WILMOTT & HALLIDAY

FAMILY COURT OF AUSTRALIA

WILMOTT & HALLIDAY

[2012] FamCA 918

FAMILY LAW - CHILDREN – Best Interests of the child – need to protect the children from being exposed or subjected to abuse by the father – where there were serious allegations the father had emotionally, physically and sexually abused the children - where the Court could not make a positive finding of sexual misconduct by the father-where the Court could not exclude the possibility that the father had molested his children – where the father had admitted to previous sexual misconduct – where the father has been convicted of assault on two older female family members –– inability of the father to provide for the children’s emotional needs – the danger of the children being exposed to psychological harm while spending time or communicating with the father - where the father had demonstrated impulsive and narcissistic personality traits– where the father was immature and unable to put his own needs before the children - where the father had made threats and insulting remarks about the mother and maternal grandmother in the presence of the children – where the father used unreasonable corporal punishment on the children– Orders least likely to lead to the institution of further proceedings– where there were previous final orders providing unsupervised time between the father and the two subject children - where there were previous final orders for no contact between the father and his children his previous relationship with his first wife

FAMILY LAW- CHILDREN – With whom the child spends time and communicates – where the children live with the mother– where orders restrain the children from coming into contact or communicating with the father - where the Court found that the two subject children would be exposed to an unacceptable risk of harm if ordered to spend any time or communicate with the father -where the allegations made against the father of him abusing the children constituted a change of circumstances justifying the re-opening of the case – where the previous final orders provided for the children to spend unsupervised time with the father

FAMILY LAW – PRACTICE AND PROCEDURE – Trial to proceed Undefended - Where the father failed to adhere to previous directions of the Court and the matter proceeded undefended – where the father is unusually well placed to understand the significance and consequences of his failure to put evidence before the Court due to his participation in two previous parenting proceedings–where the father’s oral applications for an adjournment made on the first and second days of trial were rejected

Family Law Act 1975 (Cth) ss 60CCand 68B

APPLICANT:

Ms Wilmott

RESPONDENT:

Mr Halliday

FILE NUMBER:

(P)SYC

252

2009

DATE DELIVERED:

7 November 2012

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

22, 23 and 24 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tregilgas

SOLICITOR FOR THE APPLICANT:

Aubrey Brown Partners

RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHIDLREN’S LAWYER:

Ms Carty

SOLICITOR FOR THE INDEPENDENT CHIDLREN’S LAWYER:

Rowley & Associates

Orders

All previous parenting orders relating to the children B born … November 2007 and C born … April 2009 (“the children”) are discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall not spend time with the father.
For the personal protection of the children the father is restrained from:
(a)assaulting, molesting, harassing, stalking, abusing or otherwise interfering with the children;
(b)entering upon or loitering near the premises known as E Street, F Town New South Wales or any other premises at which the Ms Wilmott, Ms D Wilmott or the children are residing or employed;
(c)entering upon or loitering near any child care centre, school, sporting facility or social club attended by the children;
(d)IT IS NOTED that these are Orders for the personal protection of B born … November 2007 and C born … April 2009, a breach of which attracts the power of arrest without warrant pursuant to s 68C of
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilmott & Halliday 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 NEWCASTLE

FILE NUMBER: (P)SYC252 of 2009

Ms Wilmott

Applicant

And

Mr Halliday

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

This is a parenting dispute over two young children aged four and three years. The parties are the applicant mother, Ms Wilmott aged 41 years and the respondent father, Mr Halliday aged 45 years. They both live on the Central Coast of New South Wales. The children live with their mother.
On 29 July 2011 final orders were made in the Federal Magistrates Court.
The mother stopped taking the children for time with their father in late January 2012. Since then, other than in interviews for a family report, the children have not seen their father, although they have spoken to him on the telephone.
The position of the mother is that there should be no further time or communication between the children and their father.
The father, in his Response, sought a return to face to face time, graduating over a 12 month period to extended alternate weekends and half school holidays. However, for reasons set out further in this judgment, the matter proceeded undefended by the father.

Short history of the parties

The parties met in 2005, began living together in April 2006 and were married in 2007.
In November 2007 the first child B was born.
In October 2008 the parties separated in circumstances where the mother says she felt fearful for her ongoing safety. Police were called and the father moved out of the premises.
B, then aged 11 months, lived with the mother who was pregnant with the parties’ second child.
Six months later in April 2009, the second child C was born.
On 30 May 2010 the parties were divorced. The mother has not remarried and has no present intention to enter any new relationship. The domestic arrangements of the father are unknown.

History of the litigation

This is the second set of proceedings between these parties.

First Application - 7 January 2009

After separation the parties commenced mediation during which, they agreed for the children to spend some supervised time with the father on Christmas Day 2008.
The father attended the mother’s home where the maternal grandmother was present with B. The father assaulted the grandmother, for which he was subsequently convicted, removed B, took him to Melbourne and remained there for approximately two weeks.
On 7 January 2009 the mother filed an application for recovery orders at G Town Local Court. As a result Interim orders were made by consent on 9 January 2009 as follows:
·That the father return B to the mother.
·That B live with the mother.
·That the parties have joint parental responsibility for B’s long term care, welfare and development.
·Each party have sole parental responsibility for the day care of B during such times as the child is in that parties’ care.
·That the father spend time with B for two hours each alternate weekend supervised by a Centre at G Town.
·That the father communicate with B by telephone on two occasions per week for no longer than 10 minutes on each occasion.
·The proceedings be transferred to the Federal Magistrates Court.
On 18 June 2010 interim orders were made for unsupervised time to begin. Six hours each Sunday.
On 13 and 14 April 2011 final proceedings were conducted in the Federal Magistrates Court at Sydney. The father proposed an equal time arrangement for both children with graduated time before C reached kindergarten age. The original application of the mother (G Town Local Court) proposed supervised time. However, her revised position before the Federal Magistrate was for the continuation of unsupervised day time visits
On 29 July 2011 final orders were in summary::
·The mother have sole parental responsibility.
·For the father to spend unsupervised time with the children on one day each weekend for about six hours graduating to a full day over time.
·Father to have communication between 6.00 pm and 7.00 pm two nights per week.

Second Application - 27 February 2012

On 27 February 2012 the mother commenced fresh proceedings in this Court. The matters justifying the re-opening of the proceedings were disclosures said to have been made by both children arising from the conduct of the father. The fresh issues raised by the mother are set out in her affidavit filed on

7 September 2012, in particular in paragraphs 47 to 89 inclusive. The allegations fall into four broad categories:
1.      Sexual abuse by the father in relation to C:
·kissing her vagina,
·“bumping” her vagina with his knife and scissors;
·digital penetration (para 57) of C’s vagina;
·squeezing of C’s vagina with the father’s hands;
·the father placing his penis inside C’s genital area.
2.      Unreasonable physical punishment of the children:
·smacking them on the head;
·squeezing the hands and leg of B (para 61);
·the father biting C’s hand and B’s finger;
·the father throwing C on the bed in anger.
3.      Making threats to the safety of the mother in the presence of the children:
·the father saying that he would “do something to mummy” while the children observed, “daddy got a knife”;
·telling the children that they would not see their mother again;
·telling the children that he would “put a fork in mummy”;
·telling the children that their mother, their grandmother and the family pet dog “needed to go in a big hole and disappear”;
·telling B that he needed to “stab mummy”;
·telling B that he needed to “cut mummy with a knife” and cut his friends and clothes with scissors;
·the father telling the children that he was going to “cut mummy’s head off so that we don’t see mummy again” and “to kill [the pet dog] and [the maternal grandmother] so we don’t see them again”;
·showing B a video on his phone of a man’s head on a stick and telling B (which he later repeated), “daddy wants to do that to mummy”.
4.      The father making insulting remarks about the mother in the presence of the children:
·Quote from B, “Daddy said sometimes you are a fucking bitch”. This remark is said to have been made by B on the first weekend after the conclusion of the hearing in April 2011.
On 5 March 2012 the matter was allocated into the Magellan protocol on the basis of the mother’s allegations that the child C had been recently sexually abused by the father.
On 26 April 2012 interim orders were made suspending the father’s face to face time with the children. Only order 3(d) remained in place; providing for telephone contact twice per week.
On 11 May 2012 the Magellan report was received by the Court. The Joint Investigation and Response Team (JIRT) Investigators were unable to establish whether any criminal offence had occurred in relation to:
(a) 25 January 2012: Report of C claiming her father has kissed and touched her vagina.
(b) 14 March 2012: Allegations of sexual play by B and C.
Sexual abuse was not ruled out due to the young ages of the children and difficulties of disclosure in a formal setting.
On 25 June 2012, a further interim order was made reducing telephone contact to one occasion per week for no longer than 15 minutes.
The father was present in Court and represented by a solicitor on 25 June 2012 when orders were made in this Court for the trial to be listed for hearing and for the filing of affidavits.
The father did not file and serve an amended response (order 5); the father did not file and serve any affidavit (orders 6 and 8); the father did not file a case outline document (order 13).
On 28 June 2012 a further order was made by a Registrar of this Court for the applicant and respondent to pay hearing fees. The father did not comply with this order.
On 12 September 2012 the Registrar contacted the father by letter in relation to the father’s failure to pay the hearing fee and failure to comply with the filing of an affidavit.
On 5 October 2012 the Court advised the father that the matter would be relisted on 8 October 2012. The matter was listed on 8 October 2012. The father did not appear on that occasion. A notation was made that the matter would proceed in the father’s absence with leave for him to relist the matter. The mother was directed to serve a copy of those orders on the father by prepaid post.
On the first day of hearing, 22 October 2012, the father appeared representing himself, objecting to the matter proceeding on an undefended basis. Having had an opportunity to obtain some legal advice, the father made an application for an adjournment of the proceedings. For reasons set out in a short ex-tempore judgment at that time, the hearing dates were not vacated, but the commencement of the hearing was adjourned until 12.30 pm on the second day listed for the hearing. The father was directed to file and serve an affidavit, which could be handwritten, by 9.30 am on the second day of hearing, with the trial to commence at 12.30 pm to enable the mother and the Independent Children’s Lawyer to read and absorb the affidavit provided by the father.
On 23 October 2012 the father appeared at 11.30 am. He had not prepared an affidavit and did not pay the hearing fee. The father then made a further application for the proceedings to be adjourned. For reasons given in a very short ex-tempore judgment, the application was refused and the matter proceeded undefended. The father remained in Court until 1.00 pm, but did not return after lunch or on the following day.
The significant deficiency in the evidence, being the father’s response to the fresh issues raised and allegations reported by the mother, is obvious.

Previous parenting case involving the father

An unusual aspect of this case is that the father was involved in proceedings with his first wife, Ms H, in Melbourne in 1996/1997 in relation to his two older children, who are now aged 18 and 19 years. They were pre-school age then. The similarities between the way in which that matter and the current parenting matter were conducted by the father are uncanny and are particularly demonstrative of the father’s character.
In those earlier parenting proceedings, the father was charged with assaulting his first wife’s aunt[1] during one of the children’s arranged changeovers and was convicted for aggravated assault and recklessly causing injury. An Apprehended Violence Order (AVO) was put in place for the mother of the father’s two older children, on an indefinite basis.
[1] Exhibit 7
In those proceedings the father admitted to committing several acts of sexual misconduct to a psychologist, whose report formed part of the evidence in those proceedings[2]:
a)When he was aged 15 or 16, there were several instances where the father peeped at his older step-sisters in the shower.
b)Later when he was aged 18, the father touched the genitals of an eight year old girl, who was the younger sister of one of his friends.
c)There was a further incident when the father was aged 27, where he touched his former wife’s 15 year old sister.
[2] Report of Mr J, Psychologist dated 06/04/1997, Annexure ‘B’ to mother’s affidavit sworn 07/09/2012
Those proceedings were also determined undefended by the father, although he had, as here, participated in the interviews for the preparation of an expert report. The father has seen very little of these two older children since orders were made on 30 September 1998.
The significance of those earlier proceedings is that the father had already had the experience of participating in the preparation for a hearing, and then withdrawing to leave the matter undefended. The conclusion I draw from this is that the father is unusually well placed to understand the significance and consequences of the failure to put evidence before the Court in relation to serious issues involving the present subject children.

Evidence

The mother - Ms Wilmott

The mother relied on the following documents:
(a)Reasons and Orders of Federal Magistrates Court dated 29 July 2011.
(b)Family Report dated 24 May 2011.
(c)Amended Application filed 11 July 2012.
(d)Notice of Child Abuse and Family Violence filed 23 February 2012.
(e)Affidavit of Ms Wilmott sworn 7 September 2012.
(f)Affidavit of Ms D Wilmott sworn 7 September 2012.
The mother was cross-examined by counsel for the Independent Children’s Lawyer at some length and with particularity. The mother gave evidence in a calm and responsive way. She made concessions where appropriate as to possible interpretations of the behaviour of the children.
The mother conceded that she had suffered depression before meeting the father and had taken medication for about six months. She said she had not particularly discussed this with the father, but that he had been present on an interview with a doctor during the course of her first pregnancy, when she had mentioned the past depression. She rejected the proposition that she had been depressed throughout the marriage or since.
The mother proposed no face to face time or communication between the children and their father, other than his being able to send cards and presents which would be passed on by her if suitable. She also proposed protective orders for the children herself and the children’s grandmother.
Her explanation for the proposal for cards letters and gifts was that it would represent a link with the father “so they know who he is down the track”. The mother had given some thought to an address the father could use to forward such cards gifts. She said and I accept, that if the children wished to communicate with their father she would allow it. However, I had the clear impression that the mother did not expect that the children would wish to make contact. I also accept that the mother believes that the children have been cruelly used and in the case of C, sexually abused by her father.
The father put no evidence before the Court. I accept the evidence of the mother as to what she has seen and heard from the children.
The Magellan report in this matter, stated that:
There [was] no conclusive evidence to either support or disregard the allegations, that [Mr Halliday] sexually abused [B] and/or [C]. The behaviours reported after contact with [Mr Halliday] are consistent with emotional and/or sexual abuse, however professional agencies involved with the family report limited observations of concerning behaviours or comments from either child. We do not disregard the allegations as interviewing children of these ages is not conclusive. It is common for victims to disclose, then retract or pretend it did not happen, and the nature of sexual abuse is secretive and based on coercive threats for children to keep the secret[3].
[3] Exhibit 10, pg 1
The mother was questioned about her contact with Ms H, the father’s first wife. She said that she had been the one to make contact after the breakdown of her own marriage in October 2008. She said she was curious about Ms H’s side of the story of Mr Halliday’ first marriage. Ms H told the mother about the father’s sexual conduct with her sister and with an unrelated young girl when he was a teenager in that first conversation. Unsurprisingly, this left the mother uneasy.

There were more conversations and subsequently Ms H told the mother of some ill treatment of her by the father. The mother gave evidence in these proceedings that at that time, 2008, she believed that Mr Halliday had treated the two mothers, herself and Ms H, in a particular way, but had not considered that this negative behaviour would flow on to B and C. I accept this evidence. I find that the mother made a real effort to keep an open mind about the father and to recognise the children’s interests as separate to her own.
In 2010, on her own evidence, the mother had a different view than she had in 2008. After unsupervised contact began she was concerned that although the father was having day time contact only, the children regularly had baths in their father’s home with their father.
On Monday 25 October 2010, the children had been sitting on a sofa together when B lifted up his bottom so that his pelvis was in the air and said, “Here [C] let’s lick.” The mother sought advice from the Child and Family Health Care Clinic in the following days and reported that matter to the Department of Community Services. Ms K was asked about the reaction of the mother and commented that such a statement from a three year old was concerning and the response of the mother appropriate. I agree.
The mother conceded that she and the father had different ideas about raising children. She agreed that he had previous experience of fatherhood, but said that although he appeared confident, he did not do much for B as a baby. The mother agreed that B had a good relationship with his father, other than the episode when he was forcibly removed as a baby for two weeks which had been traumatic for him. She said she thought B had fun with his father, had gone for walks in his pram and had been taken to a local coffee shop. After the episode in Christmas 2008, the mother no longer trusted the father, but her evidence in these proceedings was that “B deserved to know his father.” When questioned about that, the mother said that she herself “had a fantastic childhood, two parents who love me and I wanted him to have that too.” The mother continued to support a relationship between the two children and their father into 2011.
Significantly, she said that in April 2011, on the first weekend after the conclusion of the hearing in the Federal Magistrates Court, B came home and told her that she was “a bitch”. When asked who had told him that, B replied, “Daddy”. It was the mother’s evidence that this was the beginning of a pattern of derogatory and increasingly threatening remarks reported by B, apparently made by the father, about the mother, which she believes the father made in front of the children, and which they then repeated to her.
After the orders were made at the end of July 2011, the mother asserts an escalation of negativity by the father, with frightening consequences for the children. There is no reason not to accept the mother’s evidence that the only people who looked after the children were herself and her mother, who also gave evidence. B commenced pre-school one day per week in May 2011, but the mother did not attribute to the pre-school or the children attending it, the references to knives and threats that B made.
I accept that the mother supported the contact between the children and their father, despite her fears and reservations and despite the irritations of the children occasionally being returned late, without the shoes and clothes they had been sent with and often returned with bags of wet clothing without explanation. The records suggest that through minor illnesses, the mother continued to make the children available.
The mother was asked why she had begun consulting a psychologist, Ms L. Her explanation was credible. She said that when B began saying things such as, “Daddy has a knife” or “you need to go in a hole”, she did not know how to “handle it”. She wanted to reassure B, without putting his father down, and sought assistance. I have no reason not to accept the evidence of the mother that after B had been visiting Ms L for a couple of months, she encouraged him to talk about anything that was worrying him about his father or herself and advised him that it was good to talk and that Ms L was someone he could talk to.
In late January 2012 C made statements about her father’s conduct and displayed her genitals to her maternal grandmother and mother.
The mother reported allegations of sexual misconduct by the father to the Department of Family and Community Services (the Department). She withheld the children on the next contact occasion. She says she did so, on the advice of the Department. I note that the mother promptly conceded that no one at the Department had suggested she say that she had a doctor’s certificate for the children being sick on that occasion. She had thought to say that herself. She conceded that she had lied to the Contact Centre about the children being sick and unavailable. I accept her evidence that she had been advised to find a reason not to make the children available and she had proceeded from there.
The mother was questioned as to whether or not her own mother brought influence to bear on the decision to seek to terminate all contact between the children and their father. The mother denied pressure or influence. She agreed that her mother had a negative opinion of the father, aggravated by his assault on her at Christmas 2008.
I did not get any sense that the mother was overborne by her own mother or that she was at odds with her about the children’s relationship with their father.
In May 2012 both children were making complaints about the father, that he had bitten their fingers; C was frightened of a bear around bath time and bedtime. C made an explicit statement that her father had put his “willy in my botty. Very gently. I was very brave. I didn’t cry.” She said her father had told her she had a “little willy” in her vagina
In August 2012, C told the psychologist that her father had put her on a change table and pretended that he was a doctor and she was a baby. That he had “sticked his finger in my botty and my mini-moo.” On her own evidence the mother had prompted C, asking her if she “remembered what she wanted to tell [Ms L][4]”.
[4] Affidavit of Mother sworn 07/09/2012, para 87
This is consistent with the mother’s evidence that she wanted the children to have someone to talk to. It is also consistent with putting pressure on the child to make allegations.
Even if this is so and the mother was focused on providing evidence for this case there is no basis for a finding that these statements were fabricated. The evidence of both mother and grandmother, in answer to an open ended question about further allegations was that since affidavits were sworn the children have been settled and sexualised conduct has ceased. I am satisfied that the mother was simply anxious to ensure all information was put before the court
The children’s anxious behaviour however, has continued. The evidence of the mother was that the children react to the telephone calls from the father in a way that seems entirely out of proportion. She said that after a Thursday night phone call, the children would each get out of bed up to three times, have difficulty sleeping, be wetting the bed and that their behaviour would change.
I accept that the mother’s distress about what she observed in the children, the ambivalent outcome of the JIRT investigation and her own certainty that there had been sexual misconduct and emotional abuse, may have been communicated by her to the children unconsciously and that they are reacting accordingly.
Counsel for the Independent Children’s Lawyer raised the question of attention seeking by both children, knowing that it was a “hot button issue" for the adults in their lives. I think there is some substance in this in relation to phone calls.
I accept the proposition put by the Independent Children’s Lawyer that a combination of events, the knowledge of the father’s conduct in his first marriage, two sets of hearings and the JIRT investigation, has left the mother certain of misconduct, profoundly mistrustful of the father and unable to communicate with him.

Evidence of Ms D Wilmott, maternal grandmother

Ms D Wilmott (“the maternal grandmother”) is the mother of three adult children, one deceased, of whom the mother is the youngest. Her family came to Australia 24 years ago. She was divorced about 12 years ago and retired from her work about 10 years ago.
Her daughter, the mother in these proceedings, stayed with her after she had separated from the father during her pregnancy, because the mother had sciatica in her back and was unable to lift B. The maternal grandmother was able to assist her daughter with the care of B and then the new baby, C.
The maternal grandmother said she had been a diary keeper all her life, just noting particular items such as visitors and special events. She has included the statements of B and C and their behaviour over the last couple of years.
The maternal grandmother said, and I accept, that she did not talk about the children’s father in their presence. She referred to being disciplined about not doing so and being careful and guarded about expressing any opinion about the father when they were in the vicinity. I accept her evidence about that.
The maternal grandmother also said that she was willing to have her own address used for cards and letters if they were permitted to be sent from the father to the children. Given her evidence that she continues to suffer the consequences of the assault on her by the father, I am satisfied that her willingness to allow her address to be used for this purpose is self sacrificing in terms of her own personal safety and happiness for the benefit of her grandchildren.
The maternal grandmother now has an entirely negative view of the father, although I believe that she has not always held such a view. In the witness box she said, “I think he is evil. Leaving aside what he did to C to say the things he said to B”. She also referred to having felt sorry for the father in the early years of knowing him because he told her he was unable to see his two older children.
The maternal grandmother sees the mother and the two children at least once a week, usually more often and regularly overnight. She has a close, easy, affectionate relationship with her daughter and grandchildren. In her affidavit she refers to particular comments that B had begun to make to her during June 2011, such as[5]:
B: Mummy’s a fucking bitch.
MGM: Who said that Darling?
B:Daddy. (In the car) Daddy said he wants to kill mummy with knife.
Daddy wants to cut mummy with a knife.
Daddy said to cut [the maternal grandmother].
Daddy said mummy needs to die with a big pin thing.
[5] Affidavit of Ms D Wilmott sworn 07/09/2012, paras 5, 6, 7 and 8
On 3 March 2012, the maternal grandmother observed the children in a bedroom in her home. She observed the children, C with her knickers around one ankle, B looking at C’s vagina. When she asked the children: “What are you doing?” B lay back on the bed, pulled down his underpants cupping his penis and scrotum in his hands. He then said to his sister, “Be gentle C, don’t hurt me”. C responded by getting up on her knees and said, “Lay on the pillow B it won’t hurt”. C then reached out towards B’s penis.
The maternal grandmother picked the child up and said to her, “Who told you to do that” and she replied, “Daddy”. Consequently, there was a discussion between the mother, the grandmother and the children, where both children are said to have stated that their father had touched both of them in their genital area and had encouraged them to touch one another on their genitals.
From time to time both children made random statements, which gave

the maternal grandmother concern. C routinely had nightmares about a bear which related to a story the father often read to her. C made the statement, “I have a little willy”. When asked where, C said: “Inside my mini moo (vagina)”. C then said: “Daddy put his willy in my botty. Very gentle. I was very brave, I didn’t cry.” The maternal grandmother said to C that the child didn’t need to be brave but say, “No daddy”. C’s response: “I said no, no, no, Daddy said yes”. “Daddy isn’t a doctor he was a pretend doctor”. The child said that this happened “in daddy’s bed”.
The maternal grandmother referred to C on one occasion having been lifted off the toilet, having hopped up on to the bed, spread her legs apart and displaying her inner genitals. C then said, “Daddy kisses my mouth.” When asked whether daddy kissed her anywhere else, she said, “On my tummy and on my mini moo.” This led to the maternal grandmother contacting the children’s mother, asking her to come home and asking C to repeat what she had showed her, which she did.
The maternal grandmother said that just before the assault on her in December 2008, the father had come to her door. He had been polite, friendly and smiling. She said once he came into the home he quickly changed “from a smiley nice pleasant face to rage and grimacing right in my face. I hope never to see that again and I hope the children never see it, but I fear they have.” After that incident the maternal grandmother became increasingly concerned and worried about her young grandchildren.
The maternal grandmother readily agreed that the children could have picked up on her anxiety and that of her daughter. She was not happy about unsupervised contact taking place. More recently she described that the children’s behaviour changed remarkably on the days following their telephone calls with their father. They would play aggressively, act rudely and chase each other. They would also refuse to play with their ordinary toys, trains for B and dolls or “babies” for C. She said it took a couple of days for the children to settle back down.
As stated, I accept that the maternal grandmother makes every effort to restrain what she says and actively control any reactions to the children’s behaviour in front of them. However, she believes that the children would be better off without the father in their life and at some level this has probably been communicated to them. The comments and sexualised conduct of the children may have been repeated because the children understood that their grandmother dislikes their father and they wished to gain her approval. Equally certain events, dreams or incidents may have provoked memories of events in their father’s home.
The evidence, which I accept, given by the maternal grandmother of the sexualised conduct of the children in her home, suggests that they have seen or been exposed to sexual conduct in some way whilst in the care of their father.

Evidence of the Family Consultant, Ms K

Ms K had prepared a family report dated 24 May 2012. During the course of her oral evidence, Ms K amplified her recommendations. She stated that she had not put specific recommendations in her report, because she was not sure if the report would be released to all parties including the father. Ms K had then, and has now, concerns for the safety of the children, their mother and their grandmother. She was clear to say that her recommendation was that there should be no time, no contact and no communication of any kind between the children and her father. To the best of her recollection this was the first time she had made such a recommendation.
Ms K disapproved of the proposal of the mother and ICL for the father to be able to provide letters, gifts and cards to the children through the grandmother’s address or through any address.
Ms K holds this view about the father[6]:
…..
The Family Consultant has concluded that [Mr Halliday] poses a significant threat to the safety and well-being of the mother and the 2 children and that urgent measures need to be put in place in order to ensure their safety. This would include stopping all communication between the father and the children as soon as possible. It is also strongly suggested that the mother apply for an Apprehended Violence Order to protect herself and the children given that she has reported that the father appears to be stalking her.
and further[7]:
It is hard to predict what will happen next; however, the father’s history of violent impulsive behaviour (including two unprovoked criminal assaults against elderly women) combined with his personality traits suggests that he may be very dangerous.
[6] Family Report dated 24/05/2012, para 136
[7] Family Report dated 24/05/2012, para 139
This is another reference back to Ms K’s assessment as follows:
The father presented with a strong sense of entitlement, marked narcissistic traits and a very detached attitude (he didn’t appear to care much what was said about him or what allegations had been made – he seemed to be quite confident that this was a routine interview and that things would soon get back to normal)[8].
[8] Family Report dated 24/05/2012, para 135
I note that this assessment echoes that of the psychologist who saw the father in 1996[9]:
[Mr Halliday] can be somewhat immature and impulsive and at times has difficulty controlling his temper. He tends to be somewhat open in relation to his emotions and is certainly not over controlled or repressed in any way. He can at times be viewed as mildly rebellious and can also be seen as pleasure seeking and more concerned with his own gratification than the wellbeing of those around him. (Omission) [Mr Halliday] can occasionally show bad judgment and can be mildly narcissistic in his presentation.[10]
[9] Report of Mr J, Psychologist pg 31 of 86 , Annexure ‘B’ to mother’s affidavit sworn 07/09/2012
Ms K’s concern was that the provision of cards and gifts and letters would create a false impression for the children about their father’s nature and could lead to the children seeking their father out as young teenagers on the basis of that perception. Ms K expressed a particular concern about C’s vulnerability in such a circumstance, given the father’s past conduct as a young man.
Ms K had the opportunity to talk to the father and her observations and assessments of him are especially significant in circumstances where the father did not put any evidence before the Court, or participate beyond the preliminary stage. She said that the father was guarded on issues around his own behaviour prior to 1996, conduct involving his former wife's children in Melbourne and the allegations arising from statements made by B and C. She said he was guarded on those issues. His response was to the effect- the allegations were all lies we can move on. He also would not reveal the orders he was seeking or the position that he would take. This appears in Ms K’s report with the father saying he was not prepared to discuss the proceedings until he had had further legal advice[11].
[11] Family Report dated 24/05/2012, para 58
The father told Ms K that the mother had been abusive to him during the marriage, and that is why he had left. He said that the mother suffers from depression and was not in a good position to look after the children. When the Family Consultant suggested that the mother did not present in the way suggested by him, the father apparently said he would like an independent psychiatric examination of the mother. This view expressed in May 2012, is quite inconsistent with the father’s response filed on 20 June 2012, where he sought equal shared parental responsibility for the parents and that the children should live with their mother other than for specified periods of time with him.
Ms K was clear that the father in her view lacked an understanding of boundaries. He had conceded to looking at step-sisters showering as a teenager and I take Ms K’s evidence to mean that she considered that the father understands what the boundaries are but does not understand why he should adhere to those boundaries. He easily dismissed his past sexual misconduct with an eight year old girl and the 18 year old sister of his first wife as curiosity[12].
[12] Report of Mr J, Co Psychologist dated 18/07/1996, p 27 of 86 to p 29 of 86 inclusive, Annexure ‘B’ to affidavit of mother sworn 07/09/2012

The Family Consultant was concerned to note that the psychological assessment of the father was titled ‘Psychological Assessment Crimes Compensation Claim’ with the uncertainty as to the father’s motivation in making the statements that he did at that time. The psychologist who conducted the assessment came to this conclusion:
1.[Mr Halliday] does not suffer from any formal psychological disorder. He does not show any sign of serious mental illness and there are no indicators that he has a fundamentally flawed personality or any formal psychosexual disorder.
2.[Mr Halliday] clearly has some personality traits which would indicate he can be immature, self centered, somewhat impulsive and even at times narcissistic. I would stress that these are personality tendencies and [Mr Halliday] appears to have some insight into these aspects of his character[13].
[13] Report of Mr J, Co Psychologist dated 18/07/1996, pg 31 of 86, Annexure ‘B’ to affidavit of mother sworn 07/09/2012
Referring to this Ms K said that she noted that the traits and behaviour identified in 1996, particularly the father’s impulsiveness and anger, represent a consistent pattern of behaviour getting worse, not improving. For example, Ms K noted that the matter of the father regularly bathing the children during his six hours of day time contact, and sometimes bathing with them, was a reflection of him failing to set boundaries even for his own benefit. Given his history of allegations by third parties of sexual misbehaviour, the father might have been expected to have become self protective.
Ms K had the opportunity to observe both children with their father. She described C as a very bright, very articulate child. If an incident had been traumatic or out of the ordinary for her, she would likely remember it. This comment was made in the context of C complaining in May 2012 as follows:
C:       My mini moo is sore.
Mother:        Is it darling?
C:                 Yes, daddy put his finger right inside. Daddy sticked his                  finger in my mini moo like that mummy. He hurted me. I   said stop and he didn’t stop.
This incident and similar incidents around that time came four months after both children had ceased any face to face contact with their father. However, they did have contact with him at the Family Court interviews on 22 May 2012. I accept that events could have triggered both memories and nightmares for both children.
B was described as on track developmentally, reserved and polite with good speech. However, while he was in the presence of his father he was observed to be:
Considerably louder and a whole lot sillier than before and his laughter seemed quite forced at times [14].
[He] appeared anxious to please his father and was also attention seeking in his behaviour[15]
[14] Family Report dated 24/05/2012, para 112
[15] Family Report dated 24/05/2012, para 113
As for C:
When it came time for the children to see their father, [C] started to frown and pull faces. When the Family Consultant asked her if she was not happy, she nodded and whispered, “No bear story.” The Family Consultant [also] noted that [C] started to touch her face and look around for her comfort blanket[16]
[16] Family Report dated 24/05/2012, para 121
Initially, the Family Consultant suggested to the children as an icebreaker that they hide in the puppet theatre and surprise their father. They enjoyed that aspect of the re-introduction. Thereafter C did not approach the father, but tended to hide behind her brother. When C tried to follow her brother into the puppet theatre the father “grabbed her and told her to sit down next to him.”[17] C complied but managed to wriggle away and put distance between herself and her father. When the father asked C if he could have the picture she was colouring in she said, “No, it’s mine…the other one is for mummy”.[18]
[17] Family Report dated 24/05/2012, para 124
[18] Family Report dated 24/05/2012. para 125
Ms K in her evaluation states that it was impossible for her to say with any degree of certainty, whether the children have been sexually and physically assaulted. I agree with that assessment. In circumstances where the father has not participated in this hearing, it is not possible to make positive findings. However, the assessment by Ms K of the father and her observations of the father with the children, support the statements made by the mother and earlier assessments of the father, that he does not have good boundaries with the children and to use the words of Ms K, “regards the children as possessions that he is entitled to have access to”. This is a serious assessment. If the father regards the children as possessions, then they could be used by him to meet his own needs in a variety of circumstances.
The evidence suggests that it is more probable than not that the father has said and done things to the children that meet his needs and not theirs. In particular, B making statements that:
Daddy said put mummy in a big hole and kill you. Daddy not see Mummy ever, ever again! Kill [the maternal grandmother] and put her in the same hole. Not see [the maternal grandmother] ever, ever again![19];
Daddy is going to cut Mummy’s head off so we don’t see mummy ever again. Going to kill Gemmy (the pet dog) and [the maternal grandmother] so we don’t see them again. [20]
Daddy wants to kill Mummy. Daddy showed me a video on his phone. A man’s head cut off on a stick. Still with eyes on. And still with a mouth on. Daddy wants to do that to Mummy[21]
[19] Mother’s Affidavit sworn 7/09/2012, para 47.9
[20] Mother’s Affidavit sworn 7/09/2012 para 47.10
[21] Mother’s Affidavit sworn 7/09/2012 para 52
These disturbing comments are strongly suggestive of the father either failing to conceal his own negative feelings about the mother from B, or deliberately making statements to B in the hope that they would be carried back to the mother causing her distress.
Ms K assessed the mother to be a very competent mother and that the father’s criticisms of the mother were quite unjustified. Indeed, Ms K considered the father to have an inflated sense of his own parenting abilities.

The law

These are applications for parenting orders. The context is for variation of final orders made last year. An Order for sole parental responsibility for the mother is in place. The judgment of the Federal Magistrate is in evidence before me. The issue of parental responsibility need not be re-determined especially in circumstances where the father participated in that hearing representing him self.
The issues for determination are the time and communication between the children and their father and the physical safety of the children and their family
In deciding whether to make a particular parenting order in relation to a child, a Court must have regard to the best interests of the child as the paramount consideration. The way a Court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“The Act”).

Section 60CC(2)(a) The benefit to the children of having a meaningful relationship with both of their parents and (b) the need to protect from physical or psychological harm.

These children are not presently enjoying any relationship with their father at all. B was a young baby and C was not born prior to separation. Two months after separation, the father removed B without the mother’s knowledge or consent, took him interstate and kept him away for a period of 14 days. I accept that B was traumatised by the separation from his mother and that the father was untroubled by the impact on B of that event. Thereafter, a good relationship did develop with both children and was maintained over almost two years of supervised visits. Since unsupervised time began relationships have deteriorated.
There is consistent evidence over the last 16 years that the father has impulsive, narcissistic personality traits. He has difficulty controlling his temper. This is consistent with the children’s reports of having been thrown on the bed and having their hands and legs squeezed by the father in a painful way. There is a need to protect these children from physical and psychological harm. Psychological harm being a significant factor. Both children have reportedly become extremely anxious in relation to their father, fearful about threats that have been made in their presence and through them to their mother, the grandmother and the family pet dog.
I accept the evidence of the mother and grandmother that the behaviour of the children deteriorates after telephone contact and that they become aggressive with each other and unresponsive in an uncharacteristic way. I have no reason not to accept the written and oral sworn evidence of both the mother and the maternal grandmother. They were tested in cross-examination by counsel for the Independent Children’s Lawyer in a thorough way. I found both witnesses candid, straight forward and able to separate their own distressed feelings from the interests of the children. The real difficulty is interpreting the statements made by very young children and understanding the context which could have given rise to the statements that they have made.

Section 60CC(3)(a) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views

These children are a boy almost five and a girl almost three. They are bright articulate children, but do not have a level of understanding that would enable them to express any view about their current situation.
Section 60CC(3)(b) The nature of the relationship of the children with each of their parents; and other persons (including grandparents)
Both children are assessed to have a strong, close, loving relationship with their mother and their maternal grandmother. The relationship with their father is problematic. B does not want to see his father, but may well have been affected by a long period when he did not see his father, when it was probably obvious to him that this was a source of relief to both his mother and maternal grandmother.
Section 60CC(3)(c) The willingness and ability of each of the children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
The mother encouraged and facilitated a continuing relationship between both children and their father in difficult circumstances. The marriage was a very short one and the mother was pregnant when the parties separated and within two months the father had abducted B and in the process assaulted the maternal grandmother. Needless to say the mother lost considerable trust for the father following that incident. Nonetheless following the making of interim orders the mother maintained supervised contact with the father. Then following the delivery of final orders in the federal magistrate’s court the mother supported unsupervised contact. She continued to make the children available as she had done at the Contact Centre.
It was only in January 2012 when C in particular made allegations which gave rise to a strong inference that she was exposed to sexual abuse by the father, that the mother ceased making the children available for contact.
I accept that the mother wanted the children and particularly B soon after separation, to enjoy the benefits of having two loving parents as she experienced during her own childhood. .
Section 60CC(3)(d) The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or other person with whom they have been living
Presently the children are not seeing their father face to face. There is telephone contact which has proved to be disruptive and unhelpful to them. The father has perceived the telephone contact as being a benefit to him. However, even from the time when B was approximately one year old, the father became irritated when B became distracted playing with toys, rather than focussing his attention on the father. More recently, the father had also become annoyed with the children when the children are in the bath or otherwise pre-occupied during his phone calls, even though he was able to speak to the children at those times.
The effect of the change such that the children have no contact with their father at all is unknown. There may well be an increased sense of relief or safety in the households of the mother and the maternal grandmother. The children themselves may feel negative effects and come to believe that their father has rejected them or that they are somehow to blame.
Section 60CC(3)(e) the practical difficulty and expense of the children spending time with and communicating with a parent
The parents both live on the Central Coast of New South Wales. There are no practical difficulties or expenses which the parties could not meet to enable the children to spend time with their father.
Section 60CC(3)(f) The capacity of the children’s parents and any other person to provide for the needs of the children, including emotional and intellectual needs
The mother is assessed as being a competent and sensitive parent. My impression of her and her evidence is that she is appropriately protective of the children, genuinely worried for their welfare and sad that their father is unable to give priority to their needs over his own, and unable to protect them from his anger with her.
The mother is entirely financially responsible for the children. Child support is in arrears, the new assessment requires the father to contribute about $30 per month[22]. She has chosen not to enter into any new relationship, which she regards as a risk she is not prepared to take. The mother has facilitated contact between her children and the father’s two adult children from his relationship with Ms H, who live in Melbourne. The mother understands the loss in the children’s lives of a loving father.
[22] Exhibit 3
The father enjoys having fun with the children, however his personality traits which include narcissism and impulsive angry conduct, mean that at times the children enjoy his company and have fun with him and at other times are frightened and hurt by his behaviour. The father is unable to distinguish between his needs and the needs of the children. He is unable to give priority to the children’s needs above his own.
Section 60CC(3)(g) The maturity, sex, lifestyle and background of the children and of their parents, and any other characteristics of the children that the court thinks are relevant
The children are a little boy, almost five, who will start school next year and a girl of three. They live with their mother and spend considerable time with their maternal grandmother. They have both suffered from anxiety, nightmares, regression in their development and fears for the safety of their mother, especially B.

Section 60CC(3)(i) The attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

The mother is providing a home, supervision and care for the children. The father is making a minimal financial contribution and is intensely critical of the mother.
The father presented as angry, sullen and resentful in the short time that he participated in these proceedings.
There is particular significance in the fact that this is now the second occasion where the father has not participated in a final hearing, having gone through the preliminary procedures: interviews for the family report in this case and a psychological assessment in 1996 for the case involving his two older children. I consider it appropriate to infer that the father was unwilling to face the scrutiny of the Court in relation to the serious allegations arising from the statements and behaviour of his children involving him.

Section 60CC(3)(j) Any family violence involving the children or a member of the children’s family

The children’s maternal grandmother has been assaulted by the father. The parents separated in circumstances where the mother was fearful for her safety and both the children exhibit signs of fear of spending time alone with the father. There is no current family violence order. In view of the recommendation of Ms K that the mother urgently obtain an AVO and the evidence of the mother and grandmother about their fears an order for personal protection under s 68B of the Act is appropriate.

Conclusion: risk of harm posed by the father to the children

I am satisfied that the father was physically rough with both the children. For instance I consider that on balance he held B on the bed causing injury to his finger and gripped B on the leg causing pain. However, I cannot be satisfied that the father physically abused the children or either of them.
I am satisfied on the balance of probabilities that the father has emotionally abused B by:
-       telling him that he himself needed to take a knife and stab his mother;
-       showing him a phone video of the head of a man on a stick;
-       telling him that his mother, grandmother and pet dog needed to go in a big hole in the ground and that he would never see them again.
I cannot be satisfied on the balance of probabilities that the father sexually abused either of the children. However, although I cannot make a positive finding, neither can I exclude the possibility that the father sexually abused both children, more particularly C. This is especially so where the father declined to participate in the hearing.
The evidence of the mother and maternal grandmother’s accounts of the children’s graphic sexualised play with each other and C’s tendency to display her genitals in a particular matter, informs the possibility of abuse.
There exists in my view an unacceptable risk that these very young children, or one of them, would be exposed to sexual abuse if there was an order for the children to spend time with their father.
I consider that there is an unacceptable risk to the children in spending any time with the father, or communicating with him, particularly the risk that he will make threats directed towards the mother, maternal grandmother and the children’s pet dog in their presence, that he will involve the children in sexualised behaviour.
I am unable to make a positive finding that the father has abused the children. However, I consider that there is, on balance, sufficient evidence of inappropriate conduct, which cannot be explained by exposure to anyone else other than the father. I consider that the father’s lack of empathy for the children and his use of them to convey quite hateful messages arising from his own anger, represents a risk to their health and safety that is not outweighed by the benefits that may come from those times when the father enjoys the company of the children and they are cooperating with him.
Accordingly, I make orders that place the children in the exclusive care of their mother, with no provision for communication with their father. I am confident that the mother has the capacity to explain to the children over the years, in terms that they can understand, the need for them to have been protected from their father without doing damage to their self esteem. I make orders accordingly.

I certify that the preceding one hundred and twenty-nine (129) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 7 November 2012

Associate:

Date: 7 November 2012

[2012] FamCA 918

Key Legal Topics

Areas of Law

Family Law

Negligence & Tort

Legal Concepts

Injunction

Damages