UNWIN & UNWIN

[2019] FamCA 215

FAMILY COURT OF AUSTRALIA

UNWIN & UNWIN [2019] FamCA 215

FAMILY LAW – CHILDREN – where the children will spend supervised time with the mother on four occasions per year on a final basis - where the parties and children have been involved in litigation since 2013 – where final orders were made in 2014 following a contested hearing – where it was determined that the children live with the father and he have sole parental responsibility – where the mother spent time with the children following the previous final orders initially supervised and then progressing to unsupervised day time – where the mother brought application in 2016 seeking a variation of the final orders by expansion of  the time she spends with the children - where the mother was not seeking to change parental responsibility or residence of the children - where there were serious risk of harm issues raised in the previous proceedings – were the younger child disclosed in 2017 more detail of being sexually abused by her older maternal half-brother – where no finding about sexual abuse was made in the previous proceedings – where the child has matured and is better able to articulate and recall what happened to her  – where the disclosures of sexual abuse have been investigated by the Department of Family and Community Services and substantiated – where further information provided in these proceedings has elaborated on past information – where the mother is dismissive of the allegations that the child has been sexually assaulted and does not believe them – where the level of risk for the children has escalated as a result of further disclosures combined with dismissive attitude of the  mother  – where the mother asserts that the children are being coached by the father – where the evidence does not support a finding of such manipulation by the father - where the safety of the children is the priority – where orders are made in the best interests of the children – where the mother is unable to act protectively – where the mother probably ignored an injunction made in previous proceedings preventing her from leaving the children unsupervised in the company of the maternal half-brother – where alcohol abuse is a serious problem for the mother – where the eldest child is adamant that he does not want to see the mother – where the youngest child has a desire to spend time with the mother – where the orders for limited supervised time balance the risks and enable the relationship with the mother to be preserved – where there is an unacceptable risk of harm for unsupervised time with the mother.

Family Law Act 1975 (Cth)

Makita v Sproule (2001) 52 NSWLR 705

APPLICANT: Ms Unwin

RESPONDENT: Mr Unwin

INDEPENDENT CHILDREN’S LAWYER: Coast Law

FILE NUMBER: NCC 2859 of 2012

DATE DELIVERED: 9 April 2019

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 2-5 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kelly

SOLICITOR FOR THE APPLICANT: Intercept Law

COUNSEL FOR THE RESPONDENT: Mr Levick

SOLICITOR FOR THE RESPONDENT: Richardson Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Murray

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Coast Law

Orders

1. That  parenting orders made 1 May 2014 (“the 2014 Orders”) in relation to B (born …2007)  and C (born … 2009 together referred to as “the children”, marked annexure “A” and attached hereto, are varied as follows:

   (a)       Orders 9-17; and 19 inclusive are discharged.

2. That the children shall spend time with the mother as follows:

   (a)Supervised by the V Group at Suburb W or such other supervised service provider as the parties may agree, on four (4) occasions per calendar year and failing agreement otherwise in accordance with Order 8 of the 2014 Orders.

   (b)That, subject to the determination of the principal otherwise, the mother shall be entitled to attend events involving C to which parents are invited by the school until C finishes her primary school education.

   (c)At such other and or additional times as agreed between the parties.

3. The mother is restrained from bringing with her any other person when she is spending time with the children and attending events pursuant to Order 2 herein, without the prior written consent of the father.

Annexure “A”

IT IS ORDERED:

1. That all previous parenting orders are discharged.

2. That the children B born … 2007 and C born … 2009 ("the children") shall live with the father.

3. That the father shall have sole parental responsibility for the children.

4. That the father shall advise the mother in writing of any issue requiring a decision relating to the long term care of the children (including but not limited to proposed change of primary school, enrolment at high school, elective surgery, attendance on a medical specialist, religious instruction) and shall

   (a) set out his own views and proposal;

   (b) invite the views of the mother and her proposal in relation to that issue within 28 days; AND

   (c) having considered the views of the mother in coming to a decision the father shall then advise the mother in writing of that decision.

5. In relation to education the father may:

   (a) confirm enrolment for B at D Town Public School;

   (b) enrol C at D Town Public School in due course.

6. That the order for the appointment for the Independent Children's Lawyer is discharged after the expiry of six calendar months from the date of these orders

7. The Independent Children's Lawyer shall make requests to the mother for her to undertake urinalysis in accordance with the protocol, on three occasions randomly within the three month period immediately following the date of these Orders.

Time with the mother

1. Minimum contact time between the children and the mother is defined as follows:

   (a) on the second Sunday in February each year between 2.00 pm and 4.00 pm;

   (b) on the third Sunday in July each year between 2.00 pm and 4.00 pm;

   (c) on the second Sunday in November each year between 2.00 pm and 4.00 pm; and

   (d) on the third Sunday in December each year between 2.00 pm and 4.00 pm.

2. The mother shall spend time with the children as follows:

   (a) for a period of three months after acceptance either at a Contact Centre or with a Supervision Service nominated by the mother in the Central Coast area on alternate Sundays, with Mr J able to attend at the discretion of the mother, but no other person to be present.

3. Both parties to forthwith do all acts and things to undertake the intake process for acceptance at that Contact Centre /Supervision Service and the costs of the Centre /Service to be shared equally.

4. In the event that the mother complies during the three month period referred to in Order 7 with each request for drug screening within time AND that each sample complies with requirements AND the outcome is negative for all drugs screened, then time at the Contact Centre/ Supervision Service will continue for a further period of up to three months in the same terms.

5. In the event that the mother does not undertake each requested drug screen, or the mother undertakes the drug screen but fails to provide a compliant sample, or the mother undertakes the drug screens but one or more drug screens is positive for use of drugs then the time between the mother and the children shall thereafter be the Minimum Contact Time as defined in Order 8.

6. Further, in the event that the mother fails to attend on any occasion of contact in the total six month period provided for in orders (9) and (11), other than due to illness notified in advance by text or telephone call prior to a visit and attested to by a medical certificate supplied within 72 hours of notice, then after such failure to attend, time between the mother and the children shall thereafter be Minimum Contact Time defined in Order 8.

7. Subject to Orders (12) and (13) and after the six month period of time in the Contact Centre/ Supervision Service time for the children with their mother shall become unsupervised and shall take place on alternate Sundays from 11 :00 am to 4:00 pm subject to the mother being restrained as follows:

   (a) from allowing Mr J to care for, supervise, or be present alone with the children;

   (b) from allowing the children or either of them to be brought into contact with Mr E or allowing the children or either of them to speak to the said Mr E on a phone.

8. The mother must contact the father by text message (the confirm message) on the father's mobile telephone number between 9.00 am and 10.00 am on any day that she is to spend time with the children pursuant to Order 11 and confirm that she will be attending to spend time with the children on that day.

9. In the event the father does not received the confirm message between 9.00 am and 1 0.00 am on the day that the mother is to spend time with the children, then the mother's time with the children is deemed to be suspended on that occasion.

10. The changeover shall take place at McDonalds Family Restaurant at Suburb F NSW

11. The mother shall keep the father advised of her current residential address and contact telephone number/s and shall advise him within 24 hours of any change of address and or telephone number.

(19) That the father and mother shall each be entitled to attend events involving the children such events including sporting fixtures, extra-curricular activities that allow for parental attendance, school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.

1. The father shall ensure that the mother is kept informed of:

   (a) any medical problems or illnesses suffered by the children or either of them;

   (b) any medication that has been described for the children or either of them;

   (c) any social, school or religious functions which the children or either of them are to attend;

   (d) the children's residential address;

   (e) any other matter relevant to the children's welfare.

2. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the children and that each party do all acts and things to ensure that no third party makes critical comments about the other party in the presence or hearing of the children.

THE COURT NOTES:

(A)A copy of these orders will be provided to the Department of Family and Community Services.

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

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

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2859 of 2012

Ms Unwin

Applicant

And

Mr Unwin

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders (time and communication) in respect of two children, B a boy aged 11 and C a girl almost nine at time of trial.

2. The parties are the parents of the children. They lived together for five years between September 2006 and August 2011. The mother had a son Mr H from a prior relationship. He too became a member of the household. After separation of the parties, the children lived with the mother and Mr H for two years.

3. In August 2013 the children came into the care of the father and have lived with him since then.

4. The matter has been before the Court previously. There was a trial over four days in February 2014 which gave rise to final parenting orders on 1 May 2014 (“the 2014 Orders”).[1]

   [1] Family Court of Australia Order dated 01/05/2014

5. Mr H was 19 at date of this trial and a witness in his mother’s case.

The trial

1. On the first day of this trial there was an application by the mother to adjourn the proceedings. She had very recently separated from her husband of 18 months Mr Y. The application was opposed by the Independent Children’s Lawyer (“ICL”) and the father. The application was declined for reasons given ex-tempore on that day.[2]

   [2] Ex-Tempore Judgment dated 2/10/2018

2. All parties were legally represented.

3. The trial was concluded within the four days allocated in October 2018.

4. Judgment was reserved.

2014 Orders and following

1. The 2014 orders provided for the children to continue living with the father. The father was allocated sole parental responsibility with structured obligations to consult with the mother and advise her in respect of long term decisions made.

2. The orders provided for the mother to have supervised time with the children over six months whilst certain conditions (namely, drug screening) were met. Time was also conditional on the defined periods of time being substantially taken up by the mother.

3. A definition for “minimum contact time” was established in the 2014 orders. That is four periods per year of two hours on each occasion in February/July/November and December. This was the fall-back position in the event of non-compliance by the mother with conditions.

4. After six months there was the possibility of progression to unsupervised time on alternate Sundays from 11.00 am to 4.00 pm and for the mother to be entitled to attend all events involving the children.[3]

   [3] Family Court of Australia Order dated 1/05/2014

5. There were two restraints on the mother:

   -From allowing H to care for, supervise or be present alone with the children; and

   -From allowing the children to be brought into contact with a named third party (a former partner of the mother).

Reason for restraint

1. The basis for the first restraint was safety concerns about H with the children.

2. C, when she was aged about three and a half years had told the father that her half-brother H, then aged about 14 years, had been touching her genitals.

3. B had been observed by the paternal grandmother to have acted in an oddly sexualised manner which was suggestive of exposure to adult sexuality.

4. The finding of the Court was as follows:[4]

   [4] Judgment dated 1/05/2014, pars 33–38

   33.I am unable to make a finding that C has been sexually abused. There are other credible explanations if I accept that H was left to care for C and her brother alone from time to time, particularly as at the relevant time C was two and still in nappies. It is probably that H bathed C, changed her nappy and helped her at the toilet.

   34.I also take into account the father’s statement that C did not appear to be distressed or frightened when she was telling him what had happened. I take it into account as to the impact on the child. I also take the statement into account in assessing the father’s credibility as a reporter. I do not consider that the father embellished the child’s statements and he behaved responsibly in not continuing to question her after the day on which the allegations are said to have been made.

   35.I do however consider that there was inadequate care and supervision of the children in the mother’s home around that time.

   36.Soon after C’s disclosure the paternal grandmother minded the children and described an incident where B had run up to a mannequin in a shop, put his arms around it and put his face into the crotch of the mannequin.

   37.The father spoke to B about the incident, describing to B what his grandmother had told him.

   Father:What did you do to the mannequin?

   B:I kissed it you know where.

   Father:Why did you do that?

   B:I thought it was funny.

   Father:Has anyone touched you there, or have you touched anyone else there?

   B:No.

   38.The father again refrained from questioning the child any further but remained concerned about what the children were being exposed to, appropriately in my view.

5. There was also hearsay evidence of the maternal uncle which was accepted by the Court:

   42.Mr R described H as having responsibility for looking after the children, getting them ready for school and changing C’s nappies. “He is like the parent in the house”. There was no bedtime and the children did not have sufficient food.[5]

   [5] Judgment dated 1/05/2014, par 42

Compliance by Mother

1. To her credit, the mother did what was required of her to progress to unsupervised time. By December 2014 the mother was spending time with the children for five hours every second Sunday in accordance with the orders.

2. Towards the end of 2016, after two years of fortnightly visits, the mother asked the father to agree to an extension of time. He declined.

3. What has emerged from the evidence is that the father became concerned, or perhaps was worried from the outset of unsupervised time, that the mother was, contrary to the orders, allowing the children to be left unsupervised with their older half-brother H.

4. The affidavit of the father contained a great many statements alleged to have been made by the children from early 2015 onwards, to the effect that they together or individually had been left alone with H during time with their mother. Further, that H had told them that their father was the reason they could not see their mother more often.

5. From early 2015 the father communicated with the mother regularly about the possibility of H having being left alone with the children and about his attitude. The mother’s replies were dismissive but not responsive. She did not deny that the children had been left unsupervised with H.

6. The father kept a diary of the comments of the children made in the car coming home. He kept a diary of the events.[6] He also contacted Family and Community Services (“FACS”).[7] That department had been provided by the Court with a copy of the 2014 orders.

   [6] Exhibit 16

   [7] Exhibit 12

7. The father was advised by a FACS officer to notify his concerns about that issue and any other matter of concern to the Department. He did so.

8. Further, the father was told that although FACS could not “go over the orders” it would be possible for an officer to telephone the mother and express concern about the safety of the children if orders about unsupervised time with H were not complied with.

Application by Mother - 2016

1. In December 2016 the mother filed a fresh Initiating Application in the Federal Circuit Court which commenced these proceedings.

2. From early 2017 compliance with the orders by both parties became problematic.

3. The father was served with the application on 18 January 2017.

4. He reacted with some urgency and distress; he rang FACS and brought his concerns up to date.

5. On 19 January 2017 the father was having a “Body Safety Rules” conversation with C as he did with both children from time to time.

6. On this occasion when C referred generally to what H had done in the past the father asked if she remembered what had happened. The child is reported by the father then to have given a detailed account of historical events:

   Dad I remember when H held me down on the bed and he pulled my pants down and he poked my vagina. It really hurt and I told him to stop but he wouldn’t. Dad he did this a lot it wasn’t just one time.[8]

   [8] Affidavit of the father filed 06/09/2018, par 39

7. The father moved swiftly and rang the police.

8. On 27 January 2017 the children saw the mother and her then fiancé Mr Y at a sports event. The evidence of the mother was that the children seemed pleased to see her and expressed pleasure at the upcoming visit with her on the following Sunday.

9. On that same day C was interviewed by JIRT. Thereafter the father was advised to cease contact between the mother and the children.

10. On 29 January 2017 the father advised the mother in writing that he was no longer making the children available for time with her.

1. On 8 February 2017 B was interviewed by JIRT. In that interview B was apparently told of the allegations about H’s conduct with C. To the credit of the father, the child had not known.

2. On 22 February 2017 the mother attended a JIRT office in response to an invitation to do so. She was told of further allegations/conversations. However it is clear that the further allegations related to historical events when the children were living with their mother and H between 2011 and 2013. The same events, although now more detailed, were before the Court early in 2014.

3. On her own evidence the mother was dismissive of the allegations. She considered the timing to be suspicious, namely soon after the filing of her fresh application and also of her request for the children to attend her upcoming wedding to Mr Y.

4. In her contemporaneous affidavit the mother reports that a JIRT officer asked her whether she had ever considered the possibility that “H may have done something to C.”[9] The mother does not record her response.

   [9] Affidavit of the mother filed 24/02/2017, par 24

5. If the mother has asked herself that painful question “Did my elder son hurt and abuse my daughter?” then there is no evidence about it.

6. During her evidence in these proceedings the mother expressed her firm view that C had been taught by her father to say what she did to FACS, that she had been “coached”.

First day before Federal Circuit Court

1. On 28 February 2017 the application came before the Federal Circuit Court (“FCC”) and was adjourned on the application of both parties until May 2017.

2. I infer that the parties were waiting for ongoing investigations to be completed.

3. On 8 May 2017 an order was made for transfer to this Court.

4. Orders were made, pending further order, in the Federal Circuit Court:[10]

   a)Suspending the May 2014 Orders.

   b)For the children to have two hours of supervised time once per fortnight;

   c)By consent, that the mother be restrained from allowing the children to have contact with H.

   [10] Federal Circuit Court Order dated 08/05/2017

5. The Notations to those orders related to JIRT investigations and also to the assertion of the mother that “allegations relate to historical matters previously determined by Justice Cleary”. That was in fact the case.

6. I have the impression that the mother believed, at that time, and possibly throughout this second trial, that she was the victim of a mistake where the same issues were being examined twice. That is not the case.

7. If I accept the evidence of the father about what the child told him in 2017, by then aged seven years, she was able to recall and more clearly articulate to the father and to JIRT what had happened to her as a preschool aged child.

JIRT Outcome

1. On 11 May 2017 a FACS officer spoke to the mother regarding the recent allegations that H had assaulted C in the past. The mother advised that she would not allow FACS to interview H who was then within eight days of turning 18.

2. The mother was told that there was enough information to substantiate the allegation of risk of sexual harm.

Transfer to Family Court

1. An Independent Children’s Lawyer was appointed and the parties referred to a Children and Parents Issue Assessment (“CAPIA”).

2. The Family Consultant contacted FACS who advised that the matter had been concluded and the allegations substantiated.

CAPIA - 28 July 2017

1. The Family Consultant reported that the children were not enthusiastic about spending more time with the mother. The main objection by both was that the mother would not allow them to participate in sport and other organised activities when they were with her.

2. It is understandable that the children wished to participate in their sporting activities. It is equally understandable that the mother wanted to spend her limited time, five hours per fortnight, directly engaged with the children.

3. The Family Consultant recommended that the mother engage with FACS with regard to the findings about H in order to learn what assistance and support he and the younger children needed.[11]

   [11] CAPIA dated 28/07/2017, par 32

4. With respect to the Family Consultant this appears to have been excellent advice. The mother chose not to take it. She chose instead a position of denial.

Family Report - 30 January 2018

1. In January 2018 the parties and children were interviewed again, this time for a Family Report.

2. The mother was reported to say that she did not believe that H sexually assaulted C in 2013 or at any other time and was emphatic that such a thing could never happen. She accused the father of planting ideas into the children’s minds and falsely convincing them that it had happened.[12]

   [12] Family Report dated 30/01/2018, par 96

3. The Family Consultant expresses the opinion that if that was correct “it represents a very serious form of child abuse”.[13]

   [13] Family Report dated 30/01/2018, par 96

4. That would certainly be the case. However the facts and circumstances do not, in my view, support a finding of such strategic and destructive manipulation by the father.

5. First, there is no suggestion that the father or anyone else told B what was alleged to have happened to C until a FACS officer told him in February 2017.

6. Next, the father complied with the 2014 orders for two years (2015 and 2016) after time became unsupervised, despite the fact that he was worried that the children might be spending time alone with H and that the mother dismissed his enquiries and concerns.

7. Next, if the father had been willing to falsely persuade his own young daughter, to believe that she had been molested by her older half-brother and to encourage and direct her to make an allegation to authorities based on those lies, it seems more likely that there would be fresh allegations of additional incidents of abuse arising from two years of unsupervised time in the household of the mother. The allegations put before the Court in this trial related exclusively to events in 2013.

8. Finally, if the mother truly believed that the father was emotionally abusive in that way, again it seems less likely that the she would concede that the children should remain living with the father and that he should retain sole parental responsibility.

9. The father was reported to say to the Family Consultant that because the mother did not accept the findings of the Court in 2014 (which were of neglectful care and supervision by the mother) and of FACS in 2017 (that there has been sexual abuse of C by H in the past) the mother would not adequately protect the children who would remain at risk from H.

10. The Family Consultant expressed the opinion that if the Court found that the children are at risk from H in the mother’s household the father’s ongoing concerns would be valid.

11. Whilst I agree with that opinion the risk appears to be a much broader one.

12. The mother simply refused to contemplate the possibility of wrongdoing by her son H in 2013 or at all. It was a point well made in submissions on behalf of the ICL, “How could the Court have any confidence that the children would not be left with H?”  That is not to say that either of the children would inevitably be abused if that did happen. The problem is that the mother has not been truthful and also she is scornful about C’s apparent confirmation of H’s past behaviour.

13. In this trial, counsel for the mother cross-examined the father on the basis that he was a devious, manipulative, liar. By taking that stance the mother denies that there may have been conduct which frightened and upset her three year old daughter, memories of which have now come into clearer focus for the child.

14. Her position is as follows: nothing has ever happened, there is no call for restriction on the children coming in contact with their older brother, the whole thing is ridiculous. She has thus ruled out C being able to talk to her openly and honestly in the future.

15. The secondary problem is that the mother asserts that she has at all times complied with the restriction on H but has at all times believed it to have been completely unnecessary.

The Applications

Mother

1. The mother made no challenge to the children continuing to live with the father nor to his continuing to have sole parental responsibility.

2. The mother proposed orders for time progressing in stages to an ultimate position  where the children spent time with her for four nights per fortnight in term time and half of each school holiday period.

3. There was provision for other special times, communication by telephone, the release of information and mutual restraints on conduct.

4. This application to expand time and communication with the children is, on the face of it, consistent with the spirit of the 2014 Orders. That is, that the children should enjoy a relationship with the mother if she could be consistent in spending time with them and could keep them safe.

Father

1. By his Response the father effectively proposes the discharge of existing orders for time and communication.

2. Instead there would be four occasions of supervised time per year at a contact centre.

3. This proposal echoes the fall-back position in the 2014 Orders of “minimum contact time” four periods of two hours each year.

4. It is the issue of safety for both children, especially the younger child C, which motivates the father.

Evidence

1. The documents relied on in respect of the application were as follows: 

The Applicant Mother – Ms Unwin

(a)Initiating Application filed 22/09/2018;

(b)Affidavit of the mother filed 12/09/2018;

(c)Affidavit of the mother’s ex-husband, Mr Y, filed 13/09/2018;

(d)Affidavit of the mother’s son, H, filed 13/09/2018;

An Affidavit of Ms Z, psychologist, filed out of time on 18 September 2018 was objected to by the father and the ICL on the principles of Makita v Sproule.[14] The objection was upheld and the report annexed to the affidavit was not read in the proceedings for the reasons given at that time [15]

[14]Makita v Sproule (2001) 52 NSWLR 705

[15] Ex-Tempore Judgment dated 2/10/2018

The Respondent Father - Mr Unwin

(e)Amended Response filed 27/11/2017;

(f)Affidavit of the father filed 6/09/2018;

Reports

(g)CAPIA dated 28/07/2017;

(h)Family Report dated 31/01/2018.

Oral Evidence

The Applicant Mother – Ms Unwin

1. The mother was not a candid witness, doing her best to disclose to the Court all relevant matters. One example of her lack of candour is as follows.

2. Alcohol abuse has been a serious problem for the mother in the past which impaired her capacity as a parent. The mother agreed that part of her case was that she had “got her life back together.”

3. Referring in her affidavit to a period of detox and rehabilitation 17 years prior the mother made this statement:[16]

   Since then I have rarely used alcohol. I think I may have only drank alcohol on one or two occasions and the only time I did use I managed to bring myself under notice of the authorities for the offence of drink driving. I have stopped drinking alcohol altogether since that offence.

   [16] Affidavit of the mother filed 12/09/2018, par 13

4. Cross examination of the mother, with the benefit of police records, revealed a much more serious story.

5. In June 2015 the mother was stopped by police after she had travelled at 90 km, on the wrong side of the road, overtaking several vehicles whilst in a 50 km zone. She was breath tested, her roadside reading was 2.21 which reduced to 0.139 when she was retested at a police station.

6. The mother was charged with and subsequently convicted of mid-range PCA and drive recklessly/furiously or speed/manner dangerous. She was fined $1000 and disqualified from driving for 18 months.

7. In November 2015, an all grounds appeal to the District Court was entirely unsuccessful. The mother denied she had appealed.

8. A question was put squarely to the mother, to which she answered “yes”:

   Question:Just by horrible luck, on the one occasion you drank (after 2003), and drank too much, you were caught PCA?”

9. Subsequent evidence made it highly unlikely that the mother’s answer was truthful.

10. The mother then went on to agree that her behaviour had been poor, her word was “shocking”. She denied the intention to mislead the Court.

11. The mother minimised the significance of that offence. Not only did it cast doubt on the willingness of the mother to be candid about her behaviour when drunk. The impression was created that the mother was willing to deny or evade telling the truth more generally.

12. The mother was taken to her own statements reported in December 2015 in the notes from her therapist about her drinking and arguments with her then partner about her “right to drink.”[17] There was global denial. For instance, two notes[18] “drank to numb emotional pain” and “became upset on daughter’s birthday (November 2015) and drank a bottle of wine” were each met with the same response, “I didn’t say that” and “I don’t know why he wrote that”.

    [17] Exhibit 3

    [18] Exhibit 6

13. Similarly the mother asserted that she had never used illicit drugs other than cocaine and that was only on one occasion. Her therapist’s notes record the mother using this analogy about medication “Prozac made me feel like I was on ice. Made me feel edgy and … (illegible).”[19]

    [19] Exhibit 6

14. Overall the mother revealed herself as unreliable, unable to concede, desperate to conceal perceived failings.

The Mother’s Husband – Mr Y

1. Mr Y was not available for cross examination but the concession was made on behalf of the father that his affidavit could be read in the proceedings.

2. Mr Y met the mother in 2015. In March 2017 they married and Mr Y moved in to the home of the mother with herself and H.

3. In September 2018 the mother and Mr Y separated

4. I do not give significant weight to his evidence. The bulk of it was a repetition by him of historical information provided to him by the mother. His affidavit was affirmed on 12 September 2018, very much in support of the mother, then his wife. There was a separation within the following three weeks, the causes of which are not known.

5. It is impossible to know if the evidence of Mr Y would be materially affected by that breakdown.

The Mother’s Son – Mr H

1. Mr H is 19 and lives with his mother. He provided an affidavit and was cross examined.

2. He was asked about his knowledge of his rights around self-incrimination. He stated that he had had legal advice about the right to remain silent.

3. I conclude that he was strongly committed to assisting his mother to achieve her goal of having substantial time with the children.

4. He was also, understandably, strongly committed to exonerating himself in respect of alleged misconduct with C when he was 14 years and younger.

5. H‘s written and oral evidence was replete with denials.

6. In relation to the two year period after separation (August 2011) and before the children went to live with the father (August 2013), H said this:

   I say that I was never inappropriate with C and at no stage was I ever left alone with C and I never dressed C and at no stage did I touch C in an inappropriate manner let alone touch her on her body or her vagina.[20]

   [20] Affidavit of H filed 13/09/2018, par 9

7. That evidence is inconsistent with the findings made by this Court in 2014 based on the evidence of the mother herself, on FACS records, and on the evidence of the maternal uncle who had cared for H aged three years when the mother was incapable of doing so and had maintained contact with him.[21]

   [21] Reserved Judgment dated 1/05/2014, pars 35-50 & 83-91

8. H had been responsible for the physical care of both his younger siblings on many occasions in the relevant period.

9. He initially denied that he had ever been left alone with the children. Later in his evidence he conceded “maybe 30 minutes while Mum was at the shop”. I do not accept that was the extent of time alone.

10. Further he denied having had access to pornography, by any means, growing up. This directly contradicts the evidence of the mother to the Family Consultant who reported in the 2014 Trial. She said she had given him instructions about what not to view, “anything with women getting hurt and no children.”[22]

    [22] Reserved Judgment dated 1/05/2014, par 98

11. H reached for total denial when told that his mother had advised JIRT on 5 September 2013 that he, her son, was watching pornography at that time, “That wasn’t the case that she said it, because I wasn’t.”

12. It also contradicts the hearsay evidence of the maternal uncle Mr R, who was concerned enough about his young nephew “watching porn” to bring it to the attention of the father late in 2013. Mr R lived in the house with the mother and H from mid-2011. H conceded that he had been close to his uncle.

13. Further, he denied that he had had any interest in or knowledge about sex or any interest or curiosity about girls. It could be true although unlikely.

14. He repeated the view of the mother that C had been coached by the father to lie about his conduct. He rejected any innocent explanation for her comments.

15. H agreed that he had “sat in” on the interview of the mother for her affidavit and that she had done likewise for his interview. If that is so, as conceded, that fact alone reduces the weight to be given to the evidence contained in his affidavit. He should of course have been dealt with separately from his mother for the instructions for his affidavit.

16. The evidence of H consisting as it did of almost uniform denials appeared to be both self-protective and also defensive of his mother.

17. I conclude that there is unlikely to ever be an affectionate relationship of trust between H and his two younger siblings in these circumstances.

The Respondent Father – Mr Unwin

1. The father presented as worried about the safety and well-being of the children.

2. When the mother filed her fresh application in December 2016 the father was both disheartened by the time and cost of further litigation and perhaps also relieved to have the opportunity to raise his fears about the children being left unsupervised with their older half-brother.

3. The evidence is that the father speaks openly and often with the children about how they are feeling and whether they have any current concerns.

4. He has followed a program called Body Safety Rules. Routinely he would check that the children remembered the rules and listened to anything they wanted to say. He referred to C sometimes commenting that H had touched her but concluded that she was speaking about events in the past already known to him and said no more about it.

5. He made notes in a diary onwards from 7 December 2014 after supervision of the mother ceased. The diary was produced at Court on request.

6. Many entries were simply factual as to dates times people present vehicles used. B appears to have struggled with and resisted going with his mother in the early stages of unsupervised time. The father supported and assisted him to do so.

7. The proposition was put to the father that in January 2017 he had fabricated a story of what C had told him. On this occasion when the child mentioned H the father asked “Do you remember what happened?” The story that followed was of H pushing his finger into the child’s vagina (hurting her) on many occasions, in the child’s bedroom, when B was in the lounge room:[23]

   Counsel to father: “Did you go back and make all this up?”

   [23] Exhibit 16

8. It was an odd accusation to make. The father had been making notes for two years and contacting FACS with his concerns.

9. I do consider that the father’s fears were heightened by the mother’s fresh application and that fear may have prompted him to ask if the child remembered what had happened. I do not consider that the father made up a conversation and wrote it out. It is inherently improbable

10. If he fabricated a conversation with his daughter in order to defeat his wife’s application for increased time it was a strange fabrication. The conversation refers to events at the house where the children lived until August 2013. That was established. The last sentence is this:

    I asked “has it ever happened at any other places since you left that house?” She said “No”.

1. At its highest this statement made it more probable rather than less that something deliberately untoward had happened in 2013 or before.

2. My conclusion is that the father was trying to balance his obligation to comply with genuine concerns about the welfare and psychological state of his daughter.

3. The father then rang FACS who followed the matter up.

4. At the beginning of his evidence the father was asked whether he trusted the mother to do the right thing. His response was “Not really. I was hoping, definitely hoping.”

5. My impression of the father is that this was an accurate state of mind after the 2014 orders were made. The commitment and compliance of the mother for the first 6 months probably was a hopeful sign.

6. When unsupervised time started and the children talked to him over the next two years (2015 and 2016) of how visits were, especially about H’s presence unsupervised, and visits to people the children did not know, the father did lose hope.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. I have contemplated the issues of time to be spent and communication between child and parent as well as any other specific issues.

4. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. On this topic the Family Consultant was particularly helpful.

2. The Family Consultant concluded that the children appeared to have a positive and loving relationship with each other and with the father.

3. The children each have a quite different relationship with the mother.

4. B was not seen for Family report interviews, with his mother (or H), due to his own strong wish.  

5. C was keen to see her mother but stressed that she did not wish to see H.

6. The Family Consultant gave his opinion that C had a complicated relationship with her mother, “She craved spending time with her but does not want to do so at the mother’s home.”[24]

   [24] Family Report dated 30/01/2018, par 86

7. His observation was of C entering the room slowly but then hugging her mother “C very quickly relaxed and cuddled, giggled laughed and chatted with her mother.”[25] The child played a game with the mother and negotiated extra time to finish it.

   [25] Family Report dated 30/01/2018, par 93

8. B was described as having very strong negative feelings about his mother.

9. The mother told the Family Consultant that the children were scared of the father and would say and do anything he asked them to.[26]

   [26] Family Report dated 30/01/2018, par 85

10. Nothing in the Family Report supports that opinion.

11. If that were true it would be hard to understand why the younger child was pleased to be interviewed with her mother and relished the time together. The supervision reports from Relationships Australia reflect the same.

12. Further the mother has conceded by her application that the children should remain living with the father. If she genuinely believed that the children were scared of their father and obeyed him through fear then her application would reveal indifference to their welfare.

13. I do not consider that the mother was expressing a genuine opinion. Probably her statement was an attempt to negatively influence the Family Consultant adversely against the father.

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

1. The 2014 orders were made to protect the children from the mother’s behaviour, from a person from whom she had recently separated, and from H’s behaviour.

2. There was a question mark over H’s behaviour with C when left to care for the children in 2013 and before. A positive finding was not made.

3. What was required of the mother once the supervised period of time was completed [in December 2014] was to ensure that the children were not left unsupervised with H.

4. In submissions, counsel for the ICL made the statement with which I agree, that the mother could have said to her son “look we have to take this seriously”.

5. The children have reported that they were left alone with H at times. The children felt worried about it.

6. The mother and H both say they have dutifully complied. They are both quite scornful and dismissive about the restriction. They were both poor witnesses who denied and lied at times. Accordingly, I am unable to be confident about the evidence of the mother or H on this topic as to past and future behaviour.

7. There is no fresh allegation of misconduct by H. There is further information from both children affirmative of past conduct.[27]

The Child C 27/01/2017 [28]

[27] Exhibit 9

[28] Exhibit 9

1. C spoke of being “touched on her rude parts’ by H “poked in the vagina after he said ‘Come here’ ”. She reported she said “‘No’ all the time” and said to her brother B “Go get Mum”. He stopped then”

   Q.       Where was Mum? 

   A.       She was asleep.

   Q.       Where was B?

   A.       In the lounge-room.

2. C did not seem keen or anxious to tell any particular story. She said she had spoken to her Dad about it “so I could know what to say here.”

3. One way to interpret that statement is that she had asked her father or been told by him what to say.

4. Overall that is not the impression I have drawn from her interview.[29]

The Child B 08/02/2017 [30]

[29] Exhibit 9

[30] Exhibit 9

1. B gave details of the children being cared for by their older half-brother:

   H always had to make our breakfasts. Mum was asleep .We always got to school late.

   He also referred to H getting him out of the bedroom he shared with C and ‘he let me play with the Tech deck and Xbox (Elsewhere)’. He did not know where C was at those times ‘I don’t know. In my room.’  

   Other than not feeding the dogs, he did not see H do anything he didn’t like.

   He did not confirm C’s statement that she had called out to him to ‘go get Mum’. He did not remember her saying to him ‘H is touching me.’

2. His interview has the look of a child answering honestly to the best of his recollection.

3. Taken together the two children tell a consistent story of regularly being in the house with H while the mother was asleep in her room. B being induced out of the bedroom by permission to play the Xbox is consistent with C’s story of being alone with H and calling out for her brother to tell Mum.

4. Of course it is a retelling of events four year prior, a long time for young children. C has referred back to that time in conversations with her father many times.

5. It would be unwise and unnecessary for this Court to make a positive finding of abuse.

6. The conclusions of FACS were that:

   C did not provide a lot of contextual information however based on interviews by C and B there is enough to say that it is more likely then (sic) not on the balance of probability that C was harmed by H and will therefore be identified as a PCH.

   C was exposed to: Indecent acts/molest.[31]

   [31] Exhibit 9

7. The interviews and conclusions of FACS have apparently not persuaded the mother that she should be open to the real possibility that H in the past used C for his own sexual interest and gratification. Perhaps she has reflected on it and has concealed any doubts she may have out of loyalty to her son H.

8. Either way I cannot conclude that she will be protective of the subject children.

Additional Considerations

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

1. In January 2018 both children were interviewed and observed.

2. B said that “he does not like going to the contact centre and that he liked it much better when he was not seeing his mother at all.” He described having been upset and crying at school at the thought of having to go. He gave as an explanation for his feelings that he was scared of his mother but could not explain why. He did though offer two reasons: that his mother asked lots of questions and that she made them eat food they did not want. He also said he had remembered more stuff about H [a reference to the period between December 2016 and May 2017 during which he was interviewed by JIRT].[32]

   [32] Family Report dated 30/01/2018 pars 75-76

3. When advised that the mother was coming to spend time with him and his sister B was “adamant” that he did not want to see his mother today or ever, H likewise.[33]

   [33] Family Report dated 30/01/2018 par 77

4. When told that B had expressed the view that he did not want to see his mother or older half-brother ever, the Family Consultant noted that as a much stronger view than had been expressed to him nine months prior.

5. In reflecting on possible explanations he said, that supervised time for children raises the possibility for a child of the need for supervision.[34]

   [34] Family Report dated 30/01/2018 par 103

6. This has direct relevance to these facts where the children had unsupervised time for two years, followed by almost six months of no time at all, then a reversion to supervised time in a centre.

7. It is apparent that C loves her mother and enjoys spending time with her.

8. Despite reverting to supervised time in 2017, after two years of unsupervised time, C appears to have looked forward to visits and delighted in them.[35]

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

[35] Exhibit 11

1. The children have close loving relationships with the paternal extended family including the paternal grandmother, the paternal aunt and her two children who live in close proximity.

2. The children also enjoy such a relationship with the maternal aunt, her husband and their four children; the father and the maternal aunt having co-operated to maintain that relationship.

3. The children likely had a good enough relationship with the mother’s estranged husband Mr Y. B had some complaints about the mother pressuring him to call Mr Y “Dad” and Mr Y’s parents “Nan and Pop”. If that was the case it was insensitive to the children. However Mr Y was not present to be asked about that and the relationship has ended in any event.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. At date of trial the mother was paying $40 per month in child support. Her evidence was that she had no income, having been supported by her estranged husband’s income (while she studied at TAFE) until separation two weeks prior. She planned to find a job and was confident she would be able to do so.

2. The father is otherwise entirely responsible for the financial support of the children.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. The children have lived in the full time care of the father for almost six years.

2. Their experience is of seeing their mother on a limited basis. There have been periods when they did not see her at all, when her focus was elsewhere.

3. By the end of 2014 the mother was shown to be clean of drugs and consistent in spending time with the children at a contact centre.

4. The children then spent two years of seeing their mother unsupervised for 5 hours per fortnight (2015 and 2016). The mother also came to some of their school and sporting events.

5. From about May 2017 they have reverted to fortnightly supervised contact in a centre.

6. The children are very wary of their older half-brother and B is resistant to seeing their mother. B told his mother during a supervised visit that he did not like it when she came to watch him play sport.

7. C is not resistant although she became upset when the mother brought up H’s name in June 2018 during a visit. The child responded to her mother, “You don’t care”. The contact centre workers later advised the mother not to mention H if it upset C.[36] The mother was clearly conscious of the issue referred to. She herself cried to the contact centre workers. She said of herself that “she only brought up H’s name and she doesn’t pick between her children.”

   [36] Exhibit 11

8. Now at 11 and nine years of age a change for these children to substantial time, weekends and holidays, would likely lead to distress and destabilisation. They would not feel safe. They possibly would not be safe. The father is not confident that they would be safe so the children would almost certainly feel insecure.

9. C has told FACS officers about her experiences as a very young child and her allegations of abuse have been substantiated.

10. Both children feel safe and content with the father

Any other fact or circumstance that the court thinks is relevant

1. The ICL proposed that if time were to continue it could be for five hours per fortnight with restrictions on H being present and on the mother referring to H by name (something she has done, inferentially with a view to restoring relationships between the three siblings).

2. I consider that path has already been laid out and proved to be unsuccessful. The mother made every effort to do what was required of her for six months to achieve unsupervised time. After that she focused on having substantial time, but failed to take seriously the main impediment to that happening.

3. Further, the children have been affected by Court proceedings and JIRT investigations for almost six years. It should stop.

4. B has been increasingly resentful about supervised time and vehement in his opposition to spending time with his mother and older brother at all.

5. In 2020 B will start high school aged 13 and a half years. It is apparent that school, sport and friends will be the increasing focus of his life. I have given some weight to his views.

6. Forcing him to spend regular time in a contact centre, or supervised in the community, or unsupervised for short periods of time will almost certainly make him more resentful towards his mother.

7. I also take into account the opinion of the Family Consultant that if regular supervised visits continued that would be detrimental for B. “Extending the thought that safety is necessary is unlikely to lead to a good relationship”

8. C, despite everything, longs to spend more time with her mother, preferably at her home and most of all for some undivided attention. She is as vehement as her brother about not wanting to see H.

9. C aged nine, loves her mother, enjoys her playfulness and sense of fun. She would like her mother to understand what has happened to her and to be protective of her. She is too young to understand that the mother loves her, but has chosen to blame the father for all that has gone wrong for her here and to simply deny any problem arising from her shared past with the children including H.

10. The Family Consultant in respect of C also saw “no great benefit” to ongoing regular supervised visits in a centre, although the child has mostly enjoyed them. He expressed the view that it was not sufficient to sustain a long term relationship. I accept that is so where the relationship has been inconsistent for years.

Conclusion

1. There is an unacceptable risk of harm for the children in having unsupervised time with the mother. That harm arises from the real possibility that C was sexually abused by her older half-brother when she was a very young child. There is no evidence of any further conduct of that type since August 2013.

2. However the mother does not acknowledge that such abuse might have taken place in 2013 and before, nor has she taken seriously the need to ensure that the children are never left unsupervised with H.

3. The Court cannot be confident that the mother would provide adequate supervision of the children.

4. I have accepted the opinion of the Family Consultant that there is detriment and no benefit to regular ongoing supervised time where there is now no prospect of progression to unsupervised time.

5. The orders provide for just enough time for the children to maintain some relationship with their mother until they are young adults and can make their own decisions.

6. Until C finishes primary school she will benefit from the mother coming to school events, concerts, sports and swimming carnivals, assemblies to see her  achievements and to reassure C of her interest.

7. Orders are made accordingly.

I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 9 April 2019.

Associate: 

Date:  9 April 2019