwithstanding his evidence to the contrary, Mr J does not accept responsibility for his actions nor is he truly remorseful. This is relevant to and impacts upon the weight to be given to the reports upon which the mother relies and my assessment of whether he is likely to pose a risk to the children.

12. The Full Court in In the Marriage of B & B (1993) FLC 92-357 in relation to the principles to be applied in cases involving allegations of sexual abuse said at 79,778 as follows:

    The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:

    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.

13. A finding that a parent, or for that matter any other person, poses an unacceptable risk of abuse to a child would not of itself preclude a finding that the risk is not unacceptable if any time that child spends with that person is supervised.

14. At the opening of her case, the mother proposed that either she or the maternal grandmother supervise any time that either R or S spend with Mr J, albeit that her case is now that such time be limited to Christmas Day. Although the mother told Ms K that her “knowledge around sexual offending” and identification of the associated risks had developed significantly as a result of her participation in joint counselling sessions with Mr J, her evidence was that she only attended one session with Dr V and, therefore, did not participate in the development of any self-management plan as recommended by Dr V.

15. The mother says that she attended a session conducted by the South Eastern Centre Against Sexual Assault (‘SECASA’), which she says was recommended by DHS. She also annexed to her affidavit a safety plan which she says was prepared in consultation with DHS and that Mr O had approved the structure of.

16. Ms K in her report said of the mother as follows:

    [The mother’s] actions in regard to her relationship with Mr [J] appear to have been largely self-serving. Her initial decision not to disclose Mr [J’s] offending history to [the father], due to fear of the implications for her own relationship with Mr [J], are a clear demonstration of her inability to appropriately assess and/or manage risk. Although [the mother] has had some education around safety plans and assessment of Mr [J’s] psychological wellbeing, as it relates to potential increased risk, she demonstrates a poor understanding of such. Ultimately, [the mother] does not accept that Mr [J] poses any level of risk to the children and, as such, she is unlikely to employ any vigilance around her monitoring of the interactions between Mr [J] and the children. [The mother’s] reliance on, and prioritisation of, her relationship with Mr [J], over and above her relationship with the children, does not bode well for her willingness and capacity to address any future issues of risk, should they arise.

17. In her evidence before me the mother maintained that the specific details of Mr J’s offences were not relevant and, although she ultimately conceded the possibility that he might have told her something less than the whole truth, when confronted with his record of interview she was still unable to acknowledge in any real sense the inappropriateness of his behaviour or the possibility that he posed any risk at all to the children. The mother was defensive about what she clearly considered to be unfair criticism of Mr J. She attempted both in cross-examination of the father and of Ms K to draw what she clearly considered to be a significant distinction between paedophiles and sex offenders.

18. When asked about the inappropriateness of Mr J’s behaviour, the mother focussed on the age of the victim and did not seem to see any real significance in the fact that Mr J was both a government official and the victim’s diving teacher at the time of the offences. For example, counsel for the father put to the mother that the victim told police she had had sex with Mr J the day before her fifteenth birthday. The mother said that she had never heard that allegation before and, when confronted with that and further allegations of sexual conduct between Mr J and the victim, agreed with counsel that, “if it were true”, it would be a very bad thing “because it’s with a minor”. Another example of her evidence which demonstrated her lack of insight or inability to accept the seriousness of the offences was her evidence in relation to the victim’s allegation that Mr J had kissed her underwater during her dive examination. The mother questioned the allegation, she said as a new diver herself, as to how the victim and Mr J could have kissed underwater when conducting a dive examination, seemingly disregarding the fact that Mr J was a 40 year old government official in a position of authority as the victim’s diving instructor.    

19. Notwithstanding what was said about her by Ms K in the family report, and having been present in Court throughout the evidence, in her final submissions, which the mother said she prepared with Mr J, the mother went to some lengths to defend Mr J against what she clearly perceived to be unfair attacks upon his character.  

20. The “unacceptable risk” test is the standard used by this Court 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. In any assessment of risk, any possible detriment to the child must be weighed up against the benefit the child will gain from that relationship.

21. Mr J is not a parent; he is a step-parent. If one accepts the evidence of the mother and the maternal grandmother, apart from the day of the mother’s marriage to Mr J neither R nor S have had any contact with Mr J since early 2012, which is now almost two years ago. The mother’s statement to Ms K that R “misses him like crazy”, which she says is indicative of R’s strong relationship with Mr J, is inconsistent with the evidence of the maternal grandmother that R no longer makes much mention of, or asks after, Mr J.   

22. In all of the circumstances of this case, I am satisfied, on the balance of probabilities and weighing up the possible benefit to the children of a relationship with Mr J, which I am satisfied is minimal, that Mr J poses an unacceptable risk of sexual abuse. I am also satisfied on the balance of probabilities that supervision by either the mother or the maternal grandmother would not make an otherwise unacceptable risk, acceptable. Although I have had regard to the fact that the offences were committed in 2007 and that there is no evidence that Mr J has reoffended, I accept Ms K’s evidence that it is a cause for concern that both the mother, Mr J and, to some extent, the maternal grandmother continue to minimise or lack insight into the seriousness of Mr J’s offences.

23. I have also taken into account the fact that the mother’s case is now that the children only spend time with Mr J on Christmas Day, however, given the history of this matter and although there may be some benefit from the mother’s point of view, I see little benefit in the children spending time with Mr J once a year in circumstances where they have had little or no contact with him for almost two years. 

1. I must now consider the additional considerations.

(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

1. In the course of her interviews with Ms K, R identified not being able to live with the mother – that being her preferred option – as the primary issue for her and that if she could not live with her mother she would continue to live with the maternal grandmother in preference to living with the father. Shortly prior to the hearing, R was interviewed by the Independent Children’s Lawyer during which she stated her intention to run away if she was required to live with the father. On 15 October 2013, I made an order for Ms K to interview R and prepare an addendum to her earlier report.

2. Notwithstanding that R is 15 years of age, an age at which strongly held wishes might be afforded some weight, it was Ms K’s opinion that R did not “present with a level of maturity or understanding of the broader issues which would assist her to make an informed decision about the parenting arrangements.” Although the mother was insistent that R was dyslexic rather than intellectually disabled, it is clear from the evidence before me and, in particular, the latest assessment that her intellectual capacity is within the borderline range. In the Children’s Parents and Issues Assessment dated 19 July 2012, R was described as having “some difficulties in expressive language and her ability to comprehend and express complex concepts was restricted.”

3. In her addendum report dated 17 October 2013 Ms K concluded that R’s level of functioning, together with her “seemingly enmeshed relationship with her mother and her heavily influenced views … raises significant doubt about the degree to which [R’s] views should be given weight.”

4. Ms K reported that although R maintained that she did not feel safe at her father’s home, she could not identify why that might be, although she believed that her father had hit her mother and brother and that this caused her concern for her own physical safety. She was also concerned that if she were to live with her father she would be made to live in a caravan. When asked to comment about living with her father and spending time with her mother R said “I’d miss my double bed and the bed they have for me has a hole in the middle, I think my back wouldn’t like it”, however she also said that “as long as I can keep in contact with mum and get to see her all the time I wouldn’t mind.”

5. The maternal grandmother conceded, when asked about the basis of R’s alleged fear of the father, that R had been exposed to the strongly held views of her brothers, in particular, in relation to not being permitted by the father to see the mother. This is of course, as I have previously said, not consistent with the evidence in relation to the father permitting S to spend time with the mother, albeit not on a regular basis.

6. I am satisfied in all of the circumstances that little weight should be given to R’s wishes, notwithstanding her threat that she would run away. This accords with the views expressed by Ms K in the addendum report. There is, of course, in any event an inherent flaw in the mother’s submission that I should abide by R’s wishes in circumstances where what the mother proposes is not R’s preferred option, that being that she live with the mother.  

7. Prior to the commencement of these proceedings S had expressed a preference to live with the father. Both the father and the mother had acceded to her wishes, although there had initially been some concerns expressed by the mother whether this was what S actually wanted. Although Ms K referred to “informal information” that she had received which suggested that S may also fall within the lower range of intellectual functioning, she also referred to the feedback she had received from Ms W, S’s psychologist,  that S presented as “cognitively capable of making decisions regarding her care arrangements”. S wishes to continue living with the father and I propose to take her wishes into account. That being said, in determining what weight I should give to her wishes, I have had regard to Ms K’s evidence that S’s wishes are primarily based upon information provided to her by the father and, in a more general sense, the exposure she has had to the ongoing dispute and conflict between her parents and within her family.  

(b)the nature of the relationship of the child with:

(i)each of the child’s parents; and

(ii)other persons (including any grandparent or other relative of the child);

(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;

1. R was observed by Ms K to share a close bond with her mother notwithstanding that, as at the date of the interviews for the preparation of the family report, she had not lived with her mother for over 12 months. R has now been living with the maternal grandparents for almost two years. It was Ms K’s opinion, based upon her observations of R and the mother, that they appeared to be “enmeshed”. The mother’s own evidence about R fighting for her and them fighting for each other supports Ms K’s opinion.

2. Ms K said of the relationship between the mother and R as follows:

   [R] presents views indicative of alignment with her mother and, more broadly, with the maternal family. It remains unclear whether [the mother] has engaged in a focused campaign designed to disrupt the children’s relationship with their father, as alleged by [the father], or whether she simply lacks the capacity for self-reflection and, consequently, has been unable to develop insight into her own behaviour which has consistently exposed the children to her views.

3. Whether it is because the mother has actively sought to undermine R’s relationship with the father and, it follows, S, or lacks the insight into her own behaviour to reflect upon the damage she may be doing to those relationships, the result is the same. Whether it is active or passive, the result is that R has spent very little time with the father or S and, although the mother voices support for R spending time with the father, it is qualified by what she says are R’s wishes. According to what the mother said to Ms K, R’s decision to stop spending time with her father was as a result of her frustration with the court process which the mother said R feels is unnecessary. She also said that R had reacted to misinformation provided to her by the father about the alleged assaults upon the mother for which he has been charged. What is absent is any evidence from the mother as to the steps she has taken to encourage and facilitate R spending time with the father. From my observations of the mother’s evidence and, for that matter, the evidence of the maternal grandmother, there seems to be a total acceptance of the children’s disenchantment with the father, no reflection upon the basis for the views they express, no assessment of the impact upon the children of not having a relationship with their father nor any attempt to repair the damage. The mother presented at times as if she saw the breakdown of the children’s relationship with their father as supportive of her and her position.

4. There are other examples, including in the mother and Mr J’s evidence, where they exhibited what I observed to be pride at G having changed his surname from that of his father’s to Mr J’s. Although it is an example in relation to one of the adult children and not a child who is the subject of these proceedings, it is, in my view, a telling example. When the mother was asked whether she had questioned G about changing his surname and whether she had any concerns about him doing so, her answer was that she had spoken to him about changing his surname to “Alexander”. However, her primary concern was that in the event that her marriage to Mr J were to fail, G would be left with Mr J’s name in circumstances where she was no longer married to him. There was no suggestion of her either making any real attempt to discourage G in relation to the surname change or, more importantly, reassuring him that his father loved him, that he should make an effort to repair his relationship with his father, or impressing upon him the importance of that relationship.

5. Another example of the mother’s lack of insight was her reaction to my reservations about G being present in the courtroom at the commencement of the hearing. When I queried whether it was appropriate for the parties’ adult child to sit in on the proceedings and see his parents cross-examined, the mother said that he had come to Court to support her and that although she initially had reservations about his attendance, she said that “he strongly wants to be here to support me … so I have accepted his wishes.” When she was later cross-examined about G attending Court, she said that she had asked him why he wanted to come and he had said he wanted to be there to support her and that as an “18 year old she couldn’t stop him.” It appeared to me that the mother either could not or chose not to acknowledge my concerns and ultimately, and despite the continued objections of the mother, I asked G to leave the courtroom when his father commenced being cross-examined. G did not return to the courtroom thereafter. It does not inspire any confidence that if R were to say to the mother that she did not want to see the father that the mother would either encourage or insist that she do so. 

6. I am satisfied that the mother has made little effort to encourage or support R’s relationship with the father and that she has difficulty separating R’s needs from her own. Her lack of insight and inability to reflect upon her behaviour and the part she has played in the disruption to this family gives me little confidence that she would in the future either promote or facilitate R’s relationship with the father, or S if she continues to live with the father, or that she has the capacity to do so.

7. Both the father and Ms T describe having a relaxed and comfortable relationship with S. Their evidence is consistent with Ms K’s observation that S “appeared relaxed in her interactions with her father.” Ms K made the following observations of  R and S’s interaction with Ms T:

   With assistance from the writer, the family chose a board game to play and [Ms T] was introduced. [Ms T] immediately joined the game in a ‘no fuss’ manner and said hello to [R] who, while responsive, was again somewhat reserved. Within minutes, [R] and [Ms T] were laughing and joking together about their play. [R] was noted to make eye contact with [Ms T] and to engage her in conversation about the game. [R] appeared relaxed in [Ms T’s] company and was more interactive with her than she was with her father. [The father] in fact appeared to take somewhat of a peripheral role particularly in the presence of [Ms T] who was noted to be far more assertive in her role, providing, for example, boundaries around the girls’ behaviour but also providing them with praise for their achievements.

8. Ms K observed that the mother was “particularly affectionate with [S] throughout the day and [S] was receptive both physically and verbally.”

9. Although S, particularly during 2013, has spent only limited time with the mother and, as a result, R, I am satisfied that the father had, until the mother issued criminal charges against him, encouraged S’s relationship with the mother. Notwithstanding his frank concession that since the mother initiated those criminal charges he has not actively encouraged S to spend time with the mother, he has similarly not discouraged her from doing so. This is supported by the father’s evidence that he had encouraged S to spend time with the mother the weekend before the hearing commenced but that, as S only communicated that proposal to the mother at 5.30 pm on the Friday before, the time did not occur as the mother was unavailable. This evidence was not the subject of any challenge.

10. Although Ms K was critical of the father for having exposed the children to the details of and information about the dispute between the parties, she also said that overall he “presents as child focused and as making decisions which are designed to prioritise the children’s needs”. I am satisfied that the father does understand and accept the importance of S’s relationship with the mother, and will not only comply with any orders I make but, notwithstanding his own views of the mother, will do his best to actively support the children’s relationship with the mother and the maternal grandparents. The fact that S was observed by Ms K to be receptive to the mother supports my finding that the father is supportive of S’s relationship with the mother notwithstanding all that has occurred.

11. Ms K said in her report that it was clear that R loved the maternal grandmother, and it was clear from the maternal grandmother’s evidence that she loves and has a close relationship with R, albeit that R still says that the maternal grandmother’s house “doesn’t feel like home.”

(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

(i)either of his or her parents; or

(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

1. R has now been living with the maternal grandmother for almost two years. Whilst that is not her preferred option, based upon the evidence of the mother and the maternal grandmother, she appears accepting of this arrangement and is now settled in her grandmother’s care and progressing as well as could be expected in all of the circumstances. There is no doubt that R may find the transition to her father’s primary care difficult, however having heard the evidence of the father and Ms T I agree with Ms K that they appear to be both “capable and willing to support [R]” through that transition. Both the father and Ms T gave clear and reasoned evidence about how they might deal with that transition and of their willingness to seek both guidance and professional assistance. It is clear that although the father was initially prepared to accede to the mother’s proposal that R live with the maternal grandmother, both he and Ms T have given significant thought and consideration to the arrangements for R if she were placed in their care.

2. Although Ms K said that it will be particularly difficult for R if the mother does not support R living with the father it was the mother’s evidence that she would “have to support it either way”. Although I have some doubts about the mother’s capacity and/ or her commitment to doing so, I am hopeful that she will in accordance with her evidence do what is necessary to support R and encourage both F and G to do so. 

3. I have had regard to the relationship between R and her brothers and, although I accept the importance of these relationships, there is no reason why R cannot maintain those relationships notwithstanding that she will be living with her father. The mother’s proposal is that R should continue to live with the maternal grandmother, whereas her brothers live with the mother. It is now common ground that whether R lives with her father or her maternal grandmother she will spend time with both the father and the mother. There is no reason, subject to my orders that the children not spend any time with Mr J, that the children cannot spend weekend time at their mother’s home as they have since Mr J’s offences were disclosed to the father. It is even possible that in these circumstances R would spend more time with her brothers. Both R and S will also have the opportunity to spend time with the maternal grandmother when they are in the mother’s care.

4. An order that R live with the father will mean a change of school. I am satisfied that R is both doing well and happy at her current school and has made friends at school. However, I am also satisfied that R has moved schools before and has coped well with the changes.

5. Both the father and Ms T gave evidence that they proposed to enrol R at I School, the school that S is already attending. The father deposed that he has made inquiries and there is a position for R at the school, which he says is a 15 minute bus ride from his home. I am satisfied that they have made the necessary enquiries of the school as to both its suitability and opportunities provided by the school for R and how the school will deal with R’s change of school. Although R will almost certainly need some time to settle in at her new school, she will have the benefit of having her sister already at the same school.

6. Ultimately, whilst there is likely to be some disruption for R, I must weigh that disruption against all the other matters that I must consider in determining what orders are in R’s best interests.

(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

1. The parties in this case live within a reasonable distance of each other’s homes and have, when necessary in the past, been able to facilitate the other parent communicating with or spending time with the child in their care or, in the case of the mother, in the care of the maternal grandmother.

2. I am satisfied that there is no practical reason why the children cannot maintain a relationship with each of their parents, the maternal grandparents or their siblings or spend time with them, subject to my orders, on a regular basis.

(f)the capacity of:

(i)each of the child’s parents; and

(ii)any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs:

1. the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

1. Although I am satisfied that the maternal grandmother and, indirectly, the mother are able to provide appropriate physical care and provide for the children’s intellectual needs, I have grave reservations about their capacity to provide for the emotional needs of these children and, in particular, R, on the basis of the mother’s proposal that R should continue to live with the maternal grandmother. 

2. The mother either chooses not to, or lacks insight and is incapable of acknowledging, that she has, by her actions and the choices she has made, placed the children’s emotional and psychological wellbeing at significant risk. Although R is still strongly aligned with the mother and does not perceive her mother as having prioritised her own needs and relationship with Mr J above her own needs, that may not always be the case. There is a significant risk that one day R will realise that she is the only one of her siblings who is not living where she wants to live and that her mother made the decision to live with Mr J in preference to having R in her care, effectively prioritising her relationship with Mr J over her relationship with R.

3. Although the maternal grandmother showed a great deal of care and concern for R, she was closely aligned to the mother and appeared unable to distinguish between the needs of the mother and R’s needs. And, as I have already discussed, she did not appear to have any insight in relation to the father’s fractured relationship with F, G and R or the impact that that might have upon their welfare.

1. The evidence suggests that in the past the father has involved the children in the dispute between he and the mother and has not always acted in a child focussed way when making decisions in relation to the children as a consequence of that dispute. Ms K was of the view, which is consistent with my observations of his evidence, that the father now demonstrates some insight and understanding into the need to protect the children from the dispute and the damage that has been done to the children and the family unit as a result of the ongoing conflict.

2. Both the father and Ms T presented as caring and capable parents. They both described what appeared to be a relaxed and happy home environment. This is consistent with the way in which it was described by S and the way in which S presented when interviewed by Ms K. As I have already mentioned, I was also impressed by the evidence of Ms T’s son, Mr L. He was clearly not familiar with the Court environment nor comfortable giving evidence but I found him to be both an open and honest witness. More importantly, I was left with the strong impression from his evidence of a very normal and happy home in the father and Ms T’s care.  

(h)if the child is an Aboriginal child or a Torres Strait Islander child:

(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)the likely impact any proposed parenting order under this Part will have on that right;

1. This consideration is not relevant to the circumstances of this case.

(j)any family violence involving the child or a member of the child’s family;

(k)any family violence order that applies to the child or a member of the child’s family, if:

(i)the order is a final order; or

(ii)the making of the order was contested by a person;

1. There are in this case allegations of family violence involving both the parents and the children, both during the parties’ marriage and since separation.

2. As previously referred to, in late 2012 the father was interviewed by the police in relation to allegations made by the mother that she was raped and assaulted by the father between 2001 and 2004. He has now been charged and is awaiting trial for recklessly causing injury and indecent assault. The father told Ms K that three of the alleged sexual assaults were complete fabrications and the remaining allegation was “an exaggeration of an incident that did occur.” It is not clear which of these incidents the charges relate to, however, in any event the father says he is contesting the charges.

3. Whilst, as stated by Ms K, a guilty finding in relation to the charges might cause one to reflect upon the father’s nature and his ability to support the children’s relationship with the mother, I agree with Ms K that it would not be in the children’s best interests for these proceedings to be delayed pending the determination of the father’s criminal proceedings. The allegations are historical and, as Ms K noted, there is no evidence to suggest that there is any violence in the father’s current relationship and I am satisfied that he does not pose a risk to the children in his care. In any event it is the mother’s case that S should continue to live with the father.

4. The children have been exposed to the incident between Mr J and the father outside the mother’s home, however, and as I have already found, it was Mr J who unnecessarily provoked the confrontation between him and the father on that occasion. There are also allegations of violence committed by Mr J against F. Whilst they are concerning, I have already determined that, for other reasons which I have already set out that, Mr J should not have any contact with the children who are the subject of these proceedings.

5. There are no family violence orders currently in force in favour of either of the parties or any of the children of the marriage, including the adult children.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. This case has a long and protracted history and I am satisfied that the parties and the children would benefit greatly if there were to be an end to the litigation. Although there is no guarantee that the orders I make will achieve that end, I am as satisfied as I can be that that is likely to be the case.

2. There is a risk, as stated by R to Ms K, that R will run away if I make orders requiring her to live with the father, which if that occurred would  be likely to lead to further proceedings between the parties. However, having regard to the evidence of Ms K, following her recent interview with R for the purposes of preparing the addendum report, where she said that R did not appear distressed when these issues were discussed, laughing and joking about various aspects of running away, I am ultimately satisfied that this risk may not be that great.

3. I am satisfied that even if R has the wherewithal to carry out her threat to run away from the father’s home, that it is more likely, in all of the circumstances, that if she is appropriately assisted in making the transition to the father’s care that the outcome will be positive and bring these proceedings to a conclusion.

(m)any other fact or circumstance that the court thinks is relevant.

1. There is no other relevant circumstance.

s 60CC(4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:

(a)has taken, or failed to take, the opportunity:

(i)to participate in making decisions about major long-term issues in relation to the child; and

(ii)to spend time with the child; and

(iii)to communicate with the child; and

(b)has facilitated, or failed to facilitate, the other parent:

(i)participating in making decisions about major long-term issues in relation to the child; and

(ii)spending time with the child; and

(iii)communicating with the child; and

(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.

1. Neither the father nor the mother has acted as proactively as they should have with respect to spending time and communicating with the child in the other’s care, or in the case of R, the care of the maternal grandmother, or in facilitating the child that is in their care to spend time with the other parent or their siblings. They both appear to have acceded to what they perceived to be the children’s wishes, adopting a course of least resistance with little reflection upon the children’s best interests.

2. I am comforted by the evidence of Ms K as to what she perceives to be the father’s developing insight. That perception also accords with my observations of the father’s evidence. On the other hand, the mother’s evidence did not give me any confidence that she had developed any real insight into the needs of the children generally and, in particular, the importance of their relationships with each of their parents or each other.

3. It would appear that rather than participating co-operatively in the decision making with respect to long term issues in relation to the children, the parties have tended to make decisions with respect to the child that is in their care or, in R’s case, the maternal grandmother’s care, without consultation with the other parent.

Parental Responsibility

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

2. There is a statutory presumption that it is in the best interests of the child for his or her parents to have equal shared parental responsibility unless there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA). That presumption is rebuttable if the court is satisfied that it is not in the child’s best interests.

3. When the court makes an order for equal shared parental responsibility, it is then required to consider firstly whether it is in the child’s best interests and reasonably practical to spend equal time with each of their parents (s 65DAA(1)) and, if not, whether it is in that child’s best interests and reasonably practical to spend substantial and significant time with each of their parents(s 65DAA(2)).

4. The father’s case, which was supported by the Independent Children’s Lawyer, was that he should have sole parental responsibility for both children. Although the mother’s proposal was that R should continue to live with the maternal grandmother and not with her, it was her case that she and the father should have equal shared parental responsibility for both children, including S, whom she conceded should continue to live with the father.

5. Although it is a serious matter to take from a parent the duties, powers, responsibilities and authority that they ordinarily have in relation to their child or children, there are of course cases in which it will be in the best interests of the child or children to do so. This is, in my view, such a case. I have already discussed in some detail the parenting capacity of both the father and the mother.

6. The most significant issue in relation to parental responsibility is the mother’s failure to disclose to the father that Mr J was a registered sex offender and that his offences involved a teenage girl. In my view, this was a complete abrogation of the mother’s responsibility as a parent. The fact that she still does not appear to have developed any real insight and is still critical of what she perceives to be the father’s overreaction to the information he received from DHS only heightens my concerns about her parenting capacity and her understanding of what is required as a responsible parent. I have little confidence in the mother’s capacity to appropriately exercise parental responsibility.

7. An order for equal shared parental responsibility would require the parties to communicate in some fashion, although not necessarily in person. In the face of the criminal charges instigated by the mother against the father, and leaving aside all of the other issues in relation to their ability to communicate and parent co-operatively, such communication would appear to be fraught.

8. In all of the circumstances, I am satisfied that it would not be in the children’s best interests in this case for the parents to have equal shared parental responsibility. In all of the circumstances, I am satisfied that it is in the best interests of the children for the father to have sole parental responsibility.

9. In those circumstances it is not necessary to consider whether it is in the best interests of the children and reasonably practicable for them to spend equal or substantial time with each of their parents.

Conclusion

1. Although Ms K acknowledged that the transition to her father’s care may be difficult for R, I am satisfied that the risks of leaving her in the care of her maternal grandmother are of far greater concern. There is, first, the physical risk of sexual abuse posed by Mr J and what I consider to be the inability or preparedness of the mother to protect R from that risk. I have already found that I am satisfied on the balance of probabilities that Mr J was present in the mother’s home with R overnight, notwithstanding that he had entered into an undertaking to the contrary. Although the maternal grandmother might genuinely want to act protectively, I am mindful of her commitment to her daughter and the difficult position she would be placed in if she were to be required to act in a way that might be contrary to her daughter’s wishes and what she perceived to be her best interests. The strong negative views of the other children, particularly G, about the father may also have a significant impact upon the maternal grandmother and her ability to protect R from what she perceives to be the threat, or lack thereof, posed by Mr J.

2. There are also the significant risks of psychological harm to R in the event that she continues living with the maternal grandmother. There is, primarily, the risk to her psychological wellbeing in the event that she becomes aware that she was, effectively, her mother’s second choice. Ms K described R as potentially having difficulties with self-esteem which could impact upon her own relationships and parenting in the future. There is also the risk that if she continues to live with the maternal grandmother and is exposed to the negative views of the father held by her mother, her grandmother and her brothers that, as identified by Ms K, her capacity to have a relationship with her father in the future is likely to be compromised. 

3. This, however, is not just a case about minimising risk. There are, in my view, significant benefits for R in living with the father. Primarily, that is because she will be living with one of her parents and her sister, whereas the alternative is that she will continue to live with the maternal grandmother and spend little, if any, time with her father and sister. I am satisfied that the father’s home will be a loving and caring environment for R.

4. Based upon my findings as to the mother’s lack of insight, the maternal grandmother’s lack of objectivity, and the possible negative influence of R’s brothers, I also propose to adopt the recommendations made by Ms K with respect to R having a period of time in which to settle into her father’s care. As Ms K points out, this is likely to be a challenging time for R as she will be starting at a new school and, in my view, she should be given the opportunity to settle in without the risk of this being undermined by either the mother, the maternal grandmother, or her brothers. For that same reason, I also propose to make the orders the father seeks with respect to the commencement of school holiday time with the mother. Although I am satisfied that it is important for R to spend time with her mother and her brothers once she has had the opportunity to settle into the new arrangements for her care, I am concerned that an extended period away from the father’s care exposed to those negative views  would have the potential to undermine those arrangements.

5. I am also satisfied that the father has considered the ramifications of a change of residence and the implications of that change on R. Both he and Ms T gave evidence about what they thought might be needed to assist R to make that change and their evidence, including planned counselling with S’s counsellor, Ms W, was insightful, caring and considered. On the basis of their evidence, I propose to make an order that R attend counselling, however, I propose to leave it to the father to choose the counsellor and make the necessary arrangements for that counselling.

6. Although the mother now agrees with the father’s proposals as to the location of changeovers, she did not agree with his proposal that she not be permitted to have any other person attend changeover other than the maternal grandmother, and in particular, it was her proposal that G be permitted to accompany her. The Independent Children’s Lawyer submitted that although F and G should not be permitted to accompany the mother to changeover, the mother should otherwise be permitted to have some choice as to who she wanted to accompany her. I accept the Independent Children’s Lawyer’s submissions with respect to this issue. I am satisfied that, given the relationship between the father and both F and G, that it would not be appropriate for them to be present at changeover because of the risk to both R and S of the exposure to any conflict between them. Although they will not be permitted to be present the mother will, if she wishes, be able to have some other person of her choice accompany her at changeover. As I propose to make an order that the mother be restrained from allowing the children to be brought into contact with Mr J it follows that he will not be able to accompany the mother to changeover.

7. Finally, although the mother had initially put as a hypothetical to Ms K the possibility of the children spending week and week about with each parent, she did include this option in her proposed orders annexed to her final written submissions. This proposal was not the way in which she had presented her case and her proposal lacked practical detail, particularly as to how it would work if an order were to be made restraining the mother from allowing R and S from coming into contact with Mr J. The mother also had not addressed in any detail the impact of her proposed orders for equal time upon S. Ms K, when asked about R and S spending equal time with each of the father and the mother, said that in her opinion it had no “practical value” and that it would be “very disruptive for the children”. She said, about a shared care arrangement, as follows:

   I would be exceptionally concerned for the children’s wellbeing from a situation that saw them having to – to live in essentially what is known as a week about type of arrangement.  There’s some emerging research around week about arrangements for children, that it can create a lot of difficulties for them, both practically and emotionally and psychologically.  Some of the requirements at a parental level around equal shared care in such a fashion is that both parents wish for that to happen, that they have an exceptionally communicative and collaborative parental relationship, that they have similar parental styles, that they live geographically close to one another.

8. I am not satisfied, particularly having regard to my concerns about the mother’s parenting capacity, that a shared care arrangement, even if the mother’s proposal had been clearly articulated, would in all of the circumstances of this case be in the best interests of either R or S.

9. Although this may be a challenging time for the children, and for R in particular, I am satisfied that the orders I propose to make are in the best interests of both R and S.

I certify that the preceding one hundred and seventy seven (177) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 8 January 2014.

Associate: 

Date: 8 January 2014