WILLEMSEN & WILLEMSEN

[2017] FamCA 1087

FAMILY COURT OF AUSTRALIA

WILLEMSEN & WILLEMSEN [2017] FamCA 1087

FAMILY LAW – CHILDREN – Interim – Where there are allegations that the child aged four has been sexually abused by the father – Where the father applies for variation of interim parenting orders to reconfigure the time the child spends with him and who can supervise the child’s time with him – Finding that it is in the child’s best interests for orders to be made as sought by the father. 

Family Law Act 1975 (Cth)

APPLICANT: Mr Willemsen

RESPONDENT: Ms Willemsen

FILE NUMBER: SYC 7939 of 2015

DATE DELIVERED: 21 December 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 20 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kearney SC

SOLICITOR FOR THE APPLICANT: Doolan Wagner Family Lawyers

COUNSEL FOR THE RESPONDENT: Ms Steggall

SOLICITOR FOR THE RESPONDENT: Pearson Emerson Meyer Family Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ark Law Lawyers

Orders

1. Order 2.1 of the orders made 14 March 2016 be varied to provide that the child, B, born … 2012, spend time with her father as follows:

   1.1Each Tuesday from 3.30pm to 6.30pm; and

   1.2Each Saturday from 10am to 4pm.

2. Order 2.2 of the orders made 14 March 2016 be varied to provide that the time that the father spends with the child be supervised by any one of the following persons:

   2.1Ms C;

   2.2Ms D; or

   2.3Ms E;

   2.4and if they are unavailable by F Group,

   Provided that the father shall:

   2.5Provide the mother with as much notice as is reasonably practicable as to who will provide supervision on each occasion when the child is with her father;

   2.6As soon as practicable, provide a schedule for the mother as to the 12 occasions at reasonably regularly spaced intervals on which F Group will provide supervision between now and the final hearing.

3. The mother’s oral application for the child’s time with the father not to happen at the father’s Suburb G home be dismissed.

4. I note that the restrictions in place as a result of the orders made by Johnston J on 14 March 2016 remain namely:

   4.1The father is restrained from being present when the child is:

   4.1.1using the toilet or being attended to before or after being toileted;

   4.1.2being undressed or having her clothing changed.

   4.2The father is restrained from whispering or speaking to the child in a way that is not audible to the supervisor.

   4.3The father is restrained from showering or bathing the child or causing her to be showered or bathed during her time with him.

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

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

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7939 of 2015

Mr Willemsen

Applicant

And

Ms Willemsen

Respondent

REASONS FOR JUDGMENT

1. The application before me is an application to change current interim parenting orders. The final hearing of parenting and property applications between the parties is scheduled to commence on 14 May 2018.

2. The mother believes that the father has sexually abused the child of the marriage, the child B born in 2012. She will be five next week.

3. Both parents provided case outline documents in respect of the father’s application for variation of the current interim parenting orders. I have read his affidavits of 29 November 2017, 19 December 2017 and the affidavits of Ms E and Ms D and Ms C. I have also read the mother’s affidavit filed 14 December 2017 and the two reports of Associate Professor H to which I will refer later. Associate Professor H interviewed the family on 5 May 2016 and produced her primary report on 23 November 2016. She has produced an addendum to that report on 9 January 2017 which responds to questions asked by the father arising out of her primary report.

4. On 14 March 2016 interim parenting orders were made by consent for the child to live with the mother. Orders were also made for the child to spend time with the father each Tuesday and Thursday from 3.30pm to 6.30pm and each Saturday from 10am to 1pm such time to be supervised by F Group, a private organisation providing professional supervision.

5. The father seeks by way of Application in a Case filed 30 November 2017, orders that would alter the current arrangements in relation to the periods and the provision for supervision under which the child spends time with him. The father seeks the current times be changed so that the child spends time with him each Tuesday from 3.30pm to 6.30pm and each Saturday from 10am to 4pm such time to be supervised by such persons as agreed between the parties and failing agreement by Ms C, Ms D or Ms E and if they are unavailable, by F Group. The word “or” in the Application in a Case is meant to signify that only one of those three women needs to be available to supervise the time.

6. In addition, the following restrictions are in place as a result of orders made by Johnson J on 14 March 2016:

   2.6The father is restrained from being present when the child is:

   a.     using the toilet or being attended to before or after being toileted;

   b.    being undressed or having her clothing changed.

   2.7The father is restrained from whispering or speaking to the child in a way that is not audible to the supervisor.

   2.8The father is restrained from showering or bathing the child or causing her to be showered or bathed during her time with him.

7. The father does not seek to change those interim restraining orders.

8. The mother seeks by way of Response to an Application in a Case filed 14 December 2017 that the father’s application for variation for interim parenting orders be dismissed.

9. In the alternative, the mother seeks that if arrangements are changed so that the commercial agency no longer provides supervision, the father be restrained from spending time with the child at his home at J Street, Suburb G.

10. In final submissions the Independent Children’s Lawyer supported the father’s proposal that two of the three hour periods be consolidated into one six hour period on a Saturday. The Independent Children’s Lawyer accepted that Ms D was an appropriate supervisor but did not accept that either Ms C or Ms E were appropriate supervisors. The Independent Children’s Lawyer also proposed a middle path whereby half of the occasions would be supervised by Ms D and the other half would be supervised by F Group. In relation to that proposal, in submissions in reply, senior counsel for the father indicated that the father would agree to up to 12 occasions between now and the final hearing being supervised by F Group.

Parenting

1. Neither counsel for either party nor the Independent Children’s Lawyer made any reference in written or oral submissions to the statutory considerations. Section 60CC of the Family Law Act 1975 (Cth) (“the Act”) requires me to make a decision in this interim hearing having regard to the child’s best interests as the paramount consideration. The reason why no mention was made of s 60CC is probably because it was obvious that the determination that I am being asked to make is a balancing of the two primary considerations set out in s 60CC(2) of the Act having in mind the provisions of s 60CC(2A) of the Act.

2. The father is currently 64 years of age. The mother is currently 56 years of age. The parties separated in June 2015. The father is employed on a part time basis, has superannuation and is transitioning into retirement. The mother is currently studying.

3. At paragraphs [6] to [8] of the mother’s affidavit sworn 14 December 2017 the mother succinctly sets out the reasons why she has a concern that the father has sexually abused the child in the following way:

   6.…

   (a)     Inappropriate touching:

   (i)I observed [the father] on more than one occasion wiping the child after she went to the toilet by rubbing 2 fingers repeatedly up and down on her vagina, stroking her (see paragraph 62 of my March 2016 Affidavit);

   (ii)[The father] regularly carried [the child] by placing his hand between her legs in a manner which ensured his fingers were on her vagina. This position was awkward and uncomfortable, particularly as she became a 2 year old toddler (see paragraph 65 of my March 2016 Affidavit);

   (b)  Grooming behaviour:

   (i)[The father] regularly took [the child] to the bathroom and closed the door when changing her nappy, where he would remain for about 15 to 20 minutes, when I entered the bathroom to check on them, [the child] always had no pants or nappy on her bottom half (see paragraph 61 of my March 2016 Affidavit), [the child] became uncomfortable and scared when being taken into the bathroom when toilet training (see paragraph 63 of my March 2016 Affidavit);

   (ii)[The father] said to me “I can get [the child] to do anything I want” (see paragraph 71, of my March 2016 Affidavit)

   (iii)[The father] taught [the child] “exercises” which involved her lying on the ground on her back with her legs wide open and in the air; on another occasion I saw [the child] with her legs spread across each arm of an armchair, with her hands on the backrest saw her and thrust her groin forwards and backwards she called this “no cuddles exercise” (see paragraphs 66 and 126 of my March 2016 Affidavit)

   (iv)[The father] regularly insisted that [the child] sit on his lap (see paragraphs 107, 118, of my March 2016 Affidavit).

   (c)Inappropriate behaviours by [the child]:

   (i)[The child] regularly insisted on removing all of the clothes from her dolls and focussing on the area between their legs. She became agitated if I tried to put the dolls clothes back on, on one occasion she put Barbie and Ken dolls genital regions together then said “shhh, secret I sleep with daddy” (see paragraphs 58, 78, 106, 128 of my March 2016 Affidavit);

   (ii)At 2 ½ years of age, [the child] took her toy peacock, placed it in her lap and said “peacock, vagina. bottom” (see paragraph 69 of my March Affidavit);

   (iii)When I sang twinkle, twinkle to [the child], she began rubbing her hands up and down the front of her body in a rhythmic way, whilst gyrating and thrusting her hips and pelvis, she appeared to be in a trance like state (see paragraph 79 of my March 2016 Affidavit);

   (iv)From about July 2015 onwards sometimes when in the bath [the child] put her hands between her legs and started playing with her vagina. I asked [the child] “who showed you this?” the child replied “Daddy in the bath” (see paragraph 93 of my March 2016 Affidavit);

   (v)[The child] said in a strange monotone “Hello. Nice to meet you. What’s your name? Do you want to play with me?” She licked her lips when saying this and repeated it over and over. (see paragraph 97 of my March 2016 Affidavit);

   (vi)When cleaning my teeth, [the child] came up and started to lick my bottom, when I asked her to stop she made a strange hysterical laugh sound and ran off (see paragraph 103 of my March 2016 Affidavit);

   (vii)[The child] took a telephone handpiece, put it in and out of her mouth rhythmically and repeatedly, in a trance like state (see paragraph 120 of my March 2016 Affidavit);

   (viii)During a FaceTime call with [the father] [the child] rolled up her top and began to rhythmically run her hands up and down her body from her chest to her underwear line (see paragraph 63 of my March 2016 Affidavit);

   (ix)[The child] ran her hands up and down a duplo tower and talked about “making it bigger” when I asked what happens next she said “there is stuff like glue, then bubbly and stinky smell.” “I get a sore Khaka bottom. It all gets wiped into the bin. I get cake and then go and see a doctor. That’s my story the end.” (see paragraph 136 of my March 2016 Affidavit);

   (d)[The child] reporting behaviours from [the father]:

   (i)[The child] developed a sore vagina, when putting cream on her she pointed to her vagina and said “daddy” (see paragraph 59 of my March 2016 Affidavit);

   (ii)[The child] regularly had a sore and red vagina (see paragraphs 68 of my March 2016 Affidavit);

   (iii)I asked [the child] “what do you do when you are with daddy?” [the child] put her head in my genital area and said “cock”. (see paragraph 80 of my March 2016 Affidavit).

   7.I am concerned that [the father] sexually abused [the child] and that the sexual abuse took place at the [Suburb G] house, primarily at night in the guest bedroom which was located downstairs adjacent to [the child’s] bedroom, when [the child’s] bedroom was located downstairs.

   8.[The father] continues to live in the [Suburb G] house and spends time with [the child] in the [Suburb G] house while his time with [the child] is supervised by [F Group].

4. The father concedes that within the confines of this interim hearing there is limited scope to make any determination about these core issues and the mother’s contention that the father poses an unacceptable risk to the child because he has previously sexually abused her.

5. The interim issue for determination is whether it is in the child’s best interests for there to be some change in the highly regulated regime of supervision that has been in place since March 2016 and whether the child can be with her father for six hours.

6. Since March 2016, apart from a few occasions, the child has been seeing the father three times a week. The commercial agency has written a report about each of the occasions the child has spent time with her father. The mother concedes that on none of those occasions did a professional supervisor report any concern about the child being inappropriately touched by her father. There was only one occasion which the mother says was of concern. That occasion took place on 28 March 2017. What occurred is detailed in a report from F Group and is contained at pages 45 to 49 of the mother’s affidavit. The mother was concerned that during part of the play between the child and her father, the child wanted to hide under a doona cover and invited her father to join her. When the father agreed, the supervisor intervened. The father reacted immediately by covering the child only and engaging her as she said she was hiding from “monsters”. Read in context of the reporter’s description of playful interactions between the child and her father up until that point on this occasion, this incident on the face of the report seems relatively innocuous. Later in the child’s time with her father after a meal, the child walked back down the hallway and removed a torch from the hall table and moved to the front room where she invited her father to join her under the doona cover as she held the illuminated torch. The father initially moved to do this but the supervisor intervened and told him not to do so. The supervisor pulled up the blind as it had become quite dim in the room. The child told the supervisor to put the blind back down but the supervisor distracted the child. Again, there is no suggestion that the father initiated going to a darkened room with the child. The supervisor at all times was close by. The only concerning thing about this incident is that it appears the father seemed willing to comply with the child’s request to get under a doona with her and it should have been obvious to him that it may have created a problem for the supervisor. 

7. The father asserts that the continued use of professional supervision is onerous and artificially affecting the child’s enjoyment of the limited time that they presently spend with each other. He says that the following limitations imposed by F Group are artificial and restrictive:

   17.1He is required to obtain approval from the mother and F Group if he proposes to take the child to a location that has not been pre-approved at least seven days prior to the visit;

   17.2He is required to give the mother and F Group three days notice of his intention to take the child to pre-approved locations;

   17.3He is also not permitted to attend certain locations with the child such as a beach or swimming pool or any location with crowds;

   17.4He is required to give the mother and F Group three days notice of any additional persons attending the visit with him;

   17.5He is required to give the mother and F Group 24 hours notice on week days and 48 hours notice on weekend days in the event that a visit needs to be cancelled;

   17.6He is not permitted to participate in certain activities with the child such as scootering, water sports and trampolining;

   17.7On a number of occasions his time with the child has been interfered by a supervisor with no reasonable explanation;

   17.8There have been numerous restrictions on supervisors and on occasion visits have been cancelled or rescheduled due to no supervisors being available;

   17.9Contact visits are two hours and 50 minutes in duration rather than three hours pursuant to the order as the child must leave 10 minutes prior to the end of the visit;

   17.10The father is not allowed to take any video recordings;

   17.11The father is not permitted to give the child any gifts with the exception of special occasions;

   17.12The use of public transport or a motor vehicle requires the approval of the mother and F Group;

   17.13Certain areas of the father’s house have been deemed ‘off limits’ for access by the child;

   17.14On occasion, the father says supervisors have stepped in and stopped “normal play interactions” between him and the child.

8. The father gives examples of the way in which these practical implications impose on his time with the child. On 19 September 2017 the father received an email from F Group advising he was in breach of their Service Agreement as his partner’s nephew attended the visit on 17 September 2017 notwithstanding that on 16 September 2017 he had emailed F Group advising that his partner’s nephew would be in attendance.

9. On 15 November 2016 the father says that during a visit a friend rang to see if he could see the child. F Group advised the father to contact the mother to see if she would permit it to occur. The mother replied that she did not wish the father’s friend to visit.

10. From 26 October 2017 to date the father says he has paid $850 in cancellation fees arising from three occasions when he says the mother cancelled the visits on short notice due to the child being ill.

11. The father says that his requests to take the child to a non-pre-approved location have been “arbitrarily rejected” by the mother without explanation. An example was the mother rejecting his request to go to K Park, where her reason did not seem to be associated with protecting the child from sexual abuse or grooming. 

12. On 22 November 2017 F Group advised the father that an administration fee would now be charged to requests made by him to the service and on 24 November advised that no further venues would be added to the approved venue list.

13. The father also says that the use of his proposed supervisors would reduce the costs he currently pays for supervision.

14. The gravamen of Associate Professor H’s recommendations are that if the court determines at the final hearing that there is an unacceptable risk of harm to the child from her father then time for the child to be with her father be limited to two hours per week and supervised. Supervision could be undertaken by responsible and law abiding friends of the father. Associate Professor H opines that Ms C, who Associate Professor H interviewed, appeared to be quite suitable. Associate Professor H whilst acknowledging the mother might have difficulty with that concept (which difficulty is apparent by the attitude she has taken in this hearing) Associate Professor H opined it would be a better situation for the child to have some normalised contact with her father rather than a long term arrangement of professional supervision which may not be a viable long term option. Associate Professor H goes on to describe what might happen if the court should at the final hearing find there is no unacceptable risk of harm. In those circumstances Associate Professor H opines that it would be in the child’s best interests to have a regular relationship with her father. In that context, Associate Professor H acknowledges the difficulty that might arise from the mother’s capacity to accept that outcome. If the mother’s capacity to accept the outcome was found to be compromised Associate Professor H recommended that contact progress cautiously and slowly. Associate Professor H noted that the child is extremely young and would be aware of her mother’s anxieties.

1. In her addendum report Associate Professor H underlined that her concern was about not disrupting the mother’s mental state and a guard against increasing the mother’s hypervigilance which in turn is likely to affect the child and create conflict for the child. Although I raised it during submissions counsel for the mother did not make any substantial submission about the mother’s mental status as a basis for opposing the orders sought by the father but I take into account the opinions that Associate Professor H has expressed in her reports as I have just detailed them.

Supervisors proposed by the father

1. Each of the supervisors proposed by the father have provided a sworn undertaking to the court in the following terms:

   I understand my obligations to the court if I am appointed as supervisor and I undertake to:

   (a)keep [the child] within my vision at all times.

   (b)immediately intervene and stop any time that [the child] spends with [the father] if I perceive any inappropriate conduct whatsoever on [the father’s] part or any threat or harm or danger to [the child’s] welfare; and

   (c)immediately notify [the mother] if [the child] is distressed and repeatedly asked for her and to facilitate [the child’s] communication with [the mother] or return to [the mother] if I have stopped [the father’s] time with [the child].

2. Prior to giving their oral evidence, each supervisor proposed by the father had read paragraphs [6] to [8] of the mother’s affidavit sworn 14 December 2017 and the restraining orders made by Johnston J on 14 March 2016 (both set out above).

3. Each of the proposed supervisors have said that having regard to that information they would have the capacity to fulfil the undertaking that they have given to the court on their oath.

4. Each of the proposed supervisors were required for cross examination and I had the advantage of seeing each of them tested about their undertaking.

Ms D

1. Ms D qualified as a psychologist but has not practised in clinical psychology. She presently works part time as a discharge planner at a rehabilitation hospital. In her working career, Ms D has worked with the L Centre running childcare there. She has also been involved in family day care, owning a childcare centre and owning an early learning centre. She even indicated that she was aware of the very exacting standards under which F Group operate and if asked to do so would apply those exacting standards. Neither the mother nor the Independent Children’s Lawyer made an application that she do so.

2. Ms D has known the child since she was born and has spent time with her on a number of occasions. The mother accepts that Associate Professor H in her November 2016 report records that the mother told Associate Professor H in interview that “of their other mutual friends she nominated [Ms D] as one she would trust.[Ms D] is trained in psychology and is very ethical; but she is a very busy person.”

3. The mother’s concerns about Ms D are that she doesn’t have a close relationship with the child but the mother does acknowledge that the child is familiar with her. She has concerns that Ms D has a close and lengthy relationship with the father and the mother is worried that Ms D would be influenced by the father and that may “unwillingly” result  (I think that is unwittingly result) in a lower level of vigilance in supervision. The mother also points to the possible problems with her availability but that is of no relevance because if she’s not available then she won’t be a supervisor and if the other two supervisors are not accepted by me or if accepted are unavailable then the child will only see her father if the commercial supervisor is available. The mother also has concerns that Ms D doubts the truth of the allegations. Whether or not Ms D doubts the truth of the allegations is beside the point. The question for the court is whether Ms D understands what the allegations are and gives her undertaking based upon that understanding.

4. The mother deposes to an alleged conversation that she had with Ms D in January 2016. The mother asserts that Ms D said to her words to the effect of “I looked [the father] in the eye and asked him outright have you abused the child?” He said to me “I did get aroused once when I was changing the child’s nappy. I thought this was not good and put it out of my mind.” The mother also says that during that meeting Ms D said to her “I just can’t believe that [the father] would do this. I have known for so long. I can’t and don’t want to believe this.” Ms D denied that she had ever had such a conversation with the mother or that she had ever had a conversation with the father in the terms that the mother suggests that Ms D disclosed to her.

Conclusions about Ms D

1. As a trained psychologist, Ms D spoke about a textbook definition of “grooming” as being when somebody is sexualising a child and behaving in a way to make the child uncomfortable and being inappropriate with a child in a sexual way. Grooming is commonly understood as being behaviour by a perpetrator which lowers a child’s inhibitions with the objective of conditioning the child to accept sexual abuse as being normal.

2. Ms D was an impressive witness. I was very comfortable in concluding that if she observed any conduct including inappropriate close physical contact, whispering or inappropriate game playing that the father engaged in, having regard to the allegations made against the father, she would take steps to terminate the child’s time with the father. I accept that Ms D has the child as her first priority. I accept that if the father did not heed Ms D’s intervention that she would take steps to ensure that the child was removed from him by phoning the mother and arranging to have the child go home to her mother. Ms D is eminently qualified in the role as supervisor.

Ms C

1. Both the mother and the Independent Children’s Lawyer opposed Ms C being a possible supervisor for the child.

2. The mother told Associate Professor H that Ms C was a “wonderful person”.

3. Ms C retired three years ago. Before her retirement she worked in childcare initially hands-on with multiple children and then as an administrative assistant. She accepted that that work was physically demanding particularly in eight hour days.

4. Ms C has known the child since she was born. The mother disputes the frequency with which Ms C says she saw the child prior to the separation but on either account it is a significant number of occasions. Since the orders were made in March 2016, the father says Ms C has continued to see the child at least once a month.

5. Whilst the mother acknowledges that Ms C loves the child, she asserts that Ms C also loves the father dearly and that they have a long term friendship and the mother believes that she may be conflicted if placed in a position of being a supervisor of the father’s time with the child. The mother questioned Ms C’s availability and reliability. In relation to availability, as I have already said if she’s not available and neither of the two other proposed supervisors are available then the only way the child will see her father will be if F Group provide the supervision.

6. The mother cavils with Ms C’s experience as a former childcare worker and asserts that at the age of 58 years of age (that is two years older than the mother) Ms C may not be able to keep up with an active five year old in a manner that would allow her to comply with her undertaking to the court. The mother also holds concerns about Ms C’s health. The mother asserts that Ms C has regularly complained to her about depression, dizziness and haziness. None of those assertions were tested in the cross examination of Ms C and no submission was made based upon alleged problems with Ms C’s health by counsel for the mother.

7. The mother concedes that when the child turned one, during twilight sailing, she often left the child in the care of Ms C. The mother points to the fact that in April 2016 she requested Ms C to influence the father to return the child early because the child was unwell. Ms C indicated “I will try” but was unsuccessful in that endeavour. The mother wishes to rely upon that incident as an indication that Ms C would not be able to fulfil her undertaking to the court. I do not accept the logic of that argument.

8. In cross examination Ms C agreed that the child was a very active young child who was at times boisterous in her play. She agreed that the child liked to jump from one activity to another and that it could be tiring to supervise a child behaving in that way. Ms C was asked questions about how she would keep up with the child and her father if they for example wished to go away on a scooter. Ms C demonstrated an understanding that in order to fulfil her undertaking to the court she could not allow the father to be with the child outside her sight and hearing. The father was in court and heard that evidence.

9. Ms C indicated that she did not accept the proposition that the father would not accept Ms C’s challenge to an activity that he was undertaking with the child and did not accept the proposition that the father did not take interference well.

10. The Independent Children’s Lawyer asked Ms C to provide her understanding of the meaning of the word “grooming”. Ms C struggled with giving a text book definition but said that it would involve the father touching the child in an inappropriate manner and asking her inappropriate questions. Neither counsel for the mother nor the Independent Children’s Lawyer were satisfied with Ms C’s understanding of the word “grooming” and it seemed it was primarily on that basis that it was submitted that she be disqualified from being a supervisor.

Conclusions in relation to Ms C

1. I am comfortably satisfied that Ms C understands the seriousness of the allegations and that her undertaking requires an extreme level of vigilance on her behalf.

2. I accept that Ms C understands that she will need to remain within earshot of the child and her father during the whole time that she is supervising them.

3. I accept that Ms C would stop the child’s time with her father in circumstances where she observed anything that she thought was inappropriate behaviour. Having heard and seen Ms C in the witness box, I am more than comfortable in finding that she has the capacity to fulfil the undertaking that she has given to the court and would do so if she formed the opinion that the father was behaving in any manner which would constitute sexual abuse or lowering the child’s resistance to possible sexual abuse.

Ms E

1. Both the mother and the Independent Children’s Lawyer opposed Ms E being a possible supervisor for the child.

2. Ms E is a lawyer and the father’s current partner. They commenced a relationship in August 2016. She has participated in multiple contact visits with the child in the past.

3. The mother is worried that because Ms E is the father’s girlfriend she will be easily influenced by him and this may (she again uses the word “unwillingly” but she means unwittingly) result in a lower level of vigilance in supervision. The mother points to an incident on 21 October 2017. In the contact visit report by F Group on that day it is recorded that Ms E ignored a suggestion by the supervisor that Ms E not give the child a plaster piece to paint as it might be perceived as a gift. Ms E told the supervisor that “it was a resource”. The mother categorises Ms E’s behaviour on this occasion as “push back” against a suggestion by the supervisor and that as a result I should find that Ms E won’t be true to the undertaking she gives to the court. The full report from F Group as to what happened on 21 October 2017 is set out at pages 69 to 76 of the mother’s affidavit. That report describes a nearly five year old girl enthusiastically agreeing to paint a unicorn with a rainbow with Ms E sitting next to the child and washing out the child’s brushes in a small bowl and suggesting colours to the child. The father took pictures of Ms E and the child whilst the child was quietly engrossed in her work. The supervisor records that the child enjoyed painting the plaster figure with Ms E; appeared comfortable in her presence and seemed relaxed during that activity. What happened in relation to the plaster figure on this day seems on the supervisor’s own report to be totally unremarkable and I am unable to make any inference that it was some sort of grooming behaviour either by the father or Ms E. Obviously the professional supervisor on that day thought that Ms E providing the child with a plaster figure for the child to paint might be construed in some way as breaching a strict application of F Group’ protocol. However I do not form any view adverse to Ms E arising from what she did on that day.

4. Counsel for the mother tested Ms E in relation to her understanding of her responsibilities under the undertaking that she had given to the court. Ms E indicated that what she had promised to do involved her ensuring that she could hear and see everything that was going on between the child and her father at all times. When asked what type of activities would concern her she sighted an example, the child and her father getting into bed together and playing in the bed. In those circumstances, she would suggest that they involve themselves in another activity and perhaps play together outside. She reiterated in the time she had spent with the father and the child that she had never seen any activity that had caused her any concern.

5. Ms E was tested as to whether her care of her two children aged nine and seven would get in the way of her being able to fulfil her responsibilities pursuant to the undertaking that she had given to the court in relation to supervising the child with her father. Ms E explained the flexible arrangement that she had with the father of her two children. He lives in the next street. Ms E said, in what she thought would be the unlikely hypothetical situation of the father of her children becoming unavailable to look after her children at the last moment, then she would simply have to indicate to the father in these proceedings that she was unable to fulfil her role as supervisor on that day. She was firmly of the view that it would be difficult for her to fulfil her undertaking to the court if she had her children with her.

6. During cross examination Ms E demonstrated a comprehensive understanding of the responsibilities involved in fulfilling the undertaking that she’d given to the court.

Conclusions in relation to E

1. I don’t accept that the mother nor the Independent Children’s Lawyer has established a basis upon which I would be apprehensive about Ms E not fulfilling what she has undertaken to the court to do.

Extension of Time

1. The father wants two periods of three hours consolidated into one period of six hours.

2. The father says a six hour period of time with the child would enable him to take her to activities which he is currently not able to do in three hours such as visit the zoo, attend a show in the city or visit a museum. He also says the cessation of time on Thursday with an extension of time on Saturday will reduce the number of changeovers.

3. Given the mother’s proposal to relocate to the M Region, the father also says that the parties and the child will need to be prepared to spend more lengthy time together should the mother’s application for relocation be successful.

4. The mother opposes that change because a longer block of time would mean that the child would get very tired at the end of contact and that more than three hours is a long time to maintain vigilant supervision and would be onerous on a professional supervisor and the mother had serious doubts that any of the non-professional supervisors would be able to maintain a level of vigilance for a full six hours.

5. It is common ground that the child is a healthy and active almost five year old. There is no reason to believe that she would not be able to manage time with her father between daylight hours for a period of six hours. There is no basis to believe that any of the non-professional supervisors would not be able to maintain vigilance over a six hour period.

6. I find that it is in the child’s best interests to consolidate two of the three hour periods which the husband has into one six hour period.

Availability of Reports

1. As was acknowledged by the father in submissions in reply, there is some value in continuing to have some of the child’s time with her father supervised by F Group between now and the final hearing because those occasions would then generate a detailed professional report which would be available to both Associate Professor H prior to the final hearing and to the court at the final hearing.

2. At the final hearing I anticipate that I will also receive some reporting from Ms D, Ms C and Ms E as to anything untoward that they observed that happened during a supervision of the child’s time with her father. Senior counsel for the father indicated that all three women will be called as witnesses for the father in his case at the final hearing and in those circumstances, whilst they are not required to provide detailed written reporting of every occasion of supervision, some more general information will be available to the court from those supervisors.

3. Accordingly, I will make orders that provide a mix of supervision whereby on 12 occasions between now and the final hearing, F Group are to be engaged to supervise (in the event that they continue to agree to do so). On my calculation there will be 38 occasions (19 weeks multiplied by two) when the child will spend time with her father. The 12 occasions supervised by F Group should be at reasonably regularly spaced intervals. The father can choose a timetable to achieve this. Otherwise the father can choose any of the three proposed supervisors to fulfil the undertakings that they have each given to the court. The restrictions imposed by Johnston J’s orders in March 2016 will continue.

Not at the Father’s Home?

1. At the end of her affidavit of 14 December 2017 the mother says that when she was first negotiating the current supervision location, she agreed for the father to spend time with the child in his home at Suburb G. She asserts that at that time she didn’t understand that she had the option to oppose that. Alternatively she seems to say that because of experiencing stress and anxiety associated with her return from the UK, she agreed to the proposal that the child see her father at the Suburb G house. She now says that she is worried about the fact that the alleged abuse took place in the Suburb G property. The mother says in her affidavit that she would oppose any visits occurring in the Suburb G property if the father’s application to remove total professional supervision was successful. Arising from that evidence, the mother sought to make an oral application for an order that the child not see her father at his residence. Leave was granted for her to make that oral application.

2. All proposed supervisors indicated that if that condition was imposed by the court that they would abide by it.

3. The child has been seeing her father at his home for almost two years without any apparent ill effect arising from the location in which that time primarily occurs. There is no basis for making the order sought and in fact counsel for the mother made no submission in support of the application and that oral application will be dismissed.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 21 December 2017

Associate:

Date:  21 December 2017