TWINER & VAN WYK

FAMILY COURT OF AUSTRALIA

TWINER & VAN WYK

[2011] FamCA 422

FAMILY LAW – CHILDREN – With whom a child will live and spend time – Where there is no unacceptable risk of sexual abuse – Where the mother maintains belief about veracity of allegations – graduated regime with supervised and unsupervised time.

FAMILY LAW – CHILD SUPPORT – Where the father is likely to earn more than his reported income – Departure order.

Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth)

APPLICANT:

Mr Twiner

RESPONDENT:

Ms Van Wyk

FILE NUMBER:

CAC

1109

2007

DATE DELIVERED:

9 June 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra and Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

9 - 10 December 2010 (Canberra); 3 May 2011 (Sydney)

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Maurice Kiss

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

All previous parenting orders are discharged.
Subject to these orders, the mother will have sole parental responsibility for J M Van Wyk Twiner born on … February 2005 (“the child”).
The mother give notice to the father in writing or by email of any major decision she intends to make about the child’s education or medical care at least 21 days prior to making such decisions, and before making the decision, consider any view expressed by the father in writing or by email received within 21 days of the notice given by the mother to the father.
Each party do all things and sign all necessary documents to ensure that the child, commonly known as J M Van Wyk, at all times in the future be known by the name J M Van Wyk Twiner and referred to as “M”.
The child live with the mother and notwithstanding these orders, spend time with the mother on Mother’s Day, on the mother’s birthday and during the morning of the child’s birthday (to include the afternoon and evening before the child’s birthday, which shall not be a day to which order 6 relates).
The child spend time with the father as follows:
6.1.For a period of two months on one day each week to be nominated in writing by the father from after school to 6pm, such time to commence after the father has given the written notice pursuant to Order 6.5;
6.2.Thereafter for a further period of two months on two days per week to be nominated by the father in writing from after school to 6pm;
6.3.Thereafter, for a further period of two months on one day to be nominated by the father in writing from after school to 6pm and on a further day to be nominated by the father in writing from after school until the commencement of school on the following day;
6.4.Thereafter, from after school on a Monday, Tuesday or a Wednesday to be nominated by the father in writing for a period to include two consecutive weeknights to commence after school and to conclude with the father returning the child to school on the morning after the second night;
6.5.The first period of two months will commence as soon as the father has give 7 days written notice to the mother of the day upon which he wishes the child to be with him after school and the father is to give at least 7 days written notice in relation to the days of the week that he wishes the child to be with him pursuant to orders 6.2, 6.3 and 6.4.
6.6.For one week during the 2011/2012 Christmas school holidays as agreed between the parties and failing agreement, to be a week commencing 9 January 2012;
6.7.For one half of school holidays from first term school holidays in 2012 by agreement between the parties and failing agreement, the father is to have the first half of school holidays during even numbered years and the second half of school holidays during odd numbered years;
6.8.The child’s time with the father during school holidays is conditional upon him being available to take holidays at that time;
6.9.Notwithstanding any other order and unless the parties otherwise agree in writing, the child spend from 9am on 24 December to 11am on 25 December with the mother and from 11am on 25 December to 11am on 26 December with the father in even numbered years and from 9am on 24 December to 11am on 25 December with his father and from 11am on 25 December to 11am on 26 December with his mother in odd numbered years;
6.10.From 9am to 5pm on Father’s Day;
6.11.From after school until 7pm on 19 February and 2 December each year (if 19 February or 2 December is a school day) and for three hours on 19 February and 2 December if 19 February or 2 December is a weekend day, such three hours to be by agreement between the parties and failing agreement, to be from 4pm to 7pm;
6.12.The child’s time with the father be unsupervised;
6.13.The father will be responsible for returning the child to the mother at the conclusion of the child’s time with the father unless that time concludes at the commencement of school in which circumstance, the father shall deliver the child to school;
6.14.On any occasion when the child’s time with the father does not commence at the conclusion of a school day, then the mother shall deliver the child to the father.
The mother be permitted to travel overseas with the child upon the following conditions:
7.1.The period of travel not exceed 5 weeks during which time the orders granting the child’s time with the father be suspended;
7.2.The mother shall give the father at least 3 months written notice of her intention to travel overseas with the child;
7.3.That the mother provide to the father a charge over the mother’s real estate to the amount of $50,000 for the purposes of securing the child’s return to Australia;
7.4.The charge allow the father to seek an order for sale of the property to allow him to receive the amount of $50,000 in the event the mother does not return to Australia with the child at the time she is due to return and in the event that she continues to remain away from Australia with the child;
7.5.The father is to be entitled to lodge a caveat on the title of the mother’s property during the period of time the mother is overseas with the child;
7.6.The father will provide the mother with a withdrawal of caveat upon her return to Australia with the child;
7.7.The costs of preparation of the charge and the cost of preparation of the caveat and withdrawal of caveat be paid for by the mother;
7.8.In the event that the father chooses not to sell the mother’s real estate in circumstances where the mother continues to reside overseas with the child, then the father will be able to offset the amount of $50,000 against any obligations he has from time to time to pay child support.
The father sign any documents the mother requires to enable her to travel overseas with the child within 14 days of those documents being provided.
The mother attend upon her general practitioner to obtain a referral to an appropriate counsellor to assist her in dealing with issues relating to her emotions and anxieties arising from the child spending time with his father and for that purpose, the counsellor have available to him/her these reasons for judgment and the report of Dr R and his supplementary document.
Pursuant to s 117 Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable for the child for the period from 15 March 2011 to 30 June 2016 as follows:
10.1.The annual rate of child support payable by the father will be $7,800.00;
10.2.The annual rate of child support payable by the father shall increase in each of the next five years; in accordance with any change in the consumer price index for Sydney for the preceding calendar year; and
10.3.The father sign a charge over the property he owns and the mother have a caveatable interest over the property pursuant to that charge to secure all payments of liabilities pursuant to child support

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: CAC 1109 of 2007

Mr Twiner

Applicant

And

Ms Van Wyk

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parties met over an internet dating service and married within months. They began to live together six weeks after the marriage but separated less then five weeks later. Only after separation did the mother realise she was pregnant.
The child at the centre of the dispute is aged six years. The mother has a daughter from a previous relationship aged 15 who lives with her father. The father has a son from a previous relationship aged 6, who lives with his mother.
There were allegations by both the father’s sons, years apart, that the father had put his finger in their anuses. This allegation has been repeatedly investigated, to the detriment of the child. The mother is convinced of the truth of the allegation.

APPLICATIONS

The mother seeks the following:
1.That the child’s time with the father be supervised.
2.That the child’s name be changed to M Van Wyk.
The mother has filed an amended application seeking orders in relation to child support. Although that application might be slightly confusing in its form, it fundamentally asks the court to create some certainty as to the assessment of child support based upon the father’s demonstrated earnings and earning capacity. The application is brought under sections 116 and 117 of the Child Support (Assessment) Act 1989 (Cth).
The father seeks orders in the following terms:
1.The father spend ‘regular unsupervised contact’ with the child during weekdays.
2.Ms S (DoCS) be kept away from the child.
3.Mr V is kept away from the father’s business and the father.
4.Both the mother and the father attend bi-monthly counselling to assist them in finding ways to appreciate each other’s roles and care for the child.
The family consultant, Ms D, was asked to indicate an appropriate long term proposal in the event that the court found that the father did not pose an unacceptable risk to the child but also assuming that the court accepted that the mother held a genuine fear. Ms D indicated after 18 January, for a period of three months, the father should spend supervised time with the child for two hours fortnightly at Town C Community Centre. Supervised time could then extend for another six months. How this supervision could be arranged was problematic.
Dr R’s primary recommendation initially was for unsupervised time. He conceded however, that supervision initially may be of some benefit in attempting to contain the mother’s anxiety, and protect the father against unfounded fears. This would in turn be beneficial for the child. Dr R made it clear that the point of difficulty would be when the child starts to go with his father for unsupervised periods, and so there was no reason to extend the supervision for a long time.
The Independent Children's Lawyer suggested that supervision occur from 18 January to 18 April and then unsupervised time be introduced on a graduated basis. She suggested half a day for two months, one full day for two months, two full days (not overnight) for two months and then overnight after that six month period. It was not clear whether the Independent Children's Lawyer intended these visitation periods to be on a weekly or fortnightly basis. This would mean that overnight time would not commence until towards the end of 2011.
It was suggested by the Independent Children's Lawyer I should make an order that neither party refer to past allegations with the child and that I make a non denigration order. Those suggestions are well founded.
The Independent Children's Lawyer submitted that I should not make any order in relation to parental responsibility. I do not accept that that is an appropriate approach.
Unfortunately the hearing was not able to be confined to the allocated days and consequently, the finalisation of the matter was delayed by the matter being part heard.
Prior to court commencing on the first day of the hearing, the family consultant spoke with the parties and a tentative agreement was reached as to visitation arrangements prior to this judgment being delivered. It was decided that the child would have two hours of supervised time with the father prior to Christmas at the paternal grandparents’ house. From 18 January to 18 April 2011 the child would have two hours of supervised time with the father with an impartial supervisor.
There was some difficulty with arranging supervision. The paternal grandparents are not appropriate supervisors due to concerns about their health and the mother’s suspicions about lack of appropriate supervision. The mother suggested that a student who worked at the child’s preschool could be paid to undertake supervision, but the father said she was aligned with the mother. It was discussed that E Organisation offered a service at Town C Community Centre, at least every second Tuesday, but that would create difficulties where the mother was unavailable to drive the child to Town C. At the end of the first part of the trial, a friend of the father who had been present, Mr A, indicated that he would be prepared to assist in travelling to Town C for the purposes of fortnightly time between the child and his father on the initial six occasions, while the mother was working during the afternoons. The mother’s evidence subsequently filed for the child support part of the hearings shows that she has not worked one school day each week so that she can undertake this task herself.
The parties agreed that the child could be provided with a passport so that the mother, if she chose, could go on a holiday to the Netherlands to visit her family in that country. The father on the second day indicated that he wished some security to be provided. The mother has an unencumbered property in Town B. I suggested that security in the form of a charge on that real estate to the amount of $50,000 could be provided. The father could secure his entitlements under that charge by way of caveat. The mother seemed to accept that proposal.

DOCUMENTS RELIED UPON

The Applicant Mother relied upon the following documents:
16.1.Mother’s Amended Initiating Application filed 15 March 2011
16.2.Mother’s affidavit filed 29 October 2010
16.3.Mother’s affidavit filed 22 July 2009
16.4.Mother’s affidavit filed 18 December 2008
16.5.Mother’s affidavit filed 12 August 2008
16.6.Mother’s Financial Statement filed 15 March 2011
16.7.Affidavits of Mr V (maternal grandfather) filed 29 October 2010 and 22 July 2009
16.8.Affidavit of Ms V (maternal grandmother) filed 29 October 2010
16.9.Affidavit of Ms Field (father’s ex-partner) filed 18 December 2008
16.10.Affidavit of Ms S filed 29 October 2010
16.11.Affidavit of Ms F filed 29 October 2010
16.12.Affidavit of Ms G filed 29. October 2010
The Respondent Father relied upon the following documents:
17.1.Father’s affidavit filed 18 April 2011
17.2.Father’s affidavit filed 2 December 2010
17.3.Father’s affidavit filed 7 October 2008
17.4.Father’s affidavit filed 19 May 2008
17.5.Father’s Financial Statement filed 18 April 2011
17.6.Affidavit of Ms Twiner filed 2 December 2010
The Independent Children’s Lawyer relied upon the following documents:
18.1.Short Memorandum of Family Consultant (Ms D) dated 9 December 2010.
18.2.Family Report (Ms D) dated 16 November 2010
18.3.Affidavit of Ms S (DoCS counsellor) filed 29 October 2010
18.4.Family Report (Dr R) dated 3 November 2009
18.5.Family Report (Ms D) dated 12 March 2009
18.6.Update to Children and Parent’s Issues Assessment (Ms D) dated 28 October 2008
18.7.Update to Children and Parent’s Issues Assessment (Ms D) dated 15 July 2008
18.8.Children and Parent’s Issues Assessment (Ms D) dated 11 February 2008
18.9.Updated Family Report (Ms H) dated 2 September 2007
18.10.Family Report (Ms H) dated 7 May 2006

SHORT HISTORY

The mother was born in the Netherlands in 1962 and is aged 49.
The father was born in Australia in 1967 and is aged 43.
The mother’s daughter T was born in February 1995.
The parties met on 15 January 2004, married in mid April 2004 and began cohabitation on 19 May 2004.
The father’s first child from an earlier relationship (N) was born in February 2004 and is aged 7 years.
The parties separated on 21 June 2004, less than five weeks after cohabitation. They were divorced in June 2006.
The child was born in February 2005 and is aged 6 years.
The child made his most significant sexual abuse disclosure on 1 July 2009.

CREDIT

Mother

The mother clearly had done a large amount of preparation for the case and there was a large volume of material in the court room. The mother seemed to know precisely where documents were in her material and was able to retrieve them easily and quickly when required on quite a number of occasions to do so. The time and effort invested by the mother in the preparation of the case against the father was expended to establish that he was an unacceptable risk to the child.
The mother at all times gave evidence which was consistent with her belief that the father had sexually abused the child. I find that belief is genuinely held. That steadfast belief, however, causes me to doubt some of her interpretation of what she has reported the child saying or doing.

Father

The father chose not to ask many of the witnesses any questions and only asked a few questions during the hearing. The father’s evidence seemed credible, with three main exceptions.
The evidence that the father gave about T’s having seen pornographic material accidently on the father’s laptop I think on balance is unlikely to be true. This is detailed further below.
The father denied the maternal grandfather’s evidence that the father, when the parties were present at court for a counselling interview with Ms D, had reported to a Court security guard that the maternal grandfather had threatened to kill him. Tendered in evidence (exhibit O) was a statement that the mother had obtained from the security officer on that day which corroborated the maternal grandfather’s version.
Also tendered in evidence was the judgment of Faulks DCJ in the proceedings between the father and Ms Field. Section 69ZX(3) Family Law Act (“FLA”) allows me to exercise a discretion to take those findings into account. His Honour found that the father was not a credible witness in those proceedings. Although I am able to take into account on a discretionary basis the fact that the father was not found to be a reliable witness in a previous set of proceedings in this court involving another child, and I do so, I have been able to make my own assessment of the father’s credibility based upon his appearances before me and the other evidence he has given.
The father gave some implausible evidence about a loan application which he signed, that he said the bank employee filled out with incorrect information. I do not accept as credible the assertion by the father that the bank manager made up the net average monthly figure. This is dealt with below.
Counsel for the mother also attempted to prove that the father gave inaccurate information to a magistrate in former proceedings. I am unable to say on the basis of the transcript (exhibit V) that he did give inaccurate information. The transcript makes reference to child support the father was paying in respect of the child he had with Ms Field and the subject child. Although other parts of the questioning would seem to indicate that the father is saying to the magistrate that he was being assessed on $800-$900 in relation to only the child instead of both children, I don’t think I can make any finding of credit against the father based on the transcript.

Whilst I have to treat what the father says with caution given that I am not confident that he has told me the complete truth throughout the hearing, I do not necessarily conclude that he is being untruthful in relation to the central allegations against him relating to the child.

Maternal Grandfather

There was an issue with the maternal grandfather’s evidence that was problematic. The maternal grandfather said that he overheard N say “We play doodleswap. Dad makes white sticky on my belly”. He said it was over a year ago, and then that it was perhaps 2007 or 2008. I note firstly, that the grandfather says that N uses the word ‘Dad’ while Ms Field reports him talking about ‘[The father’s first name]’.
Apart from the most recent affidavit of 29 October 2010, the maternal grandfather had filed previous affidavits dated 22 July 2009 and 14 August 2007 which did not mention this incident. The information is of such potential importance that it seems very unlikely that the maternal grandfather would not have mentioned it in his previous evidence. The paternal grandfather indicated he had told the mother, but again, that allegation is not contained within her affidavit material. The paternal grandfather claimed that the mother requested that he did not tell anybody outside the family because she did not want to lose her child. This is not particularly consistent with Exhibit M, which is a relatively contemporaneous reference to the allegation.
The paternal grandmother gave some short oral evidence, conceding she had received an email from the mother on 18 December 2007 (Exhibit M) where the mother had raised the allegation that the father had masturbated on N’s stomach. The email talks about the ‘white sticky’ but not the ‘doodleswap’. Although the email informing the paternal grandmother about the incident is dated 18 December 2007, that is not necessarily indicative of when the child is supposed to have said these words. I note the paternal grandmother was only informed about it more than two months after it is said to have happened.
I cannot conclude that the maternal grandfather was being entirely truthful in this evidence. I have concluded that this is an invention by the maternal grandfather calculated to strengthen the mother’s position.
When the maternal grandfather gave evidence about the physical contact between he and the father during the altercation on 6 July 2009, he had difficulty agreeing that there was any physical contact by him against the father. Although he said he acted in self defence in the witness box, he flayed his arms around to demonstrate his interaction with the father, then denied that he made any physical contact with the father when he did so. On balance I do not accept the maternal grandfather’s evidence about the lack of physical contact by him on the father during the incident.

Ms Field

Ms Field is the mother of the father’s other child. Some of the information on which the mother initially relied, is second hand information obtained from Ms Field. Ms Field’s affidavit was allowed into evidence. I have not been able to assess Ms Field’s reliability in this case. She was not called as a witness and I can put little weight on her written evidence.

Ms K

I note in relation to the evidence given by Ms K (exhibit G) in the previous hearing with the father, that Ms K had a dispute with the father, and at one point was convicted for malicious damage of his car. In these circumstances, I do not place great weight upon the evidence she gives against the father.

CHRONOLOGY

The mother was born in 1962.
The father was born in 1967.
The mother was a public servant in the Netherlands between 1981 and 1986.
The mother’s first child, T, was born in February 1995.
The father had a relationship with Ms Field from October 2002 to November 2003, when she was pregnant with N. N (the father’s child from a prior relationship) was born in 2004.
The parties met on 15 January 2004, married in mid April 2004 and began cohabitation on 19 May 2004.
The parties separated on 21 June 2004, five weeks after cohabitation. The mother found out she was pregnant 2 days later. They were divorced in June 2006.
In December 2004 the maternal grandparents bought a computer from the father. They found files containing pornography on it in July 2005.
The child was born in February 2005. The father was present at the birth.
On 28 June 2005 an interim AVO was ordered at the Local Court against the father. A final order was made by consent and without admission on 19 July 2005. A later application to extend the AVO was dismissed.
On 8 August 2005 orders were made for the child to spend time with the father for 2 hours each week. The mother ceased this arrangement on 27 September 2005 and the father filed a contravention application.
On 13 December 2005 orders were made for the child to spend time with the father for 2 hours on 2 days each week. This occurred over December and January.
On 5 February 2006 a medical certificate informed the father that the child would be sick for the next month, the effect being that the child would not see his father until 2 March 2006. A contravention application was filed by the father. The mother did not attend the first court event for this application.
On 9 May 2006 the Federal Magistrates Court made orders for the father to spend time with the child, gradually increasing to two days each week and overnight. It appears the father initially agreed to a lesser schedule, and the father spent time with the child only one day a week, on Fridays. The mother ceased this arrangement during the spring and summer school holidays.
In May 2006 the police brought charges of fraud against the father in relation to the child’s birth certificate. The father says he conceded the charges to avoid having his father, who was unwell, give evidence in the witness box.
In March 2007 the father requested a return to the orders of 9 May 2006, so he could spend time with the child on two occasions each week, but the mother refused.
In early May 2007 the father’s older son N allegedly made a disclosure that the father had put his fingers in his bottom. The disclosure was reported to the police by the mother, not Ms Field. The hearing as to that child’s time with the father was to commence on 10 May 2007 before Faulks DCJ. Ms Field did not pursue the allegation of sexual abuse during this hearing.
On 11 May 2007 the mother ceased the child’s time with the father.
In May 2007 the mother applied to the Court for the child’s time with the father to be supervised, relying upon the sexual abuse ‘disclosures’ of N.
On 27 July 2007 orders were made that the father’s time with the child be supervised. This was continued by order of 3 September 2007.
T, the mother’s elder child, has lived with her father from November 2007 when she was aged 10.
The police conducted a search of the father’s property on 16 April 2008 for child pornography and found 16 images. The father was charged and tried. At the trial on 18 February 2009, the charges were dismissed.
On 7 August 2008 orders were made for the child to spend supervised time with the father for six hours once a month.
In March 2009 the father’s former partner Ms Field, was allowed to take their son N and move to Tasmania. Since then the father has not had any contact with N, despite Court orders to the contrary. The father says this is because Ms Field has contravened the orders.
The subject child of these proceedings is said to have made his most significant statement about sexual abuse on 1 July 2009. The mother prevented the father seeing the child from this time until 18 November 2010 (except for the interviews with Dr R).
On 3 July 2009 the child was interviewed by JIRT and DOCS.
On 6 July 2009 the maternal grandfather confronted the father about the child’s disclosures. The father and maternal grandfather have different versions of this event. The maternal grandfather said the father opened his door into the maternal grandfather’s car, turned the grandfather’s car off and took the keys. The grandfather says he then took the father’s keys from his car and that the father raised his fists and the maternal grandfather hit the father in self defence. A struggle ensued and the maternal grandfather alleges the father punched him around the head area a number of times; his hearing aid and watch were broken; his shirt was torn; he was brought home by ambulance; and made a police report. The father said the maternal grandfather pulled up beside him and started abusing him and deliberately reversed into his car. The father said he exited the car via the passenger door, and the maternal grandfather tried to take his laptop from the car. He said the maternal grandfather laid the first punch and the father reacted in self defence.
On 10 July 2009 the child was again interviewed by JIRT.
On 13 July 2009 an interim AVO was issued against the father, protecting the child. It was applied for by the police. A hearing was held on 16 October 2009 and the father consented to a protection order being made without admission.
On 5 November 2009 orders were made for the child to spend supervised time with the father for 4 and a half hours once a fortnight.
On 26 July 2010 the Family Report by Dr R was released.
On 23 August 2010 the child was interviewed at his school by DoCS.

SEXUAL ABUSE ALLEGATIONS

N’s Disclosure

Counsel for the mother indicated at the commencement of the trial that he was not relying upon any allegations about the father sexually interfering with N except evidence that the mother directly saw and heard (that assurance however was not followed by counsel for the mother as the hearing developed).
On 1 May 2007 N spent time with the father and following this, he and his mother Ms Field were spending time with the child and the mother. N was very clingy and refused to sit. When N hopped into the bath with the subject child, the mother noticed his bottom was red and sore in a 2.5cm radius around his anus. He would not sit in the bath but stood or kneeled.
The mother said that on 2 May 2007 she called Ms Field once she had arrived back in Canberra and said to ask N if something had happened, due to his unusual behaviour. She said that Ms Field called her back 2 hours later to tell her that the father had “sexually assaulted [N].”
As I have said, Ms Field did not give evidence. There is hearsay evidence Ms Field said on 2 May 2007 at about 7pm, after returning home from Canberra, that N had a bath and reportedly told her “[The father’s first name] put three fingers up my bottom and it pinches.” He pulled up his penis and said “wee comes out”. He also reportedly said “[The father’s first name] pushed himself into me.” Ten minutes later N said “I’m frightened of [the father’s first name], He makes me feel red.” Ms Field then called the mother to tell her of her concerns. The mother gave her the number for the DoCS crisis line, though I am not sure why she had this number on hand.
Exhibit D is an email written by the mother to the paternal grandmother on 16 July 2007.That email suggested that the mother had been told by N’s mother that N complained that the father had pushed his finger through N’s trousers into his bottom. The mother indicated to me that she had a conversation with N’s mother at the time and N’s mother had asked her for some leather (knowing that the mother worked in leather) to sew into the bottom of N’s trousers to make it stiffer.
I am cautious about the evidence in relation to N’s disclosure on 2 May 2007 as the mother’s and Ms Field’s account of that day do not accord in time or circumstance. The mother said she called Ms Field and initiated the concern but Ms Field does not mention this conversation and said that she called the mother with her concerns. I note that Ms Field’s affidavit does not mention the trousers, and said that three fingers were pushed into his bottom, not one. Thirdly, the timing of the two women’s versions does not match. The mother said that when Ms Field stayed with them on the South Coast, she left on the following morning, and that she called when Ms Field arrived home and received a return call two hours later. Ms Field’s evidence is that she called the mother after N’s 7pm bath (not two hours later).
On 6 May 2007, N reportedly said to Ms Field, “[The father’s first name] put his fingers up my bottom.” and repeatedly denied it was the father wiping his bottom and said “Up, up, up.”
On 17 May at 8:30pm N reportedly said “[the father’s first name] put drink bottles up my bottom” and that when he asked him to stop he would not.
On 20 May 2007 N again repeated that [the father’s first name] put his fingers up his bottom. He said it itched inside and he wanted Ms Field to itch it. Ms Field said she replied, “Mummies don’t do that” and N replied “I know you don’t, [the father’s first name] does.”
On 20 June 2007 N said he was scared of the father who puts his fingers up his bottom and pushes himself into him. He said he wanted to smash/smack him and that he wanted a different Daddy. N was 3 years and 4 months old at the time.
On 8 January 2008 N said that the father had whispered to him that next time he sees him there will be a secret. He was very upset and pointed to his bottom for the reason why. Ms Field said N showed no physical signs of trauma, but had a red bottom which the doctor said was a streptococcal infection.
The maternal grandfather said he overheard the child and N playing when N said “I don’t like Dad because he hurts me. We play doodleswap. Dad makes white sticky on my belly.” I refer to my assessment of the truth of this evidence above. The father vehemently denied the suggestion that he had masturbated on N’s stomach and the suggestion that he had exposed his genitalia to N and had N expose his genitalia to him and that they had mutually fondled one another (what I infer the term “doodle swapping” to mean). The term “doodle swapping” is not a term that I would easily accept a three year old would use or if a three year old actually used the term, whether or not they would have any idea as to what it actually meant. The father seemed to me to be genuinely sickened by the notion that he would have involved himself in either of those activities (masturbating on the boy or doodle swapping).
I note that the mother and Ms Field are good friends, and I infer they talk about their children together, yet the mother only refers to one of these incidents in her evidence.
The father said that the child has said to him “The reason I can’t see you is because you hurt [N].”
N’s time with the father was supervised from 21 June 2007 until the final hearing for parenting orders in respect to N which was heard by Faulks DCJ. No order for supervised time was made in the final hearing. N left with his mother for Tasmania in March 2009 and the father has not had any access to N since. I note that Ms Field did not press the sexual assault allegations in the final hearing and Faulks DCJ made no findings in relation to them.

The child’s “Disclosures” and Behaviour

The mother alleges the child has made a number of statements and exhibited certain behaviour of a sexual nature. The mother holds a strong belief that the father is guilty of the sexual abuse of the child. The father denies the allegations of abuse and says he is also concerned about the child’s behaviour. The mother’s allegations are outlined below.
On 11 April 2008 the mother says the child returned from a visit with his father and reported that his paternal grandparents, who were to supervise, were not there. He was unsettled that night, waking up screaming and kicking and had diarrhoea.
On 23 October 2008 the child put a kitchen implement near his genital region and pretended to have an erection. The maternal grandmother witnessed this.
On 15 November 2008 the child placed himself between the television and the couch where his mother and maternal grandparents were sitting, pulled his pants down and put his finger in his anus. He was smiling.
On 3 December 2008 the child said to have said to his half-sister “[N] told me that Dad put his finger in his bottom, he is not my friend because he hurt [N].”
On 27 December 2008 the mother gives evidence that the child said to her, “I want to wee in your mouth.”
The maternal grandmother said that several times throughout 2009 the child showed her his bottom. She also said that some time in 2009 he pulled his penis out and pushed it towards her face laughing.
On 11 January 2009, after spending time with the father, the child said to the mother “I played hideaway in the toilet with Dad.”
On 24 January 2009, the mother says the child put a toy traffic sign in his anus and crawled around the floor.
On 6 February 2009 after the mother asked how the child’s visit with the father was, the child replied “I am not allowed to tell you. It’s secret.”
On 30 June 2009 the child returned from spending time with his father and then says he was quiet and complained of a sore bottom. The mother put cream on it when she saw that it was red, and the child screamed. He later told her “I have a bad thing to say…Daddy put his finger in my bum.” He told her it happened ‘today and yesterday’ in the bathroom in the shed and said something about a white house. The mother said when she asked where the paternal grandfather was the child put his hands over his mouth then said “Be quiet…Then grandpa came in and said don’t do that to Daddy.” Pausing there, I note the ‘admission’ is that the paternal grandfather saw his son sexually abusing his grandson and did no more than warn his son to stop it. The child then reportedly said “I don’t want to go there anymore. When will it stop?” I note the child was only seeing the father for part of one day each fortnight so the detail that it happened over two days could not be true.
The mother said the child didn’t just relay a story but also acted out the incident. She said he showed her how the father’s hands were on his shoulders, how there was a struggle, and how the father’s hand was placed over his mouth.
The mother tendered a statement in evidence (exhibit L) made 10 days after the alleged incident. In that statement, the mother said that when she was picking the child up, the paternal grandfather came out of the factory and had a conversation with her for about 5 minutes before the child came out of the factory. She said when the father and child exited the factory, the father’s drawstring was loose and his trousers were sagging, and resting on his genitals. The child has a beanie pulled over his head, and the mother had to guide him to the car. This statement came into evidence after the mother had concluded her evidence and she was not tested in respect of the contents of it.
It seems that the statement might be implying that there was an opportunity of about 5 minutes after the mother had arrived to pick the child up, for the father to have abused the child, when the paternal grandfather had come out to speak to them and the father was left alone with the child in the factory. This implication is inferred from the evidence that the father’s pants were down from his waist and that the child pulled his beanie down over his head. Although the mother was not tested upon it, if the mother is accurately reporting that the paternal grandfather came outside of the factory to speak to her, I infer that the father would have known that she had arrived to collect the child. It is inherently unlikely that at that time, knowing that the child was imminently due to be taken to be handed to his mother, that the father would have taken that opportunity to sexually abuse the child. I also note that in the witness box, the mother had said that the child, with his beanie over his eyes, was guiding himself to the car, not that the mother was guiding him.
The father does not recall seeing the child pulling his beanie over his face but conceded it was possible that in June 2009 (the middle of winter) the child was wearing a beanie. I prefer the mother’s version over the father’s but I do not necessarily conclude that the child behaving in a manner at age four that was anything other than being mischievous and playful. I do not conclude that it is some indication that sexual abuse had occurred.

On 1 July 2009 the child woke up and repeated the disclosure made the night before. That evening the child said at dinner “Daddy put his finger in my bum”. The mother and the maternal grandparents were present at the time. The maternal grandfather said that later than night when he was looking after the child, he had said to him “I have a secret too…What I can not tell mummy…The secret will hurt Mummy” then he said “Daddy put a finger in my bum after I was on the toilet…Daddy’s pants dropped down” and that when he made a noise he was told to be quiet. He laughed when he said this. The maternal grandfather told the mother what the child had said. When the mother described the disclosures to the family consultant in 2009 she said the child “got excited about it. He acted like he and his father had a fight.”
The father was adamant that his father was with him at all times during that day. He said that the child at that time was not completely able to effectively wipe his own bottom and had to be assisted in that respect. He said that either his father would do it or his father would go with him to the toilet during any occasion when he was wiping the child’s bottom. He was careful after the allegations made against him in respect of N.
Counsel for the mother did not make any Jones & Dunkel ((1959) 101 CLR 298) submission about the lack of evidence from the paternal grandfather. It is clear however from the mother’s evidence that the paternal grandfather was present with the father on 30 June 2009. I am not assisted by any evidence he may have been able to give.
On 3 July 2009 the child was interviewed by JIRT and DOCS in relation to his statements. A copy of the transcript of that interview in annexed to the mother’s affidavit of 29 October 2010. When the child was asked what they were to talk about today he immediately replied “Cause dad sticked his finger up my bum.” The child obviously knew what was expected of him. Whilst the transcript is incomplete, the next thing he says is “after can I go to the…Cause I’d been so good here” and he talks about a toy shop. The mother expressed some surprise at my asking whether or not she had promised him a toy if he had been good when speaking to the police. Although the mother may not have directly promised the child a toy if he told the police officer what the mother wanted him to, at least it was in the child’s mind that if he was good he would get a toy.
When the child was asked who was there and he replied ‘Junpa’ (grandpa) he was asked if grandpa had another name. He said “Junpa, just tell me, but he did it, can you tell me please.” I infer he was appealing to his mother at the time who replied “No, if you don’t know I can’t tell you.” He also was aware of his half-brother’s allegations, saying “He, he did it to [N] once.”
The child was pressed repeatedly for details. Gradually, he gave further information that his grandpa was there at the time, it happened in the bathroom while he was doing a wee, he’d been to the shops beforehand, he was wearing his footy trousers, that it hurt and that it happened all the time. He said his Dad didn’t say anything but later said that his Dad had said ‘sorry’.
In between these details, the child also said last night he snuck out with his friend and went to the gun shop, and that after the incident in the toilet ‘a bad man came past with a knife but he didn’t cut my head off’, that the Dad was woken by a big bird that could eat people and ‘bash the world up’, that the father had a gun that was now in the bin and so was Santa, that he has to sleep on the road, and that they went to the shops in a racing car through the snow. He said a number of times ‘this is boring’ and ‘I don’t know anymore’ and ‘I don’t know what to say.’ From the obviously untruthful nature about these stories told, I infer that the child was making up details in attempt to fill in the gaps, in response to questions asked by the interviewers so that he could finish the interview.
On 4 July the child laughed and said to the mother “when dad stuck his finger in my bum his pants fell down” and said that he saw his ‘willy’ and he did not wear underpants. The next day the child reportedly told the mother that he felt the father’s fingernail during the incident. I note that the mother does not repeat the information from these two dates in her most recent affidavit.
On 10 July 2009 the child was interviewed by JIRT. There is no transcript of that interview annexed to the mother’s affidavits.
On 29 August 2009 the child was playing with a toy dog when he said “I want the dog to suck my willy” and proceeded to put the dog’s mouth over his penis.
On 29 August 2009 the child had a playmate and he said to his friend’s mum, Ms L “My Dad gave me this [toy car]…My dad’s a bad man…Really really bad man…He stuck his finger up my bum and when I asked him to stop he didn’t”. Ms L reported this to the mother and the police.
On 29 August 2009 the maternal grandfather said the child grabbed his testicles.
On 30 August 2009 the child said to the mother “dad gives me bad dreams”.
On 3 September 2009 the maternal grandmother said the child was playing with a toy drill and “poked the toy drill several times into [her] bottom”.
On 4 September 2009 the child crawled under the mother’s blanket, putting his head at her thighs and sniffing, and said to her “I am going to piss on your face.”
On 21 September 2009 the child was in a public pool. He tried to pull the swimmers off a girl there, and he thrust his waist towards her.
On 2 October 2009 the child tried to lick the opening of the mother’s pyjama pants saying “I lick your willy”.
On 19 October 2009 when the maternal grandfather told the child to eat his porridge with a spoon, the child said “suck my willy Opa”.
On 13 January 2010 whilst on a camping holiday, the child was playing with a friend. The friend’s mother, Ms G, heard the child say to his friend “I will paint a sign for my Dad, bloody hell Dad” and then “My Dad did bad things to me…in my bottom and plays with my willy. He slams me on the ground.” When the friend asked why he did that the child replied “Because I am bad.” The mother interrupted and told the child “you are not bad, adults should not do that to children.” The child replied “well if I tell what happened my Dad will go to gaol and then so would I. So I say it did not happen.” Ms G reported the incident to DoCS.
On 21 January 2010 the child was with a friend and his mother in a car. When driving past a cemetery the child said “I wish my dad was dead and buried there…Because he sticks his fingers up my bum and pushes me around.” The child’s mother, Ms F, reported the incident to DoCS. Ms F also said that the child was rebellious and unsettled in the latter part of 2009 but is far more settled now.
In mid 2010 the child drew the mother a picture and told her “That’s my pompoms” meaning buttocks and “That’s Dad’s finger. That’s how far it went.” The picture is annexed to the mother’s affidavit and although I acknowledge it is a drawing from a young child, I have difficulty seeing the resemblance. Dr R said that the drawing was ambiguous and the words that the child used to described the picture were not reliable where the child’s memory about anything that had happened that long ago was hopelessly contaminated.
On 13 August 2010 the child said to his counsellor “I like playing with the toys at Dad’s but I don’t like it when he sticks his finger in my bum.”
The child was interviewed at his preschool on 23 August 2010 by DoCS caseworkers. The interview transcript is annexed to the mother’s affidavit. In that interview the child said that the father stuck his fingers up his bum. The further details he gave are that it occurred at the father’s house, in the toilet, when the father came in to wipe the child’s bottom. I note that in his previous interview the child said it happened when he was weeing.
The child said that he would feel scared about seeing his Dad again and on a visual scale, placed this fear at the most extreme end.
The child’s sexualised behaviour has calmed since April 2010. The mother was fairly clear in her evidence that 30 June 2009 was the first and only incident about which she had any concern in relation to the father’s sexual behaviour towards the child. I asked her in those circumstances then why did she give evidence about prior sexualised behaviour of the child if she thought the father hadn’t done anything to the child prior to June 2009. She was not able to satisfactorily answer that question when I asked it of her. I also note that no person outside the maternal family is on record describing any sexualised behaviour.

Expert Opinions on Alleged Sexual Abuse of the Child

The child’s sexual assault counsellor, Ms S, has put on an affidavit. She has 25 years experience, 13 being in sexual assault services. The child had four sessions with her before he said he didn’t want to talk about the father or Court anymore. A further session was held more than a year later. She said that the child had ‘a demonstrated need to talk and make sense of the assaults and the family distress arising from the disclosure”, although no description of his disclosures are given besides the oft repeated “sticks his finger in my bum”. She reported that the child had ‘resumed wetting’ and that initially supervision was sought in response to the father’s drug use, issues the mother has not referred to. Ms S said the child was particularly preoccupied with the genitals page of a body education book which she found unusual. The counsellor made a number of conclusions but does not describe their context, such as “In therapeutic play [the child] displayed a pattern of creating and managing danger” and “I am of the opinion that the child did experience a finger in his “bum” in the toilet while staying with the father”.
Dr R in his report of November 2009, came to the conclusion that the father did not pose an unacceptable risk to the child. When Dr R asked the child if anything bad had happened with his father, the child responded “yes, he stuck his finger in my bum.” Dr R was ‘taken aback at the rapidity of the response and the directness of the statement’. He noted that the child could not give any contextual details and just continued to repeat the same phrase. Dr R said such replies were “in an automatic fashion which was not convincing”. He repeated in oral evidence that the way the child said this phrase was robotic.
Dr R noted the ‘admission’ the child enjoyed his time with the father and wanted to spend more time with him. Dr R opined that “There did not appear to be any sign of trauma or behavioural disturbance”.
The mother said the child had spent 45 minutes in the waiting room with the father, so the level of comfort had increased by the time Dr R saw them together.
Dr R provided an addendum to his report (exhibit F) which gives some useful information and background in relation to children’s memory. The report explained that the memory of a pre-school age child is not as detailed as the memory of older children, and that typically only a few details relating to the incident will be spontaneously remembered. Impartial questioning with non-leading questions may bring more details. If the questioning is not impartial however, the interviewer may shape the discussion to bring about maximum disclosures, and subtly introduce incorrect information which the child takes on board, especially through repeated questions. If leading questions are asked, a child’s memories may be distorted. A child of this child’s age also typically has a desire to please, and give the ‘correct’ answer that the interviewer is asking, despite the truth of it. Subtle positive reinforcement of that information may enhance this effect. Multiple interviews increase the inaccurate information included in the child’s portrayal of the past, as their memory fails them, and as they are subject to increasing numbers of leading questions.
Dr R made the point that children use verbal labels which are different from how adults might use the same words. In this case for example, the words “daddy put his finger in my bottom” coming out of the mouth of somebody who is 4 years of age, might mean something very different to what an adult would mean by those words. I concluded from what Dr R said that wiping the bottom of a child the age of the child in June 2009 might lead the child to say those words. Dr R was of the view that you cannot necessarily presume that an adult interpretation of the literal words used by the child will accurately indicate what it is the child is referring to.
Dr R was quite concerned about repetitive reinforcement of the sexual abuse proposition to the child. The police interview tendered in evidence was a particularly poor example of the interviewing of a child. The police in an attempt to obtain further details in relation to the child’s response (that his father had put his finger up his bum) repeatedly reinforced to the child that that is what had happened and sought unsuccessfully to obtain further details about the incident.
The mother’s conviction about sexual abuse has led to a situation where the father has not had any time with the child since he was an infant which has not been supervised. Dr R opined that the child would have learned that his mother had and does worry about the child being with his father.
When the mother received the report of Dr R she took the child for a further session with Ms S. The mother’s evidence is that she took the report with her when she and the child went to see Ms S. She said that the child was not in the room when a discussion took place about the report. The mother asserts that she read various passages of the report to Ms S without showing her the report. The mother was apprehensive about recommendations 2 and 9. She acknowledged she was upset that Dr R did not believe the disclosures, rather than being relieved. Ms S has a firm view that the father has sexually abused the child. She took the view that the recommendations in Dr R’s report created an unacceptable risk to the child in her view. This led to a further notification to DoCS and further interviews with DoCS/JIRT.
The Independent Children’s Lawyer and Dr R feared this further session with Ms S and further referral could amount to systems abuse. The mother was then restrained by me from taking the child to any further counselling until the case was heard. The mother claimed that the child enjoyed the interviews with Ms S, however I note that in Ms S’s report she said the child didn’t want to talk about the father or Court anymore so the sessions were ceased. The mother reluctantly agreed that the constant questioning was ‘not nice’ and could have been done a better way. This extensive interview process of the child has been an abuse by “the system”. It has also contributed to the mother’s fixed views about what had happened.
Dr R correctly identified that Ms S’s role was to accept the allegations. Her sexual abuse counselling was predicated on the basis that the abuse had been validated prior to the child coming to her. She treated him accordingly. She took as a given that the child had been sexually abused. Dr R was not in that context surprised that she had diametrically opposed opinions to him.
The mother said Dr R indicated that he did not read the material because he wished to do the interviews without any preconceptions. I do not find any difficulty with that methodology. Dr R’s report clearly sets out that he has read all the significant material prior to writing his report, and he confirmed that in his oral evidence.

The mother’s friendship with Ms Field

Ms Field is the father’s ex-partner and the mother of the father’s first child, N. The mother first met her on 2 April 2004 when she and the father travelled to Canberra soon after N’s birth.
Ms Field would often bring N to the South Coast to spend time with the child. On many of these occasions the mother offered that Ms Field and N stay overnight at her home.
In 2009 Dr R said the friendship appeared to be ‘collusive’ and:
“The relationship between [the mother] and [Ms Field] I believe became one of increasing the fears and anxiety of both mothers who never felt comfortable with [the father]. I believe that the self-reinforcing fears of the mothers may have contributed significantly to the beliefs of the mothers and this could have had a direct effect on the child if the mother anxiously questioned him.”
Dr R in his oral evidence did not resile from his conclusion that the mother and Ms Field had developed a collusive relationship. By that, the doctor meant that they had developed a shared belief system based around their view of the father’s activities in relation to their respective sons.

Pornography

In December 2004 the maternal grandparents bought a computer from the father. In July 2005 the paternal grandfather found pornography files on the computer including a folder labelled “teens” which showed pictured of girls with underdeveloped breasts and no public hair.
When the maternal grandfather showed the mother the files the mother said “what is in this man’s mind with such heavy pornography, how does he think towards [T]?” [T], the mother’s older daughter from a prior relationship, is said to have overhead this and responded “When I was playing games on [the father’s] laptop, these dirty films popped up and showed different movie clip. [The father] walked in and said in a laughing voice, ‘scarred for life hey?’ What he said made me feel uncomfortable and scared.”
The mother alleged T saw this material when she was aged nine. T wrote a signed statement when she was aged 12. At that time, she was living with her father in Woolongong and the mother had driven to Woolongong with her Counsel, and taken T out to a restaurant where she wrote and signed the statement. What T has written is very clear but I have some difficulty accepting that given the circumstances in which the statement was prepared, and that all the words used by T are her own (although I have no doubt that it is all T’s own hand writing). T of course was not tested on her statement. The weight I place on her statement is compromised by the circumstances in which it was made and the fact that it was made three years after the event (a child of 12 remembering what had happened when she was 9). It is however corroborative of the version given by the mother. I note in passing that counsel for the mother got personally involved in this matter and had expressed willingness to be a witness in the past. This makes me wonder about the method by which T’s written statement was obtained.
The father simply unequivocally denied that anything like this had occurred at all. I find on balance that it is probable that T did accidently access pornographic material on the father’s laptop.
The mother made a police complaint in December 2005 and the police took the computer for examination on 16 December 2005. They assessed there was no evidence of child pornography. The matter did not proceed. The mother’s Counsel sought access to the files and located 5 images that he felt amounted to child pornography. Detective Sergeant W agreed but did not take any action against the father, given the difficulty of proving the father’s actual possession or acquiring the images (see exhibit K).
The father said that his computer was stolen in May 2006. He said he had two hiding places for money, only one of which the mother knew about, and when the laptop was stolen, so was the money from that hiding place. He said a family friend told him that the mother’s family had the stolen laptop. It is recorded in the subpoenaed material that the police noted a person had called Crimestoppers to inform them about the possible child pornography on the father’s computer and that the informer may have been involved in the theft of the laptop.
The police conducted a search of the father’s property on 16 April 2008 under warrant dated 17 December 2007. Upon examining the father’s computer they found a number of images of two girls. The father was charged with possessing child pornography but at the hearing on 18 February 2009 the magistrate, who was presented with the images in exhibit K, was unable to conclude that they were images of girls under the statutory age that would allow a conviction for the possession of child pornography. The father was acquitted on that basis.

There were two sets of images tendered in evidence (exhibits K and J) which came from different computers. It was asserted in the wife’s case that the images in exhibit J were the remnants of 7,000 images and the images in exhibit K were the remnants of 70,000 images. The father asserts that he received a disc in 1998 from a workmate which contained pornography. He downloaded that disc onto the hard drive on the computer that he then had but was not aware of or did not view the entire contents of the disc. From time to time he upgraded his computer and at that time, copied the entire data directory to the next storage device. The father conceded that he had also, on a small number of occasions, accessed the internet to download supplementary pornographic material.
The father’s evidence is that while he was providing the software for the maternal grandmother’s computer, he used his own computer to upload operating systems. In doing so, he simply copied the whole of his hard drive onto the maternal grandmother’s computer. In doing so, he accidently transferred the directory in which he had the pornographic material.
The images have been examined by a paediatric professor, Professor I, who gave evidence that they were images of girls of an age at which a conviction could have been sustained. Whilst I accept that expert evidence, had the father viewed the images (and his evidence is that he did not), then I would not necessarily conclude that he would have known that the girls were of the age opined by the Professor.
The father’s version of the child pornography, explained to Dr R, was a little confusing. He said that when he rebuilt a computer system for the maternal grandparents he cleared and reloaded software. In doing so, he inadvertently left a directory of pornography on the computer, received in 1998 and downloaded at that time. He said he was acquitted of charges. The father conceded that the summary in Dr R’s report about what the father had told him about child pornography in his possession was inaccurate.
Dr R concluded that the installation of pornography on the maternal grandparents’ computer was ‘careless and reckless’.
Dr R was asked about the connection between pornography and the risk a parent posed to a child. Dr R had the images which are contained in Exhibit J and K. He was also aware that there had been some paediatric assessment of these images, however had not seen the report from the Professor.
Dr R opined that, absent other criteria which would form a cluster of risk factors, there was no clear connection between the use by an adult of pornographic material and child sexual abuse. In his view it was not necessarily indicative of any negative parenting capacity absent any anti social personality or absent any other form of paraphilia. The use of pornography may be an indication of poor judgment rather than an indicator of risk. There was nothing in Dr R’s interview with the father that gave him any indication that the father was interested in child pornography.

Conclusions about Sexual Abuse

As Dr R says, there is no way anyone can know whether or not sexual abuse has actually occurred. The best one can do is to look at the overall broader issues and attempt to reach a logical conclusion about why children have made statements.
The child has participated in about fifteen interviews as follows:
161.1.Two sessions with Family Consultant Ms H;
161.2.Four or Five sessions with Family Consultant Ms D;
161.3.One session with Dr R;
161.4.Five sessions with Ms S, an employee at a sexual assault service between 2 July 2009 and April 2010;
161.5.Two interviews with JIRT and DOCS.
Given the fallibility of the memory of a child of the child’s age, and his vulnerability to suggestions arising out of leading questions, repeated interviews and lack of impartial questioning (from the mother, Ms S, and the police interviews) I accept Dr R’s opinion that I cannot rely heavily on statements made after the initial disclosures. Those statements are hopelessly contaminated. The child obviously has engrained in his mind from this process, that his father sexually abused him. It is now reasonably predictable that if the child is asked the question “what has dad done that is bad?”, the child will immediately respond with the words “dad put his finger up my bum”.
I therefore should focus on the disclosures of July 2009. Dr R said it wasn’t clear, without further contextual information whether this statement actually meant that the father had penetrated the child’s bottom or just touched it in the course of normal toileting activities. He also noted that the father said the paternal grandfather was there, but I am not assisted by any evidence from the paternal grandfather.
I do not conclude (and Dr R does not conclude) that the mother’s interpretation of what was said on that occasion is conclusive that the father sexually abused the child.
On the contrary, I conclude that if the father has unsupervised time with the child, there is no unacceptable risk that the child would be sexually abused by his father.

The Mother’s Conviction about Sexual Abuse

The mother is not convinced by the opinion of Dr R. She explained that the expert had only seen a snap-shot of the child. The mother suggested that I should spend three or four days with the child and then I would understand.
It is highly probable that the mother will not accept the finding that I make that there is no unacceptable risk to the child in his father’s company. She did however say she was a lawful person and would obey any orders that are made, notwithstanding that she did not accept the reasoning behind them.
Dr R opined that the mother holds her fears at an emotional level, even though at a thinking level she may be able to conclude that her fears are not based upon what is likely to have happened. Dr R concludes that if over time the mother observes the relationship between the child and his father functioning well and developing into a good relationship, that the mother may be able to confine the fears that she holds at an emotional level.
Dr R suggested that the mother receive or seek out professional assistance to help her with emotional and anxiety issues and to learn to cope with her anxiety. That professional assistance would be aimed at allowing the mother to cope with her current level of emotional fear.
Dr R indicated that it would be appropriate for any new professional that the mother saw to receive a copy of his report and I also think it would be appropriate, as suggested by the Independent Children's Lawyer in final submissions, for that professional to receive a copy of these reasons for judgment.
I acknowledge the mother’s fear, although unfounded, is a real fear. Her conviction and anxiety impacts upon the child, and will need to be taken into account when deciding upon a future regime of the time the child spends with his father.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII FLA 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
The principles underlying those objects (unless contrary to a child’s best interests) are:
(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).
Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

Primary considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a) FLA)

In the most recent family report of November 2010 Ms D said that the mother “is the most important figure in the child’s life.” In relation to the father, she noted the relationship was diffident but gained in familiarity over the session, and ‘connected well’. The child was very wary of having to hug the father and told him ‘no’ and ‘not yet’. She noted the boy said he missed the trains they used to play with.
In November 2009 Dr R saw that the child was very happy to see his father, and opined that the child “had a close and loving relationship” with the father, which was “very strong and healthy and important” and a “strong bond”. I note in passing, that before the contact took place the mother asked “Do you like Daddy?” and the child shook his head, “no”.
That behaviour is reflective of the fears which the mother has and how those fears impact on her ability to accept the benefit of the child having a meaningful relationship with his father.
In March 2009, Family Consultant Ms D witnessed a ‘happy and comfortable attitude’ of the child with his father, and noted that the two comfortably hugged at the beginning and end of their time in front of her.
I am concerned that over the course of a year, the child’s relationship with his father has deteriorated so that the child is now more wary of spending time with the father. I have found that the father is not an unacceptable risk to the child and any fear needs to be overcome so that the child can gain the appropriate benefit of a positive relationship with his father.

The need to protect Child from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

The issue of violence does not arise and the issue of sexual abuse has been dealt with in detail above. I have found that the father does not present an unacceptable risk to the child.

The additional considerations

Child’s views (s60CC(3)(a))

The child is too young for his views to be taken into great consideration, although I do note that most recently, the child conveyed wariness of spending time with the father.

Relationships of the child with the parents and other persons (s60CC(3)(b))

The child’s relationship with his mother is strong and this has not been disputed. The mother says they do craft together, go fishing, go on outings and play music together.
I have discussed above how the child’s relationship with the father has been described and has changed over time.
The child is close to his maternal grandparents, aged in their seventies. He and the mother live next door to them and so they spend a considerable amount of time together.
The child has a half-sister of his mother’s and a half-brother of his father’s. His half-sister no longer lives with the mother and the father has not been able to gain access to the child’s half brother for some time now, although the child did have a relationship with him in his early years.

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 (s60CC(3)(c), noting (s60CC(4))

I note that in the interviews with Dr R in 2009, the mother asked the child “Do you like Daddy?” while the father asked the child “Has your mummy been brainwashing you?” I am very troubled that the parents would put the child in such a position, and am concerned that if they are willing to ask those questions in front of the family consultant, they may be willing to do worse in private.
Despite this reported behaviour, the father said he tries to refrain from saying bad things to or about the mother in the child’s presence. He said he understands that the mother’s relationship with the child is essential for the child’s wellbeing. The father said the mother does not reciprocate, and is openly hostile to him in front of the child and talks of the allegations against him and his ‘evil’ behaviour.
It was noted that the father’s gift to the child at the last session with the family consultant of produce was inappropriately left where the father would see it, an act carried out on purpose by the mother, who laughed about it in cross-examination before admitting it was an inappropriate act. She made an excuse about not being sure whether the container was clean, and if the father had put his finger in the produce to taste. I find this excuse implausible. This action by the mother typifies the level of hostility between the parents.
The mother was unhappy and critical for the father from the time of the child’s birth. In that context, the Independent Children's Lawyer invited me to read three affidavits from the mother filed 23 July 2007, 14 August 2007 and 10 October 2007. Those affidavits, together with the affidavits relied upon from the beginning of the trial by the mother, indicate that the mother has not on any occasion said one positive thing about the father’s parenting capacity.
In the family report of November 2010 the consultant noted that the mother prepared the child for happy visits with the father.
However, it is clear that the mother has unnecessarily involved the child in her dispute with the father. Exhibit C (see the second last page) is evidence that the mother told the child about the effect of the contents of Dr R’s report (his recommendation that he see his father unsupervised). I have no doubt that the mother’s agitation, disappointment and general reaction to reading Dr R’s report was not hidden from the child.
The mother indicated that when the child knew he had to go and see his father again, the child told his mother reports that he said he would not go to the toilet the whole time that he was there. The mother then involved herself in a discussion with the child about the child not allowing his father to be involved in wiping his bottom (even though the child still has difficulty in doing that for himself at the current time).
The mother said she has a very open relationship with the child in terms of sharing information and her feelings. She volunteered that she had told the child, prior to him being 6, that there was no Santa Claus because she did not want the child commencing kindergarten and being given that information by other children. The mother seems compelled to be totally honest with the child about all things and I have some disquiet about the mother’s ability to put in place appropriate boundaries around the information that she shares with the child.
The mother and her parents are very close. They live in adjacent properties in Town B and the child is free to move between the two households. I find that the mother’s fears in this case are significantly reinforced by the rigid views that have been formed by the maternal grandfather, who has an intense dislike of the father. Dr R noted in 2009 that he believes the mother ‘is easily led and somewhat naïve’ and appeared to be easily influenced by Ms Field and her parents. Her father’s attitude, and its influence upon the mother, complicates the mother’s ability to facilitate a relationship between the father and the child, which is already seriously compromised.
The father claims the maternal grandfather has been harassing him and has taken out an AVO against him. He says the maternal grandfather has made multiple accusations in public, confronted the father violently and followed him on occasion. The family consultant noted that “It would be unfortunate if [the mother’s] family interfered with her important and sensible role in the child’s relationship with his father.”
The maternal grandfather’s dislike of the father was more than adequately confirmed when he gave evidence. Despite his age, he gives the impression of being a robust man who holds a very strong conviction that the child’s father has sexually abused the child. During oral evidence, the maternal grandfather made a rather startling statement to the effect that he had an “animal inside him” which would lead him to killing the father were it not for the fact that there were laws in Australia against that happening.
The child’s surname is a point of contention and displays the willingness of each party to encourage the child’s identification with the other party. The child was registered as ‘J M Twiner’. The mother wishes for it to be changed to ‘M Van Wyk’. The mother said he is registered under the preferred name at preschool and identifies with that name. He is known by that name by teachers and friends. I deal specifically with that dispute below.
The father said he is concerned the mother is following him on his visits with the child. The mother’s own affidavit sets out instances when she came into the vicinity of the father and the child, when she reported on instances when the paternal grandparents had not been supervising properly. The mother said this was a coincidence.

Likely effect of any change in the child’s circumstances (s60CC(3)(d))

Dr R explained in 2009 the mother’s anxiety being a result of N and the child’s statements, the perceived lack of consistency in supervision, the collusive suspicion with Ms Field, the father’s interpersonal style and the pornography loaded onto the maternal grandparents’ computer.
This is a reason why in an interim period, supervision was imposed in an attempt to allay the mother’s anxiety for the sake of the child, and protect the father against allegations.
The child has been spending little time with his father for some time and only in supervised circumstances. What I will find is in the child’s best interests will be a change that needs to be to some degree graduated.
The family consultant noted that due to the mother’s misgivings and the mistrust involved in this situation, a ‘slow and careful’ approach was necessary both to protect the child and to protect the father from misinterpretation.

Practical difficulties and expense of the child spending time and communicating with a parent (s60CC(3)(e))

The father’s business requires him to work on Fridays, Saturdays and Sundays. He therefore requested that he have the child during the school week. His best days are Mondays, Tuesdays and Wednesdays when his business requirements are flexible. He lives 30 minutes from the child’s school. He claims he would be able to pick him up after school and deliver him back to school each school day.
The mother and father distrust the parents of the other party. As a result the family consultant advised that any supervision required should be provided from outside the family network should be arranged.

The capacity of each of the parents to provide for the needs of the child, including emotional and intellectual needs (s60CC(3)(f))

The mother said the father smoked cannabis every day and also sold it. The father admitted using marijuana in the past but no longer does so.
On 9 May 2006 orders were made that the father undergo drug testing. He initially refused, saying it was a breach of his civil liberties. The first test he undertook, in February 2007, was positive for opiates, which the father says was a response to his taking codeine for a headache. The mother has never experienced the father using opiates. I note the test result for codeine says ‘Not detected’.

The father has provided a number of drug tests over a number of years (February 2007; February 2008; March 2009; October 2009 and November 2010).
The mother, who has had relevant occupational experience, initially questioned whether or not the urine samples were an appropriate temperature. She provided the commentary that if substitute urine samples were swapped then they are at a different temperature and the testing is therefore suspect. The mother indicated that 35 degrees was an acceptable temperature. Whilst I have no evidence that the testing was carried out under proper supervision, on balance, I accept that the father’s tests are an indication that he is currently not taking drugs. The mother knew that these tests would have shown whether or not the father had used marijuana in recent months.
The mother gave evidence that she had seen the father under the effect of marijuana (the parties had however lived together for a very short period of time). The mother confirmed that all the changeovers that had happened she had never suspected that at those times the father had been under the effect of drugs. That concession has some weight given the fact that the mother has had relevant occupational experience for some years.
I conclude that there is no risk to the father’s capacity to function as a parent arising from any drug taking by him.
The mother told the family consultant in 2009 that the father was not considerate when it came to T and the mother living with him, and he had exposed T to pornography on his computer.
The mother caters well for the physical needs of the child.
The child lives with the mother next door to the maternal grandparents. The home is on a 550m² block with an outdoor playset and is fully fenced, in a quiet area. The child has his own room as well as a playroom. The child also has his own room available at the father’s house.
The child attended Town B preschool and commenced Town B Primary School in 2011. Both parties live close enough to the school to allow consistency in the child’s education.
The paternal grandmother has put on an affidavit to explain the father’s strong relationship with the child and the seriousness with which he takes his parental responsibilities. In the report of November 2010 the family consultant noted that the father was understanding of the child’s concerns and was respectful of the child’s unease at sharing physical affection.

The maturity, sex, background and lifestyle of the child and parents (s60CC(3)(g))

This is not an issue in this case.

If the child is Aboriginal or Torres Straight Islander (s60CC(3)(h))

This is not an issue.

The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))

In his May 2009 affidavit the father said he has enrolled in a parenting course. He has the support of his parents also.
Subject to concerns about her willingness to facilitate the child’s relationship with the father, there is no issue about the mother’s parenting ability.

Any family violence involving the child or a member of the child’s family (s60CC(3)(j) and(k))

There is no issue of violence.

Likelihood of order leading to further proceedings (s60CC(3)(l))

The mother is unlikely to accept my findings, and consequently I take Dr R’s recommendations into account regarding the mother receiving counselling, and having a period of supervision and a graduated regime to build the mother’s confidence in the child’s safety.

CONCLUSION ABOUT BEST INTERESTS

It flows from everything I have said so far that I conclude that it is in the child’s best interest for him to have unsupervised time with his father. That should commence immediately but in a graduated way.

EQUAL SHARED PARENTAL RESPONSIBILITY

It is important in this case to consider what order should be made for parental responsibility. There is a presumption in favour of equal shared parental responsibility. That presumption however does not apply if the best interests of the child point in the other direction.
As recorded elsewhere, the mother has a deep distrust of the father. That distrust is held by her at an emotional level and it will take some considerable time for her to accept a different position. In the meantime, I really need to consider the situation as I find it today.
I note the interaction between the mother and father, recorded in the 2009 report of Dr R. This record of interaction shows the parents to have a high amount of hostility towards one another, with a deep lack of trust. Their communication was ineffectual and it appeared the interview was brought to a close prematurely. Dr R described the father as of “particularly irritable character” with whom it was difficult to communicate, and that his interpersonal style has led to ‘escalating conflict’.
The father recognises his communication with the mother is not good, but says he is willing to undertake counselling to improve the situation for the sake of the child, but that is not an assurance I am prepared to rely upon.
In circumstances which still exist today, where communication is difficult and mistrust underlies the parental relationship, it is appropriate for the primary caregiver to have sole parental responsibility, on the condition that they consult with the other parent before making any significant decisions, and take their opinions into consideration.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

Given that I have not made an order for equal shared parental responsibility, the mandatory requirements of s 65DAA FLA do not apply.

THE TIME TO BE SPENT BY THE CHILD WITH THE FATHER

The delay caused by the matter being part heard has meant that a further period of supervised time has now occurred. It is in the child’s best interests for a period of unsupervised time now to commence. I propose a regime generally in accordance with a suggestion by the Independent Children's Lawyer.
One difficulty arises from the fact that the father’s business activities are heavily dependent upon him working each day on the weekends. It is for that reason he has made an application for regular unsupervised time on weekdays.
The order that I propose will be graduated in a number stages. In the first two months, the father will spend time each week after school with the child on one day that he is to nominate. In the next two month period, that will be increased to two days per week. In the next two month period, one overnight occasion will be introduced and the longer term arrangement will be for the child to spend two nights during school week with his father. I will also make orders catering for the child’s birthday, Father’s Day and the father’s birthday. I propose that school holiday time commence in the 2011/2012 summer school holiday, for one week, and thereafter for half the school holidays.

OVERSEAS TRAVEL BY THE MOTHER

The mother has sought to be able to travel overseas with the child. She will be able to do so, on conditions.
The mother will provide to the father a charge over the mother’s real estate to the amount of $50,000 for the purposes of securing the child’s return to the country. That charge will allow the father to seek an order for sale of the property to allow him to receive the amount of $50,000 in the event the mother does not return to Australia with the child at the time she is due to return and in the event she remains away from Australia. The charge will entitle the father to lodge a caveat on the title of the property owned by the mother during the period of time that the mother is overseas with the child. The father will provide the mother with a withdrawal of caveat upon the child’s return to Australia.
The cost of the preparation of the charge, the caveat and withdrawal of caveat will be paid for by the mother. In the event the father does not force a sale of the mother’s property, then the father will be able to offset the amount of $50,000 against any obligations he has from time to time to pay child support. There will be a requirement of the father to sign any documents if the mother needs to enable her to travel overseas with the child within 14 days of those documents being provided.

COUNSELLING FOR THE MOTHER

I will also make an order that the mother attend her GP to obtain a referral to an appropriate counsellor to assist her in dealing with the outcome of these proceedings and for that purpose that counsellor have available to him/her these reasons for judgment and the report of Dr R and his supplementary document.

CHILD’S NAME

The parties refer to the child as “M”. The child’s birth certificate records the name J M Twiner. The mother asserts that her signature on the registration for this name is a forgery.
The mother says the parties agreed the child would have both surnames and the form was filled out that way. The mother said the father then took the form to be lodged. The mother applied for a copy of the birth certificate and saw the name was altered without her consent. The mother made a complaint to the police and the father was convicted of supplying false information to the Registrar.
Although the father pleaded guilty, he says the signature was not forged, and he pleaded guilt to avoid having his sick father in the witness box. I have doubts about this evidence but I do not need to make any finding about this fact.
The mother has indicated that once she became aware of what had happened she became disillusioned with the father and decided that she would call the child M Van Wyk. From about 10 weeks of age the child for all purposes has been known as M Van Wyk. He is currently 6 years of age and started kindergarten this year. The question is, whether or not it is in his best interests to have some different name to that which he has been known by for all of his life. There was no significant debate as to whether or not the name J should continue to be used as part of his name. There are four possibilities:
240.1.That he continue to be known as J M Van Wyk;
240.2.That he be known as J M Twiner;
240.3.That he be known as J M Van Wyk Twiner;
240.4.That he be known as J M Twiner VanWyk.
Adding the father’s name will emphasise the connection between the child and his father and may assist in the repatriation of their relationship. The child is not yet of an age where he would identify so closely with his surname as to have difficulties in accepting the additional name. Given it is to be an aid for the reparation of the relationship, it would be best if the father’s surname was at the end of his current name.

CHILD SUPPORT

In April 2011, the mother sought a departure from the current child support assessment. From January 2008 until January 2010 the father paid child support of approximately $70 a week. This was based on a taxable income of $50,000. There was a period in this time that the father was assessed to pay approximately $6 per week on an income of $17,000. From January 2010 until the present, the father was assessed to pay approximately $7 to $23 a week on an income of between $11,000 to $12,000. The current assessment is $22.86 a week. The mother wants it changed.
The actual words of the mother’s application for departure are as follows:
243.1.the Child Support Agency recalculate the father’s payments from 12 August 2006 to 11 January 2008, and that the sum owed be subject to interest, payable within 30 days as a lump sum, with the father’s house as security.
243.2.for the period of child support between 11 January 2007 to 11 January 2010, the fathers income be assessed at $50,000, and reassessed by way of departure order.
As I have said, the substance of what the mother is seeking is some certainty as to assessment of child support based upon the father’s demonstrated earnings and earning capacity.
I am satisfied that the provisions of s116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”) are satisfied and in particular that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under Division 4 of Part 7 CSAA in relation to the child in the special circumstances of the case.
Before making an order for departure from assessed child support I must be satisfied that one or more of the grounds for departure mentioned in subsection 117(2) CSAA exists or exist and:
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
The grounds for a departure order include s 117(2) CSAA::
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(ia) because of the income, property and financial resources of either parent;
(ib) because of the earning capacity of either parent;
Section 117(4) CSAA then goes on to list the matters to consider for purposes of considering what would be a just and equitable order.
The mother’s income is meagre. She receives $317 net per week for her transport industry job. She does not work one school day per week so that she can take the child to supervised visits, but works every other day except in school holidays. She gives occasional personal services which she says average $10 per week. The mother also receives government benefits which are not to form part of the income that I assess (s 117(7A)(b)(ii) CSAA).
The father questioned the mother about her personal services business. The mother gave evidence that it cost about $2,000 to set up. I accept the mother’s evidence that she receives minimal income from this activity.
The mother, without a formal valuation, says her property is worth $335,000. The house was built on her parents’ block of land (which was subdivided) between February 2005 and June 2006. The subdivision costs were $30,000, the kit home was $42,000, the building costs (for which she was the owner/builder) were $20,000. The mother said she owed the parents $50,000 upon the completion of the home, and now owes approximately $19,000. She said she has a loan agreement to them of $400 a month. The home was partly financed from her $100,000 property settlement from a previous relationship. The mother’s only other asset is a Ford motor vehicle which she says is worth $1,000 but that the father claims is worth $3,000 to $5,000 pursuant to a Redbook valuation.
The mother has a liability to Legal Aid of $3,000 which was reduced upon appeal. She said that since legal aid has ceased, that she owes $40,000 to her mother for legal fees, though there is no evidence to support this amount.
The mother’s assessed child support payment that she is liable for in respect of her daughter is a nominal amount of $3.21 a week.
The father’s income stems from his business selling produce and other products at local weekend markets. A profit and loss statement has been provided, that was based on his bank statements from the two business accounts which were provided by the father to his accountant. The father contends that this profit and loss statement shows his net income is 25% of the gross profit when expenses have been deducted. The father’s tax returns from the past six years show an average taxable income of approximately $12,700.
The father’s income was a topic of some contention. During his cross examination it appears the father’s business has two parts:
255.1.Sale of produce which he has purchased from a local supplier. This forms the majority of the business. He said he buys $23,000 worth of produce from his supplier, packages it and sells it for $10 a container. The profit and loss statements provided by the father for the business actually also include small contributions made by his sale of other goods, but this is not particularised in the statement.
255.2.During oral evidence, it was clear the father also sold produce from his own supply. The father says this forms a minor part of his business and he prefers to refer to it as a hobby. The father owns the means of obtaining the produce with the paternal grandfather and produces 200kg to 400kg of produce per year. If 200kg is apportioned to the father, this produces income of $2,000 where each 1kg container is sold for $10. The father said that more than this amount would be spent on equipment, so it is not included in the balance sheet. This is not mentioned in his affidavit material. He acknowledged that when there was surplus the profits would go into his business income. There is nothing in his financial records that any of the expenses relating to the means of obtaining the produce or any of the other equipment or expenses relating to being on the road are particularised in the expenses for his business.
The father conceded that when he originally appeared before me in August 2008, we had a conversation about his enthusiasm as a primary producer and about the purity of this produce in Australia. He gave me information about his business at that time, where it appeared he was the primary producer. He now says primary production was only ever a hobby and that he is primarily a retailer. I found it difficult to accept the father’s evidence that he only produced in the vicinity of 200kg to 400kg of produce a year as a result of his time and involvement as a primary producer (as opposed to a merchant), especially given the lack of detail in his profit and loss sheets. Initially when describing the primary production part of his business, he described Mr P as a ‘partner’. He later explained that he just meant a business associate, in the form of a supplier. I didn’t find inherently likely that his relationship was simply one of supplier and buyer. I find that the father has failed to make a full disclosure of his activities in the means of obtaining the produce.
The father’s business is a cash business. At times he employs someone to sell the produce for him and pays them out of the profits so that the expense of paying their wages does not appear on the business balance sheet nor does the cash income from which he pays them. As detailed above, the financial records of the business also include the father’s sales of other products without itemising them. The wife distrusts the income that the father reports.
The father notes that his bank records correspond with his tax returns. The father obviously understands that he would need to declare all the cash that he banks so this does not surprise me.
There was some lengthy cross examination of the father about his vehicles. It appears that the father has two cars. He sold a third recently for a $1,000 loss when he discovered it was a ‘bomb’. His current cars are used for the driving required for his business. He said the main vehicle has a log book which shows 93% is business usage, and the other sits idle most of the time, and is sometimes used for parts. The purchase of the latest car was put on his balance statement and a loss was created for the financial year 2009. The father said this was legitimate accounting given the car’s usage.
The mother questioned the father on the expenses he has had to pay and how he has paid them on the salary he claims. The father paid, through his parents or otherwise, $29,000 in respect of a previous court hearing and $15,000 in respect of the child pornography hearing. The settlement to Ms Field was $20,000. The father explained that he paid for these things by running up his mortgage, which has ‘ballooned out’ from $130,000 to $176,000.
The mother relies heavily on a loan application in the father’s name to a refinance of a mortgage from the Commonwealth Bank to the ANZ Bank in the sum of approximately $130,000. This application details the following financial particulars in relation to the father:
261.1.Property assets at $1,750,000
261.2.Monthly rent received of net $1,462
261.3.Home loan repayments of $1,600
261.4.Gross monthly income of $4,167 and net of $3,173.

The father claims these figures are incorrect. He said the house was valued at $420,000, not $750,000, and that has not changed since then. He claimed an investment asset of $1,000,000 was fictitious. The father claimed the home loan repayments are incorrect. Most importantly, he claimed the income stated was based on an average of his best two months. While acknowledging the signature on the document is his, he denies the handwriting in the document is his own. He said the bank manager filled in the details and notes the application is dated three days after he signed it. The father subsequently acknowledged that the figure for gross earnings of $4,167 was reflected in his tax returns and was correct. He denied the net figure. The gross figure is what the Child Support Agency has based their calculations on. The father said he called the ANZ about the mistakes and they told him to speak to their legal team. That initial letter of complaint from the father is exhibited. The father said the loan application of 24 October 2007 is closer to the truth of the matter. The property assets were recorded as $750,000 and total assets of $800,000. Importantly however, the figures for gross average monthly income and net average monthly income are identical to the figures in Exhibit N.
The father continues to pay child support for his other child N of $60 a week. He said he has offered the mother in these proceedings $60 a week also, an amount the mother has rejected. He denies being in debt regarding his child support payments for the child, as $2,000 was taken from his tax rebate to clear the debt.
The mother says the father now owes $360 for the petrol and supervisor costs arising from driving the child from Town B to Town U for supervised visitation with the father.
The mother makes the submission that we have no true idea of the father’s income. She maintains the belief that child support based upon the father having a taxable income of $50,000 a year is not excessive.
My primary finding is that it is inherently unlikely that the father only has the earning capacity that he has declared in the documents that he has published to the Australian Tax Office. At the end of the day the only real objective evidence I have is that contained in the 2007 bank loan applications, which both have identical and specific figures for the father’s gross income and his net income. In addition, I have found that the father has not fully disclosed his income to the court and in those circumstances, I do not have to be unduly cautious about making the assumptions against the father. The best measure as to cash income the father receives is the estimate of $50,000 in 2007 from the father’s loan application document.
It is appropriate given the extensive litigious history of the matter that the mother be secured in some way in relation to that payment and I will make an order that she from time to time have a charge over the father’s property to secure payment of arrears and that she have the ability to lodge a caveat over that property to secure that charge. Whether or not there be any sale of that property would be a matter for a court exercising jurisdiction in the future to determine any enforcement application.
The mother lists the child’s needs as totalling $201 a week. This is not excessive and the breakdown of his needs is reasonable.
I accept the mother’s stated income is $327 per week. I have assessed the father’s income at $961 per week ($50,000 per annum).
Consequently, the parties have relative incomes as to 25 percent to the mother and 75 percent to the father.
I find that a just and equitable calculation of the father’s obligation to pay for the child’s needs, particularly having regard to the respective incomes of the parties is in the sum of $150 per week.
I find such an order would be otherwise proper.
It is appropriate that child support not be a matter of contention between the parties for a significant period of time. I intend to set child support for a period of slightly over five years (until 30 June 2016).
It is appropriate that the figure of $150 be increased on an annual basis by an inflationary factor for each of those five years.

I certify that the preceding two hundred and seventy-four (274) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 9 June 2011.

Associate:

Date: 9 June 2011

[2011] FamCA 422

9 June 2011

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