Mutual and multiple false assertions

Mutual and multiple false assertions

Timms & Timms

Summary – Entrenched parenting dispute about three children aged from five to eight years old – whether children genuinely scared of father – whether children’s expressed reluctance to see father is fomented by mother – whether father presents risk of sexual abuse of children – florid mutual allegations of misconduct between parents – both parents assessed as terrible witnesses – Independent Children’s Lawyer recommending immediate re-commencement of time with father – Court concluding immediate time impossible – family therapeutic counselling ordered.

The parties’ allegations against one another

16. This case has been made, as I have already indicated, more difficult by the extraordinarily florid assertions made by each of the parties against the other. The allegations made by the father against the mother include:
    • The mother has invented (fabricated according to the father) numerous assertions of assaults by the father against the mother and the children in support of her various Intervention Order applications and more generally.
    • The mother has created forged text messages on the father’s telephone while he was asleep, deleting them from the father’s phone but then producing them in court proceedings as annexures to an affidavit.
    • The mother has fabricated in some fashion a text message left on X’s telephone.
    • The mother dresses X up in adult female clothing including a bra.
    • The mother buys pornographic material from Sexyland.
    • The mother has invented an allegation that on 18 April 2013 she found the father at about 3 am with X naked on his lap, he having ejaculated.
    • The mother has forged documents in relation to a passport application (this assertion is, in fact, correct).
    • The mother assaulted the father on 23 April 2013 and, having called the police, herself ripped her blouse and cut herself with a knife to mislead the police as to what had occurred.
    • The mother has caused to be created forged anonymous letters which she has subsequently attributed to him.
    • The mother is a prostitute (this was based on hearsay information to which I shall come).
    • The mother has engaged in Centrelink fraud.
    • The mother is alienating the children from him deliberately.
17. Additionally, the father called Ms W as a witness who asserted, clearly in collusion with the father:
    • The mother is a thief.
    • The mother is a prostitute who has been injured in the course of rough sex with clients.
    • The mother has connived with others to implicate Ms W’s son in drug dealing.
    • The mother has made threats to kill the father or have him killed.
18. The mother’s allegations against the father are not as numerous in tabulation but are every bit as significant and in part outlandish. They include:
    • The father was frequently violent both to her and the children.
    • The father is a paedophile who she had found to have ejaculated while holding X naked in his arms.
    • The father makes the most horrible threats, both by email, text and in the anonymous letters referred to above, to kill not only the mother but X as well; and
    • The father has threatened to have sex with the mother’s other two children who are not the natural children of the father; and
    • (Through a witness who was not actually called) the father is a transvestite who dresses up in women’s clothing.
19. This sorry history, some of which I find to be correct but most to be florid exaggeration, makes for considerable forensic difficulty. In circumstances where each party makes very serious allegations of violent assault and the other party asserts that this is wholly fabricated, it is immediately apparent that both witnesses cannot be truthful or accurate in their recollection. I will deal further with the credit of the parties in due course but I set these matters out now because they give an indication of the scope and nature of the proceeding. I cannot recall a case in which such florid (a word I am using repeatedly) accusation and denial has had this element of intensity and degree.

The Report of Ms E, dated 12 September 2014

99. Ms E recorded the background to the dispute and I note that at paragraph 3 she observed, “There were some separations and reconciliations during the relationship”. She also noted, “The couple finally separated in the latter part of 2012”.
100. At paragraph 4 Ms E noted the mother’s allegations of violence by the father and the Intervention Orders she had applied for. I also note the father’s assertion that the mother was being paid for sexual favours by an employer.
101. The report noted a reconciliation in October 2012. I also note that at paragraph 11 Ms E recorded, “He says Ms Timms has told her family of his conversion to (religion omitted). They have threatened to murder him and try to bring him to (country omitted).”
102. Ms E recorded the mother’s assertion that the father saw the children every Saturday between 11 am and 1 pm from January 2012 onwards but that from 5 November 2012 meetings between the father and the children occurred twice per week for about three hours. At paragraphs 17-19 Ms E recorded:
     “Ms Timms says the visits then moved to her house and continued two or three times per week. She says that again, during those visits, she was always with the children. She says Mr Timms sometimes had a meal with them.
     Ms Timms says these visits stopped after 18 April 2013.
     “I told him to stop coming to the house.”

 

Ms Timms says this occurred because Mr Timms sexually assaulted X on that day. When asked what happened she said she got up to check the children at 3 am and Mr Timms was sitting with X on his knee on a couch which is in the passageway between the bedrooms. X was falling asleep. She was wearing underpants. Mr Timms was wearing a shirt and trousers. When asked what Mr Timms said, Ms Timms said,

 

“He said, “This is my house and this is my children.””

103. Having referred to the reports of Dr A, psychiatrist, which have not been accentuated in this hearing and noting that Dr A made no psychiatric diagnosis of either parent, Ms E referred to a case note by Child Protection dated 11 to 16 July 2013 which included the sentence (paragraph 31 of the report):
     “In addition, the father was described by his psychiatrist as a dangerous, manipulating, controlling man and as such it was unlikely the father would offer support to the mother in her care of the children”.
104. Ms E noted that the source of the information was not stated.
105. At paragraphs 33-35 Ms E referred to subpoenaed documentation. She noted that Dr M had sent a letter to Ms Timms’ former lawyers dated 2 September 2013 stating, “There is something grievously wrong going on, and child abuse and/or paedophilia have to be investigated immediately.”
106. Ms E then noted that the notes of (omitted) Centre, Royal Children’s Hospital, dated 12 September 2013, stated that they had contacted (omitted) Sexual Offences and Child Abuse Investigation Teams (“SOCIT”) who had recently interviewed X but that she had made no disclosures. She also noted a case note of Child Protection dated 13 August 2013 which stated, “DHS has not previously been alerted of the incident in April or of the mother’s willingness to allow the father to have contact with the children in order for financial incentives.”
107. Ms E went on to detail her interviews with the father and the mother. She noted, at paragraph 47, that the father was converting to (religion omitted) and had a mentor, Mr F (who, if I understand it, has attended the entirety of the proceeding before the Court) with him. The report noted the father’s denials that he was never violent with the mother or the children.
108. In paragraph 51 Ms E recorded, “He says that there was a pornographic movie in the house when he was with Ms Timms but she purchased the movie from (omitted). He says when he was present it was never played in front of the children.”
109. The father also denied the allegations about Mr L (the allegations of violence and cross-dressing).
110. Thereafter Ms E detailed her interview with the mother. She noted the mother’s allegations of violence throughout the relationship and also the mother’s assertion that she has seen the father wearing women’s clothing. I note that at paragraph 61 the mother is recorded as having said:
     “…he is violent … I am scared about my children. The only way I consider him to be a father is biological, in any other way he’s not the father of my children- I want to bring up the children in an appropriate way.”
111. I note the mother denied all allegations made against her both by the father and Ms W to whom reference has already been made and by a Ms L who was not called to give evidence.
112. Having dealt with an interview with Mr R, psychologist, which does not, in my view, take the matter much further, Ms E dealt with her interviews with the children. X said she did not want to see her father and when asked why (paragraph 73) she said, “When I was talking – he was screaming – my mum cut herself.”
113. X was unable to think of anything good about the father, although she did say it was good to get a card from him and a pink present and she would like it if he gave her a present.
114. At paragraphs 79-81, in the evaluation section of the report, Ms E noted, correctly in my view, that both parents had had significant adjustments to make following their move from (country omitted). She observed, at paragraph 79:
     “Unfortunately, the relationship has been volatile almost since they arrived in Australia. The mother and father have separated and re-united on several occasions, despite the serious claims made by the mother.
     There are serious allegations made against the father in this matter, including sexual assault and violence towards the mother and children. There are serious allegations also made against the mother. Both parties provide conflicting information in support or against the allegations. The presentation of the parties was consistent with their presentation to Dr A. Both appeared sincere and generally plausible.

 

The mother asserts that the father sexually assaulted X. The example given by the mother was when he entered the house in April 2013. During interview for this report the mother said that X was sitting with her father on his lap falling asleep. But notes of the Department of Human Services state that “…the mother had the father leave the house before he was sighted by the children…” Subpoena documents say X was interviewed by SOCIT and made no disclosures.”

115. Ms E went on to say, at paragraphs 84-87, having noted that the father presented as earnest and sincere during his interview:
     “Dr A suggests, it is possible Mr Timms was physically violent towards Ms Timms. It is more probable than not that the children were witness to violent exchanges between the parents. Mr Timms was convincing when discussing the fear of murder by Ms Timms or her supporters.
     Ms Timms’s presentation also appeared sincere if less open during the interview. There are questions raised in the notes of Child Protection about Ms Timms’ capacity to protect the children as the relationship with Mr Timms fluctuated. If Mr Timms was physically abusive, Ms Timms’ returning to the relationship, is understandable (although detrimental to the children and herself) given the limited support she felt she had in this country.

 

If this matter was left to the mother, the children would never speak to or spend any time with the father again. She is likely to find it difficult to come to terms with facilitating time with him.

 

Because of the severity of the allegations raised in the course of this litigation, it is difficult to see how each parent would advocate positively for the children’s relationship with the other parent. However, given the uncertainty of the allegations made, conflicting supporting evidence and the need for the children to have the opportunity of a relationship with their father, it is recommended that a structure be adopted that can assist with rebuilding the father’s presence in the children’s lives.”

116. Ms E went on to recommend a resumption of time through a contact centre.

The report of Dr L dated 5 June 2016

117. Dr L’s report commences with a history of the parties, first acquaintance, marriage and the subsequent visits and journey to Australia. Having traversed, at least in outline, some of the difficulties the parties had, including a number of separations, Dr P noted the mother’s report of final separation, at paragraph 10 Ms Timms stated:
     “…this final separation occurred after she found the father was watching pornographic movies at home, reporting X was observed naked on the father’s knee, and the father’s pants were around his ankles. She feared X had been sexually abused as she noted the father had ejaculated. Later finding the father allegedly holding X by her neck, she called the police. Police attended the home but were unable to locate the father. They telephoned him at work requesting he present to the police station in the morning. Ms Timms reported the father was subsequently escorted by police to the home to collect his belongings.”
118. Having noted the current arrangements for the children and the parties’ proposals, Dr P dealt with her interviews with the parties. Dr P noted, at paragraph 18, some of the difficulties that had taken place at changeovers at the child contact centre and the possibility that this might arise from, in part, interpretational difficulties.
119. I note that at paragraph 19 Dr L reported:
     “Ms Timms stated previous changeover had occurred at (omitted) Police Station and the children had spent increasing periods of time between two and four hours. She reported she had wanted the children to see the father and told the children that if they ever felt something strange they could contact her and she would stay with them a bit and give them support. However she reported when she found Y was nervous she could not cope with this and had talked to her former lawyer about Y being so upset and nervous that had led her to want supervised contact. She reported the CCC had seen the children at several time periods, initially commencing with supervised time, then in supervising changeovers that ceased when the children had refused to go with the father on each occasion. She reported initially the three children had gone to the CCC but X had refused to attend the fourth or any future time. Ms Timms reported the father did not telephone the children, write, or send cards and photos and the children never discussed him.”
120. At paragraph 27 the report continued:
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     “Ms Timms reported when the matter was returned to Court she wanted the children to be healthy and safe. Specifically, for the children to see the father as she was concerned if this did not occur it may affect them in the future but stressed they needed to be safe in doing this. However Ms Timms stressed she wanted such contact of the father with the children needs to be supervised with what he did before and she wanted people to be aware of this. Ms Timms was aware that CCC had placed the issue of their role with the Timms family on hold, pending the outcome of the next Court hearing. She states she was worried he (the father) might sexually abuse X again and that was the primary reason she did not want the children alone with the father unless it was supervised. Ms Timms stated when she alleged X may have been touched by the father; child protection to her knowledge had not been involved and police had not adequately interviewed X who had made no disclosure to them. Instead, she reported X had been referred to a counsellor by police, and as her mother she had not been provided with an interpreter to fully understand what was occurring. Ms Timms reported she had found X sitting naked on the father’s lap at night when she got out of bed, and the father at that time was not suppose (sic) to be in the house. He was naked from the waist down and had ejaculated whilst watching a pornography film. She reported she had asked the father why X was sitting on his knee naked and he had told her he wanted to give X a shower. She reported after I kicked him out, I wasn’t sure what to do and I took her to the doctor who had referred X to a counsellor but no one examined her there. Ms Timms agreed at the time she had not called police I wanted to know something had happened but at the same time, I did not want to ruin her reputation. Ms Timms was asked if child protection had contacted her to discuss this, but she had been of the understanding they had not been notified. Ms Timms defensively stated it’s not my fault, I called police and kicked him out of the house but the police did nothing.”

121. The report then went on to traverse the interview with the father. The report noted the amount of time that the father had spent with the children and its cessation. Unsurprisingly, what he told Dr L was, essentially, consistent with the sort of denials he made to the Court. At paragraph 32 the report recorded:
     “Mr Timms reported supervised time at the CCC had arisen following the mother alleging he had hurt the children and they were no longer happy to see him. They had attended Court and a report from the CCC of supervised contact described me as a normal father. He strenuously denied I didn’t do those things she said about me. There was nothing to prove what she said. Mr Timms reported the ICL subsequently informed him he might need to return to the CCC to facilitate changeover. But that never occurred because she goes there with the children and told them to say don’t go with dad he will hurt you, so the children told staff we don’t want to see him he’ll hurt us.”
122. I note the father was clear that he wished to see his children as a result of Court proceedings and was prepared to leave the matters to the Court. He accused the mother of being vindictive and I note that at paragraph 40 of the reports states:
     “Having espoused how he intends to work issues out with the mother, Mr Timms angrily stated his conscious (sic) was wiped clean as they were his children and that it had been six months since he had seen them, we will wait for the Judge to make the order. I want to see my children. Mr Timms impressed as appearing frustrated and angrily got up and left the writer’s rooms at the conclusion of the interview.”
123. Dr L went on to record her interviews with the children. I note that at paragraph 41 X responded it had been long time since she has seen her father. “…he upset me, he’s mean and very rude.”
124. When talking about her father X became highly anxious and her speech was rapid and a little incoherent (paragraph 42).
125. Paragraph 43 then asserted:
     “…her speech began as fluid but then deteriorated where questions needed to be repeated a number of times as X had become confused and at times incoherent. She gave examples of when she and her siblings had spent time with the father, where they had gone and what they had done. This too became incoherent and disjointed in content, unlike her fluid and clear speech discussing her school and friends. “I told Ms N, I didn’t want to go with him, I didn’t want his kisses and his touching me” she reported with tears noted swelling up in her eyes. X added, “and my sister doesn’t want him kissing her either, and I don’t want to play with daddy’s toys. There’s a whole room of them.” The front door could be heard to open and the writer went to check. It was the father who had arrived early. X was observed staring at the door and started to whisper “he can hear me talk. I don’t want him to see me I’m scared.”
126. X, in fact, refused to see her father.
127. Y and Z were very reluctant to see their father, and I note, at paragraphs 48-49:
     “Mr Timms continued to beckon Z to come to him and after several minutes when she made no move, he stood up unexpectedly and walked over to Z and picked her up and returned to the couch. Z impressed as looking uncomfortable and every minute or so Mr Timms, who continued to hold Z tightly on his knee, repeatedly kissed her on the face every few minutes. On each of these occasions, she continued to sit very still, made no conversation with her father during the observation, and would stare vacantly at the writer when the repeated kissing continued. Y appeared to be unable to get up as he had been wedged between his father and the wall and Mr Timms continued to hold his phone to Y’s face telling him who was in each photo, he interspersed with continuing to rapidly kiss Z on the face.”
     The writer felt the need to discontinue the observation after 20 minutes as neither child had been allowed to get up and explore the room, being held uncomfortably close on the couch by the father. Z made no conversation during this time, despite being observed to talk rapidly about the contents of the room with her mother, and Y asked a few questions about the photos his father continued to rapidly show him. Z impressed as being relieved to be told it was time to leave and got straight off the father’s knee, rapidly walking back to her mother seated in the next room. Y bid his father goodbye and was observed to also quickly leave the room.”
128. The report then deals with the report from Ms G, (omitted) Children’s Contact Centre, which detailed the ineffectual attempts by that contact centre to facilitate changeover between the children and the father.
129. The report then proceeded to evaluation. Having noted the differing positions of the parties Dr L stated at paragraphs 54-57:
     “There have been a number of allegations and counter-allegations and differences in opinion about various issues and what is best for X, Y and Z in affidavits, a previous Family Reports and throughout the current report. Whilst it is difficult to determine the truthfulness of some of the allegations, and ultimately this will be left up to the Court, it is imperative that this report focuses on the young person’s emotional, social and development needs, and that the parties’ conflict and their own individual needs and wants are seen as secondary.
     Interview and observation of Ms Timms suggested that she felt frustrated that interpreters, other than the one provided during the current interview, had not been provided and she may not have been fully understood. She remained concerned with what she perceived were safety concerns for the children if their time with the father was not supervised. As such, she believed she had offered both the father and the CCC her time but this had been rebuffed.

 

The interview and observation of Mr Timms suggested he remained highly critical of the mother and espoused a strong belief that in order to resolve the current impasse, where he is not having any time spent or contact with any of the three children; orders needed to be made by one of two people. Specifically, either the Court who ordered the children to participate in time spent with him, or, conversely the mother be ordered to enforce the children to spend time with him. In both situations he asserted the Court needed to “make an order and it would occur”. However when asked how the matter would be resolved if the children should continue to refuse contact with him, despite his suggestions it be ordered, he was unable to answer.

 

It was clear neither parent could suggest what they felt was a workable solution and both were highly frustrated by the events that were reported to have occurred. Mr Timms was unable to suggest changes that could be made and impressed as being angry at being asked to consider this proposition. Ms Timms on the other hand similarly lacked suggestions and impressed as being fearful for the children’s future safety. Instead, both parents fell back on the familiar, that of criticising each other rather than being open to potential changes or strategies that might be made.”

130. At paragraphs 58-60 the report went on:
     “As a consequence of both parents’ interviews and parental observations with the two younger children, there was little new information gleaned from either parent. Similarly, X continued to refuse all contact with the father and was not prepared to participate in an observation period with him, despite the writer assuring her she would remain present at all times. Similarly, both Y and Z impressed as potentially feeling trapped in the observation room with the father where they appeared unable to move from the couch by the way they had been held and positioned by the father. Z made it clear she wanted to leave the room to return to her mother’s care within minutes of entering whilst cowering behind the writer’s chair and Y impressed as being very quiet as he had been wedged between the wall and the father.
     Neither parent demonstrated an ability to positively promote the role of the other parent in the children’s lives and their desire to have a relationship with them. It is their inability to engage in this most basic form of clear and open communication that raised the question as to how this will impact on the children in their long term relationship of their parents. Such conflict and limited communication appear highly diagnostic of a poor prognosis for X, Y and Z being able to attain a positive outcome during their developmental years if the parents are unprepared to address these issues at this important time in their lives where they embark upon critical life stages of their primary and secondary schooling. As such, the children may be at risk of being consumed in this communication impasse and may possibly be prevented from positively accommodating the ongoing changes in both their and their parent’s lives.

 

It may perhaps be important to provide both parents with a further and possibly final opportunity to attend CCC for time spent under the supervision of staff. In so doing, for both parents to have read and considered the contents of both Family Reports, for the mother to be provided with an interpreter at the CCC where the process and respective roles of both parents can be explained clearly to her, that was reported by staff not to have been provided in the past. Finally X remains adamant at this time she will not have contact with the father due to past experiences of not feeling safe. While counselling was reported to have been placed on hold while a new counsellor is located, X appeared to have formed a relationship with her former counsellor who made a helpful bridge while this process continues to be explored. As such it is important that the ICL assume the role of communicating with both X and her counsellor, not the parents, to ensure X feels confident with the therapeutic process of confidentiality to ensure trust.”

131. Dr L went on to recommend equal shared parental responsibility, the children live with the mother and spend time with the father, supervised at the children’s contact centre for Y and Z, with X to have a new counsellor and to undertake counselling.

The credibility of the parties

159. It is important to remember that it is not the role of the Court gratuitously to insult or belittle parties or witnesses who appear before it. These parties are in a disempowered situation before the Court and it is only common courtesy to seek to avoid saying things that may unnecessarily distress or hurt them.
160. Nonetheless, this is a case in which both sides have made extreme and florid accusations against each other. Their versions of some of the events are so contradictory that it is not possible that both of them are correct in their recollection. Indeed, one would be strongly inclined to suggest that at least one of them must have been deliberately untruthful. However, it is important to remember the observations of the High Court in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256. At p.268, Brennan, Dawson, Toohey and Gaudron JJ said:
     “…as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.”
161. They went on to say, on the same page:
     “A finding that a person deliberately lied when giving evidence is, in effect, a finding of perjury and, thus, it ought not to be made on “the single oath of another man, without any confirmatory evidence”.”
162. At p.271 Deane J said:
     “There are many circumstances in which a trial judge – and the Court of Appeal in the present case was effectively sitting as a court of first instance – is required to consider whether a party or a witness has been deliberately untruthful in the course of giving evidence before it. An obvious example of such a case is where there is a direct conflict of evidence and it is apparent that there is no real possibility of honest mistake. Unless it be truly necessary for the purpose of disposing of the particular case, however, a specific finding that a party or witness has deliberately given false evidence should ordinarily not be made.”
163. I bear these qualifications resolutely in mind but there are a number of disputes in this case that it is necessary for me to determine if I can and it will not be possible to do so without making trenchant criticism of the witnesses in the case, other than Ms E, who gave evidence.
164. I have been listening to people give evidence on their oath in one capacity or another since 1975. That is a long time. I have heard very many witnesses. I regret to say that in all this long time I cannot immediately recall three worse witnesses than the father, the mother and by a narrow margin perhaps even more so, Ms W. They were all self-serving in their answers, at times prevaricatory and in the case of the mother, resolutely failing on most occasions to answer the question as it was put in a responsive way and all thoroughly unconvincing in their demeanour. All had an all too obvious tendency to florid overstatement.
165. All were prepared to express on the flimsiest grounds the most lurid insults about the other. The assertion that the mother worked as a prostitute advanced both by the father and even more stridently by Ms W, is made on the most flimsy and unbelievable grounds. I will return to this matter. The father’s assertions that the mother deliberately abstracted his telephone to create forged texts and then use them in court is risible. His assertions, likewise, that the mother obtained a third party to translate the appalling letters annexed to the mother’s trial affidavit on an anonymous basis, likewise, is one I utterly reject.
166. Ms W was a quite extraordinary witness. She has obviously been friends with the mother in the past but her hatred of her now was absolutely palpable. In truth, it was not necessary for her to be crossexamined at all. I simply did not believe scarcely a word she said in her criticisms of the mother even as she was saying them. A number of Ms W’s assertions involve grossly overblown emotions and her assertion that the mother had hired a man to put drugs in her son’s car without any kind of apparent basis is extremely concerning. A number of the things she had to say struck me as being unresponsive insults to the questions put to her. Indeed, her evidence was so partisan and exaggerated that I caused cross-examination of her to be cut short.
167. The mother was no better than any of the other witnesses. As indicated, her answers were unresponsive and prevaricatory. She refused to answer even simple questions but simply set about self-exculpation. Her assertion that she wanted the father to still be in the children’s life in April 2015 may well be at least in part correct, given that she agreed to the orders sought but if all that she said of the father before that was true this would simply not be a tenable position.
168. I do not propose to expatiate further at this stage upon the credit of these witnesses. It is unfortunate that I should have to record my findings in such strong terms. I saw the father and mother in the witness box for quite some time and I regret to say that they formed a very vivid impression upon me. They are both given to gross exaggeration, to the invention of matters derogatory of the other parties and generally emerged as I have indicated as some of the poorest witnesses that I have ever seen in what after all is a lengthy experience.
169. The inadequacy of the parties as witnesses makes the assessment of some of the more central aspects of the evidence all the more difficult. It is appropriate to deal with a number of particular incidents as it were on their own.

The alleged incident on 18 April 2013 where the father is said to have had X in his lap

170. It is instantly apparent that this is by far the most serious of the various allegations made in this proceeding. If true, the father is a sexual deviant with a tendency to engage in sexual activity, watching pornography to the point of orgasm with a then fouryearold child in his lap.
171. It is appropriate to begin by looking at what the mother has said in her various affidavits about this incident from time to time. In her first affidavit filed 30 August 2013, the mother said at paragraph 12:
     “On 18 April 2010, Mr Timms hit me very hard across my face also hitting my left ear. This happened as a result of an argument between me and Mr Timms regarding his behaviour of continuing watching inappropriate films with X. This was not the first time an incident of this nature happened…”
172. The rest of the paragraph is concerned with the alleged injury to the mother’s ear.
173. At paragraph 18 in the affidavit continued:
     “On 12 July 2013 Constable A from (omitted) Police Station contacted me and told me that the Department of Human Service had called them and advised of an alleged sexual assault against X by Mr Timms and they were seeking my permission to investigate the incident. The police advised me to see a children’s counsellor regarding child abuse. I consulted Dr M on 15 July 2013 and Dr M referred the matter to an organisation on child sexual abuse. I was referred to attend the Royal Children’s Hospital (omitted) ((omitted)), who would investigate the incident.”
174. The affidavit does not suggest what emerged from that process, although I note that the referral letter from Dr M was dated 14 August 2013.
175. In her next affidavit filed on 19 May 2014, the mother returned to this issue at paragraphs 120-124 and said as follows:
     “On 18 April 2013 at 3.30 pm, I went out of my bedroom to check on the girls while they were sleeping as I always do. I was horrified to find Mr Timms sitting on the couch with X on his lap wearing only her underwear.
     I was shocked to see him in my home at night. I asked him what he was doing. He told me that he intended to give X a bath. I took X from him and I noticed there was a wet area round his groin and it was definitely not hot water and appeared to be bodily fluid.

 

I could only assume that he had acted most appropriately without wishing to be explicit in this affidavit. I don’t believe it was water from an attempt to bath X as there were no signs of the bath or shower having been used and nor was X wet with water. I asked him to leave and he did.

 

I told this to Constable B on 11 June 2013 when he took my statement in relation to the incidents referred to in paragraphs 57 to 66 herein. I was not given an interpreter and I thought that Constable B understood me. The reporting of this incident with Mr Timms was therefore not included in my statement.

 

Constable B told me that I would need to go to the Court to change my statement. I did not want to expose this sexual assault on X in public to save my children from further embarrassment and hardship. I did not wish to expose this about my children to the outside world. I did my best to ensure that X stayed away from Mr Timms to protect her.”

176. The affidavit went on to say at paragraph 125:
     “As referred to in paragraphs 120 to 124 above, Mr Timms always watched pornographic DVD frequently on the television in the lounge room in the evening when the children were around. On the weekends when he was not working, he also watched pornography during the day.”
177. The next thing that happened was the family report of Ms E which involved an interview with Ms E by the mother on 1 September 2014. At paragraph 19, the report asserts:
     “Ms Timms says this occurred because Mr Timms sexually assaulted X on that day. When asked what happened she said she got up to check the children at 3 am and Mr Timms was sitting with X on his knee on a couch which is in the passage way between the bedrooms. X was falling asleep. She was wearing underpants. Mr Timms was wearing a shirt and trousers. When I asked what Mr Timms said, Ms Timms said:
     “He said, ‘This is my house and this is my children.””
178. In her next affidavit filed 23 March 2016, which was to an extent an updating affidavit, unsurprisingly, there is no mention of the incident.
179. I note that at paragraph 81 of her report as earlier indicated, Ms E had noted the DHHS notes that stated “the mother had the father leave the house before he was sighted by the children and the subpoenaed documents indicated that X was interviewed by the SOCIT and made no disclosures”.
180. In her interview with Dr L on 23 June 2016, the report reads at paragraph 27:
     “Ms Timms reported she had found X sitting naked on the father’s lap at night when she got out of bed, and the father at the time was not suppose (sic) to be in the house. “He was naked from the waist down and had ejaculated whilst watching a pornography film.” She reported she had asked the father why X was sitting on his knee naked and he told her “he wanted to give X a shower”. She reported, “after I kicked him out, I wasn’t sure what to do and I took her to the doctor who had referred X to a counsellor but no one examined her there.” Ms Timms agreed at the time she had not called the police “I wanted to know something had happened but at the same time, I did not want to ruin her reputation.” Ms Timms was asked if Child Protection had contacted her to discuss this, but she had been of the understanding that they had not been notified.”
181. In her trial affidavit filed 14 July 2016, the mother said this at paragraphs 64-65:
     “On 18 April 2013 at 3.30 am I went out of my bedroom to check on the girls sleeping as I always do. I walked into the lounge room to find that the applicant father was sitting on the couch with the child X who was not wearing any clothing in his lap. I was shocked to see him home at night. I asked him what he was doing and he responded that he intended to give the child X a bath. I took the child X off the applicant father’s lap and noticed that he was wet around his groin area. It appeared to me to be semen.
     I presumed that he had acted inappropriately. I do not believe that the applicant father attempted to bath the child X as there were no signs of water in the shower or bath. The child X was also not wet with water. I asked the applicant father to leave and he did.”
182. It should be noted that the father has at all times strenuously denied the allegation of having X on his lap in this way. It should also be noted that of course it is part of his case that he was perfectly properly in the family home at the time as the parties were in the midst of their secret reconciliation.
183. Allegations of this significance bring into play s. 140 of the Evidence Act 1995.
184. A number of things are noteworthy about the alleged incident. First, it is apparent that the account of the events has become more lurid as time has gone by. When it first started, X was said to have underpants on but by the time we reach trial, she is said to be naked. The father’s state of clothing has gone from being dressed to either undressed or dressed with ejaculate visible in his loins. The tenor of the allegations has undoubtedly become shriller with time.
185. One has to approach this dispute in the light of common sense. According to the mother, she walked in in the middle of the night to a room in which the father was undergoing some form of sexual experience (watching pornography) and achieving ejaculation in one way or another as a result while his little daughter was half asleep in his arms (whether she was naked or significantly undressed might be thought to be scarcely to the point). I simply do not accept that a mother who clearly cares for her children, as the mother does in this case, would have responded in any kind of understated way to such a horrific experience. According to her, the father should not have even been in the house. I have no doubt, having seen the mother give her evidence, that if this had really occurred in this appalling unheralded fashion, she would forthwith have phoned the police and indeed she would reasonably have been required as well as entitled to do so. The fact is no police report was made and the assertion that this was done in some fashion to protect X’s reputation is not one that I accept. The mother has never been shy of making allegations about the father’s alleged misconduct. There has been a history of Intervention Order applications from 2009 onwards on a regular basis. She is well aware of how to contact the police should she need to do so. The fact is that the events as she describes them would constitute a quite horrifying circumstance. I simply do not accept that she would not have acted on it had it occurred.
186. Furthermore and tellingly, X made no disclosure to the SOCIT team. SOCIT teams are well-versed in the interviewing of young children said to have been the subject of sexual abuse. It is significant that they did not obtain from X any allegation of abuse.
187. Having considered all the evidence about this very significant matter as a whole, I accept that no incident of the sort the mother asserts actually took place.

The sending of the telephone texts and the delivery of the anonymous letters

188. I think I have already dealt in part with the telephone text messages set out at pages 85 and 86 of the mother’s trial affidavit. As earlier indicated, the father’s assertion that the mother cunningly got up after he had gone to sleep, abstracted his phone, forged the text messages and sent them to her phone and then deleted them from his phone only to produce them later in court is absurd and fanciful. I simply do not accept it. This is important because it includes:
     “I am coming for you if you don’t let me come and live with you and the kids i will kill you and kill myself the police will not help you, they won’t believe you any more.”
189. The message to the daughter’s mobile (there was no challenge to the fact that this was the number to which the message had been sent) reads:
     “I will kill and make you go to jail and i will put you in the mental hospital and take your kids and this time i’m serious i will do it.”
190. I accept that these messages were sent by the father and they are extremely troubling.
191. Things become even more florid when we consider the quite horrible anonymous letters (exhibit T-20 to the mother’s trial affidavit) which I accept were deposited in the mother’s post box.
192. The mother made contemporaneous complaint to the police about the receipt of these letters, which were not in envelopes, in September 2013. The tenor of these letters is deeply concerning. Although it is offensive, it is important to set them out in full:
     “I never loved you not even liked you. Mr F is always been better than you and YES I did sleep with her and not one time but a lot. You are not even a lady have a look at yourself. You always want to be a man. Mr F is 1000000 times better than you. I will never come back to live with you again at least whenever I do anything wrong no one will call the police like you. You always call the police to “protect” your children. Fuck you and fuck the police they can’t do any shit to me because I will never give you the chance to have anything to prove on me. I hate you.
     X is my daughter and you will never have any proof that I slept with her. Let child protection do what they want I will still take X even if I have to kill you. I will sleep with Ms D and Ms A too and you will not have any proof. Fuck your child protection. I will take them all and make sure you walk around crazy in the street and kill someone to get jailed.

 

You will never have the children, you ugly bitch. You will never have the house. You know me very well and I will not leave everything for you. I will take the children and make them (religion omitted) too. Fuck your (religion omitted) I will take them and take my house and live in it. I will make the children love me and stay with me and you will never see them again.

 

I will make sure you go to jail you will have your name everywhere in the newspaper. Be happy because I’m going to make you a criminal. I took so many people to court and you at the end come and take me there. Me!!! For that reason you will see what I will do to you.

 

I will kill you and I will kill all the children one by one. You will never take the children and they will always be with me. You’re a dirty animal. I will kill you. Do you think anyone will believe you? Everyone is on my side and they will help me. I know how to get my way around this bullshit.

 

I will make the Church throw you and your children out. They will never support you.

 

Ms L and Ms C will never help you. I know my way around those people. They will not help you any more.”

193. The father’s case is that the mother is the author of these documents which she had translated by some friend (unidentified) after a friend she did ask refused to do so and told him.
194. I do not accept this assertion. The mother impressed me as being a person of relatively limited intelligence. The subtlety of creating a piece of correspondence of this character and then cleverly interspersing it (as would have been necessary for it to be such as it is) with snippets of what the father’s life (such as his conversion to (religion omitted)) is in my view beyond her. It is also an outlandish proposition. Further, the language used is very similar to the style in which Mr Timms expressed himself in court.
195. The assertion of an affair with Ms F (clearly, Ms W) is designed to be hurtful and is consistent with the rage expressed by Ms W in the witness box. The assertion that he would make the children (religion omitted) is consistent with his conversion.
196. The reference to the phrase “you will never have any proof that I slept (with X)” is worrying and the assertion that he would violate the two elder daughters equally so, it should be noted that as I find that while these were written by the father, they were written during a period of rage. At that stage, he had been excluded from the family home and was not seeing his children.
197. The father is a man of extremely limited insight, despite his intelligence and extremely limited self-control. He wrote these disgusting letters and they are a significant consideration albeit that I do not accept that they indicate that he had misconducted himself with X. What the father was saying in substance was that the mother would not be able to prove her untruthful assertions about X.

The wife as a sex worker

198. I mention this matter because it is easy to deal with but it is such a significant assertion, it cannot be simply set to one side. The father’s materials as indicated above (and I think I may have missed some of the assertions made) had been replete with lurid inferences that the mother was working as a sex worker. The high point of his case in this regard was the evidence of Ms W.
199. Ms W’s evidence was, I regret to say, not only utterly unsatisfactorily given and unbelievable but inherently improbable and absurd. The gravamen of her position was that the mother was having sex with men she saw around the family home not only in the children’s presence (they were sent upstairs allegedly) but in hers as well. In circumstances where Ms W was known to be working at that time with the father, it is immediately apparent that this is a preposterous assertion. The evidence garnered to support the assertion, I have already dealt with. It is not necessary to repeat it.

The passport issue

200. The gravamen of this issue as it eventually emerged was that the father, as earlier indicated, was prepared to allow the mother to obtain passports for Y and Z but not for X. In some fashion perhaps not even now entirely clear during the application process, the mother made some sort of mistake and had to recomplete a form. The father said that the mother forged his signature on the relevant form. The matter was like many matters not the subject of crossexamination of the wife by the husband. Nonetheless, it is clear from exhibit A9 that the DFAT investigation concluded “Fraud substantiated”. It was established that there was an “incorrectly witnessed offence”. A warning letter was sent to mother outlining her responsibilities.
201. Exhibit A9 is dated 8 September 2013 but from it, it is apparent that the father actually went to the Minister for Border Protection and Trade on 23 April 2013 and denied witnessing the document. I think his explanation that he took responsibility for the matter, in the sense that he exculpated the mother, is entirely consistent with the DFAT record. It is clear that the mother did forge the signature of the father on the passport application form.
202. It is also far more probable than otherwise that it was this that led to the stormy interview between the parties on 23 April 2013. It seems that the Department telephoned the mother who was very put out at being caught.

Family violence during the relationship

203. Counsel for the Independent Children’s Lawyer submitted that the relationship was, most particularly towards its end, tumultuous and it is clear that that is so. This would be the case on either party’s version of the events. The father has vividly denied any assaults on the wife, going so far as to say that this would be a disgraceful act for him because his family has no history of this sort.
204. The fact is that the father has been the subject of numerous Intervention Order applications which seem to me more often than not to have been made out. His contemptuous dismissals of these as mere inventions by the mother are part of his construct of her demonic approach to such matters. I have already dismissed his assertions at least in part. Having heard and seen him give his evidence over a protracted period of time and, indeed, observed him in court more generally, I have no doubt that the father has at least on occasions been violent to the mother. On the tumultuous occasion of 23 April 2013, I have no doubt that it was he who ripped the mother’s blouse. Whether the mother was cut in some sort of struggle when she herself had the knife in the hand, I am unable to say. Both versions of the events are equally florid.
205. Having made this finding, however, and making it clear that I am not in a position to say exactly how much violence there may have been but that there was some, I have no doubt that the mother greatly exaggerates the matter in any event. Having also seen her give her evidence over a protracted period of time and observed her in court, I find that she would be just as ready to give as good as she gets in any argument. Both these parties have screamed and yelled at each other quite clearly and there has, therefore, clearly been family violence in that sense, in the sense envisaged by the expanded definition in s.4AB of the Family Law Act 1975 (“the Act”).

Further findings

206. Having dealt with these particular discrete issues, it is appropriate now to come to the narrative more broadly. These parties plainly had a separation of a sort between 2011 and November 2012. Throughout the entirety of this time, the father’s address was not that of the matrimonial home. Although he undoubtedly returned from time to time, he simply was not living there full-time. There had, indeed, as the parties seem to agree, been earlier episodes of separation. It was part of the tumultuous way they conducted their lives that these separations and reconciliations should occur.
207. Between November 2012 and April 2013, it does seem that to a greater extent at least, the father returned to live at the matrimonial home. He had a key, although it appears that he appears to have had one extra key of which the wife was ignorant.
208. In April 2013, the mother forged the passport application and this was clearly the trigger for the final separation. It followed a violent altercation between the parents in the presence of the children.
209. Thereafter, the father did not get to see his children until April 2015. This brings us to the affidavit of Ms G filed 25 August 2015. This reported upon the spend time regime that took place between 1 April 2015 and 12 August 2015 and provides the most objective insight as to what actually occurred. It is noteworthy that in the early stages all three children were happy to see their father and interact with him. I note that the father was not in fact particularly good at supervising the children and tended to concentrate on one to the exclusion of others.
210. Nonetheless, the picture that emerges at least in the early visits is one of an affectionate relationship between the father and the children.
211. I note, however, that by even the second visit on 6 May 2015, X approached her father and said, “mum told me that when I was little, you punched me in the eye.” Later on, the father asked X how her elder half-siblings were and she said they were good and that they were scared of the father.
212. By the third visit on 3 June 2015, things were getting worse. Stupidly and inappropriately, the father asked Y and X how their elder siblings were and then asked how the mother was. Towards the end of the visit, X started asking the father why he had hit the mother in the past and that the mother had shown her a mark on her back which she got from when the father hit her. The father denied hitting the mother or any of them and the supervisor had to step in to stop the conversation. The father insisted on saying again how much he loved each of his children, their older sisters and their mum. Although the writer was able to stop the father talking, Y and X continued talking about the mother being hit by the father.
213. Noteworthily, as soon as the children returned to the mother they started telling her about how the father had told them he had not hit the mother and did not hit any of them. Y told the mother that the father could come back and live with them.
214. On the further visit on 17 June 2015, both Y and X told the father, in effect, that the mother had told them that the father had hit her.
215. On the next visit (number 5) on 15 July 2015, X walked to the supervisor and said, “now I need to tell to you about my dad.” She proceeded to tell Ms G a story about when she lived in a big house and dad used to punch them and have a knife and that he used to hit the mother and the mother had to call the police. The supervisor noted that when it was time to leave, X attempted to do so without receiving a hug and kiss from her father.
216. On the sixth visit, 30 July 2015, X did not wish to see her father. When X and Z saw the father, Z in particular was more reserved. Both children were less talkative than when X had been with them. Neither child demanded the father’s attention like in other visits.
217. On the final visit, 12 August 2015, X refused to get out of the car and come into the centre. Z and Y did but Z was very quiet and did not smile. It appears that Z was not well on that occasion.
218. In her concluding comments, Ms G noted:
     “All three children attended the first five visits. The first four visits were very similar. All three children appeared to compete for STWs attention, saying ‘dad, dad, dad’ a lot and wanting him to play with each of them. At times STW appeared to struggle to supervise all three children as he would follow the children’s requests to look at something or do something each time they asked. During these first four visits there were times when X and Y would say things about the past but STW and writer would be able to divert the attention away from these conversations. In the fifth visit X pulled supervisor Ms K aside to talk to her about the past. X also appeared uncomfortable in this visit asking to speak to mum or leave and telling STW, ‘I don’t like you.’ In the sixth visit X refused to transition through to STW saying she did not want to see him. During this visit, Y and Z were very quiet for the first half an hour, then appeared to warm up. Neither X nor Z yelled ‘dad, dad, dad’ in this visit. X again refused to attend the seventh visit, refusing to get out of the car and go into the centre. Z did not stay for the whole visit as she appeared unwell and Y asked to leave visit at 5.30 pm.”
219. After the supervised visits concluded two further visits of course occurred but then everything stopped.
220. The report from Ms G is extremely telling. It speaks to the father’s incomplete parenting skills (something not entirely surprising, given he had not seen the children for two years when the visits first started and was not the primary carer when the parties lived together in any event).
221. What emerges for me very clearly, both from Ms G’s report and from the evidence given by the parties, is that the mother was, probably consciously (but in any event nothing turns on it), turning the children and X in particular against the father by a campaign of constant accusation when the children were in her care. This ultimately caused X first to cease seeing her father, and she clearly has a lot of influence over her younger siblings who ultimately arrived at the same position.

Equal shared parental responsibility

224. The Independent Children’s Lawyer and the father support the making of an order for joint parental responsibility and, of course, the mother opposes. The Independent Children’s Lawyer points out that Dr L has recommended equal shared parental responsibility notwithstanding allegations of violence.
225. As Ms E observed in her earlier report at paragraph 86:
     “If this matter was left to the mother, the children would never speak to or spend any time with the father again. She is likely to find it difficult to come to terms with facilitating time with him.”
226. Dr L also noted at paragraph 59 of her report neither parent demonstrated an ability to positively promote the role of the other parent in the children’s lives and their desire to have a relationship with them.
227. The difficulties of communication the parents have are obviously a significant inhibitor to the effective exercise of joint parental responsibility. The presumption may be rebutted where there is family violence as there clearly has been here, although as I hope I have made clear, its extent is nowhere near the amount that either party seeks to represent.
228. The reality is that if I make an order for sole parental responsibility, the father will be completely excised from all decision-making in relation to the children. If in the ultimate he is to have a relationship with the children and Dr L’s report is clearly to the effect that this is desirable, then as a matter of practical politics, equal shared parental responsibility will have to be ordered. This brings us to the interrelated issue of how much, if any, time the children should spend with their father. It is required to be assessed against the matters set out in s. 60CC of the Act.

The primary considerations: Section 60CC(2)

229. At least in theory, everybody seems to agree that it is in the best interests of the three children to have a meaningful relationship with both of their parents. In the case of the mother, however, such assertions have to be met with considerable reservation. As I find, her true position is that she does not want the children to spend any time at all with their father. She clearly spends at least a sufficient time inculcating in X in particular but also the other children to an extent her allegations of violence upon her and them by the father. This is not the act of somebody seeking sincerely to promote a relationship between the father and the children.
230. There is, of course, also the need to protect the children from family violence, abuse and neglect and that is a matter to which greater weight must be given (s. 60CC(2A)). Nonetheless, the fact is that unless a relationship between the father and the children can be fomented, as Dr L says at paragraph 59:
     “It is their inability to engage in this most basic form of clear and open communication that raises the question as to how this will impact on the children in their long term relationship with both of their parents. Such conflict and limited communication appear highly diagnostic of a poor prognosis for X, Y and Z being able to attain a positive outcome during their developmental years if the parents are unprepared to address these issues at this important time in their lives where they embark upon critical life stages of their primary and secondary schooling. As such, the children may be at risk of being consumed in this communication impasse and may possibly be prevented from positively accommodating the ongoing changes in both their and the parents’ lives.”
231. I share the concerns expressed by Dr L as to the longterm future for these children if, as in substance the mother truly seeks, the father is excised from their lives.

The additional considerations – Section 60CC(3)(a)

232. The children have, of course, expressed views about their father. In the case of X in particular, they are very negative views but there are two things to say about this. First, the children are still very young. Their lack of maturity needs to be taken into account. Second, it is clear from the materials as a whole and the findings of fact that I have made that the children’s views spring first and foremost from their mother. The reality is that the first few visits with the father went well. One can read in Ms G’s report a gradual and insidious diminution of the children’s pleasure in their father’s company which is quite clearly the response to what their mother has been telling them. Most noteworthily of all, of course, by the time time was coming towards a complete close, Y was expressing to third parties the clear understanding that he would be in trouble if he went to see his father. This, of course, comes from his perceptions of what his mother’s position is and I have no doubt that Y’s perceptions are correct.

Section 60CC(3)(b)

233. The children have an excellent relationship with their mother, albeit that it is in danger of becoming enmeshed. She has always been their primary carer and there is no suggestion that she is not competent in that respect. Vague rumblings of criticism in the father’s case are simply not sustained.
234. The nature of the relationship with the father is more complex. The children appear to have a residual affection for him. It is very noteworthy that such young children, who had not seen their father for two years, initially engaged so positively with him. It is not possible to avoid concluding that they love him and would like to see him, but are scared to do so because of the mother’s position communicated to them.

Section 60CC(3)(c)

235. The mother has plainly been the primary carer of these children and it is not necessary to say more than that. The extent to which the father has taken the opportunity to participate in decisions and spend time and communicate with the children is more difficult. Contrary to the position advanced by the Independent Children’s Lawyer, the father did not significantly delay before coming to court. Nonetheless, one cannot help but note that even when things were going well with Ms G, the father was not a particularly adept parent. He had failed to an extent to spread his attention equally between the children. By the time of the most recent contact between the father and the children, he was effectively unable to control his emotions and simply went on kissing Z and effectively imprisoning Y. While the pent-up nature of his emotions in seeing them for the first time for some considerable time is understandable, his lack of restraint as the adult in the situation is, in my view, significant.

Section 60CC(3)(ca)

236. There is nothing to suggest that the mother has failed to maintain the children. The father does not pay child support but I note that it appears that the father has allowed the mother to continue in sole occupancy of the former matrimonial home which is a matter to her benefit.

Section 60CC(3)(d)

237. The father seeks an immediate change of residence or alternatively, at the very least, an immediate resumption of time with him. It is instantly apparent that the children would be wholly unable to sustain a change of residence and indeed neither Dr L, Ms E or the Independent Children’s Lawyer have recommended it. It will not occur at least for the present.
238. In my view and this is perhaps the nub of the entire outcome of this case, the relationship between the father and the children as most recently detailed by Dr L following her observation of the children with the father on 23 June 2016 is very telling. I note that Dr L recommended at paragraph 60 “it may perhaps be important to provide both parents with a further and possibly final opportunity to attend the CCC for time spent under the supervision of staff”. She also thought that X should be given access to a new counsellor or return to her former counsellor before time commences.
239. It is obvious in my opinion that the children are simply not ready immediately to see their father.

Section 60CC(3)(e)

240. The practical difficulty of ordering the children to spend time with their father at the moment is their likely response to it in the face of past history. There does not appear to be any other difficulty, whether it were terms of practical matters or expense save of course that in the event that time were to resume at a contact centre, there would be a period of delay.

Section 60CC(3)(f)

241. The mother is the primary carer of these children and as such is unexceptionable. Her incapacity to disassociate her own dislike of the father from the benefits of a relationship between the children and the father is, however, extremely troubling. Further, as indicated by Dr L and a lesser extent the contact centre supervisors, the father’s capacity to actually interrelate with the children appears to be at least in part slightly incomplete.

Section 60CC(3)(g)

242. Both parents struck me as being selfish, self-centred and immature. Their personalities are likewise given to florid exaggeration and mutual resulting criticism and self-exculpation. Neither parent possesses any great insight and these deficiencies are significant inhibitors to a sensible way forward.

Section 60CC(3)(h)

243. This is irrelevant.

Section 60CC(3)(i)

244. This is an important matter in the context of this case, although I have probably dealt with it sufficiently already in dealing with other matters. The mother says she wishes the children to see the father but to be safe. She then spends a lot of time effectively telling the children that they are not safe with their father so that they do not spend time with him. Her attitude towards the responsibilities of parenthood is compromised in this sense. Likewise, the attitude of the father to parenthood has about it a strong element of the proprietary. He sees the children as his. While that is, of course, true in one sense, children are not chattels. The very fierce sense of ownership that I discern in the father’s position is one in which he puts himself first and the children second.

Section 60CC(3)(j)

245. I have already dealt with the issue of family violence. There clearly has been some as I have already made plain. It is an important matter and requires to be given serious consideration.

Section 60CC(3)(k)

246. This case is strewn with Intervention Orders and I have already dealt with this aspect of the matter.

Section 60CC(3)(l)

247. It would plainly be better to make final orders but it is simply not practicable to do so given the situation on the ground between the children and their father.

Section 60CC(3)(m)

248. Thus far I have dealt with this matter in a fairly straightforward and conventional way. There is however, a further consideration of considerable significance. This is the appalling letters set out at paragraph 192, which I repeat I am fully satisfied the father sent to the mother. They cannot be put to one side. Even taking the most beneficent view of what is said about X, the assertions that the father would have sexual intercourse with the mother’s two children who are not his own biological children is extremely disturbing. Even if written in a rage as I find it was in a sense it is not the sort of comment that one can simply take back. I am not prepared to progress this matter further until Ms E or Dr L or both have given evidence as to what recommendations if any they would make in the face of the Court’s present finding. Both Ms E and Dr L made very proper reference in their reports to the fact that it would be for the court to determine what the true facts are. Now I have done that I wish to have their opinions as to how the matter should proceed.

Conclusion

249. In the light of the matters set out immediately above I will give the parties a period of time to consider these reasons for judgment and then list the matter for further mention as to exactly how the matter will proceed.