Volmerink and Volmerink

FAMILY COURT OF AUSTRALIA

VOLMERINK & VOLMERINK

[2012] FamCA 1000

FAMILY LAW – CHILDREN – with whom a child lives -– with whom a child spends time – best interests of the child – where the mother seeks sole parental responsibility and that the children live with her – where the father seeks parenting orders in respect of the children – where there are allegations of sexual abuse – whether father's time with the children should be supervised – where the expert made diagnosis of the father of 'Aspergers Disorder, Residual Type' – where the children both diagnosed with autism – whether the father has the capacity to interact with the children in a socially acceptable manner and to understand their needs – where the expert stated the father had the capacity to learn appropriate behaviour with the children – where the expert made a recommendation that the father receive pyscho-education and skills practice – where the father took no steps to act on the recommendations – where orders made that the children live with the mother and spend supervised time with the father – orders that the father communicate with the children by telephone

APPLICANT:

Ms Volmerink

RESPONDENT:

Mr Volmerink

INDEPENDENT CHILDREN’S LAWYER:

Lyrene WIID

FILE NUMBER:

BRC

3840

2008

DATE DELIVERED:

30 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Stevenson J

HEARING DATE:

30 July 2012
10 & 11September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Volmerink was self-represented

COUNSEL FOR THE RESPONDENT:

Mr Volmerink was self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid

Orders

That all existing parenting orders in respect of the children
B born on … June 2001; and
C born on … August 2002
(“the children”) are discharged.
That the mother have sole parental responsibility for the children, provided that she advises the father in writing or by email within 14 days of any major decision which she makes in relation to long-term issues concerning the children.
That the children live with the mother.
That the children spend time with the father at a supervised contact centre for no less than two hours per month and no more than two hours per fortnight.
That the children have telephone contact with the father each Tuesday and Thursday between 6:00pm and 7:00pm, which shall be implemented by the father calling them on the mother’s landline or mobile number.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: BRC 3840 of 2008

Ms Volmerink

Applicant

And

Mr Volmerink

Respondent

REASONS FOR JUDGMENT

the proceedings

Mr Volmerink and Ms Volmerink are the parents of two children:
B born in June 2001 (11); and
C born in August 2002 (10).
Pursuant to interim orders made by consent on 11 January 2011, the children live with the mother and spend supervised time with the father at a contact centre. Presently, that time is limited to one hour per month due to constraints on the resources of the facility.
The applicant mother sought that she have sole parental responsibility, provided that she notify the father of all major long-term decisions, and that the children live with her. She proposed that the children spend time with the father only under supervision.
At the commencement of the trial the father stated that he sought orders that the children live with each parent in a week-about equal time arrangement. During his oral evidence, however, he indicated that he would be content with orders that the children spend unsupervised time with him on weekends and during school holidays.
The Independent Children’s’ Lawyer (“the ICL”) proposed that the mother have sole parental responsibility and that the children live with her. She sought orders to the effect that the children spend time with the father once per month at a contact centre.
At the core of this dispute is the interaction of Aspergers-type personality traits in the father and the children’s autism. Expert evidence adduced by the ICL was of great assistance in relation to these issues.
The ICL provided an affidavit and report from Ms D, a psychologist with expertise in the field of autism and Aspergers syndrome. She opined that the father suffers from “Aspergers Disorder, Residual Type” which “can explain [his] history of difficulties with expressing and understanding emotions, poor understanding of the social world, his preference for rules and justice, his narrow range of interests, rigid thinking processes as well as potential difficulties with sensory processing”. I will refer in detail to Ms D’s assessment of the father below in these reasons.
Most unfortunately, both of the children suffer from autism and developmental difficulties. The ICL provided an affidavit and report from Dr E, a paediatrician who assessed the children in 2010. In relation to B, Dr E reported:
At the time of her initial presentation she was attending The [F School] at Suburb G, Brisbane. The focus in that educational facility was on the issues of language impairment.
Her superficial presentation was not typical of a child with an autistic spectrum disorder but review of her social functioning and adaptive behaviour over time in a number of settings revealed a pattern that was consistent with that diagnosis.
In general [B] has responded well to interventions, both educational and therapy, though her social skills and her ability to deal with change to her environment and routine remains somewhat problematic. She is supported under Education Queensland’s Autistic Spectrum Disorder classification, and receives ongoing therapies including speech pathology inputs.
In relation to C, Dr E reported:
The issue of a pervasive developmental disorder, such as high functioning autism, had been raised in the past but her diagnosis was uncertain. She has an older sister, [B], who had received that diagnosis on the basis of language and communication difficulties, social impairment and difficulties with adaptive behaviours.
In the structured setting of the [F School], C progressed quite well. Her social difficulties were evident but were manageable in the structured setting. The quality of her ability to read social cues and social context, as well as the nature of her language, was consistent with such a diagnosis but the level of dysfunction was reduced significantly by the nature of the programme.
In 2009 [C] attended [H School], and had been assessed by the School’s Guidance Officer using the Wechsler Preschool and Primary Scale of Intelligence – 3^rd Ed. This showed her cognitive abilities to fall within the low average to average range.
However in the context of the more complicated social setting of a regular school, [C] experienced significant difficulties with social functioning, particularly with her peers but even with staff. She also exhibited significant problems in dealing with change to class routines, and at times could become fixated on particular activities or interests.
On the basis of these functional disturbances a diagnosis of an autistic disorder was made in May 2009, and [C] has been supported under Education Queensland’s Autistic Spectrum Disorder classification.

Background

The father and the mother, who are aged 57 and 53 respectively, first commenced a relationship in 1981. At this time the mother was separated from her first husband. The mother and father were in a relationship which she described as “on again off again” between 1981 and 1983.
On 29 June 1984 the mother gave birth to a child, J, who she believed to be the father’s son. It appears that parentage testing was carried out but no report was in evidence. The mother deposed: “later in early 1999 a paternity test revealed that [Mr Volmerink] was most likely [J’s] father”.
Shortly before J’s birth, the mother reconciled with her first husband and resumed cohabitation. They separated finally in 1988. The parties commenced their second relationship late in 1998 and married in 1999. They separated on 18 January 2007.
After the parties’ separation they agreed that the girls would spend time with the father every second Saturday. The mother’s uncontradicted evidence was that the father in fact saw them only nine times during 2007. The children have spent no overnight time with the father since the separation.
From the start of 2008 the girls spent unsupervised time with the father on alternate Saturdays from 9:00am until 6:00pm. On 30 April 2008 the mother commenced proceedings and her solicitor informed the father by letter that she was no longer prepared to consent to unsupervised time.
On 11 June 2008 the Federal Magistrates Court made interim orders as follows:
The father spend time and communicate with the children as agreed between the parties in writing and that at all such time the father spends with the children be supervised by the mother:
(a)commencing on Saturday 14 June 2008 between 10:00am and 2:00pm at the [Suburb H Park] or as agreed between the parties and each alternate weekend thereafter;
(b)by telephone each Thursday and Saturday night at 7:00pm in the weeks when the father does not spend time with the children and each Tuesday and Thursday night at 7:00pm in the weeks when the father spends time with the children, with the father to initiate the calls.
On 29 January 2009 interim orders were made to the effect that the children live with the mother and spend supervised time with the father from 10:00am until 2:00pm each alternate Saturday. These orders provided for telephone communication between the children and the father each Tuesday and Thursday night. The children’s time with the father has since taken place at a contact centre at Suburb I.
On 11 March 2010 the parties consented to interim orders which provided that the mother have sole occupation of the former matrimonial home at Suburb K and that she continue to pay the mortgage and other outgoings in respect of the property. Since the separation the father has lived with his mother and brother at Suburb L.
On 11 January 2011 I made final orders for settlement of property by consent. By agreement between the parties I also made interim parenting orders which provided as follows:
1.        The children [B] born … June 2001 and [C] born … August 2002 (“the children”) shall live with the Mother.
2.        The children are to spend time and communicate with the Father for a period of not less than 2 hours each month and not more than 2 hours each month and not more than 2 hours each fortnight at the … Contact Centre at [Suburb J] (timings to be subject to availability), with both parties forthwith to ensure that all necessary documentation has been complied with.
3.        The Father is to attend upon and be compliant with all requests by the O Organisation or any other organisation recommended by the Family Consultant with a focus on age and gender related boundaries when spending time with the children.
4. The Family Consultant, subject to section 65L of the Family Law Act 1975, is to liaise with the O Organisation and any other organisation deemed appropriate by the Family Consultant and the Contact Centre at Suburb I as to the Father’s progress and thereafter prepare an addendum report to the court.
5.        Both parties are to attend upon and be compliant with the Family Consultant in the preparation of the addendum report.
6.        Each parent shall keep the other parent informed of their current residential address and contact telephone numbers and shall notify the other parent within forty-eight (48) hours of any change to their residential address or contact number.
7.        The Mother shall notify the Father immediately in the event either child should require urgent medical treatment or hospitalisation and shall further advise the Father as soon as reasonably practical of any other serious health issue affecting either child.
8.        The parties hereby authorise any health professionals, educational institutions and extra-curricula activity providers attended by either child, the subject of these Orders, to give each party information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by either child (at that parent’s cost).
9.        Neither party shall denigrate the other in the presence or hearing of the children nor allow other persons to do so.
10.      Neither party will discuss these proceedings with the children.
11.      The Independent Children’s Lawyer is at liberty to bring this matter back before the court upon giving the parties 7 days notice in writing.
12.      The matter be re-listed in 9 months time.
13.      The two Family Reports of Ms M and the psychiatric report of Dr N are to be copied and provided to the O organisation.

Approach To These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the children who are the subject of the proceedings. Part VII of the Family Law Act sets out a number of mandatory considerations which prescribe the pathway to that decision.
Section 60CC sets out two “primary” and thirteen “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests. Section 60CC(4) requires the court to consider also the extent to which each of the child’s parents have fulfilled, or failed to fulfil, his or her responsibilities as a parent.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)      consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)      consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)      if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c)      consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)      consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)      if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M and M (1988) 166 CLR 69. Their Honours said (at page 76):
…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
and at page 75:
“…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

In M and M (at pp76-77) the High Court identified the relevant standard of proof in these terms:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject matter of the proceeding; and
(c)the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing “unacceptable risk” of sexual abuse of a child.

The Evidence and Witnesses

The applicant mother relied upon her affidavit sworn on 2 July 2012. The father has filed no affidavit evidence since the making of interim parenting orders on 11 January 2011.
The ICL relied on an affidavit of Dr E, sworn on 22 December 2010, which annexed reports dated 17 December 2010 in relation to each of the children. Dr E was not required for cross-examination. I have referred above to Dr E’s assessment of the children.
The ICL also relied upon an affidavit of Ms D sworn on 5 April 2012, to which was annexed a report dated 25 August 2011. Ms D gave brief oral evidence by way of cross-examination.
The Family Consultant, Ms M, prepared three reports dated 22 July 2008, 12 August 2010 and 15 December 2011. Ms M was cross-examined by counsel for the ICL and by each of the parties.
The ICL tendered a Magellan report dated 24 August 2010. As appears below, there have been allegations of inappropriate conduct toward the children on the part of the father since that date. Various workers at the Contact Centre at Suburb J made observations of the father’s interaction with the children which concerned them and were noted in their records.

The Mother’s Allegations That The Father Sexually Abused The Children

In her affidavit the mother described the father as “a predator” and referred to “further abuse” of the children. In her Summary of Argument the mother stated her position in somewhat different terms as follows:
…the father has a great deal of difficulty empathising with the children’s special needs. The mother says he has a lack of awareness of social norms and this has led to inappropriate behaviour with the children and this is not something that is going to stop.
The mother set out in her affidavit her observations of various interactions between the father and the children. She first referred to a pattern of behaviour which she claimed to have observed when C was aged between two and four years. According to the mother, the child climbed onto the father’s lap while he was watching television and crawled inside his tracksuit pants. The mother alleged that the father persisted with this behaviour despite her objection.
Counsel for the ICL put these allegations to the father in cross-examination. He said: “[C] used to put my tracksuit pants on – she was always a cold frog. I don’t remember the mother ever raising an issue about this.”
The mother also alleged that the father behaved inappropriately towards the children when he dried them after she had washed their hair. She deposed:
When [Mr Volmerink] and I were still living together at the matrimonial home I would wash the girls hair about once a week. I would wash them one at a time and then towel them dry. Occasionally I dried their hair only and [Mr Volmerink] dried their body in the lounge. I would call out to [Mr Volmerink] and send the children out with their towel wrapped around them for [Mr Volmerink] to dress them in knickers and pyjamas. I had already placed these clothes out in the lounge because [Mr Volmerink] did not know what clothes to put them in otherwise. I would then wash the second child. On a number of occasions when I took the second child out to dress them [Mr Volmerink] would be on his recliner chair with his legs slightly apart with either [B] or [C] still in their towel sitting on his lap with their legs between his legs. Their towel would be open down the front of their body and his hand would be resting on their genital area.
According to the mother the father behaved in this way approximately six times, and on each occasion she told him that he should not do so. She maintained that the father “would always act like he had forgotten and it was just an accident”. In cross-examination by counsel for the ICL the father denied any inappropriate drying of the girls. He said: “I only did what my mother did for me in a cold climate”.
The mother alleged further that the father: “would blow raspberries on the children’s skin around their belly and genital area”. She said that although she told him to stop this behaviour he persisted and “he would act like he was surprised I had brought it up again like he had forgotten it was an issue”. In cross examination by counsel for the ICL the father denied “blowing raspberries on the children’s genital area”. He denied that he rested his hands on their genital area but said “my hands were on their breasts when drying, dressing”.
The mother alleged that she observed the children “exhibiting strange behaviours” after the separation. Specifically she claimed that she saw C put her mouth on B’s genital area while in the bath. She maintained that the children touched each other’s bottoms and that on four occasions she observed one child with her mouth over the genital area of her sister.
The mother alleged that she made these observations after the separation:
47. Upon returning to the house the girls decided to watch a DVD. [Mr Volmerink] was lying on the couch with his feet towards the television watching the movie. [B] lay down beside [Mr Volmerink] on the couch. She had her head towards the television, her bottom towards [Mr Volmerink’s] upper body and her legs and her feet over the side of the couch. I was sitting behind them at the dining room table and my son [J] was sitting in front of me and across from [Mr Volmerink].
48.       I looked over and observed [Mr Volmerink] with his right hand on [B’s] bottom with his fingers extending between her legs and touching her genital area.
49.       This continued for about ten seconds and just as I started to say something about it he moved his hand and placed it on her left breast. He then proceeded to massage her left breast vigorously.
50.       I said to [Mr Volmerink] that he should not do this at which time it stopped and he removed his hand. [Mr Volmerink] made no comment and continued to watch the movie.
These allegations were not put to the father in cross-examination.
The mother deposed that she had this conversation with the children on 23 April 2008:
51.On 23 April 2008 the children and I were driving home in the car talking about the events of the day. Suddenly completely out of context [B] said ‘I like touching my Dad.”
52.I felt very alarmed and asked her ‘where?’
53.She replied, ‘on his tummy, his face, his arm. I like looking at his wee. It’s funny but I haven’t looked at it for a long time’.
54.I asked ‘when?’
55.[B] replied ‘A long time’.
56.I asked ‘Why do you like looking at it?’
57.[B] replied, ‘I don’t like the hair and I don’t want to have a wee position.’
58.I asked, ‘what does that mean?’
59.[B] then replied ‘That’s when you have a wee brain and you think about it all the time and I don’t want that to happen.’
60.I asked [C] if she had ever seen it.
61.She replied that she had not but [B] then said ‘that’s not true, she has.’
62.I asked both of them if they had touched it and both of them said they had not.
When asked about these allegations by counsel for the ICL, the father said:
They would have seen my genitals in the shower when they were little. It is not appropriate now.
The mother further deposed to an alleged incident on 1 November 2008 when the parties and children were travelling on a ferry. In her affidavit she said;
66.Another example of this occurred on… November 2008 when [Mr Volmerink] was spending time with the children. We were travelling on [the ferry] and [Mr Volmerink] and [C] were sitting on seats in the row in front of where [B] and myself were sitting.
67.[Mr Volmerink] whispered something to [C] and they both got up and walked towards the back deck. [B] and I followed but upon reaching the back deck could not see [Mr Volmerink] or [C] anywhere.
68.I did notice the lock on the toilet door change from vacant to engaged. I knocked on the toilet door and asked ‘[Mr Volmerink] are you in there?’ [Mr Volmerink] replied by saying ‘yes’. I also asked ‘is [C] in there’ and [Mr Volmerink] replied by saying ‘yes’. I told [Mr Volmerink] to open the door immediately but he did not. I saw the vacant and engaged knob on the door was turning between vacant and engaged but the door would not open. I continued to say to [Mr Volmerink] ‘open the door’ but he did not do so for about 3 minutes.
69.When [Mr Volmerink] came out of the toilet he had wet hands and he said he had used the toilet.
70.I asked [C] ‘did you go to the toilet?’ She replied by saying ‘No, Daddy did but I didn’t look, I looked over here.’ She was facing the basin at the time.
71.I asked [C] if she had been turning the knob on the door. [C] said ‘yes, but Daddy told me not to open it’.
Counsel for the ICL asked the father about this incident in cross-examination. He said:
[C] said ‘Daddy I want to go to the toilet’. I said: ‘[Ms Volmerink], [C] needs to go to the toilet’ but she was engrossed with [B] so I took [C] to the toilet. I started cleaning the toilet and flushing it and the rush of water made me want to pee. They used to walk in on me. At this stage [C] was very child-like and needed help. It was appropriate then. It would not be appropriate now for me to go to the toilet in front of [C].
The Magellan report summarised various allegations made to the Queensland Department of Communities between January 2006 and 6 August 2010. The author of the report summarised the outcome of various investigations as follows:
In late 2008 the department undertook a child protection assessment in relation to concerns that [Mr Volmerink] had touched his children in an inappropriate sexual way. These concerns were investigated and there was no evidence identified to substantiate the concerns. An outcome of Unsubstantiated was recorded.
The Magellan report referred to “child protection concerns” which were reported to the Department by two notifiers in 2010. The author of the report summarised the outcome of investigations into these complaints as follows:
The information was considered and assessed as not meeting the threshold for a Child Protection notification as there was no information to suggest that the children had been harmed by the actions of the father, nor had the children made any disclosures in relation to sexual abuse. Based on this rationale, the information was recorded as a Child Concern report.
In her affidavit the mother also expressed concerns about the content of conversations which she claimed to have overheard between the children and the father. She gave examples as follows:
76. Usually towards the end of the phone conversation [Mr Volmerink] will say to each of the girls individually, and I quote, (to B 7/01/10) ‘Can you feel me hugging you? Can you feel me all around you squeezing you? I’m kissing you. C (7/01/10), ‘Can you feel me giving you a big hug? I’m squeezing you. I’m kissing you now.’ C (25/06/09) ‘I want to blow raspberries on you.’ [B] and [C] (12/02/09) ‘Can you feel me hugging and squeezing you? I’ll be in your dreams. Can you feel me? I’m hugging you now.’ [C] (10/02/09) ‘Are you tired? Think of me hugging and cuddling you.
77. C (27/01/09) ‘I’m hugging and squeezing you now. Can you feel me? I’m kissing you my little princess. [B] (21/4/09) ‘My Mermaid Princess is growing up. I’m hugging you. I’m in your dreams.’ [C] (23/04/09) ‘You’re my little Princess. I wish I could hug you.’ [C] (11/06/09) ‘You’re Daddy’s angel. I love to cuddle and squeeze you. I love you. I love you. I love you.’ C (16/06/09) ‘I can feel you squeezing me and I’m squeezing you.’ C (18/06/09) ‘You’re from royal blood. You’re a princess. You’re especially Daddy’s princess. You’re beautiful and I miss you.’ [C] said, I have a birthmark on my butt. [Mr Volmerink] replied, ‘You’ve got a cute little butt. I used to wash your butt and clean your butt when you were little.
In cross-examination by counsel for the ICL the father said that he has made comments of this nature to the children “to give them the feeling that I am there. I hope they don’t forget me.” He said that he saw nothing inappropriate about these conversations.
Staff at Contact Centre at Suburb J recorded various incidents of concern between the father and the children. These notes include the following:
21/11N/res placed hands on girls’ bottoms when saying goodbye.
1/5 Dad not setting boundaries for bad behaviour.
21/8 N/res arrived stated he would be questioning the children over the Family Report and cancel all further supervisions. Wanted to grill children over why they are not willing to come, in Family Report. Stated that he would not be coming back to the centre.
The contact centre notes clearly indicated that staff discussed with the father appropriate behaviour toward the children on more than one occasion. The notes for “10/2” recorded “reviewed with [Mr Volmerink] about child protective behaviours prior to s/c”. The file contained notes of a “review meeting” on 29 December 2009 which read:
JvH Review meeting – 29/12/09
Discussed differences between appropriate and inappropriate behaviour, specifically his tendency to touch the girls on the inner thighs and squeezing their bottoms.
When asked about this, he stated that he has always done it which seems consistent with the girls’ lack of reaction to the touching.
Asked him how he would feel if someone else touched his girls like he does, he stated that he would break their necks.
Explained to him that the girls are not longer babies, are growing up and need to develop their own boundaries and that as adults it is up to us to aid this process by demonstrating that we have appropriate boundaries ourselves.
Explained that in light of pending court proceedings and sexual allegations that have been made, if contact continues to be inappropriate, then there will be no option but to notify the ICL.
When asked about these notes the father said: “I think the [Contact Centre] has misconstrued some things”. He denied that he touched the girls on their inner thighs and said that he wrapped his hands around them while watching a movie. He said that he did not recall stating that he “would break someone’s neck” but conceded that he could have done so.
In assessing the validity of the allegations of sexual abuse of the children by the father, I consider it appropriate to have regard to Ms D’s opinion of his psychological state and its impact on his parenting skills. It should be noted that the father made it clear in his oral evidence that he “disagreed” with Ms D’s report. In my view, however, Ms D’s evidence was unshaken in cross examination. She impressed as an impartial witness with considerable knowledge and expertise in her specialist field.
Ms D expressed the following opinions, inter alia:
The assessment indicated that [Mr Volmerink] had qualitative impairments in social interaction and understanding emotions beyond that expected when considering cultural differences from childhood and family. [Mr Volmerink] presented with marked impairment in his use of and reading of non-verbal communication, reduced social and emotional reciprocity, reduced appreciation of social cues, and socially and emotionally inappropriate behaviour.
Ms D opined further:
The assessment suggested that [Mr Volmerink] found identifying, expressing and managing his own emotions challenging. He reported a history of anger describing himself when younger as ‘slow to boil’ with stressors building up and little things triggering anger release. He described others needing to ‘clear out’ because he will ‘be dangerous’. His description of various situations across childhood and as an adult displayed a rigid approach to social interactions leading to frustration and anger, conflict, and often disconnect with others.

Ms D summarised her assessment of the father as follows:
11.9 From the available information obtained through interview, observations, file review and formal assessment tools indicate that [Mr Volmerink] has a history from childhood consistent with a neuro-developmental profile of Aspergers syndrome that, as an adult, does not appear to meet the full diagnostic criteria l for Aspergers Disorder (299.80; DSM-IV-TR:APA, 2000 and Gilberg, 1989). Although it is a concern that [Mr Volmerink’s] level of functioning impacts on his parenting such as his ability to determine appropriate responses to his children’s needs, it is not clear that his Asperger characteristics, as an adult, significantly impair multiple areas of social, academic, and occupational functioning in accordance with diagnostic Criteria C (9DSM IV-TR; APA, 2000). It is my considered opinion that [Mr Volmerink’s] profile is one of Asperger Disorder, Residual Type.
Aspergers Disorder, Residual Type can explain [Mr Volmerink’s] history of difficulties with expressing and understanding emotions, poor understanding of the social world, his preference for rules and justice, his narrow range of interests, rigid thinking processes as well as potential difficulties with sensory processing.
11.10 Aspergers Disorder is a neuro-developmental disorder that is characterised by particular deficits in social/emotional reasoning skills, a narrow range of interests, or a ‘one-track’ mind, and often by motor skill and sensory differences. People with Aspergers Disorder can experience discomfort in many social situations, increased levels of stress after social situations, and discomfort with certain sensory stimuli. They often have a different way of problem solving, an obsessive approach to interests, and difficulties noticing social cues. Difficulties with executive functioning (for example, short-term memory, planning, taking the initiative, and prioritising) are also commonly part of the condition.
11.11 It is highly recommended that the context of Aspergers Disorder, Residual Type be considered when assessing [Mr Volmerink’s] parenting behaviour and understanding of his children’s needs. I have concerns regarding the children’s safety in [Mr Volmerink’s] care and his ability to determine appropriate responses to his children’s needs. In my opinion, [Mr Volmerink] will benefit from direct education on autism spectrum conditions in both adults and children, how to parent with children with Asperger Disorder, general parenting skills, and what is and isn’t appropriate responses to his children’s needs. [Mr Volmerink] demonstrated some awareness of his difficulties with [Ms M] when he described uncertainty in regards to his previously questioned behaviour towards the children and stating to [Ms M] that he wants to be told what is appropriate or not. This is consistent with the profile of abilities and difficulties highlighted in the assessment.
Ms D thus expressed a clear opinion that the father has an impaired capacity to interact with the children in a socially acceptable manner and to understand their needs. His own admissions as to his behaviour and conversations with the children give rise to significant concerns in this regard.
The incident on the ferry is a particularly concerning example of inappropriate behaviour on the part of the father. It is extraordinary that he exposed himself and urinated in the presence of his six year old daughter. In my view, the conversations with the children to which the father admitted far exceeded the bounds of appropriateness.
I do not consider that there was any sexual motivation involved in the father’s conduct on the ferry or his inappropriate touching of the children as observed by staff of the contact centre. In my view, he acted as he did because he lacks the capacity to respect interpersonal boundaries and appreciate the societal consequences of his behaviour. I do not minimise in any way the risk to the children which would flow from unsupervised time with the father but I specifically absolve him from any sinister motivation.

The Children’s Psychological Condition and Developmental Problems

I have referred above to the opinions of Dr E as to the problems which beset both B and C. The mother described in her affidavit the effect of the children’s disorders on their everyday behaviour. Essentially, she deposed that they become anxious when there is a change to their routine.
In the third Family Report Ms M made these observations of the girls’ interaction with her during the most recent interviews. She wrote:
Due to the girls both having some level of ASD, it was often necessary to be very concrete and/or direct with the subject matter and the subsequent questions that were asked. It was noted that both the girls communicated with the Family Consultant and the child carer in a direct and at times blunt manner. They were not rude with their comments or interaction but rather, would comment and/or respond in a very matter of fact manner that was routinely void of emotional expression. This is indicative of the behaviours and mannerisms of many individuals diagnosed with ASD.

The Best Interests of B and C: Section 60CC Considerations
The Primary Considerations

The mother deposed that she believes that the children enjoy their time with the father at the contact centre. She considers that these visits have become part of their routine and that they like the crafts and other activities available at the centre.
The mother’s proposal for ongoing supervised time necessarily suggests that she perceives that the children will benefit in the future from a meaningful relationship with the father. The Family Consultant recommended that the girls continue to spend time with the father at the contact centre, which proposal implies that she shared that view.
It seems to me that the father loves and cares for the children but has difficulties in expressing these emotions appropriately. In my view, the children will benefit in the future from having the father involved in their lives and being aware of his love and concern for them, provided that proper measures are put in place to ensure their physical and emotional safety.
I have found that the father behaved inappropriately toward the children without any sinister intent. In my view there is a need to protect the girls from this unintentional failure on the part of the father to respect interpersonal boundaries. This need is heightened by the impact on the children’s behaviour of their autism.
The Family Consultant described this dynamic in her report of 12 August 2010, where she opined that the father’s “Aspergers type” personality “precludes him from understanding and/or recognising some of the more subtle social mores expected of males when interacting with females in our Western culture.” She opined further: “This is compounded by [B’s] and [C’s] Aspergers, which also inhibits their capacity to recognise social and emotional cues, and indeed to contain their behaviour.”
It is regrettable that the father has taken no steps to secure professional assistance for himself since the interim orders were made by consent on 11 January 2011. These orders included a provision that the father seek assistance from staff of the O organisation, who specialise in Aspergers syndrome and autism.
Ms D was of the view that the father “had the capacity to learn appropriate behaviour with his children”. She recommended that he “receive explicit psychoeducation and skills practice. It is highly recommended that this learning process be tailored to match [Mr Volmerink’s] profile. It is recommended that psychoeducation focus on autism spectrum conditions in self and children, general parenting, parenting children with Asperger disorder, enhancing theory of mind (perspective taking), reading social and emotional cues, and appropriate boundaries and safety with the children…”
The father was in possession of Ms D’s report, a copy of which was annexed to the affidavit of Ms M sworn on 16 December 2011, for some nine months before the resumption of the trial on 10 September 2012. He took no steps to act on these recommendations during that period. To this extent, the father can be considered partly responsible for the need to protect the children from some aspects of his behaviour.
The Family Report of 12 August 2010 referred to Mr Volmerink’s request to staff at the contact centre to advise him about appropriate behaviour toward the children. The Family Consultant reported:
[Mr Volmerink] stated ‘I haven’t done any of that since then. As long as they explain what they expect, at least I know then what to do…I need them to tell what is appropriate.
It thus appears that the father has appreciated that there is a need to address his behaviour toward the children for over two years. He was aware of highly specific recommendations from Ms D for some nine months prior to the resumption of the trial. He must have understood that the interim orders of 11 January 2011 were framed to allow for a reconsideration of arrangements for the children to spend time with him, after he engaged in appropriate therapy. In these circumstances, I can have no confidence that the father will take steps to address his own difficulties at any time in the foreseeable future.

The Additional Considerations

In December 2011 the Family Consultant reported that B told her that she and her sister spend time with their father at the contact centre. B explained “it’s safer there and Mum knows if I am safer there or not”. The Family Consultant reported that B “couldn’t remember feeling unsafe with her father, but stated it was better seeing him at the contact centre”.
In December 2011 the Family Consultant reported similar comments on the part of C. C told the Family Consultant that she spent time with the father at the contact centre “because it’s not safe” but, when asked why, she said “I don’t know”. She then told the Family Consultant that sometimes “she is scared that Dad will come to the house and take us”.
In her oral evidence the Family Consultant said:
In my last report both children seemed to be pre-occupied with a fear that the father would take them from school or that their mother would not be around and they would have to live with him. It is possible that these issues have been discussed with the children or that they have misinterpreted something that the father has said. In my opinion it is more likely that the children’s anxiety stems from things the father has said rather than the mother discussing the proceedings with them.
The Family Consultant’s hypothesis as to the source of the children’s anxiety in relation to the father was supported by a proposition which he put to her in cross-examination. He suggested that he said to the children “I would love to take you to Holland when you grow up”. The Family Consultant opined that “this supports my hypothesis of misinterpretation”.
In her report of 12 August 2010 the Family Consultant described the interaction between the children and the father in an observation session. C invited the father to play a chasing game and encouraged him to tickle her. She began to talk in a babyish manner, threw cushions and moved furniture around the room. B then joined in her sister’s behaviour and the father “did not necessarily identify potentially dangerous or inappropriate behaviour and/or attempt to contain the girls”, in the opinion of the Family Consultant. The children’s rowdy behaviour continued when the paternal grandmother, the father’s brother and a cousin entered the observation room. The girls hit the father over the head with a cushion and crashed a chair into him. The Family Consultant felt it necessary to intervene when they picked up heavy parts of a broken table and no adult in the room attempted to contain their behaviour.
The Family Consultant made these somewhat disturbing observations in her report:
The girls play continued to get quite silly and uncontained. [C] in particular was speaking in a baby like manner and wiggling her bottom at her father and uncle and at times was rolling onto her back and spreading her legs wide open in the air. [Mr Volmerink] made no attempt to place any appropriate boundaries around the girls’ behaviour.
[C] was also observed crawling over her father and then him holding her in his arms like a baby, and then was tickling her all over. She continued to run around wiggling her back side at the adult group from time to time and again sat on a chair and spread her legs apart in the air, squealing and giggling and pointing at her father.
There was no suggestion that the Family Consultant inaccurately described the father’s failure to place appropriate limits on the children’s behaviour and his excessive tickling of C on this occasion. It is of concern that the father interacted with the children in this way during a court-ordered observation and assessment. There is no reason to suppose that these events fell outside the normal pattern of the father’s interaction with the children.
History demonstrates that the mother has been willing and able to facilitate the children’s relationship with the father. I am satisfied that, in seeking ongoing supervision of the girls’ time with him, she is motivated by a genuine concern for their physical and emotional safety. I detected no desire on her part to curtail or undermine their relationship with the father. In the past she has taken on a supervisory role, although she found this experience very stressful.
Nothing in the evidence suggested that the father failed to facilitate and encourage the children’s relationship with the mother. Since June 2008 the children’s time with the father has been supervised in any event.
I have referred above to the mother’s uncontradicted evidence that the children become anxious when there is change to their routine. I have referred also to the Family Consultant’s evidence that they expressed to her some fears in relation to the father. In my view, these two considerations facilitate against the introduction of unsupervised time with the father.
Each parent has a car and they have been able to arrange for the children to see their father at the contact centre for some years. The mother deposed that the father pays the fees of the contact centre, which amount to $20 per hour. I have no reason to suppose that any difficulties will arise with these arrangements in future.
In my view the mother has displayed an admirable capacity to meet the children’s special needs. She has attended lectures and conferences on the topic of autism and completed a course which qualified her as a therapist in Applied Behaviour Analysis for children with this condition. She has purchased literature and computer programs to assist the children with spelling, reading and vocabulary. She has taken the girls to a psychology clinic at P University for cognitive assessment and treatment for their anxiety.
On the other hand, the father seems to lack an understanding and appreciation of the extent of the children’s difficulties. The Family Consultant reported on 15 December 2011:
Comments by [Mr Volmerink] during his interview indicated that he either does not recognise the ASD diagnoses of his daughters or does not fully understand their social, emotional and psychological challenges. His description of [B] and [C] becoming ‘rude obnoxious brats’ clearly indicates that he has little insight into their behavioural issues. It was observed on several occasions that the girls behaved in an unruly manner when interacting with their father, however in contrast their behaviour with their mother was contained and age appropriate.
In my view it might reasonably be observed that the father’s failure to seek professional assistance since the interim orders of 11 January 2011 reflects somewhat poorly on his attitude to the children and the responsibilities and duties of parenthood. As noted, he took no steps to implement the clear recommendations which Ms D set out in her report. Effectively, the father had an opportunity to attempt an improvement in his relationship with the children but failed to take any action to do so.
There was no suggestion of any family violence involving the children. There has never been a final apprehended violence order against any member of their family.
The proposal of the mother and the ICL for long term supervision of the children’s time with the father is unusual and there may be further litigation if orders are made in those terms. In my view the father would be well advised to address his own difficulties, by way of professional assistance, before he attempts to vary orders for ongoing supervised time.
As noted, the mother has facilitated the children’s time with the father by taking on the role of supervisor herself. The father suggested to the Family Consultant that the mother has attempted to undermine the children’s relationship with him but I do not accept that she has done so.
The mother’s uncontradicted evidence was that the father has failed over the years since separation to take up all opportunities available to him to spend time with the children. In practical terms, he has not been in a position to participate in making decisions about major long term issues concerning the children. Unfortunately, it was my impression that his lack of understanding of the difficulties caused by their autism would mean that his input into these decisions would be of limited benefit.

The Presumption of Equal Shared Parental Responsibility

These proceedings will result in the making of parenting orders in respect of B and C. Consequently I am required to apply a presumption that it is in their best interests for the parties to have equal shared parental responsibility. I have found that there has been no family violence or abuse in respect of the children, although the father has acted inappropriately toward them without any sinister intent. The question, therefore, is whether it is in the children’s best interests for the parties to have equal shared parental responsibility.
In practical terms, the mother alone has made decisions concerning major long term issues concerning the children since the separation. As noted, she has taken steps to equip herself with the knowledge and skills necessary to address their special needs. I am satisfied that the father lacks a proper understanding and appreciation of the emotional, social and educational consequences of the children’s autism. For that reason, I do not consider that he is equipped to share parental responsibility equally with the mother.
The level and quality of communication between the parents is poor currently and unlikely to improve in the future. In December 2011 the Family Consultant opined:
It is also anticipated that the communication between the parents will not improve in the near future unless [Mr Volmerink] is willing to participate in psycho-educational sessions. If the court accepts this assessment, it may be fortuitous for [B] and [C’s] primary carer (the mother) to assume sole parental responsibility.
As noted, nothing in the evidence gave me any reason to consider that the father will engage in such therapy in the future.
In my view, the father’s lack of understanding of the children’s special needs and the poor communication between the parents militate powerfully against an order for equal shared parental responsibility. I am satisfied and I find that it would be contrary to the children’s best interests for the parties to have equal shared parental responsibility.

Conclusion

As there will be no order for equal shared parental responsibility, I am not required to consider whether it would be in the children’s best interests, and reasonably practicable, for them to spend equal or substantial and significant time with each of their mother and father. I am able to proceed directly to a determination of what orders are in the best interests of the children.

In my view the father’s complete failure to take steps to address his own difficulties is of considerable significance to the outcome of these proceedings. The Family Consultant encapsulated the risky interplay between the father’s Asperger Disorder, Residual Type and the children’s autism, in terms which I have quoted above in these reasons. Coupled with that dynamic are the children’s anxieties relating to the father and which result from changes to their routine. It seems to me that this combination of circumstances means that the children’s best interests will be served by orders for ongoing supervised time with the father.
The mother gave uncontradicted evidence that the children have become resistant to telephone contact with the father. Nonetheless, I consider that telephone contact should continue, as face-to-face time beween the children and the father will be of limited duration and frequency.

I certify that the preceding ninety six (96) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on November 2012.

Associate:

Date: 30 November 2012

[2012] FamCA 1000

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