VOSSEN & VOSSEN
[2019] FamCA 188
•29 March 2019
FAMILY COURT OF AUSTRALIA
| VOSSEN & VOSSEN | [2019] FamCA 188 |
FAMILY LAW – CHILDREN – Best interests of the child – Where there are allegations of inappropriate behaviour between the children and the father – Where the children have, on several occasions, touched and fondled the father’s genitals – Where the father did not stop or prevent this from happening – Where the father’s actions pose a risk of harm to the children – Where the father recognises that this behaviour was “inappropriate” – Where the behaviour ceased only from intervention of the mother – Where the risk of harm may not be high, but is not a risk that is acceptable – Where that risk can be ameliorated by supervision – Order made for the father to have supervised time with the children – Where the father should be permitted to bring an application to vary those orders when the youngest children are 10 – Where the parents are capable of making major long term decisions for the children – Order made for equal shared parental responsibility.
FAMILY LAW – CHILD SUPPORT – where the mother sought a child support departure order – Where the Child Support Registrar had not been served pursuant to the Family Law Rules – Where the application could not proceed absent notification to the Registrar.
| Child Support (Assessment) Act 1989 (Cth) Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 60CC, 69ZT Family Law Rules r 4.23(1)(c) |
| Lesley & Lesley [2015] FamCA 894 Pearce v Button (1986) 65 ALR 83 |
| APPLICANT: | Ms Vossen |
| RESPONDENT: | Mr Vossen |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children’s Lawyer |
| FILE NUMBER: | SYC | 8184 | of | 2016 |
| DATE DELIVERED: | 29 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 28 February and 1, 4, 5, 6, 7, 8 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Gillies of Senior Counsel |
| SOLICITOR FOR THE APPLICANT: | Lander & Rogers |
| COUNSEL FOR THE RESPONDENT: | Mr Richardson of Senior Counsel |
| SOLICITOR FOR THE RESPONDENT: | Diamond Conway Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Ladopoulos of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
IT IS ORDERED
That the parents have equal shared parental responsibility for the children Z born … 2007, X and Y both born … 2011.
That the children live with the mother when not spending time with the father in accordance with these Orders.
That, unless otherwise agreed, the children spend time with the father during school terms as follows:
(a)Each Tuesday and Thursday from after school until 7pm. The father shall collect the children from school and the mother shall collect the children from the father’s residence at 7pm.
(b)Each Saturday from 9am until 6pm. The father shall collect the children in the morning from the mother’s residence and the mother shall collect the children in the afternoon from the father’s residence.
That the time the children spend with the father pursuant to Order (3) shall be supervised by an accredited independent agency including but not limited to M Group, MM Group and NN Group, such agency to be chosen by the father who will pay the costs of supervision.
That the children continue in counselling with Ms B with such frequency as she may direct.
That both parents engage in that counselling, at the direction and discretion of Ms B.
That the frequency and configuration of those counselling sessions should be a matter for Ms B.
That the parents equally bear the cost of the counselling.
That the parties and the ICL shall ensure that Ms B is provided with a copy of Ms C’s report and a copy of these reasons.
That both parents are at liberty to provide to Dr E and to any counsellor that she or he engages in relation to issues referable to the children and issues raised in these proceedings, a copy of the report of Ms C and a copy of these reasons.
That each of the husband and the wife pay to the Legal Aid Commission of NSW the sum of $10,232.51 on account of the costs of the Independent Children’s Lawyer (“ICL”), such sum to be paid from the funds received by each of them from the proceeds of sale of the former matrimonial home.
That in the event that either party requires the Court to determine the ancillary issues set out at Orders 5.2 to 5.7 and Orders 11 to 25 of the mother’s application; Orders 4 to 18 of the father’s application and at Orders 6 to 23 of the ICL’s Minute of Orders, the parties shall, within 28 days:
(a)Prepare a joint schedule setting out the issues to be determined and, in relation to each issue, the areas of agreement and disagreement.
(b)Each prepare a document setting out where the evidence upon which each relies in relation to each issue is to be found.
(c) Make written submissions in relation to each issue.
That the matters referred to in Order (12) will be determined in chambers.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) 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 those particulars are included in these Orders.
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 Vossen & Vossen 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 SYDNEY |
FILE NUMBER: SYC 8184 of 2016
| Ms Vossen |
Applicant
And
| Mr Vossen |
Respondent
REASONS FOR JUDGMENT
Ms Vossen (“the mother”) and Mr Vossen (“the father”) are the parents of three daughters, Z born in 2007 and currently 11 years of age, and twins, X and Y who were both born in 2011 and are currently almost eight years of age.
The parties separated on 2 December 2016, the children remaining in the care of the mother. Since separation, the time that the children have spent with the father has been supervised, initially informally and then from May 2017 by professional supervisors.
The mother seeks orders that the professional supervision continue until each of the children reaches 18 years of age. She also seeks an order that she have sole parental responsibility for the children.
The father seeks unsupervised time with the children and that the parents have equal shared parental responsibility.
The Court was assisted by an Independent Children’s Lawyer (“ICL”) who had been appointed for the children; a Child Responsive Program Memorandum prepared by a Family Consultant and by a report from a single expert psychologist, Ms C.
It is the mother’s case that the father has behaved inappropriately with the children such that there is an unacceptable risk of sexual interference with them. Further, she asserts that the father has a propensity to family violence which merits supervision of his time with the children and that he takes unacceptable risks with their physical care and places them in physical danger.
The father’s case is that while, in some instances, his past behaviour was inappropriate, he has recognised the inappropriateness and adapted his behaviour accordingly. He further asserts that the mother has both exaggerated and escalated her concerns, both about his sexually inappropriate behaviour and his risk taking and that she is hyper vigilant in relation to the children.
As will emerge from these reasons, I do not accept that the mother’s concerns have been exaggerated. If her concerns have escalated, then that has occurred because of the manner in which the evidence has emerged.
It is useful to provide a brief chronology of the uncontested events that led to the mother seeking supervised time.
HISTORY
In 2005 the parents were married.
Z was born in 2007.
In late 2008 the parents commenced attending relationship counselling with Mr V.
In around 2009 when Z was two years of age there was an incident where the father was in the bath with Z and the mother asserts that the father’s genitals were in contact with Z’s genitals.
Also when Z was about two years old, the father left the front gate open and Z walked to a local park around 20 metres down the road.
X and Y were born in 2011.
In mid-2012 the father commenced seeing Dr AA to provide some tools for him to manage stress and anger. The father saw Dr AA on 23 occasions from 12 May 2012 to 20 April 2014.
On 15 September 2015 the father began seeing a psychiatrist, Dr E. In early December 2015 Dr E diagnosed the father as having ADHD and recommended medication which the father commenced taking in December 2015.
In January 2016, the intimate relationship between the parents ceased. The mother asserts that the father invited Z to share his bed. That matter is discussed later in these reasons.
On 29 October 2016 an incident occurred when the father was in the bath with X and Y. There is a dispute about what occurred. The mother entered the bathroom and removed the children from the bath.
On 21 November 2016 Dr E came to the view that his initial diagnosis of ADHD was incorrect and diagnosed the father with Bipolar II Disorder. On 30 November 2016 the father commenced taking other medication.
On 2 December 2016 the parents separated. The mother left the Suburb F property with the children.
On 9 December 2016 the mother commenced proceedings in the Federal Circuit Court.
On 23 December 2016 the father moved out of the Suburb F property and the mother and children moved back into the property.
In December 2016 the parties arranged to see Ms CC for mediation.
From late December 2016 to April 2017 the father spent time with the children on Tuesday afternoons, Thursday afternoons and during the day on Saturdays accompanied by agreed mutual friends or young women who were qualified as nannies.
From February 2017 to June 2017 the parties attended on Ms D from DD Group. The father saw Ms D on six occasions and the mother saw her on two occasions.
On 7 April 2017 the matter was transferred by consent to this Court as it was estimated that the duration of the final hearing would exceed five days.
On 9 April 2017 the mother communicated to the father that she wished to use supervisors rather than regular nannies during the father’s time with the children.
In April 2017 the father attended and completed a six week parenting after separation course conducted by EE Group.
In May 2017 the father’s time with the children began being supervised by M Group.
In June 2017 the mother arranged for the children to be interviewed by a child psychologist, Ms B. Ms B prepared a report on 26 July 2017. At the time the report was written Z had seen Ms B on 10 occasions, Y on four occasions and X on three occasions.
On 4 August 2017 interim parenting orders were made by Senior Registrar Campbell. Orders were made that the children would live with the mother and spend initially three afternoons a week with their father progressing to four overnights per fortnight. Orders were made for the father to spend progressively more time with the children during the school holidays and eventually that the children would be spending weeks at a time with him. The mother sought to review those orders which were stayed.
On 10 August 2017 the father spent time with the children in the afternoon with that time supervised by M Group.
On 10 August 2017 the mother telephoned the Department of Family and Community Services (“DFCS”). The records indicate that the mother reported that the father had been awarded unsupervised access at the interim hearing and that there had been reports made in relation to a sexual abuse risk.
On 14 August 2017 DFCS made a referral to the Joint Investigation Response Team (“JIRT”). A referral was made to the Child Abuse Squad on 17 August 2017.
On 15 August 2017 the father saw the children after school supervised by M Group.
On 17 August 2017 an apprehended domestic violence order (“AVO”) was made against the father for the protection of the children. The AVO prohibited the father from approaching or contacting the children.
On 24 August 2017 the AVO application was listed before Suburb F Local Court. By consent the provisional AVO made on 17 August 2017 was replaced with an order for the protection of the three children that the father must not assault, threaten, stalk, harass, intimidate or damage property belonging to any of the three children.
In August 2017 the father recommenced seeing Ms D. Ms D recommended that the father attend appointments every three weeks and this arrangement has continued.
The twins were interviewed by JIRT. Z was interviewed by an officer from DFCS.
On 20 December 2017 interim parenting orders were made by Justice Benjamin. It was ordered that the children live with the mother and for the father to spend supervised time with the children during the day pending further order. An order was made for the mother to take the children to see Ms B as soon as practicable.
Interview with Ms C took place on 28 March 2018.
On 3 April 2018 the AVO application was heard at Suburb F Local Court. The application was dismissed.
In September and October 2018 the father completed a course through FF Group in one on one sessions.
THE TRIAL
The mother relied on:
(a)Further Amended Initiating Application filed 25 February 2019;
(b)the mother’s affidavit filed 24 January 2019;
(c)the mother’s Financial Statement filed 19 November 2018;
(d)affidavit of Ms L filed 9 November 2018;
(e)affidavit of Mr GG filed 9 November 2018;
(f)affidavit of Ms H filed 9 November 2018;
(g)affidavit of Ms J filed 9 November 2018;
(h)affidavit of Ms G filed 1 August 2017; and
(i)affidavit of Ms W filed 14 February 2019.
Ms L, Mr GG and Ms H were not required for cross-examination.
Ms G was not available for cross-examination and, on behalf of the father, it was submitted that her affidavit should not be read. That issue will be determined later in these reasons.
The father relied on:
(a)Amended Response to Final Orders filed 26 February 2019;
(b)the father’s affidavit filed 9 November 2018;
(c)the father’s affidavit filed 13 February 2019;
(d)the father’s Financial Statement filed 9 November 2018;
(e)affidavit of Ms R filed 8 November 2018;
(f)affidavit of Mr U filed 5 September 2017;
(g)affidavit of Ms HH filed 8 November 2018;
(h)affidavit of Mr II filed 8 November 2018; and
(i)affidavit of Mr P filed 21 February 2019.
Ms HH and Mr P were not required for cross-examination.
Ms C was cross-examined.
There were two issues which occupied most of the trial. The father’s conduct with the children, the extent to which the children fondled his genitals and the risk posed to them arising out of this conduct was the primary issue. The father’s ability to contain his anger and risk taking behaviour with the children was a secondary issue. Having regard to the findings I have made about the primary issue, and the fact that I have determined that the children’s time with the father should be supervised, it is not necessary to determine the secondary issue.
There was also before the Court an application in relation to Child Support where the mother sought, inter alia, that the father pay the whole of the private school fees for the children and also a variation of periodic support.
Neither party had notified the Child Support Registrar of the application, and although throughout the course of the trial, both parties attempted to obtain from the Child Support Registrar consent to proceed with the application on the basis that the Registrar did not wish to intervene, no such consent was forthcoming.
Service upon the Child Support Registrar is required by Rule 4.23(1)(c) of the Family Law Rules (“the Rules”) because, where the proceedings are commenced pursuant to s116 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”), the Registrar is entitled to intervene.
I adopt the reasoning of McClelland J in Lesley & Lesley [2015] FamCA 894 where his Honour stated:
Failure to serve the Registrar in accordance with the Rules is fatal to the Court dealing with the application at this time. Requiring service to be effected is not simply insisting on ritualistic compliance with the Rules for the sake of mere compliance. Non-service on a person or entity that has a statutory right of intervention is a fundamental denial of natural justice that, in the absence of urgency, prevents the Court from dealing with that aspect of the application. In Child Support Registrar & Nixon,[1] the Full Court said:
…given the emphasis placed by the High Court in both Taylor and Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made without notice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.
We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party.
(Footnotes omitted)
Absent service upon the Child Support Registrar or an indication that the Registrar did not intend to intervene, that application cannot proceed.
THE ADMISSIBILITY OF MS G’S EVIDENCE
Ms G was a supervisor engaged by the mother through an agency.
Ms G swore an affidavit on 28 July 2017 annexing a report dated 21 July 2017. The mother’s lawyers were given leave to issue a subpoena to Ms G to attend for cross-examination but she could not be located.
On behalf of the father, an application was made to exclude her evidence.
These are proceedings to which Division 12A of the Family Law Act 1975 (Cth) (“The Act”) applies. The provisions of the Evidence Act 1995 (Cth) which apply to exclude hearsay evidence are excluded unless the Court decides otherwise.
No such ruling was either sought or made in this matter.
Section 69ZT(2) of the Act provides, in relation to such evidence, the Court may give such weight as it thinks fit.
The mother deposed that Ms G, who was hired from an organisation referred to as ‘JJ Group’, supervised one contact session in March 2017. Ms G declined to supervise further.
Ms G’s report was prepared in July 2017. It was made available to the father. It was part of the material available to Ms C. The affidavit sworn 28 July 2017 expands on the contents of the report.
Ms G expressed her concern, inter alia, that the father went to the toilet, invited the twins into the bathroom and engaged in discussion with them about his penis.
That information was conveyed to the mother who deposed to it in her trial affidavit. I infer, from the mother’s affidavit, that the information was conveyed to her contemporaneously as she deposed that a decision was made that Ms G would not supervise the next session.
The father swore an affidavit on 12 February 2019 in which he replied to the evidence in the mother’s case, including the affidavit of Ms G.
There was an agreement that supervisors’ reports would be admitted without objection and none of the other supervisors were required for cross-examination.
However, there is a distinction between Ms G’s report and her affidavit. In agreeing to swear an affidavit in the mother’s case, Ms G became a partisan witness.
In so far as Ms G’s affidavit includes material that is not included in her supervisor’s report, I accept the contention on behalf of the husband that, absent her being available for cross-examination, that affidavit should not be read.
However, I propose to read her report in the same manner as I read, by agreement, the reports of the other supervisors.
Senior counsel for the husband relied on a decision of the Full Court of the Federal Court in Pearce v Button (1986) 65 ALR 83 at 97 and following. The Full Court was there dealing with a specific rule, Order 33 r.3 of the Federal Court Rules which then allowed the Court to dispense with compliance with the rules of evidence “where such compliance might occasion or involve unnecessary or unreasonable expense and delay...”. Lockhart J. held that the essential object of the rule was to facilitate the proof of matters which are not central to the issues in the case and should be slow to be invoked. Lockhart J. was concerned that there was no way to test the relevant evidence which was “central” to an important issue in that matter.
I accept that the father has not been able to test the evidence contained in the report but he has been able to give his version of the events.
The provisions of Division 12A contemplate evidence being accepted by the Court where the maker of a statement is not available. The fact that Ms G is not available for cross-examination goes to the weight to be given to her evidence, not its admissibility.
allegations of inappropriate behaviour
I propose to examine the evidence in relation to each allegation of the father’s inappropriate behaviour.
Father inviting Z to share his bed
In January 2016, the intimate relationship between the parents ceased. The mother moved out of the bedroom formerly shared with the father. The mother alleged that the father invited Z to move into the bedroom with him and that she moved some of her things from her own room onto the bedside table on her mother’s side of the bed. The mother further alleged that the father at this time said to her that he “had to get his comfort from somewhere”. The father acknowledged that Z did sleep with him on occasions and that she moved some of her books onto the bedside table in his bedroom. He denied that he said the words alleged by the mother. In cross-examination he said that Z could sleep with him because the mother was sleeping in the twins’ room.
The mother, perhaps in hindsight, viewed the father as grooming Z. I am unable, in the face of the father’s denial, to find that the father said what the mother alleged. However, it is understandable that the incident, on any version, would have heightened the mother’s concerns and it highlights the father’s lack of understanding of appropriate parenting boundaries. It is a matter of concern that the father thought that it was appropriate that his then nine year old daughter should be invited to share his bed and allowed to move belongings onto her mother’s bed-side table.
Applying cream to the children’s genitals
The mother deposed that there was a disagreement between the parents in late 2016 about whether it was appropriate for the father to put cream on the children’s genitals. The mother told the father that it was not appropriate for him to be putting cream on Z when she was nine years old. The mother deposed that the father said to her that he was her father and could do it if he wanted and that he become angry with her. The mother raised the issue of putting cream on the children with Dr E in a consultation in mid-2016 and Dr E told the father that he should leave it to the mother to put cream on the children. The mother deposed:
Approximately three nights after this conversation with Dr [E] occurred, [X] said to me words to the effect ‘dad put cream on my vagina’.
The mother deposed that she had been present in the home and was available to put cream on the children if they needed it.
In cross-examination the father conceded that he had applied cream to Z’s genitals at the end of 2016 despite the fact that he was well aware that the mother did not want him to do this. He agreed in cross-examination that Z at age nine was too old for him to be applying cream to her genitals but he also agreed with the proposition that he wanted to do it, and therefore it was all right. The father attempted to justify that decision by saying that Z had asked him to apply the cream. On that occasion the mother was in the home and could have assisted Z if she required assistance.
The father also conceded that in late November 2016 when the twins were aged five he applied cream to X because, he said, X asked him to do it. The father denied that he was angry with the mother when she raised the issue of his putting cream on the children but said that there was “tension about that”. The father said that he did not think it was inappropriate for him to put cream on X and although he was aware that the mother didn’t want him to do so, he did it anyway.
The mother attributed the father’s behaviour to a lack of understanding of appropriate behaviour and boundaries with the children.
Inappropriate touching of the father’s genitals
The mother deposed that in or about September 2016:
When [the father] was sitting in the back seat of the car with his legs wide apart. The twins were facing him, and he would make it seem like a game to play with his testicles and penis. I first looked at him through the rear view mirror, then turned around and asked him to stop.
The father denied the accuracy of the mother’s version of that event. He deposed:
There have been occasions when I have sat in the ba≤ck [sic] seat with the girls sitting in seats facing me... I have never permitted them not to wear seat belts when the car is moving which would make it difficult for them to reach me. I have no recollection of an event described by [the mother] ever happening and I reject the notion that I have encouraged any of my children to feel or touch my genitals.
In cross-examination, the father said he had no recollection of that incident. He was reminded that, in cross-examination in the Local Court proceedings he had been asked about this incident and said words to the effect that the twins tried to put their hands up his pants, that he said to the mother to look and the mother told the children to stop. The father was asked in the Local Court proceedings if he thought the situation was inappropriate and he replied “I thought it was odd”. It was put to the father by senior counsel for the mother, that in relation to that event, he did not intervene, did not tell the twins to stop what they were doing and did not remove their hands. In response he said that the event had only lasted between one and five seconds.
The father was referred to paragraph 137 of his trial affidavit where he deposed:
There have been occasions when the children have been curious about my genitals and tried to touch them. I deny that I have encouraged the children to touch my genitals at any time. If the children did attempt to touch my penis I would adopt react [sic] in one of the following ways:
· Ignore it as a benign interaction;
· Distract them to do something else;
· Gently move away or push their hand away but not in an overly forceful way to avoid making a big deal about it; or
· Firmly tell them that such conduct is not appropriate and/or pull their hands away more firmly.
He said that the way he reacted to the incident in the car was not now appropriate and, asked when he had come to that understanding, his response was that that had happened in the last year or so. However, he said, the strategy outlined in paragraph 137 was the strategy he adopted up until separation.
I note that there is no evidence of any occasion prior to separation when the father, in response to the children touching his genitals, behaved in the way he suggested would be appropriate or in any other way appropriately discouraged the children from touching his genitals.
He accepted that what the mother observed in the car provoked a reaction from her and that, as a result of the mother’s intervention, the twins stopped what they were doing.
The mother deposed:
On another occasion in or around September 2016, I was in the kitchen when [the father] said to me, “check this out” and I saw the twins with their hands up his shorts “squishing and grabbing his testicles”. I could see their hands moving underneath his shorts. [The father] was encouraging them, laughing and was not stopping them. I asked him to stop, but he called me a “prude”.
The father deposed:
In relation to the incident in the kitchen, whilst I have a vague recollection of a specific incident of the type [the mother] refers to as being in September 2016, I deny ever saying to [the mother] words such as “check this out” in circumstances of the kind she is suggesting or that on any occasion like this I mocked her or said anything to attract her attention whilst I was with any of the children. I have never permitted the girls to “squish or grab” my penis or testicles in the manner described in that paragraph.
Ms J, a friend of the mother, deposed that she and her husband stayed with the Vossen family at their beach house at Suburb KK during Easter in 2016.
Ms J deposed:
On two (2) separate occasions in 2016, I observed [Y] and [X] place their hands up [the father’s] board shorts and hold his genitals. I observed this once at [Suburb KK] and a second time at [the family home]. During both incidents, I recall finding it odd that [the father] continued to maintain a conversation with me. By that I mean that there was no immediate reflex by [the father] or attempt to stop the children from touching him.
In cross-examination, Ms J said that the children were “definitely” holding the father’s genitals and that she was shocked.
Ms J deposed that on each occasion she distracted the children so that they discontinued the activity. The father did not, himself, intervene to stop the activity.
In cross-examination the father said that he did not recall either incident described by Ms J.
I accept the evidence of Ms J. I accept that, having regard to Ms J’s evidence, it is more likely than not that the mother’s account of what happened in the car and in the kitchen is accurate.
The mother, in her affidavit, referred to an incident which occurred on 29 October 2016 which was referred to during the hearing as “the bath incident”. She deposed that:
…[The father] was having a bath with [X] and [Y]... This was a regular occurrence. [X] got in first. I walked into the bathroom and [X] was lying on top of [the father], just above his penis, and his penis was just below her vagina in the water. Although I have previously discussed with [the father] the need to set boundaries with the children, particularly in relation to their anatomy, I did not want to start a fight, so I did not say anything. I did, however, remain close to the bathroom. The next time I walked into the bathroom, [Y] was also in the bath. [X] had her hands around [the father’s] penis under the water. She was blowing bubbles on top of the water, and the head of his penis was directly below her mouth, just under the surface of the water. I got upset and angry when I saw this, and said to [the father] “this is not appropriate”. I got [X] and [Y] out of the bath, and said to them words to the effect “it’s not appropriate for you to play with Daddy’s penis like that”. [The father] was close by and said, “You’re making a big deal out of nothing”.
Later that evening, I approached [the father] to discuss what I had witnessed saying words to the effect “What you were doing in the bath is inappropriate. You have to model appropriate behaviour with the girls so they understand boundaries correctly”. [The father] responded “There is nothing wrong with that. It’s all you. You have a problem”. He also said, “I don’t want to make a big deal out of genitals. You are prudish and uptight.”
The mother deposed that after the children went to bed she spoke again with the father about what had happened and he ridiculed her saying things such as “you’re a prude”; “you’re overreacting”; “you’re being ridiculous”. The mother deposed:
He did, however, finally agree to adjust his boundaries around nudity with the children, and I asked [him] to join me in having a joint conversation with the children around appropriate boundaries.
However, the next night, [the father] said to me “Don’t worry, I’ve spoken to [X] and said you can only do those types of things with Dad.”
The mother made contemporaneous reports of the incident to the father’s friend Ms R, from whom she sought advice, and to her therapist Ms W.
In relation to the bath incident the father stated:
I recall [the mother] coming into the bathroom and I was in the bath with [X] and [Y]. [X] had both hands on my mid-thighs she played and peered into the water moving her head over my legs, abdomen and over to the water between her and I. I deny that either of the children were holding my penis and pretending it was alive, or blowing bubbles on my penis.
The next day the mother sent an email to their joint counsellor, Ms W in which she set out what had happened the previous evening.
The mother also discussed the incident with Dr E who was the father’s treating psychiatrist. Dr E said to the father that what had happened was not appropriate and he should not let the children play with his penis.
Ms G, in March 2017, observed the father using the toilet and engaging the children in conversation about his penis.
The father denied that he had invited the children into the bathroom. He deposed that the children opened the bathroom door and followed him into the bathroom. He deposed “I have no recollection of the nature of the discussion I had with X or Y.”
In cross-examination, the father agreed that he had used the toilet in the course of the contact session and that the twins had followed him into the bathroom. He said that he did not recall the content of the conversation with the twins although he accepted that there was a conversation.
I accept that the conversation occurred as Ms G stated. The father is not in a position to dispute her evidence as he does not recall what was said. Ms G was sufficiently concerned about what happened that she immediately reported her concerns to the mother and did not supervise any further contact sessions.
The mother deposed:
In or around July 2017 I put [Z] in the bath one evening and she said to me out of the blue “We are lucky that Daddy never touched us sexually” and “Well daddy never touched us, but he let us touch him.”
The mother deposed that in or around July 2017 X said to her “I remember that you got angry because Daddy let me play with his penis.”
Both X and Y were interviewed by JIRT and a transcript of the interviews was in evidence. An extract of each interview is reproduced here. Not all of the questions and answers are included. For the sake of economy, the ‘establishing’ questions are not reproduced but it can be assumed that the interviews were conducted appropriately and did not involve leading questions.
X was interviewed on 17 August 2017. The interviewer established that X knew what her father’s penis was but didn’t want to use the name. The interviewer said that they would use the term “not sure” and referred to the penis as “the not sure thing”.
The transcript of the interview with X records:
Q254 OK. So you said that you’ve, um, touched your dad’s, uh, not sure thing, tell me about that, how did you touch your dad’s not sure thing?
A Um, I wiggled it and I pretended it was alive and it’s all I did.
Q255 Tell me, tell me more about that.
A Um, I pretended it wasn’t, it was in the water, it was in the ocean and I pretended that it was in the sea and it couldn’t freeze and I said, it can’t freeze...
Q257 So you said you wiggled it, how did you wiggle it?
A Um, I put my hands kind of in the middle and then I moved it to one side and the other side and then the other side.
Q258 So you put your hands on the, the what?
A The middle, I’m not sure if I did wiggle it but I definitely, um, I definitely ma, pretended it was alive.
...
Q275 So when you wiggled, um, your dad’s not sure thing, how did you do that?
A Um, I don’t know.
Q276 OK, um, it, was that with your hand, foot or something else?
A It was just the hand.
Q277 With your hand, so your hand, um, could you see your dad’s not sure thing when you wiggled it?
A Um, yeah.
Q278 OK, how did you see it?
A I saw it in-between his legs...
Q288 OK. And how did it start that you wiggled it, is that something - -
A I started pretending it was alive and then I started, then, like, it was, like, floating and then I wiggled it.
Q289 But to hold it, uh, to wiggle it, did your dad ask you to wiggle it?
A Uh, no.
Q290 Did he say anything to you?
A Mmm, no.
Q291 Did he, did he ask you to stop or not to do that?
A He didn’t ask me to stop ….. to it.
Q292 So could, um, [Y] see you, um, wiggle it?
A Um, yeah...
Q298 So to wiggle it, is that a fun thing or a, a, a goo, a good thing or a bad thing?
A It was, it wasn’t good, it wasn’t fun and it wasn’t bad, so I think it, I think it was just normal. Mean, it’s not normal to wiggle it, it’s - - -
Q299 Yeah
A Like, it’s not good or bad, it’s OK.
Q300 OK, have you seen, um, [Y] wiggle it or anybody else wiggle it?
A No.
Q301 Did anybody else, see that?
A No.
Q302 Where was your mum when this happened?
A Oh, I think she did see it, Mummy, Mummy saw it.
Q303 How do you know Mummy saw it?
A Um, ‘cause she was, she came in the bathroom.
Q304 And what happened when she came in?
A She said I can’t do it...
Q322 So was the not sure thing that you’re talking about, that you said that’s what you go to the toilet with, is that right?
A Yeah...
Q324 OK. And so y, your hands, were they under the water?
A Um, yeah.
Q324 All right. And your hands were wiggling, I think you explained. So was his not sure thing, was it hard, soft or something else?
A Soft.
Q325 Soft.
A But hard things inside. Like it kind, I could feel things inside it, like, kind of …..
Q326 Ah, OK.
A But like, I could feel something when I was wiggling ‘cause I was touching it, like …..
Y was interviewed on 18 September 2017. The transcript of the interview with Y records:
Q278 O.K. Have you touched anybody else’s penis?
A Daddy’s in the bath.
…
Q281 So tell me more about when you touched daddy’s penis in the bath?
A Well I never hurt it but I just touched it.
Q282 O.K. And when did you touch daddy’s penis in the bath?
A Last year.
Q283 Last year.
A Cause he never goes in the bath anymore.
Q284 O.K. Was there anybody else there when you touched daddy’s penis in the bath last year?
A Um, yeah.
Q285 Who was there?
A [X] and sometimes [Z] but sometimes it was a little too squishy.
…
Q293 O.K. All right so who was in the bath on the time that you touched daddy’s penis in the bath, who was in the bath?
A Probably, not mummy, um, me, daddy, [X] and [Z].
Q294 O.K. Did you touch daddy’s penis in the bath one time or more than one time?
A Probably just two times.
…
Q308 Can you tell me about what happened when you touched daddy’s penis in the bath?
A Well sometimes he laughed, sometimes he didn’t, sometimes he didn’t say anything.
…
Q311.... And what part of your body did you use to touch daddy’s penis?
A Just my hands.
…
Q313 Did you both hands or one hand or something else?
A Just one hand.
Q314 One hand. O.K. And what part of your one hand did you use to touch daddy’s penis?
A Just my whole hand.
Q315 The whole hand.
A Oh no, it’s only like that.
Q316 O.K. And you’ve just shown me two fingers, your pointer finger and your middle finger and your thumb.
A Yeah.
Q317 And you sort of moved them together.
A Yeah. Like as if you’re holding a pencil.
…
Q324 Not sure, that’s O.K. And what did daddy’s penis feel like when you touched it for second?
A Just a bit darker.
Q325 A bit what?
A A bit darker but just sort of like your skin.
…
Q327 …And so what did daddy say when you touched him on the penis for a second?
A Um, sometimes he laughed, sometimes he didn’t do anything.
…
Q330 …Did you say anything to daddy when you touched him on the penis?
A Well I pretended it was talking.
Q331 You pretended it was talking?
A Yeah.
Q332 What did you say to dad?
A I just said, “Hello” in a weird voice. Like, “Hello”.
Q333 Did your dad say anything to you when you said that?
A Yeah, he laughed.
Q334 O.K. Did you say anything else to daddy when you touched him on the penis?
A Um - - -
Q335 No. Did he say anything else to you?
A Oh yeah, I did. I said, “Hello, my name is [LL]”.
Q336 Your name is what?
A [LL].
Q337 [LL]?
A Yeah.
Q338 And did your dad say anything?
A He, he laughed.
…
Q343 …Now can you tell me about the second time that you touched daddy on the penis?
Q344 When did that happen?
A I don’t know.
…
Q355 …And why did you touch dad’s penis that second time?
A Um, I just felt like it.
Q356 O.K. And what part of your body did you use to touch dad’s penis?
A Just my hands.
Q357 Your hands. Did you both hand, or hands, on one hand or something else?
A Just one hand.
…
Q367 …And did you say anything to daddy when you touched his penis the second time?
A Um, I don’t know...
Q369 …Can you remember if daddy said anything to you when you touched his penis the second time?
A I don’t know...
Q371 …And how long did you touch daddy’s penis for the second time?
A It was for a second.
Q372 …And what did daddy’s penis feel like when you touched it?
A Just like skin.
…
Q382 …And can you remember dad saying stop, when you touched his penis?
A No.
…
Q389 …And I asked you if you have, if you’ve ever touched anybody else’s penis and you sad no, have you ever seen anybody else touch daddy’s penis?
A Yeah, [X] but never [Z].
…
Q390 …When was it that [X] touched daddy’s penis?
A Probably after me. Like two seconds after me.
…
Q392 And where were you when you saw [X] touch dad’s penis?
A In the bath.
…
Q402 …And so tell me more about when you saw [X] touch daddy’s penis in the bath at that time.
A Um, well sometimes we touched it together, like and we, and we would pretend it was talking...
Q406 …And so what part of [X’s] body did she use to touch daddy’s penis?
A Her hands.
Q407 …Did she use both hands or one hand or something else?
A What?
Q408 Did she use both hands or one hand or something else?
A We both used one hand.
…
Q412 …And did [X] say anything when she touched daddy’s penis?
A Yeah, She said the same thing I said.
Q413 And what was that?
A “Hello, my name is [LL]”.
Q414 And did daddy say anything?
A He laughed every time we said it, he laughed but if we said it two times then he wouldn’t laugh.
Z was interviewed by DFCS on 27 September 2017. The summary of the interview records:
We went through the female body chart with nil disclosure of concern, we went through the male body chart and [Z] disclosed that she has touched Dad’s penis in the bath on a couple of occasions and she had also seen her sister’s [sic] touching dad’s penis in the bath. [Z] stated that her sister’s [sic] would do it more often than she would. [Z] described the touching for her as squeezing and the touching she had witnessed her sisters engaging in was described as “wiggling and shaking” it. [Z] stated that she had hurt dad once by squeezing his penis too hard and that is the only time dad told her to stop. She does not know when the penis touching had started or why it was happening except that they found it funny. [Z] stated that she realises that this was not the right thing to be doing and it hasn’t happened since mum saw it happening in the bath and got really angry about it.
Interviews with Ms C took place on 28 March 2018. The mother told Ms C about the bath incident and about the father allowing the children to put their hands up the legs of his shorts. She also told Ms C about the incident when Z was a toddler. The mother also told Ms C about the father putting cream on Z’s and X’s genitals in late 2016.
Ms C spoke to the father about the incidents. She reported:
[The father] broadly minimised [the mother’s] concerns about his sexually inappropriate/abusive conduct towards the girls. He reported that “bathing was the culture of our family”, suggesting that [the mother] initiated this. He said that he often bathed the children, “often at [the mother’s] request”, noting that this included a combination of him bathing the children from outside the bath or joining them. He acknowledged that [X] had her hands on his thighs at the most recent incident and that she “had her head over [his] groin at particular points”, suggesting that “she was playing a game in her head”. He denied any active engagement in this game or directing [X] to physically interact with his body but did not report stopping her behaviour. [The father] acknowledged that the twins put their hands up his shorts on some occasions but denied that they ever “squished [his] testicles” or that he encouraged this behaviour or flaunted it in front of [the mother]. He reported that [Z] once sat on his stomach in the bath when she was two or three years old and that [the mother] “expressed concern that Z’s genitals were too close to [his] genitals and that she was concerned she’d get an STD from [him]”. [The father] said he recalled this incident in detail because he was “surprised” by this “unusual” concern.
Ms C reported:
[The father] recognised that the children have been “curious” at points about his genitals and that he “never took a strong response” as he “didn’t want to stigmatise the idea of body parts”. This is consistent with his account at the JIRT interview on 27/10/2018, details contained in the [DFCS] records. He said that after the incident in the bath in which [the mother] alleges [X] had her hands around his penis, he spoke with [X] about how children can have baths with parents but that they “can’t touch anybody else’s private parts”. [The father] believed that [the mother] was overly focused on boundaries in the house and he did not want to “add to that”. After [the mother] raised concern about [the father’s] behaviour with Dr [E], Dr [E] reportedly told [the father] that “if the kids are curious about your genitals, then you should distract them or gently move their hand away and stop it”. However, [the father] said that nobody had ever told him that his behaviour had been inappropriate. This is a curious position to take given that he was subject to an interview with JIRT about this issue. When I put my view to [the father] that his behaviour was indeed inappropriate and that he should have responded more clearly at an earlier point, he indicated that he would “take that on board” and that he had “never been resistant to input about this”. It is curious that [the father] was still bathing with the children at age five, given that they would be capable of bathing alone with assistance and supervision by an adult outside the bath.
Ms C further stated:
[The father] denied ever experiencing sexual thoughts of his daughters or other children. He denied any sexual arousal in response to the children’s ‘curiosity’. He added that [the mother] had never previously raised concern about his behaviour being ‘sexualised’...
I note that the mother was unaware of the extent of the father’s behaviour until she read the transcripts of the children’s interviews with JIRT and heard the father’s admissions in cross-examination.
Ms C also asked the children about the incidents.
Z said to Ms C, in relation to her father:
She stated that although he has not touched her sexually before, she worries that he might. She recalled that he would allow the twins to touch his private parts in the bath and that she saw this on numerous occasions. She said that she also touched his private parts on one occasion, clarifying that her father did not ask her to do this but he also did not stop her. She said that she felt “weird” about these incidents.
In relation to her interview with Y, Ms C recorded:
[Y] recalled speaking to JIRT about touching her father’s private parts in the bath, explaining that prior to her parents’ separation, “daddy used to get in the bath and we’d pretend his private parts were talking”. This description is similar to her account at the interview with JIRT on 18/09/2017. She could not recall whose idea this had been and did not know whether this type of behaviour was OK or not OK. [Y] said this happened more than once in the bath, but not every time they had a bath with their father.
In relation to X, Ms C recorded:
[X] recalled talking to JIRT, which she believed was focused on how she felt about her father not living with the family. However, she also recalled that she spoke with them about when she and [Y] had baths with their father and she used to “touch daddy’s private parts, but [she] was like four then, so [she] didn’t really know”. She could not recall how many times this occurred but she knew her mother had intervened and said this was not appropriate and so it stopped.
On 31 March 2018, the contact supervisor, in relation to an occasion when the father was in Y’s bedroom, reported:
The father laid [sic] back and relaxed. [Y] was relaxed at the foot end of the bed playing on the phone. [Y] put her foot on the Father’s crotch. He immediately said, “Don’t do that”. In a firm but shocked tone of voice. Then he said, “Why would you do that?” [Y] [sic] replied, “To massage your private”. The father immediately said, “No, don’t put your foot there. You don’t do that.” [Y] [sic] was relaxed and laid [sic] there playing on the phone. The father seemed shocked...
On 12 May 2018, the contact supervisor reported:
The Father went into his bedroom. He was standing at his cupboard hanging his clothes on coat hangers. [X] went into the Father’s bedroom. She was standing at the other side of the room to the Father. Suddenly she walked over to the Father and put her hand on the front of his pants and felt his penis. She was calm. The Father was fully clothed wearing track pants and a long sleeve shirt.
The Father stopped what he was doing and said to [X], “Don’t touch there. Why did you do that?” [X] said, “Sorry, sorry I just like the way it feels.” The Father said, “No you don’t do that, it’s not okey [sic].” [X] said, “I’m so sorry, it’s just been a long time and there’s no boys at home.” The Father said, “What have you been told about that? There’s been lots of people talking to you about touching me hasn’t there?” [X] said, “Yes”. The Father said, “You can’t do that”. [X] said, “Okay I won’t”. The father looked concerned. He was stern but calm. [X] became a bit anxious when she was apologising...
DISCUSSION
The incidents of concern appear to have happened between the beginning of 2015 and 29 October 2016.
Both the mother and Ms J depose to witnessing the twins put their hands up the legs of the father’s shorts and fondle his genitals.
The father did not deny that the children had put their hands up the legs of his shorts but he did deny that they fondled his genitals. The father did not suggest that when the children put their hands up his shorts he intervened to stop this or attempted to distract or divert them.
Ms J had no reason to make up that evidence and it was not suggested to her that she had. Her stated reaction to what she saw was appropriate.
In relation to the incident in the car in September 2016, the mother deposed that the father played a game with the children in the car in which he allowed the twins to put their hands up his shorts and “squish his penis and testicles.” The father deposed in both his cross-examination and trial affidavit that he had “no recollection” of an event as described by the mother.
The father was taken to evidence he gave in the Local Court where he conceded the twins had put their hands up his shorts and placed their hands in his genital area for between one and five seconds while he was in the car with the children. The father stated that this incident “bore no resemblance” to the events deposed by the mother in her affidavit.
At no point in his affidavits did the father disclose this incident. Senior counsel took the father to a number of instances in his affidavit where he disputed the mother’s recollection of an event, but provided his own recollection and context. When asked why he had not done so for the car incident, the father stated that he was of the understanding that the Local Court material was part of the proceeding, before acknowledging “I wanted to make a strong point that I don’t recall an event where I encouraged my children to touch my penis, where they squished and grabbed my penis and where it was a game. They’re very different things”. He went on to concede that when he swore the trial affidavit, he knew there had been an incident in the car that involved the children and his genitals. I do not accept that the incident described by the father bore no resemblance to the mother’s evidence. I do not consider that the father was frank in his disclosure of this incident.
I accept the evidence of Ms J over the father’s denials. I also accept that the mother observed similar behaviour between the twins and the father in the car as she deposed.
The father applied cream to Z’s and X’s genitals in late 2016 in circumstances where he conceded in cross-examination that it was inappropriate for him to do so and that he was aware that the mother had asked him not to. Further, Dr E had told him this was not appropriate. The father could not explain why he behaved in such a way leaving the uncomfortable impression that his main motivation was that he would not be told by the mother or by Dr E what to do.
In relation to the incidents of touching in the bath, only the incident on 29 October 2016 was witnessed by the mother. The mother deposed that she saw X hold the father’s penis in both hands and blow bubbles over it on the surface of the water.
The father denied that X held his penis in both hands or that she blew bubbles. He deposed:
On 29 October 2016 I was in the bath with [X] and [Y]. [X] had both hands on my mid-thighs and she had her head over the water that was covering my legs, lower abdomen and genitals. My penis was under the surface of the water. She was not holding my penis nor was she blowing bubbles.
In cross-examination, the father said he was sitting in the bath leaning against the back of the tub with his knees splayed. X was between his legs peering into the water. He acknowledged that he had told Ms C that X was playing a game.
The father conceded that he had allowed the twins to touch and play with his penis on a number of occasions although he denied that, on 29 October 2016, X was holding his penis with both hands or that she was blowing bubbles as the mother asserted.
In cross-examination, the father conceded that on occasions X wiggled his penis using her thumb and forefinger in a side to side motion but he was adamant that this did not happen on 29 October 2016.
He said that this happened two or three times although he could not say when.
He also conceded that Y has similarly played with his penis, holding and wiggling it.
In cross-examination, the father said that “benign” touching had commenced in 2015 and that, on occasions, the touching was not benign. He was unable to identify what touching was not “benign”, when that touching occurred or how often. After being pressed he said that touching for more than five seconds was not ‘benign”.
The father swore two trial affidavits in circumstances where he was well aware that the issue of inappropriate touching of his genitals was central. Nowhere in the father’s trial affidavits does he mention that the twins held his penis and wiggled it on occasions. To that extent, the father’s evidence was not frank. He did not give that evidence in his statement in the Local Court proceedings. He did not tell the officers of DFCS when interviewed that he had allowed the twins to play with and wiggle his penis and he did not tell Ms C.
In cross-examination he denied that he had withheld that evidence because it did not cast him in a good light and insisted that, in saying that the children had “touched” his penis, he had not downplayed what occurred.
The father admitted that he referred to his penis as “LL” and that he referred to it in that manner when talking to the children. Why the father was conversing with the children about his penis, in these or any other terms, is a mystery which was not explained.
In cross-examination, the father conceded that prior to 29 October 2016, one or both of the twins talked to his penis in the bath. He said that he had on occasion had to “address” one of the children talking to his penis. The transcript records the following passage:
Ms Gillies: Are you saying to her Honour that you agree with my proposition that when you look at the totality of those pages [Y’s JIRT interview] she is not describing a benign or innocuous interaction with your penis?
Father: Up until the point that – that she engages in conversation, and then I think it takes on a different tone – a different – not a different tone but a different – it's a different nature...
Ms Gillies:just like [X], she describes talking to your penis, doesn't she?
Father: She does.
Ms Gillies: And, again ‑ ‑ ‑
Father: ‑‑‑And it's at that point that I would address that.
Ms Gillies: Right. So you agree that there were times that you had to address Y about her talking to your penis, I take it from that answer?
Father: Well, I don't refer – I don't recall if it's [X] or [Y].
Ms Gillies: Right. But you recall that one of the children have had to be distracted from your penis because they've been talking to it?
Father: ‑‑‑Yes.
Ms Gillies: When did that happen? ‑‑‑
Father: I can't recall the date.
Ms Gillies: How many times did it happen?
Father: ‑‑‑Perhaps one, two.
Ms Gillies:And doing the best that you can, do we say that it's in this period 2015 to 2016?
Father: ‑‑‑Yes.
Again, this was not information that could be found in his affidavits, his statement in the Local Court, his interviews with DFCS or his conversation with Ms C.
The father’s lack of frankness in his affidavit evidence and in his various statements is significant both in relation to whether his account of the events should be accepted and in relation to his assurances that he now understands that his actions were inappropriate.
It was submitted on behalf of the father that the mother’s evidence that she saw X holding the father’s penis in both hands on 29 October 2016 was inherently unbelievable.
I do not accept that submission.
There were a number of photographs taken on other occasions of the father and the children in the bath which were tendered in evidence. In those photographs the positions of the children’s hands and the father’s genitals were clearly visible.
The bath pictured in the photographs is not so large that the mother could not have seen clearly into the tub.
X in her interview with JIRT described holding her father’s penis with “my hands kind of in the middle” on at least one occasion.
If it were the case that, as the father says, X was not holding his penis on that occasion, there is no reason for the mother to have removed the children from the bath tub and then spoken to the father about his inappropriate behaviour.
If X were not holding his penis, why did the father say to the mother, as he deposed, “I can see how upset you were. I am happy to have a further discussion with you about boundaries and the kids”.
The father acknowledged to Ms C that X “had her head over [his] groin”. He said she was “playing a game in her head”. Whether she was blowing bubbles, as the mother observed, or merely sitting with her head over the father’s penis “peering” at it, is not necessary to determine. Either description has X’s face in very close proximity to the father’s penis.
The father acknowledged that both of the children on occasion addressed his penis by the name of “[LL]”.
The twins both told JIRT that they played with the father’s penis in the bath using their hands; that they talked to his penis calling it LL; that the father did not initiate the game but he did not stop it; that he laughed when they called his penis “[LL]”.
Z described the twins “wiggling and shaking” the father’s penis. Z said that she did not know when the penis touching had started or why it was happening except that the twins found it funny.
The father himself said in cross-examination that his behaviour was inappropriate.
What, then, is the risk to the children posed by the father’s behaviour?
Ms C stated:
[The father’s] behaviour demonstrates a remarkable lack of insight but does not fit criteria for sexually abusive conduct. His account of his behaviour was inconsistent and minimising and suggestive of poor insight into the seriousness of his boundary transgressions, however, I do not believe that he poses a risk of sexual harm to the children. Regardless, he would benefit from therapeutic intervention to address his boundary transgressions and to gain insight into the reasons why it is viewed so seriously by [the mother] and professionals.
She further stated:
While I believe that [the father] has breached appropriate boundaries with his daughters, his behaviour does not constitute sexual abuse.
Her ultimate recommendation was:
Supervision of [the father’s] time with his daughters should be phased out, dependent upon [the father] completing a refresher anger management program (for example, ‘Managing Anger’ through [FF Group]) and addressing issues of boundaries with the children with [Ms D]. [Z] will likely require therapeutic support from [Ms B] around this process;
Section 60CC of the Family Law Act prescribes the role of the Court in determining what orders are in the best interests of children.
Relevantly, s60CC(2) and (2A) set out the primary considerations as:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Thus in the balancing exercise between the child’s prima facie interest in maintaining filial relationships, against the need to protect the child from harm, the Court is enjoined to give priority to the latter.
Ms C did not, in her report, give specific consideration to that exercise and, it should be stated, the responsibility to do so is not placed upon her as an expert. The responsibility embodied in the sections is placed solely upon the Court.
It is not necessary to give any particular label to the behaviour which causes concern. Whether the behaviour of the father can be categorised as sexual abuse is not relevant.
However the categorisation of the father’s behaviour was the subject of cross-examination of the single expert and in her oral evidence she acknowledge that the father’s behaviour may constitute sexual abuse. Senior counsel for the mother asked Ms C to accept that:
Ms Gillies: ...child sexual abuse is the involvement of a child in a sexual activity that he or she does not fully comprehend, firstly, is unable to give informed consent to or for which the child is not developmentally prepared or else it violates the laws or social taboos of society.
Ms [C]: ‑‑‑Yes.
Ms Gillies:That’s a good working definition of child sexual abuse. Isn’t it?
Ms [C]: ‑‑‑Yes.
Ms Gillies:And a sexual activity could be a child playing a game with an adult’s genitals, couldn’t it?
Ms [C]: ‑‑‑If an adult has initiated that, yes.
Ms Gillies:Well, it doesn’t actually mean that it has to be explicit initiation, does it, for it to be child sexual abuse?
Ms [C]: ‑‑‑It would depend on the context around that.
Ms Gillies:Because the thing is, about child sexual abuse, is that often the people that perpetrate it are much more clever than actually saying to a child ‘you must touch my penis’. Aren’t they?
Ms [C]: ‑‑‑In many cases, yes.
Ms Gillies:In many cases, especially in interfamily child sexual abuse, there are methods of coercion that are used in terms of getting a child to participate in a sexual activity with an adult, aren’t there?
Ms [C]:‑‑‑Yes, there are a range of psychological or physical coercion methods that would fall under grooming within intrafamilial or sexual abuse.
Ms Gillies:And thing is with interfamilial sexual abuse, that it’s the case, isn’t it, that physical force or violence is rarely used?
Ms [C]:‑‑‑Beyond what’s required to gain the child’s participation, that’s correct.
Ms Gillies:That, in fact, in interfamilial abuse it’s more often than not that the perpetrator tries to manipulate the child’s trust as well?
Ms [C]: ‑‑‑Yes.
Ms Gillies:More often in child sexual abuse, it’s perpetrated by a known and trusted caregiver?
Ms [C]: ‑‑‑Which is the definition of interfamilial abuse. Yes.
Ms Gillies:Yes. That child sexual abuse within a family often occurs over many weeks or even years?
Ms [C]: ‑‑‑That’s correct.
Ms Gillies:That child sexual abuse generally frequently occurs as repeated episodes that become more invasive with time?
Ms [C]: ‑‑‑Yes.
Ms Gillies:And that perpetrators usually engage the child in a gradual process of sexualising the relationship over time?
Ms [C]: ‑‑‑That’s right. Yes.
Ms Gillies: And that’s what we refer to as grooming, isn’t it?
Ms [C]: ‑‑‑Yes.Ms Gillies:Now, we’ve – you’ve spoken about that the child is directed – I can’t remember the word you used, I’m sorry, but certainly, that there’s an instruction that the child perform a sexual activity. And I think you’ve agreed with me that that doesn’t have to be explicit; it can in fact be implicit?
Ms [C]: ‑‑‑If I can rephrase that as an invitation.
Ms Gillies: Right?‑‑‑Yes.Ms Gillies:And the invitation might be something like this, for example: a perpetrator bathes with a child. The penis, in this particular instance, is something that the child is aware of. The child might touch it, the child might play with it, the child might peer at it in the water. If the perpetrator doesn’t say to that child, ‘stop’, if the perpetrator keeps bathing with the children and providing them access with their genitals to touch, that in fact is, I’m going to suggest to you, engaging the child in sexual activity, isn’t it?
Ms [C]: ‑‑‑To my mind, to my – yes, it may be.
However, the question is not whether the father was intentionally engaging the children in sexually abusive or grooming behaviour, or whether this behaviour is to be categorised as sexual abuse. The question to be answered is “Does this behaviour pose a future risk to the children against which safeguards must be put in place?”
The answer to that question is “Yes.”
The father has engaged in behaviour with the children that he, himself, said was inappropriate.
He has allowed the children to touch and fondle his genitals and treat his penis as a plaything. By not discouraging them from those activities he has tacitly encouraged them. That behaviour, on his evidence, continued over about two years. It took place in private, in the bath with the children. It took place in public as witnessed by Ms J.
On no occasion, before separation, did the father attempt to stop the interaction, either by distracting the children or otherwise. The only time the activity was brought to an end was when the mother stopped it, in the car and on 29 October 2016 when the mother removed the twins from the bath.
As recently as March 2018 Y attempted to massage her father’s genitals, albeit through his clothes. In May 2018, X fondled her father’s penis because she liked the way it felt.
In cross-examination, Ms C was asked what safeguards, if any could be put in place to protect the children if there were to be no supervision. The passage of transcript is reproduced below:
Her Honour: You can see that, from my point of view, there are no black and white answer about whether these children will be safe?
Ms [C]:‑‑‑Yes.
Her Honour: What sort of safeguards would I have to put in place? Just assume that I were to do what you suggest and say these children could spend time with their father unsupervised; what sort of safeguards can I put in place that can reassure me that the children will be safe; that there will be no repetition of this sort of behaviour?
Ms [C]:‑‑‑There are things such as the ongoing sessions with [Ms B] and my view is that they should be scheduled at regular intervals. So not relying on the children to say, ‘I would like to see [Ms B],’ or, ‘I would like to see someone,’ but having those scheduled and set in place and for [Ms B] to be aware that part of her role in that is checking with the kids, ‘Are you feeling safe at dad’s? Are you feeling safe at mum’s?’ to actively keep that on the agenda. The reason I recommend [Ms B] around that is because my understanding is that she has experience in relation to Family Court issues and parents with unresolved conflict, rather than a service that focuses on sexual abuse or trauma that may not have that – that level of understanding. So the sessions with [Ms B] or somebody equally qualified would be part of that. The other thing that you can put in place, and this is something that we do with families where there has been substantiated sexual abuse by a parent, but that parent is living in the home with the children is to put in place things such as safety plans around guidelines for what happens. You know, who goes into the – into the bedrooms at what time; who goes into the bathrooms; level of clothing. There’s things like those protective behaviours for the children, bearing in mind that it’s important that’s done in a way with them that doesn’t elevate their anxiety. The responsibility for this needs to rest with [the father], for him to manage himself and his behaviours, but for there to be other adults around who are able to check in and make sure that he’s keeping to those agreements. For the children to be really clear about what the rules are and to know who they can speak to if any of those rules are transgressed.
Her Honour: But that’s supervision though, isn’t it?
Ms [C]:‑‑‑It’s not supervision, because it’s – it’s not that active in real time focus. The other thing that I would suggest doing would be that it’s similar rules across the two homes; similar rules at mum’s; similar rules at home. If there are differences around those rules then there’s discussion with the children about that and that that – those differences are normalised in terms of that mothers have different roles to what fathers have with children, with girls, for those reasons.
Her Honour: If I have to put in place – you call it a plan. I can’t make plans, I can only make orders, so an order that the father not bath with the children; that he not allow them to touch his genitals; that he not be naked with the children. The mere fact that one would have to make those orders would suggest that these children shouldn’t be with him unsupervised, would it not?
Ms [C]:‑‑‑I’m sorry, I disagree. Based on my experience, as I’ve said, of working with families where sexual abuse has not only been substantiated, but where the perpetrator has admitted that and has acknowledged those behaviours.
Ms Gillies: But in those families there’s a mother at home being vigilant, is there not?
Ms [C]: ‑‑‑Not always.
Ms Gillies: But sometimes?
Ms [C]: ‑‑‑Sometimes, yes, but not always.
I consider that the father’s actions as have been described in these reasons pose a risk to the children of harm if they are repeated.
In considering what level of protection is necessary to ensure that past behaviours are not repeated, the question is whether the father really accepts that his actions were inappropriate and the level of his understanding.
Although in cross-examination at times he referred to his actions in allowing the children to explore his genitals as “inappropriate”, nowhere in his two trial affidavits does he make that admission.
In cross-examination, the father repeatedly referred to the children’s handling of his genitals as “innocent”, “benign”, “displaying curiosity”.
In not one of the incidents which occurred before separation, about which the father was cross-examined, did the father make any attempt to stop the children from touching his genitals. The behaviour was stopped, or children distracted, by the intervention of the mother or Ms J.
In March 2018, when the father spoke to Ms C, a number of things had happened. The issue of inappropriate touching had been discussed by the parents with Dr E. These proceedings had commenced and the mother’s concerns had been set out in affidavit form. The twins had been interviewed by JIRT and Z by DFCS. The father had been interviewed by DFCS. The father’s time with the children was being professionally supervised. Proceedings had been commenced by the police in the Local Court seeking orders for the protection of the children and the mother and the father had made a statement to police. The parents had been interviewed by a Family Consultant.
Ms C reports, of her conversation with the father:
[The father] recognised that the children have been “curious” at points about his genitals and that he “never took a strong response” as he “didn’t want to stigmatise the idea of body parts”. This is consistent with his account at the JIRT interview on 27/10/2018, details contained in the [DFCS] records. He said that after the incident in the bath in which [the mother] alleges [X] had her hands around his penis, he spoke with [X] about how children can have baths with parents but that they “can’t touch anybody else’s private parts”. [The father] believed that [the mother] was overly focused on boundaries in the house and he did not want to “add to that”. After [the mother] raised concern about [the father’s] behaviour with Dr [E], Dr [E] reportedly told [the father] that “if the kids are curious about your genitals, then you should distract them or gently move their hand away and stop it”. However, [the father] said that nobody had ever told him that his behaviour had been inappropriate. This is a curious position to take given that he was subject to an interview with JIRT about this issue. When I put my view to [the father] that his behaviour was indeed inappropriate and that he should have responded more clearly at an earlier point, he indicated that he would “take that on board” and that he had “never been resistant to input about this”. It is curious that [the father] was still bathing with the children at age five, given that they would be capable of bathing alone with assistance and supervision by an adult outside the bath.
Ms C reported that the father said that the mother had never previously (I infer before 29 October 2016) raised any concern that his behaviour was “sexualised”. However, it was clear as the evidence unfolded that the mother was not aware of the behaviours in which the father and the children engaged until that evening and, in fact, she only became aware of the extent of the children’s allegations when they were interviewed by JIRT and of the father’s admissions when he was cross-examined.
It is difficult to understand how the father could maintain, to Ms C, against the background set out above that “nobody had ever told him that his behaviour had been inappropriate”.
The father could not explain in cross-examination why it would have been necessary for anyone to tell him his behaviour was inappropriate.
Dr E said in cross-examination that he had discussed the “bath incident” with the father. Dr E did not have the benefit of the children’s statements or the father’s admissions. Dr E said that the tone of the father’s responses in their discussion was that “it was innocent play”.
Ms R, a close friend of the father, who gave evidence on his behalf both in these proceedings and in the Local Court, said in cross-examination that she had read the interviews of the twins by JIRT and that the content raised no concerns for her about inappropriate sexual conduct by the father.
Ms R said that she had discussed the issues with the father on a number of occasions, most recently in January 2019, and that he had not told her that he perceived any of his interactions with the children had been inappropriate.
Mr U, the father’s very close friend, said in cross-examination that he had discussed the allegations with the father and that neither he nor the father saw anything inappropriate in the father’s behaviour. Mr U had not read the transcripts of the JIRT interviews and believed that the allegations involved one of the children touching the husband’s penis in the bath on one occasion.
I have no confidence that the father really appreciates how inappropriate his behaviour has been or that, absent the presence of a supervisor, those behaviours would not be repeated. The risk of repetition of such behaviour may not be high, because the father has been made painfully aware of the opprobrium which would accompany such behaviour, but it is not a risk that is acceptable.
The risk can be ameliorated by supervision.
I accept the evidence of Ms C that supervision can affect the quality and nature of the children’s interaction with the father, although Ms C also said that whether that might occur would depend to some extent on how the adults presented the supervision to the children. Ms C’s oral evidence was in response to questions about limited time in a contact centre but I can infer that, even in a home setting with a supervisor present, there might be some constraints on the children’s experience of a natural interaction with their father.
There is no suggestion that the contact these children will have with their father will be limited to a few hours each week in a contact centre. They currently see him on two afternoons during the week and on a full day on the weekend in the presence of a supervisor and there is no suggestion that regime could not continue.
Supervision is necessary to protect the children.
Professional supervision is necessary in the absence of any proposal by the father for family or friends to supervise.
WHEN SHOULD SUPERVISION BE LIFTED
In the course of submissions, counsel were asked what evidence should be necessary to establish that there was no longer any risk to the children and supervision was no longer required.
It is not possible to formulate a set of criteria which would indicate that it is appropriate, and in the children’s interests, that supervision cease.
The twins are now aged eight years and will be 10 years old in April 2021. At that time, the father should be permitted to bring an application to vary the Orders for supervision.
PARENTAL RESPONSIBILITY
The mother seeks sole parental responsibility for the children and the father seeks that the parents have equal shared responsibility.
The issues to which this determination is relevant are the major long-term issues which are defined as:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
It is not suggested that issues of religion, the children’s names or where the children live are likely, in the future, to be controversial.
The mother’s case was that communication with the father has been difficult and that they have, in the past, had difficulty in agreeing about Z’s attendance at her present school and about matters relating to the children’s health.
In relation to the schooling issue, although there was a process of negotiation between the parents, they were ultimately able to agree and Z started school at her new school.
The mother pointed to correspondence in relation to health issues that were the subject of emails between the parents. The emails were respectful and appropriate and the parents were able to agree.
I accept that the mother finds the father’s communication style difficult to manage but that is not a sufficient reason to exclude the father from the process of making important decisions fundamental to the children’s future.
The parents will have equal shared parental responsibility.
ANCILLARY ISSUES
Each of the parents sought a raft of Orders directed to ancillary issues. The ICL also sought ancillary Orders.
No attempt was made by the legal representatives to compare the Orders sought so as to ascertain where they might agree, where they disagreed, and what the points of difference were.
No submissions were directed to the ancillary Orders with the exception of the issue of the father’s psychiatrist notifying the mother if the father were not compliant with his treatment regime. This issue will be addressed separately.
In the event that the parties wish me to resolve the issues which are found in Orders 5.2-7 and 11-25 of the mother’s application; 4 to 18 of the father’s application and 6 to 23 of the ICL’s Minute of Orders then they shall:
· Prepare a joint schedule setting out the issues to be determined and the areas of agreement and disagreement.
· Each prepare a document setting out where the evidence upon which each relies in relation to each issue is to be found.
· Make written submissions in relation to each issue.
Those issues will be determined in chambers.
I propose to deal with two issues raised by the ICL, those being ongoing counselling for the children with Ms B and monitoring the father’s compliance with treatment.
I do not understand there to be an issue that the children should continue their counselling with Ms B and that both parents should be involved in that counselling, at the direction and discretion of Ms B.
The frequency and configuration of those counselling sessions should be a matter for Ms B.
The parents should equally bear the cost.
Ms B should be provided with a copy of Ms C’s report and a copy of these reasons.
The ICL seeks an order that the father authorise Dr E, or any future treating psychiatrist, to provide the mother with confirmation that the father is attending appointments and is taking medication as prescribed.
The father in oral evidence said that he would agree to that proposition.
Dr E in cross-examination indicated that, if so directed, he would comply but he also expressed concerns about the effect of such a regime on the therapeutic relationship.
The father has been diagnosed with Bipolar II. The evidence is that this is a lifelong condition and the success of management depends on the father’s willingness to comply with treatment and a relationship of trust between patient and psychiatrist. It is clearly in the children’s interest that the father’s illness remains controlled and that there is no “breakout” of the symptoms the father has exhibited in the past. If the father chooses to instruct Dr E to keep the mother informed of his compliance, or to inform her in the case of non-compliance, then Dr E will no doubt comply with his instructions. However I do not propose to place any condition on the therapeutic relationship that has the potential, however small, to jeopardise that relationship.
I certify that the preceding 221 (two hundred and twenty-one) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 29 March 2019.
Associate:
Date: 29 March 2019