White and Mathers

[2012] FamCA 645

FAMILY COURT OF AUSTRALIA

WHITE & MATHERS [2012] FamCA 645

FAMILY LAW – CHILDREN – Magellan proceedings – sole parental responsibility – with whom a child lives – best interests of children – allegations of child sexual abuse – meaning of unacceptable risk – relevant standard of proof – consideration of child sexual abuse allegations– whether it is appropriate for the father to spend supervised time with the children – where it is appropriate for the father to spend supervised time with one child.

Family Law Act 1975 (Cth): ss 60B; 60CA; 61DA; 65D; 65DAA; 60CC

Cowley & Mendoza [2010] FamCA 597
M v M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
W and W (Abuse allegations:  unacceptable risk) (2005) FLC 93-235

APPLICANT: Mr White

RESPONDENT: Ms Mathers

FILE NUMBER: PAC 1140 of 2011

DATE DELIVERED: 3 August 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 19, 20, 21, 22 June 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Santisi

SOLICITOR FOR THE APPLICANT: Denison Toyer

COUNSEL FOR THE RESPONDENT: Ms Judge

SOLICITOR FOR THE RESPONDENT: Sharee Cassel & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW Parramatta

Orders

1. That the mother have sole parental responsibility for the children T born  on … October 2002 and C, born on … September 2005 (hereinafter referred to respectively as “T” and “C”).

2. That T and C live with the mother.

3. That T spend no time with the father.

4. That C spend time with the father for a period of two hours each calendar month to occur on either the first Saturday or Sunday of each month.

5. That for the purposes of C spending time with the father in accordance with Order 4 such time shall:

   5.1occur and be supervised by staff at a contact centre (‘the contact centre’) agreed by the parties or, failing agreement as nominated by the Independent Children’s Lawyer (ICL);

   5.2be for a period of not less than two hours on each occasion at times convenient to the manager of the contact centre in consultation with each parent.

6. That each parent shall:

   6.1arrange a time for an Intake Assessment with the manager of the contact centre within seven (7) days of agreement or nomination by the ICL;

   6.2      participate in the assessment as scheduled;

   6.3comply with any appointments made by the manager of the contact centre for supervised time in compliance with these orders;

   6.4pay equally the fees nominated by the manager of the contact centre for the provision of its services.

7. The father shall be at liberty to obtain from both children’s school details regarding their progress, including school reports, regardless of any authority the mother may or may not have provided to the relevant school and the mother shall ensure the father is kept informed as to the current school attended by both children.

8. That the mother shall ensure that T’s therapeutic relationship with Ms M and any other counsellor/psychologist from … concludes with Ms M conducting one final session only with T.

9. That the Mother obtain a further referral for T to attend upon a general child and family counsellor/psychologist, such individual to be selected in consultation with the Independent Children’s Lawyer.   The selected health professional shall be provided with a copy of the published Judgment in this matter prior to commencing their therapeutic relationship with T.

10. That the Father is at liberty to provide a copy of the Judgment and Orders herein to any therapist whom he may engage to assist him with future conduct of his relationship with the children.

11. 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 the parties adjust to comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym White and Mathers 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: PAC1140 of 2011

Mr White

Applicant

And

Ms Mathers

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

1. Mr White and Ms Mathers are the parents of two children: 

   T born in October 2002 (9) and;

   C born in September 2005 (6).

   They strongly disagree as to the arrangements which should be put in place for the care of their son and daughter. 

2. The applicant/father sought that the parties have equal shared parental responsibility and that the children live with the mother.  He proposed that they spend time with him each alternate weekend from the conclusion of school on Friday until 7.00 pm on Sunday; in each other week from the conclusion of school on Thursday until 7.00 pm on Saturday; for half of all school holidays and on special occasions.  The respondent/mother proposed that she have sole parental responsibility; that the children live with her and that they spend no time with the father.

3. The Independent Children’s Lawyer (“ICL”) proposed that the mother have sole parental responsibility and that the children live with her.  Ultimately, the ICL submitted that T should spend no time with the father and that C should see him for two hours per month at a contact centre. 

4. The mother alleged that the father sexually and emotionally abused T and C.  She alleged further that he sexually, emotionally and physically abused her son S.  S was born in January 1997 and is now 15 years old.  He was four years of age when the parties began to live together. 

Background             

1. The father was born in 1976 and is now 36 years old.  The mother was born in 1977 and is now 35 years of age.  They met in April 2001 and began to live together in August 2001.  They first separated late in 2008, when the mother and children left the former matrimonial home and went to live with the maternal grandparents. 

2. In February 2009 the parties reconciled and purchased a house at Suburb D. The family lived there until the final separation on 22 September 2010, when the mother and three children again moved into the home of the maternal grandparents. 

3. In July 2011 the mother commenced a relationship with her current partner, Mr W, who had been her high school boyfriend.  They began to live together with the three children in November 2011.  Mr W’s daughter, H born in June 2001, spends time in their home pursuant to a flexible arrangement between her parents. 

4. In February 2012 S went to live with his father Mr K, his wife and four children.  He spends alternate weekends and half the school holidays with the mother and is free to move between the homes of his parents.  There are no orders in place in respect of S. 

5. After the final separation the children spent time with the father each alternate weekend and on midweek occasions.  This arrangement ceased on 27 January 2011, when the mother made allegations to Community Services, NSW Department of Human Services (“the Department”) that the father sexually abused T and C.

6. In mid February 2011 a provisional AVO was issued against the father on an  ex-parte basis for the protection of T and C.  Six days later an interim AVO was made against the father for the protection of the mother, T and C. 

7. In August 2011 interim orders were made by consent, which provided that the children live with the mother and spend time with the father for two hours each fortnight at a contact centre.  The children have not spent time with the father pursuant to these orders.

8. A Joint Investigation Response Team (“JIRT”) interviewed T on 11 February 2011, C on 3 February 2011 and S on 9 May 2011.  In April 2011 departmental officers interviewed the father.  He denied the allegations, which he claimed were “driven” by the mother’s “jealousy”.  On 21 April 2011 departmental officers concluded:  “sexual abuse and psychological harm has been substantiated for [T].  Psychological harm and risk of sexual harm has been substantiated for [C].”   

9. Since 11 April 2011 T has received sexual assault counselling from Ms M, a psychologist employed by the region’s Local Area Health.  S saw a psychologist, Ms L on a number of occasions in 2011 pursuant to a referral from Victims Services.  The mother seems to have been present during several of these counselling sessions with T and S. 

The Evidence and Witnesses

1. The applicant/father relied on the following affidavits:

   i)        Mr White (the father) sworn on 16 June 2012

   ii)       Ms V (a friend of the father) sworn on 27 May 2011.

   iii)      Mr P (a friend of the father) sworn on 27 May 2011.

   iv)       The father’s sister sworn on 1 June 2011.

   v)        Mr G (an acquaintance of the father) sworn on 22 July 2011.

   vi)       Mr N (a friend of the father) sworn on 27 May 2011.

   vii)     The paternal grandmother sworn on 30 May 2011.

   viii)     The father’s sister-in-law sworn on 17 June 2011.           

2. In closing submissions counsel for the ICL suggested that the mother and father were “equally unreliable” as witnesses.  For reasons which will become apparent, I agree with this observation.

3. The ICL cited, as an example of this unreliability, their evidence as to an incident when they both attended a massage parlour.  In her affidavit the mother deposed that the father told her that he received “sexy massage in underwear” at the establishment and made no mention of any occasion when she accompanied him.  In his affidavit the father deposed that he received “massage therapy for [his] legs”, which he needed because of his participation in competitive sport.  In cross-examination the mother said that she went to the massage parlour with the father “to see what happened” and observed that the masseuse was naked.  She said that she engaged in sexual activity with the masseuse but attempted to blame the father, saying “it was after years of [the father] asking me to do sexual things”.  The affidavit evidence of each of the parties obviously fell well short of frankness in respect of this incident.

4. Ms V offered a glowing testament to the character of the father and his capacity as a parent.  In cross-examination it became clear that she knew little of the issues in these proceedings.  With respect to her, I found the evidence of Ms V to be of little assistance. 

5. Mr P also offered a glowing tribute to the father’s character and attributes as a parent.  He gave an account of an incident when he was staying in the parties’ home and T became afraid of the dark during the night.  He deposed that the mother raised her voice at the child when she cried, in contrast to the father who “calmed her and settled her down”.  In cross-examination Mr P said:  “[The father] asked me to prepare affidavits.  He asked if I could recall any events, arguments, actions by [the mother], treatment of the kids.”  In relation to the father, he conceded that “I had previously heard him raise his voice, swear at the children, use the ‘f’ word in front of them”. 

6. The father’s sister swore an affidavit which was most praiseworthy of the father and highly critical of the mother.  In cross-examination she left no room for doubt about her attitude to the mother.  She said:  “I have never given her the time of day.  I never approved of her, I tolerated her because [the father] loved her.  She preyed on my brother like a black widow spider when he was vulnerable.” In light of such animosity toward the mother, the evidence of the father’s sister must be treated with considerable caution.

7. Mr N has known the father for some twenty two years, having met him as a junior in competitive sport.  He was very laudatory of the father as a person and a parent.  Mr N deposed that he had dinner with the parties at their home three or four times.  On one of these occasions he and the father drank wine to a point where they were intoxicated.  The father showed him a photograph of the mother “in her lingerie”.  Approximately one hour later the mother appeared scantily clad in lingerie and she and the father went to their bedroom.  Mr N joined them in the bedroom and engaged in sexual activity with the mother in the father’s presence.  He observed the parties engaging in sexual activity with each other.

8. On a subsequent occasion Mr N and a female work colleague of the mother joined the parties for dinner at their home.  After the meal the mother and her work colleague engaged in sexual activity with each other in the presence of the father and Mr N.  The father engaged sexually only with the mother but Mr N performed sexual acts with both women.  Mr N was very clear in his affidavit that he observed no coercion of the mother by the father on these occasions.  His evidence was entirely untested. 

9. Mr G is a young man who shares the father’s interest in competitive sport.  He was 18 years old when he swore his affidavit and 19 when he gave evidence at the trial.  In his oral evidence he said: “I guess [the father] was a bit of a hero in [the sporting] circles in my view when he invited me to his house in 2009”.  Mr G deposed that the father invited him to his house to watch a video of sports in the United States.

10. According to G, the mother arrived home at approximately 10.15 pm and he and the father began to joke “Nurse […] in the house”.  Mr G explained that the mother had posed in a nurses’ outfit in a sporting magazine when the father injured one of his legs.  While he and the father continued to watch the video, the mother appeared wearing a nurses outfit and “almost naked” in Mr G’s words.  He said that the mother stated to him “this comes out for special occasions and photo shoots take your camera out and go for it [Mr G]”.  He annexed to his affidavit photographs of the mother which he took with his telephone.    

11. Mr G deposed that the mother “progressively removed her clothing as she performed.  This went on for about ten to fifteen minutes”.  The photos certainly showed the mother in a progressive state of undress to a point of near nudity.  Mr G was firm in his affidavit that he saw the father do nothing “which forced or compelled [the mother] to do what she did.  From what I saw [the mother] did this of her own freewill and appeared to be quite willing and aroused by what she was doing.  “She looked quite aroused from her facial expression and poses and body movements and the touching of her body parts.”  

12. Mr G deposed further that he subsequently received a text message which attached photographs and a video.  This material depicted a naked woman masturbating herself.  Mr G deposed: “I recognised that it was [the mother] from the breasts and tattoos as I had seen them when she performed at her house for me.”  The photograph attached to these messages showed a naked woman masturbating herself. 

13. The paternal grandmother deposed to her observations of “fits of rage” on the part of the mother and “neglect” of the children at his sporting events.  The paternal grandmother conceded in cross-examination that the father “shouted back on occasion”.  She described her involvement with the father and the children after the final separation.  I will refer to this evidence below in these reasons. 

14. The father’s sister-in-law presented as a reasonable and balanced witness.  She deposed to incidents when the mother shouted at the father and made sexually explicit comments in the presence of T, C and S and her children.  Significantly, in cross-examination she said: “[the mother and the father] treated each other appallingly”. 

15. The respondent/mother relied on the following affidavits:

    i)        Ms Mathers (the mother) sworn on 8 June 2012.

    ii)       Ms M (T’s sexual assault counsellor) sworn on 31 May 2012.

    iii)Mr W (the mother’s partner) sworn on 6 June 2012.

16. Ms M presented as a well intentioned professional person but, obviously, she was aware only of the mother’s version of events.  She was clear that she had no role in determining the validity of the allegations that the father sexually abused T.  I will consider her evidence in some detail below in these reasons.

17. Mr W created a favourable impression as a witness.  He has a flexible, corroborative co-parenting arrangement in relation to his daughter, whom he sees usually on twelve days each fortnight. 

18. I had the benefit of a report dated 24 February 2012 and oral evidence from Family Consultant Mr R.  It would be fair to say that Mr R formed an adverse view of the capacity of each of the parents to prioritise the children’s needs over their own.

Approach To These Proceedings

1. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) provides that the objects of Part VII are to ensure that the best interests of children are met and sets out how that purpose is to be achieved (s.60B(i)); the principles which underlie these objects (s.60B(2)) and bestows a specific right in an Aboriginal or Torres Strait Islander child to enjoy his or her culture (s.60B(3)).

2. Section 60B provides:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)to maintain a connection with that culture; and

   (b)to have the support, opportunity and encouragement necessary:

   (i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)to develop a positive appreciation of that culture.

3. Section 60CA provides that, in deciding whether to make a particular parenting order, the Court must regard the best interests of a child as the paramount consideration. Section 60CC sets out two primary and 13 additional considerations to which the Court is required to have regard when determining what orders are in a child’s best interests. Section 60CC(4) requires the Court to consider the extent to which each parent has fulfilled or failed to fulfil responsibilities as a parent in specified respects. The Court must consider the extent to which a parent has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to a child and to spend time and communicate with a child. The Court must also consider the extent to which a parent has facilitated, or failed to facilitate, the other parent making long-term decisions and spending time and communicating with a child. I will set out and refer specifically to the primary and additional considerations below in these reasons.

1. Section 61DA(1) requires the Court, when making a parenting order, to apply a presumption that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.  Section 61DA(2) provides that this presumption will not apply if there are reasonable grounds for the Court to believe that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence or abuse of the child or another child who is a member of the parent’s family.  Section 61DA(3) provides that this presumption may be rebutted by evidence which satisfies the Court that it is not in a child’s best interest for his or her parents to have equal shared parental responsibility.

2. Section 65D of the Act contains the Court’s power to make a parenting order. This section provides:

   (1)In proceedings for a parenting order, the court may, subject to sections 61DA (presumption of equal shared parental responsibility when making parenting orders) and 65DAB (parenting plans) and this Division, make such parenting order as it thinks proper.

3. An order for a child’s parents to have equal shared parental responsibility carries consequences which are set out in sub-ss 65DAA(1) and (2).  In these circumstances the Court must consider whether it is in a child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent.  If there is an order for equal shared parental responsibility and no provision for a child to spend equal time with each parent, the Court is obliged to consider whether it is in his or her best interests, and reasonably practicable, for the child to spend substantial and significant time with each parent.

4. There is no temporal definition of “substantial and significant time” in the Act. Section 65DAA(3) sets out requirements for a parenting arrangement to fulfil this definition. It is necessary for a child to spend time with a parent on weekends, holidays and at other times; that a parent is able to be involved in the child’s daily routine and events which are of particular significance to the child and that the child is able to be involved in events which are of special significance to a parent. The Court is permitted to take into account additional matters in determining whether the time which a child spends with a parent is “substantial and significant”:  s.65DAA(4).

5. The concept of “reasonable practicability” is considered in s.65DAA(5) of the Act. The Court is required to take into account certain matters when determining whether it is “reasonably practicable” for a child to spend equal or substantial and significant time with each parent.  These matters include, but are not limited to, the distance between the parents’ homes; the parents’ current and future capacity to implement an equal or substantial and significant time arrangement; the parents’ current and future capacity to communicate and resolve difficulties and the impact of such an arrangement on the child. 

6. In MRR v GR (2010) 240 CLR 461 the High Court said:

   9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA requires 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. Sub-section (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 subsections (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.

7. The High Court said further in MRR v GR (2010) 240 CLR 461:

   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 (18). If such a finding cannot be made, sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (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.”

8. The High Court held further:

   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.

9. In Cowley & Mendoza (2010) FamCA 436 at [41], Murphy J summarised the relevant principles as follows:

   “41.The decision in MRR, in combination with the legislative requirements (and bearing in mind the Full Court’s decision in Goode v Goode (2006) FLC 93-286), would, then, appear to me to require a court contemplating the making of parenting orders to:

   ·First apply a presumption that it is in the best interests of the subject children for their parents to have equal shared parental responsibility in respect of them;

   ·Next, make findings as to whether any “family violence” or “abuse”, as each is defined, exists;

   ·Further or alternatively, then make findings, by reference to s.60CC(3) about such matters pertaining to best interests relevant to the issue of whether parental responsibility should be shared equally;

   ·Determine, accordingly, whether the presumption of equal shared parental responsibility is, as a result of findings about each (or, perhaps, both) of the above matters, respectively, inapplicable or rebutted or, presumption or not, whether such an order should be made;

   ·If the presumption is inapplicable or rebutted, and such an order should not otherwise be made, make findings about best interests relevant to a determination of what ultimate orders are in the best interests of these particular children in their particular circumstances (s.65D; s.60CA; s.65AA).  (As the Full Court put it in Goode, the enquiry about best interests is “at large”);

   ·If the presumption is not inapplicable or rebutted, or if it be determined that an order for equal shared parental responsibility should in any event be made, the court must (s.65DAA) then proceed to:

   oMake findings as to whether the subject children’s best interests are best met by an order for equal time; and

   oMake findings as to the matters prescribed in s.65DAA(5), and, as a result;

   oMake findings about whether an equal time order is reasonably practicable (that is, in the words of the High Court, make “a practical assessment of whether equal time parenting is feasible”); and

   oIf it is not, conduct the same process, but this time with findings directed to a consideration of whether a “substantial and significant time” order (as defined – see s.65DAA(3)) should be made;

   ·If neither an equal time order, nor a substantial and significant time order, should be made, proceed to determine the orders which the earlier findings point to being in the subject children’s best interests. (s.65D; s.60CA; s.65AA).”

10. I respectfully agree with his Honour’s analysis, which I will apply in the determination of these proceedings.

11. A leading decision on the approach to allegations of sexual abuse of children is that of the High Court of Australia in M v 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.

12. In M v M the High Court identified the relevant standard of proof as (at pp76-77):

    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.

13. 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 that the 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.

14. The High Court in M v 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.

15. In W & 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 v 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.

16. The Full Court in W & W cited with approval the following passage from the judgment of Fogarty J in N and S:

    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 in the determination of the issue of “unacceptable risk”.

The Presumption of Equal Shared Parental Responsibility

1. These proceedings will result in the making of parenting orders. Consequently I am required to apply a presumption that it is in T and C’s best interests for their father and mother to have equal shared parental responsibility.  For that purpose it is necessary to examine the evidence in relation to the mother’s allegations that the father sexually, emotionally and physically abused T, C and S.  It is equally necessary to examine whether the mother subjected T to psychological abuse, in the event that the allegations are ultimately found to lack validity.

2. The mother alleged that she began to have concerns about the father’s conduct toward T when she was six to eight months old.  She deposed that she saw him with an erection while holding T in the bath.  The father denied that any such incident took place and maintained that the mother frequently handed the children to him to wash when he was in the bath or shower.  He said that the mother also showered with the children.  The mother took no action in respect of this alleged incident.

3. The mother also deposed that she saw the father urinating on the children in the shower.  She said that she saw him showing the boys how to urinate on him.  The father maintained that the boys “liked sword fighting by urinating” and denied that he was involved in this behaviour.  The mother deposed that she saw T arching her back and attempting to urinate on the father in the shower.  She said that she challenged the father and he said “she can play the games we play.  You are just a do-gooder and paranoid”.  The father denied any behaviour involving urination between himself and T.  As noted below, S gave a convincing account to a Joint Investigation Response Team (“JIRT”) of the father urinating on him in the shower. 

4. The mother referred to an alleged incident when T was three or four years old.  She said that she was bathing the child, who said:   “I found a hole in my winky”.  She then observed T try to put a toy into her vagina.  The mother said: “Don’t do that” and T replied: “daddy does”.  The mother said: “What do you mean?” and T replied: “daddy did it with a brush”.    

5. The mother deposed that she told the father what T said to her and informed him that she had made an appointment with a paediatrician.  She claimed that the father said:  “You fucking sick slut.  What are you accusing me of?”.  He denied that any such conversation occurred and that he was informed of the appointment with a paediatrician.  He denied that he perpetrated any such act upon T. 

6. T saw a paediatrician, Dr A, on 14 October 2005.  In his report of the same date Dr A wrote “[T] told her mother […] this week ‘Dadda put his willie there’ and pointed to her vulva – groin region.  She repeated this when questioned by her parents.  [The mother]  understandingly was very concerned regarding this statement.  Her husband was understandably upset and denied this verbally”.  Assuming that Dr A accurately reported the history provided to him by the mother, that account varies significantly to the version of the alleged event which she set out in her affidavit.

7. Dr A carried out a physical examination of T and identified no abnormalities.  The Magellan report (Exhibit 3) noted that: “These reports were not accepted for investigation by the Joint Investigation and Response Team at the time due to the age of the child, a lack of content around the disclosure and no supporting medical evidence.”

8. The Magellan report noted that there were two complaints “raising concerns for the safety and sexual harm of the children in 2006.”  These reports were not allocated for investigation.  In oral evidence the mother said that she did not know who made these notifications.

9. The Magellan report referred to two notifications “relating to domestic violence” in 2008.  The first report was an allegation that the father punched the mother on the back and put his hand around her throat during an argument.  The second notification referred to a verbal dispute between the parents in the presence of the children in the family car.  The family were referred to the Brighter Futures program but declined assistance from this service.

10. According to the mother, T told her shortly after Christmas 2010 that she was scared of the father and did not want to go to his house.  When she asked the reason T said that she found “it hard to tell”. 

11. The mother deposed that on 10 January 2011 T said to her: “I am very scared of daddy, he is trying to trick me, so I will forget how mean he was and how he would yell and scream and swear and not leave you alone and make you cry all the time, even if I cried mummy, daddy would not stop and he is buying me toys so I will forget the things he has done.  He tells [C] and me things about you all the time mummy, adult things.”  T said: “I’m scared that if I tell you things, he will come and hurt you or [C] or that he won’t bring [C] back.”  There was no evidence from the mother as to any preceding conversation between herself and T on this occasion. 

12. The mother deposed that T became very upset and could not settle to sleep on the nights of 29, 30 and 31 January 2011.  According to the mother she expressed fear of her father and in particular she said: “I’m scared daddy will hurt me that he is trying to trick me and take over my head and do what he did to you mummy.  I’m scared he will chase after us or take us away, break into Nan and Pops’ house and get us.  I remember lots of bad things mummy, lots of bad things”.

13. The mother deposed that on 31 January 2011 T said to her again: “I am scared of dad” and “I have lots of big worries.”  T then cried and said:  “I have a big secret mummy”.  The mother asked:  “What?” and T said:  “I am scared how daddy touches me in my rude part down there, I don’t feel comfortable how he touches it and cleans it.”  The mother said:  “How does he touch it and clean it?”  T said:  “I can’t tell you I’m scared.” 

1. On 11 February 2011 T was interviewed by JIRT case workers.  A transcript of this interview was in evidence as part of Exhibit 4.   T told the interviewers that she was there to talk about “worries”, most of which were “on dad”.  She said that she:  “wrote them down before [she] went to bed” and produced a book.  It seems to me to be necessary to set out the contents of T’s interview in some detail.

2. The interviewer first asked T about the “worry” which she expressed as  “mum and dad fighting”.  These exchanges took place:         

   Q.68 Yeah. Ok. So you’re worried that mum and dad are fighting. 

   A.  ah hmm 

   Q.69 Yep.  Tell me more about that?

   A. Well, that’s because when, ah, dad drops, mum drops us off, dad says mean           things to mum.

   Q.70. What kind of mean things? 

   A. Um, ‘f’ word.

   Q.71. Ok.

   A. That’s why I go in the car and I can block my ears.

   Q.72. Mm and what does mum say back, does mum say anything?

   A. Um, no, she just leaves.

   Q.73. Mm

   A. And she go, she she’s bring [S] with her in case.

   Q.74. ah hmm.

   A. And one night, um, mum was dropping us off and dad’s really missing mum cause she wanted us back, for, um, my cousin’s party [….]

   Q.75. Ah hmm ok

   A. And mum had to get us out of the car because dad wouldn’t listen and he kept on arguing and then we went back to my auntys and we enjoyed the rest of the party.

   Q.75. Ok, ok and when was the last time that mum and dad were fighting?

   A. Um, the last time we went to dad’s.

   Q.77. Last time you went..

   A. When she dropped us off at […] McDonalds.

   Q.78. Um and when was that?

   A. Um, I don’t know.

   Q.79. Ok

   A. And, um, once when we were at home and dad and mum were still together..

   Q. 80 Ah hmm

   A. .. they had a big fight and, um, dad throw, mum cooked dad some dinner and dad threw it down the sink and then he got a water bottle and smashed it on his head.

   Q.81. Ok, alright.

   A. And that was a bit scary.

   Q.87. Ah hmm.

   A…Public school, um, once they had a big fight and then we went back to nan and pops that was in 2008 and, um, then we stayed there.  Then they got back together because, and that’s when I got my DS Nintendo and then they, um, having fights and when we used to go to Wollongong, dad used to make mum get out of the car and mum, when we were at house, our house, dad used to not leave mum alone and mum used to try and hide but, um, she couldn’t because my dad wouldn’t leave her alone.

3. The JIRT interviewers then took T to her “worry” of her father “touching..in the rude part”.  The following exchanges then occurred: 

   Q.89. Tell me about that?

   A. Well, when I was little dad used to, a little while, but he used to wash my vagina with his fingers and I didn’t like it, it was uncomfortable. 

   Q.90.Ok. When was the first time that dad washed your vagina with his fingers?

   A. When I was five. 

   Q.92. And when was the last time that dad washed your vagina with his fingers?

   A. Mm, well, um, one month ago..

   A. .. or two months or three, I don’t know.

   Q. 94. One, two, or three months ago.

   A. Ah, hmm.

   Q. 95. And where were you one, two or three months ago when dad washed your vagina?

   A. Um at dad’s house.

   Q. 105. Ok.And where did dad, one, two or three months when you were at his house ..

   A. Yeah.

   Q. 105. .. where were you when he ..

   A. In the shower.

   Q. 106. In the shower. Ok. I wasn’t there one, two, or three months ago when dad had washed you on the vagina with his fingers, can you tell me everything you remember from start to finish?

   A. Mm, no. I can’t remember all of it.

   Q. 107. You can’t remember all of it.

   A. Well, its just when we were running late, for um, to pick up [E]..

   Q. 108. Ah hm.

   A. .. and, um, then it got late and then we couldn’t pick up [E].  When, he had to wash me quick so I could go to sleep.

   Q. 110. Yeah, so tell me more about when you were running late to pick up [E]?

   A. Um, because dad likes [E] to come over because dad is horrible at cooking, he can only cook, frozen dinners.

   Q. 122. Ah hm.

   A. And, um, we had a frozen dinner for dinner.  We had quiche.

   Q. 123. Yeah.

   A. And when dad rang, ah, and then we had the shower, then I went to bed and then I can’t remember what happened.

   Q. 135. So how did dad wash your rude part with his fingers?

   A. He’d do that and (rubs vagina area with fingers of left hand)..

   Q. 136. That’s ok.  You don’t have to demonstrate..

   A. Ok.

   Q. 136.. But can you describe it with words?

   A. Um, um, I don’t think so.

   Q. 137. You don’t think so.

   A. And he, when we were, when mum and dad lived at […], he used to get the sponge and wash it very roughly and quick..

   Q. 138. Ah hmm.

   A. .. and it hurt.

   Q. 139. Ok.And was anything said when dad was washing your vagina with his fingers?

   A. Um, I can’t remember.

4. The evidence did not spell out with any clarity the reasons why the allegations of sexual abuse of T were found to be “substantiated” by officers of the Department.  One consequence of this determination was that T has been referred for sexual assault counselling.

5. T made no specific complaint of sexual abuse by the father when interviewed by the Family Consultant.  He reported:

   64. [T] said things have gone a bit better with [Mr W]” living with them”.  She explained: “he has been helpful to us and calms us down and things.  He is very helpful.”  [T] was asked why she needed calming down; she said “Because I was a bit frightened”; she went on to explain “At nan and pop’s house I thought he was going to steal me”. [T] clarified that: “he” was “[the father]”; she said [the fahter] was: “my dad, but I don’t like to call him dad, I don’t like it”.  T was asked further about this and responded: “I don’t know, I just don’t”. 

   65. [T] was asked about her feelings about seeing her father that day.  She said: I don’t want to, I don’t like it he scares me” and “I don’t want to see him anywhere”.  [T] was asked further about this and said it was because of “the kind of things he done to me and I’m frightened of him a lot”.  [T] was asked further about this and said “I don’t really like to talk about it.”  [T] said however, that she had told her mother and “the counsellor [Ms M]” but she had not told anyone else.”

6. As noted, T has received sexual assault counselling from Ms M since April 2011. Some of Ms M’s notes were in evidence as part of Exhibit 4 and she swore an affidavit to which she annexed a report.

1. In her oral evidence Ms M said:

   In the first session I told [T] that someone had hurt or touched her in the wrong way and that she was here to talk about her worries. 

   The mother was present throughout [T]’s first counselling session with Ms M.

2. On 27 April 2011 T told Ms M that the mother had attended court that day.  Ms M noted:

   We spoke of the reason why her mother was at court and it was to continue to keep [T] and her siblings safe.

3. Ms M’s notes of the sessions between 27 April 2011 and 21 June 2011 clearly indicated that her counselling proceeded on the assumption that T was sexually abused by the father.  For example on 27 April 2011 Ms M reported:

   [T] said she felt scared “when dad said he was going to hurt mum” ([T]’s words).  [T] said when her father abused her she felt scared and sad.  [T] said she thinks about the abuse and tries to forget about it but can’t because she has “a really good memory” ([T]’s words).

   Consistent with her understanding of her role, Ms M at no stage questioned T whether she had in fact been abused by the father.

4. On 30 May 2011 Ms M noted that T brought her “worries book” and pointed to an entry titled “when dad touched me on the rude part”.  Ms M noted:

   [T] spoke about the first one briefly (“when dad touched me on the rude part”.)  [T] said she remembers it happening “heaps of times” and began counting the times, and then held up her hand and said “five times” ([T]’s words).  [T] spoke of feeling scared when this was happening.  [T] said she was also scared because her father told her that if she was to tell anyone then he would get into trouble with the police.  [T] said she ended up describing it to her mother because she did not want the abuse to continue…

5. On 7 June 2011 Ms M engaged T with a game involving toy animals.  She noted:

   [T] was worried about having to spend time with her father again because he was afraid “he would do the bad thing again” and when I clarified with [T] what this meant, she said: “touching me on the private part” (words to that effect).

   On 20 June 2011 Ms M noted:

   [T] also said she was worried about seeing her father because she is worried “that he will hurt mummy again and do those bad things” ([T]’s words). 

   Ms M “clarified” that, when T said “those bad things”, she was referring to “the sexual assault”.

6. As noted, Ms M made it very clear in her oral evidence that it was no part of her role to investigate the veracity of the allegations that T was sexually abused by the father.  She conceded:

   it is possible that irreversible harm may be being done to [T] if nothing happened.  Absolutely I agree it is important to correct that now.

   She said also:

   Of course I cannot exclude the possibility that the mother put her up to this.  I cannot in any case.

   and

   It is a possibility that counselling will reinforce a belief that abuse has occurred if it has not.

7. Ms M’s notes contained references by T to fears arising from having witnessed violence between her parents and involvement in the AVO proceedings.  On 30 May 2011 Ms M discussed with T her appearance in court the following week to give evidence in the AVO proceedings against the father.  On the same day she and her mother discussed the upcoming court event in T’s presence.  With T in the room, the mother told Ms M that the father telephoned her at work and that she “plans to charge him with a breach” of the apprehended violence order.

8. On 7 June 2011 T informed Ms M that the mother had “told her to look away if she saw her father before court”.  T told Ms M that “friends of her father had made up lies about her mother and they were at court to decide whether the children were allowed to see their father or not”.  In a game involving toy animals T said that the animals that represented her mother and father “didn’t like each other”. 

9. On 6 June 2011 Ms M discussed the Family Law proceedings and the role of the ICL with T.  Ms M noted “We spoke about the possibility that the court might allow her father to have contact with her.  [T] asked why and stated she did not want to see her father”. 

10. In her oral evidence Ms M said: “she has talked about a number of fears.  I would say the predominant fear is her father and the abuse the family has suffered, her sexual abuse and family violence.  It is hard to say if one is more prominent, as a general theme it was intertwined.”  Ms M said further “I took no steps to ascertain whether the mother is telling [T] too much.  Yes, it is a possibility that that is the source of her worries.”

11. In my view, the mother’s attitude to the father would render her very receptive to complaints about him by T.  The mother was the only witness who gave evidence that T complained of sexually inappropriate conduct on the part of the father.

12. It was evident that the mother’s current version of the incident which prompted her to take T to Dr A is inconsistent with the history which she provided contemporaneously.  The mother was unable to explain this discrepancy.

13. In the JIRT interview T’s complaints related to washing of her genital area by her father.   She specifically denied that he touched her vagina at any other time.  She told JIRT that the father washed her “rough[ly]” and that “it hurt”.  It could well have been that the father inadvertently and unintentionally caused T pain when he washed her genital area.

14. T has been counselled by Ms M on the basis that sexual abuse by the father is a fact.  The mother has had abundant opportunity to reinforce a belief on T’s part that the father sexually abused her.  T has given evidence in AVO proceedings against the father.

15. In my view, there is a plausible innocent explanation for T’s complaints that the father touched her in the genital area. She told JIRT that touching occurred only in the context of bathing and specifically denied any other occasions of concern to her.  There has been reinforcement of T’s belief that the father sexually abused her by Ms M and most probably the mother.

16. In these circumstances I am satisfied, and I find, that the father did not sexually abuse T.  Nothing in the evidence persuaded me that she would be placed at unacceptable risk of sexual abuse if placed in his unsupervised care.

17. The mother alleged that, when C returned from time with the father after the final separation, he spoke of “boobs, penises and arses”.  She deposed:

    [205] [C] said “Daddy has told me about women.  You do this to them”.  [C] then tried to touch my breast with his hands and poke his tongue out to give me a kiss on my face. 

    The father denied that he used these expressions in C’s presence or gave him any such instructions. 

18. The mother deposed further:   

    [209] on 23 November [C] and [T] were in the bath.  I was outside the bathroom door and I heard [C] say “[T] put the snake up my ass”. 

    [210] I immediately looked at the children in the bath and I saw [C] was on his hands and knees opening his bum cheeks passing a toy snake to [T].

    [211] I quickly went into the bathroom and said words to the effect [212] I said “I beg your pardon [C] it’s a bottom not an ass and why are you trying to put a toy in there, we don’t put things in our bottom who told you to put things in your bottom?”

    [213] [C] said “Daddy put his little finger in my ass. 

19. JIRT officers interviewed C on 3 February 2011.  As noted, he made no complaint of inappropriate touching or any other form of sexual abuse by the father.  He said that he showered with the mother, the father and S.  These exchanges occurred during C’s JIRT interview: 

    Q.243. Ok.  You said that dad sometimes has a shower with you, tell me more           about that, what happens with dad in the shower?

    A. Hey, ah, he just washes himself so do I.

    Q. 244. Allright. So dad washes himself.  So do I you said.  And what else happens in the shower with dad?

    A. Nothing else.

    Q. 245. Does dad touch you in the shower?

    A. Um, ay, um, uh uh.

    Q. 257.  Ok, well, we’ll go back to here, you said your body, whose allowed, when you are in the shower, who’s allowed to touch your body?

    A. No one.

    Q. 258.  No one.

    A. Ay just me.

    Q. 259. Just you has anybody ..

    A. Only dad when he washes my back.

    Q. 260. So dad when he washes your back, when does that happen?

    A. Ah, when we are in the shower.

    Q. 261. In the shower. And how does he wash your back?

    A. Ah, he gets the sponge and puts soap on it and wash it and he washes my rude parts. 

    Q. 262. He washes your rude parts. And what are, you say your rude parts, what’s your rude parts?

    A. Um, a willie, girls have vaginas and a bum and that’s the rude parts.

    Q. 267. Ok. So you said your dad washes your willie how does he do that?

    A. Ah, get the sponge and wash it.

    Q. 268. I see. And you said he washes your bottom too.

    A. Ah, hmm.

    Q. 269. How does he do that?

    A. Arr, get the sponge and wash it with soap.

    Q. 270. Does he wash it any other way?

    A. Ah, no.

    Q. 302. Ok. Now, someone told me that you tried to put the toy snake into your bottom?

    A. Ah, um that was a lie.

    Q. 303. That was a lie.

    A. Ah, hm.

    Q. 304. Who did you say that to?

    A. Ah, [T] made me do it, my sister tricked me.

    Q. 305. She tricked you, tell me more about that.

    A. Um, her just wanted to trick so I can get into trouble.

    A. And then [T] quickly got a snake and put it up my bottom.

    Q. 314 So [T] did, yeah.

    A. Ah, um.

    Q. 315. Where was she when this happened?

    A. Um, when we got in the shower, her, her grabbed one of my snakes and put it in my bottom. 

    Q. 316. Ok. Do you know why she did that?

    A. Um, I don’t know why, cause I didn’t see her.

    Q. 317. Ok. And who else was in the shower with you?

    A. Only me and dad and that’s all.

    Q. 326. No. Somebody told me that you told somebody that dad puts his little finger in your bottom.

    A. Oh, that, [T] lied that.

    Q. 327. [T] lied. 

    A. Ah, hmm.

    Q. 328. Did you tell anybody that?

    A. Um, yes, I told, my, daddy know this and he said that was a lie and [T] lied.

    Q. 329. Alright has anybody put his finger in your bottom?

    A. No. Nobody put their finger in my bottom.

    Q. 385. No, when you stay with your dad, is there any other time apart from in the shower that dad touches you on the willie?

    A. Um, no.

20. C thus made no complaint to JIRT of sexual abuse by the father.  He described assistance with bathing from the father which is within the normal limits of parenting.  I am satisfied, and I find, that the father did not sexually abuse C.  I find further that there is no unacceptable risk that the father would sexually abuse C if the child were placed in his unsupervised care.

21. The mother made numerous allegations of sexual, emotional and physical abuse of S by the father.  She alleged and he denied that he took S out of a restaurant and hit him when the child was about three and a half years old.  The father maintained that he merely talked to S about his unsatisfactory behaviour.  I cannot determine which version of this incident is correct.

22. The mother alleged and the father denied that he frequently pulled S’s ears, pushed him and hit him on the head.  The father admitted that he pulled S’s ears “when mucking around” but otherwise denied these allegations.  The mother alleged and the father denied that he pushed S’s face into a taco meal at a restaurant when he was about five years old, saying “you fucking eat the food I have bought you or I will slam your head into the table”. The father denied that any such event occurred. As appears below, S described this incident in a JIRT interview.

23. The mother alleged that the father threw S roughly onto his bed when he was about six years old and that one of his legs broke a window pane.  The father maintained that he picked S up and placed him on his bed and left him in his room as punishment.  He claimed that as he walked away he heard the sound of shattering glass.  S also described this incident during a JIRT interview.

24. The mother alleged that the father frequently made criticisms of Mr K to S.  He maintained that she criticised S’s father in the child’s presence for an alleged failure to provide financial support for him.

25. The mother claimed that the father called S “derm […]” on a daily basis..  In oral evidence the father said: “I used “dermo” to describe someone lazy, just hanging out and not doing much.”  He admitted that he called S “derm […]”.

26. The mother alleged that S suffered an injury to his penis when he was four or five years old, when she left him in the care of the father to attend an Alcoholics Anonymous meeting.  She deposed that he arrived home and was told by the father “[S] has a bandaid on his dick” and that she and the father had the following conversation:

    [61] I confronted [the father]. I said to him “what the hell has happened to him? Kids don’t have bandaids on their penis full of blood for no reason. He said “we were pissing with each other in the shower playing sword fights and he pulled his own penis too hard.”  I said: “[S] doesn’t even know how to pull his foreskin back yet to clean it so why would he have done it to himself? I said “I want you to tell me what happened now. I am reporting this.” He said “Fuck off you fruit loop what do you think I have done?” I said “I am taking him to the hospital.” [The father] said: “What do you think I have done you sick fucking slut.  You are a drug fucked alcoholic slut no one will believe. They will think you have done something to him.

    The father gave this account of the incident:

    [81] When [the mother] got home I said to her “[S] has hurt himself”. I said words to the effect “I am not sure what he has done I think he pulled his foreskin back or it got stuck in his zipper and stuck a bandaid on it.”  [The mother] laughed.  I also saw [the mother] laugh when she saw [S]…

27. S was interviewed by JIRT officers on 9 May 2011.  These exchanges occurred:

    Q. 28. What can you tell me about what the reason you’ve come to talk to me about today?

    A. It’s about my step dad [the father] and how he used to treat me. 

    Q. 31. Yeah. Can you tell me the background of what, what made you start writing those notes? 

    A. Um, what made me start writing is because mum had to go to court and I didn’t want my little brother and sister having to go back to him.

    Q. 32.  Ah, hmm.

    A. Because I always felt like a protector to them.  They used to come in my room and hide.  And um, I just don’t want them to go back and my mum used to cry a lot when [the father] was around and he used to get her into a corner crying. 

    Q. 42. Ok. Ok. What I’ll do is get you to read the first one out for me.

    A. It says “One time when I was young, my mum and [the father] and I went to Taco Bell and it was the first time I had a taco and I said that I didn’t like it.  So [the father] grabbed me by the back of the head and slammed my face into the taco.”

    Q. 47. Do you remember when this happened, what day of the week or anything like that?

    A. No. I just remember that I was complaining that I didn’t like it and [the father] got frustrated with me so he grabbed me and slammed my face into it.

    Q. 48. What happened after that?

    A. I went to the bathroom trying to rinse the mince out of my eyes crying. 

    Q. 80. Ok. So you said before, you said you can’t remember in regards to your doodle.  Tell me more about that.

    A. All I remember is getting into the shower with him. Me standing up at the very end trying to get away from him trying to wee on me, then the next thing I know I’m crying and getting a bandaid put on my doodle. 

    Q. 82. So when you said, you said before, you mentioned sword fights, what, tell me more about that?

    A. Its like when you both pee in the shower and cross wee.

    Q. 85. Can you, when you are in the shower, what, what else did [the father] used to do?

    A. Um, I can’t remember much.

    Q. 86. Who washed you?

    A. Mostly me cause I wouldn’t like him washing me.

    Q. 87. Was there a time that [the father] washed you?

    A. Probably when I was very little.

    Q. 88. Ok. What can you tell me about that?

    A. Nothing, just that he used to wash me like any parent would.

    Q. 95.

    A. Yeah, “one time I remember [the father] threw me on my bed so hard that my legs flew up and smashed the window and glass fell all over me”.

    Q. 101. So, how did, so you said, how did you get to the, to the bedroom, were you walking or were you being carried or something else?

    A. Being carried by [the father].

    Q. 102. And why was that?

    A. I think he was angry at me.

    Q. 132.

    A. Yes, he used to like manhandle me and stuff.

    Q. 133. How did he do that?

    A. By picking me and like throwing me down or smacking me over the back of the head.  He used to pull my ears and all that.

    Q. 149.

    A. Well [the father] used to punch me and give me dead legs or dead arms and pinch my legs and I told him to stop and he said “what?” and I said “stop it” so he just grabbed my head again and slammed it into my knees.

    Q. 174.

    A. Yeah, then another time we were at a sporting event.  [C] and me were fighting in the sand pit like wrestling, just mucking around. And [the father] saw us, he sprinted down, to us, pushed me over and grabbed me, he said slamming my head into the sand. 

    Q. 179. Ok and you said [the father] saw us.  Where was [the father] when he saw you?

    A. He was walking from, at the [local] athletics field.  From the car park down and thought I was trying to hurt [C], but you could see at the time I was on the floor. 

    Q. 180. And you said he sprinted down.

    A. Yeah.

    Q. 181. How far, how far was he from you when he started running?

    A. About a hundred metres.

    Q. 182. What happened when he got to you, arrived at the sand pit?

    A. He just pushed me straight down onto the floor.  I thought he was coming down to muck around as well with [C] and he just started slamming my head into the ground. 

    Q. 194. Ok, you said he kept slamming your head into the sand.  Tell me more about that, was it, how did he do that?

    A. Well, yeah, he came over and pushed me into the ground and then he just held me down with the one hand and like, put his hand on my back and then put his knee on my back, dug his knee into my back and grabbed a hand full of hair and slammed my head into the ground, slammed it again. And pulled my face up and looked at it and slammed my head into the ground again.

    Q. 211.

    A. When stuff started to get, started getting worse at home and it seemed almost certain that mum and [the father] were going to split, at, at the lunch table [the father] sat next to me and tried to show me naked pictures of my mum and said to me “Look at the sick pictures that your mum sends me while I’m at work.”

    Q. 216.

    A. .. [The father] just came down and sat next to me and showed me the pictures cause he was trying to get me to go on his side.  He also said to me “when this going to court mate and it will go to court” and he said “you’re going to have to stand up and tell everyone how sick your mum is”, and all that, cause he was trying to get me onto his side.  He used to buy, he started buying stuff, telling me if I ever needed an internet stick or a laptop he would buy it for me.

    Q. 228.

    A. .. Another time he came to me and told me that my mum “fucked uncle [B], my mate”.  I said “No mum wouldn’t do that” he said “yes she did, uncle [B] told me so” and then he said “one day this is going to court and you’ll need to stand up and tell the truth about how sick your mother is.”

    Q. 266

    A. .. whenever mum and [the father] would have a fight he would say stuff to her like “moll, fucking slut, go back to your fucking family in [Sydney] where you were, where you belong”. Mum would try and walk away but [the father] would follow until Mum would be crying. And I would try and get to mum to make sure she was ok or I would turn my music up really loud so no one could hear the fight but the kids would come to me and try and hide with me.  [T] would be so scared she would try to run outside and run away and [C] would go and shout “stop being mean to my mummy”.

    Q. 267. Ok, how many, how many times did that happen?

    A. Almost on a regular basis like, twice a month maybe.

    Q. 274. .. You said the cordial bottle.  What, tell me more about that.

    A. Yeah, there was this really, really big argument, where, goin., go again and then stop and it was just like a fight and [the father] would be standing up stairs, he like, bent over with the bottle and just whacked it over his head.  And like, [T] and [C] would be freaking out so they’d get in my room scared out of their wits crying their eyes out. So I’d be in there trying to protect them.  Then I’d hear, [the father] going at mum again and then like I’m wanting to do down to mum and I’d go to leave and [T] and [C] are yelling “don’t go, don’t go”.  And [T] used to run like, run to the front door and yell, “I’m running away forever”.  So while mum and [the father] were arguing I’d run after her and grab her.”

1. S was cross-examined in the AVO proceedings against the father.  The transcript of his cross-examination was in evidence as part of Exhibit 4.  It seemed to me that this cross-examination failed to move S from any of the statements which he made in the JIRT interview.

2. S conceded that he never complained to a teacher about the father’s treatment of him.  The following exchanges occurred during S’s cross-examination: 

   [30] Q. Going back to Taco Bell, you complain that – and you remember this, of course.

   A. Yes.

   Q. Was it something that maybe your mother reminded you of?

   A. No, I remember me complaining about the taco being spicy and [the father] was saying “eat it” and I said “I don’t want to” and it went on like that for a while.  Eventually he grabbed the back of my head and put my face into the Taco. 

   Q. You know it didn’t happen that way.

   A. It did happen that way.

   Q. You were both joking around.

   A. No.

   Q. At Taco Bell you were playing around and [the father] asked you to eat and then the taco ended up in your face and you were cacking yourself laughing weren’t you?

   A. No.

   Q. It didn’t happen that way?

   A. No it did not.  I didn’t find having spicy mince in your meat funny, I mean spicy meat in your eyes funny.

   Q. You indicated getting in the shower bothered you with [the father].

   A. Yes

   Q. In fact your mother would see you and your brother playing with each other in terms of sword fights, wouldn’t she, and she wouldn’t complain at all would she?

   A. By sword fights do you mean what I referred to in the shower?

   Q. Yes.

   A. No, I never used to do that.  He used – no – [the father] used to make me get into the shower with him and I’d wash myself, wash him, and then he would pee all over my legs and [the father] would be laughing.

   Q. That wouldn’t happen at all would it?  You would constantly aiming for the drain wouldn’t you? You would be –

   A. I ..

   Q. You would be in there peeing and aiming for the drain and it was a game for you wasn’t it?

   A. No, it wasn’t.  [The father] used to actually pee on me, cause I remember once in – at [Sydney] I was up at the very end trying to get away from it and he’s gone up to the bath tub and..

   Q. You were complaining about having your head slammed on your knees, I think, in the car.

   A. Yes.

   Q. That never really happened, did it?

   A. Yes, it did, cause I remember getting my head slammed into my knees and my sister yelling, going – like, freaking out and then my mum coming in the car saying “What did you do that for?”

   Q. You told the police officer about an event when you were camping.  Do you remember what year that was?

   A. I believe it was either 2009 or 2010.  I’m pretty sure it was in 10.

   Q. You all went camping, you were having a good time. 

   A. Yeah.

   Q. That’s when you say [the father] attacked you.

   A. Yes, that – at the very end we were folding up the tent and he said, “You’re not doing it right” and he was getting really angry at me and I knew something was going to happen so I said “do it yourself” and he just ran after me, pushed me to the ground and also while we were there in the mornings he used to pee in a bottle and he used to give it to me to go put it in the bin. 

   Q. That’s the incident where you say you were attacked by [the father]?

   A. Yes, cause I was walking away and I had my back turned, next thing I know I was being pushed to the ground.

   Q. You were saying you were being attacked by [the father] to the point that someone had to intervene called […].

   A. Yes, he pulled [the father] off me and said: “Calm down […], he’s just a kid”…

   Q. Do you remember [the father] bleeding because of what your mother did to him?

   A. Not really bleeding, he had a scratch on his hand from mum trying to pull him off her.  He used to grab mum’s hand and pull her against the wall and hold her there and he used to, like, keep yelling at her and she would be – couldn’t get away.  She’d try and – obviously as a “ – she had long nails and she would grab his hand and try to pull him – pull him off her.”

   Q. In fact he was bleeding on his face, neck and chest, wasn’t he?

   A. Never knew that.

   Q. Not uncommon for your mother to for no reason just become very violent and boisterous.  That was a constant occurrence in the household wasn’t it?

   A. No it wasn’t.  The only time she became loud was when she was telling [the father] to leave her alone.  She said – say – “leave me alone […], I’m and he used to call her a skank, a moll and all that stuff”.

3. In cross-examination the father admitted that he showed an “inappropriate” photograph of the mother to S.  He said:

   I wanted to show him what his mother is about – that she is not the innocent soul that she said she is.  No benefit at all flowed to [S] – it was stupid. Yes I was probably thinking along the lines of causing him to form an adverse view of her.  I am not sure if it was an abusive act.

   It seemed to me that there is no doubt that the father’s act was abusive of S.

4. The father maintained that the mother shouted and swore at S, using phrases such as “I hate you, go live with your father” and “you’re a little bastard”.  He alleged that on occasions she physically attacked S but gave no specific examples.  I have referred already to the evidence of Mr P as to her treatment of T when she was afraid of the dark.  He was not shaken in his evidence as to this incident. 

5. The paternal grandmother gave evidence of an incident when “[The father] was on the floor and she was on top of him like a mad woman scratching him and his chest was all bruised and the children were crying.”  Although she was clearly a partisan witness, I do not consider that she gave untrue evidence.  She described having witnessed arguments when both parties raised their voices. 

6. The paternal grandmother deposed to an incident when the mother threatened her with a knife in the kitchen of her home.  The mother admitted that such an incident occurred.

7. The father’s sister-in-law deposed that she observed the mother yell at the father if he watched “sports and other shows that involved girls and models posing”.  She said that she saw the mother rip out of his sports magazines pictures of women wearing brief swimming costumes.  She deposed to a conversation when the mother said: “[The father] has just bought [S] new school shoes and did not buy anything for me.  I went into a jealous rage and lost it with [the father].”  As noted, I found the father’s sister-in-law to be an impartial and balanced witness.  I consider that she gave honest and accurate evidence.

8. As counsel for the ICL submitted, the mother told police officers in November 2008 that she “gives as much abuse to [the father] as is given to her, but claims it is in revenge”.  In the same COPS entry the police officers reported that the father told police officers “she is as much to blame for the actions which have been alleged ..”.  

9. Overall, it seems to me that a picture emerged of a volatile, mutually abusive relationship between the parents and a household which was characterised by frequent shouting and altercations.  All of the children gave graphic descriptions of verbal and physical altercations between their parents when interviewed by JIRT officers.  This environment could only have been significantly stressful for T, C and S and reflects no credit on either parent.

10. I am persuaded, and I find, that the father treated S insensitively in an emotional sense and subjected him to physical abuse.  It is utterly inexcusable that he showed a naked photo of his mother to the boy.  Of course, it is to the father’s credit that he now apologises for his actions but his lack of insight into S’s needs and evident self-focus at the time remain matters of concern.  I am not persuaded that the father subjected S to sexual abuse.

11. On 26 May 2011 S consulted Ms L, a psychologist, on a referral from Victims Services.  She reported:

    [S] described his feelings of anger toward his stepfather who made him feel scared and alleged incidents of physical violence towards himself and his mother.  He also reported wanting to protect his mother and younger siblings from him.

12. The notes, report and oral evidence of Ms M provided strong indications that the mother talked to T about the apprehended violence and Family Law proceedings and that she has had similar discussions with her in the child’s presence.  For example, T spoke to Ms M about the sale of the former matrimonial home.  A similar picture emerged from T’s interview with the Family Consultant to whom she said, “mum had to go to the divorcion (sic).”  The Family Consultant noted that there was a divorce hearing on […] December 2011 and he interviewed T on 13 December 2011.

13. This over-involvement of T in the adult dispute may amount to psychological abuse of the child.  The Family Consultant opined:

    [92] The possibility that [the mother] has acted in a manner that has been psychological abusive to the children with the aim of curtailing their relationship with [the father] cannot be excluded.

14. There is no doubt that a very high level of conflict exists between the parties.  The Family Consultant expressed these concerns:

    [88] [The father] and [the mother] present with an extremely acrimonious and highly conflicted post separation parenting relationship.  Ongoing exposure to high levels of parental conflict is associated with poorer outcomes for children in a range of areas including emotional and behavioural problems, difficulties with initiating and sustaining friendships and relationships and difficulties with academic performance.”

15. After the separation the father wrote letters to the mother in which he apologised for some of his behaviour.  He mentioned the “R & T crap that I gave you at the massage parlour”; “what am I doing sharing my wife with my mates?”; “I can’t imagine the pain I have caused you”; “I know I have disrespected you with the things I made you do.”  The contents of the father’s letters reinforce my conclusion that the parties’ relationship was volatile and mutually abusive and continues to be highly problematic.

16. I cannot envisage how the mother and father could share parental responsibility equally.  All of the above considerations militate against an order for equal shared parental responsibility.  It thus seems to me that my only option is to order that the mother have sole parental responsibility, as she is the unchallenged primary carer of the children.   This conclusion is in no way intended to be an endorsement of her overall parental capacity;  rather, it is a reflection of the reality of the children’s current situation.

17. The consequence is that I am not required to go through the farce of considering whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each parent. I am at liberty to proceed to determine directly what parenting orders are in T’s and C’s beset interests. I will do so, inter alia, by reference to the provisions of section 60CC of the Act.

T’s and C’s Best Interests: Section 60CC Considerations

1. Counsel for the ICL stated very clearly in his final submissions that her proposal “does not depend on sexual abuse”.  The major concern of the ICL was that the prospect of spending time with the father is seriously frightening for T. 

2. Ms M said in her oral evidence that T continues to express fear of the father.  She considered that T’s fear is based on her actual experience but, as noted, she could not exclude the possibility that her problems are due to an over-load of information about the adult dispute from the mother.  As indicated, I am satisfied that the mother has burdened T inappropriately with such material. Examples are T’s references to the sale of the former matrimonial home; the mother’s attendance at ‘the divorcion’ and lies being told about the mother by friends of the father in the present proceedings.

3. The Family Consultant assessed that T has “a very strained relationship” with both the father and the paternal grandmother.  In his report he summarised the reasons for his recommendation that neither child should spend time with the father as follows:

   [90] There were no indications that even specialist intervention could improve the situation for the children such that they may be able to maintain a relationship with each of their parents.  It is likely that [T] particularly would find it extremely stressful if she were required to
   re-establish and maintain a relationship with [the paternal grandmother].  It is likely that over time, [C] would also start to become stressed if he were required to maintain a relationship with [the paternal grandmother].  In these circumstances it is recommended, as the least detrimental outcome for [T] and [C], that orders be made that do not provide for [the paternal grandmother] to spend time with either child and that provide [the mother] with the sole parental responsibility for the children.

4. In his oral evidence the Family Consultant said: “It just did not seem that either of them was interested in therapeutic intervention to fix the situation for the children.  There needs to be some intervention to fix the situation between the parents or [T] will just be put into a situation of incredible conflict.” 

5. The Family Consultant said also:

   The fact that she does not want a relationship means that his limitations [make it more difficult for him to promote a relationship].  His focus was on himself.  My concern is that neither parent has the capacity to manage the situation appropriately for the children.

6. There is no doubt that [T] currently expresses strong opposition to and fear of spending time with the father.  There could be any number of reasons why she is so oppositional and fearful but I am satisfied that she is genuinely frightened by the prospect of spending time with the father. 

7. It seems to me that [T] experienced a chronically frightening, stressful environment in the family home prior to her parents’ separation.  No doubt she was scared by some of the father’s behaviour, as indeed would have been the case with some of the mother’s conduct.  In my view, it is significant that she has been spoken to by JIRT officers and Ms M about the father’s alleged behaviour toward her since the separation.  She was present when the mother discussed with Ms M her intention to have the father charged with breach of the apprehended violence order.  She gave evidence in the AVO proceedings but, according to Ms M, she became too distressed to continue that process.  In these circumstances, it is hardly surprising that she is currently fearful of the father.

8. I have no reason for confidence that the mother would refrain from discussing the father in an adverse manner with T in the future.  As indicated, the notes of Ms M suggest that the mother has provided far too much information to T about adult issues.  For example, on 8 November 2011 T told her:  “I thought because I moved houses that dad would threaten Nan and Pop so he could find out where I live.”  Ms M observed in her report: “that [T] appeared worried that her father would find out where she and her family live and she would have contact with her father.”  Ms M opined in her oral evidence that [T]’s knowledge of the sale of the former family home must have come from the mother and, logically, there could be no other source of this information. 

9. C told the Family Consultant that he felt “good but my sister will be scared” about the prospect of seeing the father.   When asked his reasons he said “cause [the father] used to yell at mum a lot and say swear words to her and used to chase my mum and tell us to get … out”.  C told the Family Consultant that he did not feel scared about seeing his father.  He indicated that he would feel “good” about seeing his father and accepted the prospect of overnight stays with him.  He said “uh uh” and shook his head when asked for his reaction to the prospect of living with the father. 

10. I agree with the Family Consultant’s opinion that the children’s stated views should carry little weight.  C is only six years old and T, although aged nine, has experienced considerable upheaval in her life due to the conflict between the parents and reinforcement of a belief that the father has sexually abused her. 

11. The mother has been the primary carer for the children since their births.  Certainly, there are serious limitations on her parental capacity as appears below in these reasons.  At this point, however, the emotional reality for the children would be that they derive their sense of security from her. 

12. The children’s relationship with the father has been disrupted since the parents’ separation in September 2010.  T’s relationship with the father is currently so damaged that the Family Consultant was not prepared to bring them together for the purposes of observation and assessment.  The situation is not so drastic for C but, as noted, the Family Consultant had real concerns that he may begin to experience stress if required to maintain a relationship with the father.

13. The Family Consultant assessed that the mother “had no intention to support” the father/child relationship.  The mother said in oral evidence that she believes that the father sexually abused T and caused the injury to S’s penis.  She said also that “no explanation could possibly satisfy me that there is nothing to worry about”.  She admitted that she took it upon herself to tell T that “she did not have to go and see him anymore if she did not want to”. 

14. In my assessment the mother is more unwilling than unable to facilitate and encourage an ongoing relationship between the children and the father.  Her attitude is illustrated by the fact that she has never sent copies of school reports and other items to the father. 

15. The mother’s antagonism towards the father appears to encompass the extended paternal family.  There was a most unfortunate incident after the separation when the mother agreed to allow the paternal grandmother to see C but not T.  A visit was arranged at a McDonalds Restaurant.

16. The paternal grandmother gave convincing evidence that the mother insisted that the father not be mentioned at all during this visit.  She said that her granddaughter took a photo of C, commenting that it was for the father.  The mother asked if the camera belonged to the father and then said “that’s it, the terms and conditions of this visit are broken”.  She then physically removed C, who was crying, from the presence of the paternal grandmother and her granddaughter.  I did not understand why the mother felt that she was entitled to act in this way. 

17. The father’s willingness and ability to facilitate and encourage an ongoing relationship between the children and the mother is untested.  He has never been placed in a situation where he has had to accept that responsibility. 

18. A very significant issue in these proceedings is the likely affect on T, and to a lesser extent C, of a reintroduction of time with the father.  I have referred above to the Family Consultant’s concern about the stress that the children are likely to suffer if that step is taken. 

19. As noted, the Family Consultant had concerns as to the mother’s willingness and ability to facilitate a relationship between the children and the father.  He was also concerned as to the father’s capacity to maintain a relationship with either T or C in those circumstances. 

20. The Family Consultant’s observations of the father’s interaction with C caused him concern as to his capacity to separate his own needs from those of the children.  The father was crying when C entered the observation room and asked him “do you miss me?”.  The father said to C:  “I’ve got some good stuff for you” and “You wait until you see what I’ve got for you”… “Daddy’s spending lots of money to sort this out” “We’re going to go places” and “We’re going to do it all” and “Look at you, you’re me”. 

21. The Family Consultant reported that the father said also to C: “Tell [T] don’t be scared” and “I’ve got a lot of good stuff for both of you”.  C replied “[T]’s still scared”.  The Family Consultant considered that C was initially pleased to see the father but then “became puzzled by his emotional state”.  He observed that “most parents undergoing assessment are anxious but manage to focus on their children’s needs.”

1. The Family Consultant was asked about the likely impact on the children of an order that C, but not T, spend time with the father.  He said: “[T] may become concerned and I guess there would be little support for her to understand why.  For [C] it would come down to how it was explained.”  He then said: “My concern is that neither parent has the capacity to manage the situation appropriately for the children.  As difficult as it is to contemplate, I believe the removal of one parent is the best outcome.”

2. In my view, there must be concerns as to the attitude of both the mother and the father to the responsibilities of the duties of parenthood, given that they were prepared to indulge in group sexual activities while the children were in the home.  The mother was prepared to engage in the conduct described by

   
   

   Mr G while the children were in the home and the father was entirely willing to encourage that situation. 

3. The mother sought to blame the father for this sexual activity but I accept the submission of counsel for the ICL that the parties must share responsibility equally.  The mother chose to make a video of herself masturbating in the bathroom.  She participated in more than one event with Mr N and later contacted him on Facebook.  I accept Mr G’s evidence that she offered him a sexual encounter as a present for his eighteenth birthday.

4. These activities reflect no credit on either party, given that the children were in the home and Mr G was only seventeen years old at the relevant time.  In my view, it is certainly not to the mother’s credit that she now seeks to absolve herself of all responsibility for these activities.

Conclusion

1. Unfortunately, I must deal with the children’s current situation, which is unenviable to say the least, and a product of their experiences with both of their parents.  It is disturbing indeed that T told the Family Consultant, in relation to her school, “I like it better than home”.

2. I must have regard to the very high level of conflict between the parents; the mother’s inability or unwillingness to encourage and facilitate the children’s relationship with the father and his incapacity to prioritise their needs over his own.  I afford substantial weight to the Family Consultant’s evidence as to the likely consequences for T of a reintroduction of time with the father.  In all of the circumstances, I find that it would be contrary to T’s best interests for that step now to be taken.

3. I am persuaded that C’s relationship with the father should be given an opportunity to survive in the safe confines of a contact centre.  The father should be on clear notice that contact centre staff are in a position to make observations of interaction between parents and children and that they usually keep records.  In my view, he would be well advised to seek professional assistance to aid him in maximising this opportunity to preserve his relationship with C.

4. It is in part my intention to “keep the door open” for a resumption of the relationship of both children with the father by making orders for C to spend this time with the father.  For that reason also, I will order that the father receive copies of school reports and photos.  The Family Consultant did not explain why he should not do so.

5. I appreciate the facilities of a contact centre will almost certainly be available to the parties for a limited time.  There was no proposal for supervision of C’s time with the father beyond that point.  I am not prepared, for that reason alone, now to terminate C’s relationship with his father.  Alternative arrangements, such as professional supervision, may prove to be viable options in the future. 

6. If the father is able to interact with C in a child-focussed manner at a contact centre, it may be possible for the issue of time with both children to be revisited.  He may be assisted in that regard if he engages successfully with professional intervention to assist his ability to put the children’s needs ahead of his own.  I will order that he be at liberty to provide a copy of these Reasons and the Family Report to any therapist whose assistance he may seek.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 3 August 2012.

Associate: 

Date:  3 August 2012