Ainsley & Ainsley (No 3)
[2023] FedCFamC1F 211
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ainsley & Ainsley (No 3) [2023] FedCFamC1F 211
File number: WOC 455 of 2019 Judgment of: REES J Date of judgment: 30 March 2023 Catchwords: FAMILY LAW – PARENTING – Where the children currently live with the paternal grandmother – Where the mother seeks sole parental responsibility for the children and that they live with her and spend no time with the father or the paternal grandmother – Where the mother alleges the father perpetrated child sexual abuse – Where the father denies the mother’s allegations – Where the evidence does not support the mother’s allegations – Where the evidence is strongly suggestive of coaching by the mother – Where the mother has not spent time with the children since 2021 – Where the father has spent supervised time with the children since 2019 – Where the children have a positive relationship with their maternal and paternal grandparents as well as their half siblings – Where there are significant concerns about the mother’s ability to care for the children’s needs – Orders made for the mother to spend supervised time with the children on three occasions per year and for four hours on each occasion Legislation: Family Law Act 1974 (Cth) Division: Division 1 First Instance Number of paragraphs: 301 Date of hearing: 13-17 March 2023 Place: Sydney Counsel for the Applicant: Mr Ford Solicitor for the Applicant: RMB Lawyers Wollongong First Respondent: Litigant in person Counsel for the Second Respondent: Mr Grew Solicitor for the Second Respondent: DGB Lawyers Counsel for the Independent Children’s Lawyer: Mr Cook Independent Children’s Lawyer: Bowral Legal ORDERS
WOC 455 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR AINSLEY
Applicant
AND: MS AINSLEY
First Respondent
MS RANDALL
Second Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
REES J
DATE OF ORDER:
30 March 2023
THE COURT ORDERS:
1.That Ms Randall (“the paternal grandmother”) and Mr Ainsley (“the father”) have equal shared parental responsibility for the children, X born … 2014 and Y born … 2016 (“the children”).
2.That the children shall live with the paternal grandmother.
3.That unless otherwise agreed between the paternal grandmother and the father, the children shall spend time with the father during NSW school terms as follows:
(a)Commencing from the date of these Orders and continuing until the conclusion of school term 3 2023, for one (1) night per fortnight, being from 9.00 am on Saturday until 5.00 pm on Sunday each alternate weekend.
(b)From the commencement of school term 4 2023 and continuing until the commencement of school term 1 2024, for two (2) nights per fortnight, being from 3.00 pm or the conclusion of school on Friday until 5.00 pm on Sunday each alternate weekend.
(c)From the commencement of school term 1 2024 and continuing until the commencement of school term 3 2024, for three (3) nights per fortnight, being from 3.00 pm or the conclusion of school on Friday until 3.00 pm or the conclusion of school the following Monday each alternate weekend.
(d)From the commencement of school term 3 2024 and thereafter, for four nights per fortnight, being from 3.00 pm or the conclusion of school on Thursday until 3.00 pm or the conclusion of school the following Monday each alternate weekend.
(e)At such other times as agreed between the paternal grandmother and the father in writing.
4.That unless otherwise agreed between the paternal grandmother and the father, the children shall spend time with the father during NSW school holiday periods as follows:
(a)For three (3) consecutive nights each fortnight during the school holiday period at the conclusion of school term 4 2023, being from 9.00 am on Thursday until 5.00 pm on Sunday in weeks one (1), three (3) and five (5).
(b)For five (5) consecutive nights each fortnight during the school holiday period at the conclusion of school term 1 2024, being from 9.00 am on Monday until 5.00 pm on Saturday in week one (1).
(c)Commencing during the school holiday period at the conclusion of school term 2 2024 and thereafter, the children shall spend one (1) half of the school holiday periods at the conclusion of school terms 1, 2, 3 and 4 school holiday periods with the father as agreed between the paternal grandmother and father in writing and failing agreement in the first week of the school holiday period at the conclusion of term 1, 2 and 3 and in weeks 1, 3 and 5 of the school holiday period at the conclusion of term 4 school holiday period.
(d)At such other times as shall be agreed between the father and paternal grandmother in writing.
5.That notwithstanding any other Order hereof, unless otherwise agreed between the paternal grandmother and the father in writing the children shall spend time with the father as follows:
(a)From 5.00 pm on the Saturday preceding Father’s Day until 5.00 pm on Father’s Day.
(b)From 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in all even numbered years.
(c)From 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in all odd numbered years.
(d)At such other times as shall be agreed between the paternal grandmother and the father in writing.
6.That the mother shall spend supervised time with the children on three occasions per year, on X’s birthday; on Y’s birthday and as close to Christmas Day as can be arranged with the supervising agency, on each occasion for four hours.
7.That in order to facilitate the time in Order 6 hereof the mother is to do the following things:
(a)Contact UU Contact Service or such other agreed service and make arrangements for the intake and facilitation of the contact arrangements.
(b)Meet all costs associated with the contact.
(c)Within 24 hours of such arrangements being made confirm with the paternal grandmother by SMS any such arranged time with the supervised contact service.
(d)Comply with all directions of the supervised contact service.
(e)Ensure all interactions with the children are child focused.
8.That, at the mother’s election, the maternal grandmother and step-grandfather and ZZ are permitted to attend any occasion of supervised contact.
9.That all contact shall be reportable and any contact reports shall be provided to the paternal grandmother and father.
10.That the paternal grandmother and/or father do all acts and things to engage the children forthwith with an appropriately qualified child, trauma and grief therapist for the purpose of the following:
(a)The children having the benefit of explanation of and the outcome of these Orders.
(b)Attending with the therapist immediately prior to and following all contact between the children (or either of them) and the mother.
11.That the paternal grandmother shall ensure that the therapist referred to in Order 10 is provided with a copy of Dr J’s third report and a copy of these reasons.
12.That the children shall attend Suburb KK School for the remainder of their primary school education.
13.That both the father and paternal grandmother shall be restrained from changing the children’s current school enrolment without first obtaining the written consent of the other.
14.That unless otherwise agreed between the paternal grandmother and the father in writing, changeover shall occur as follows:
(a)At the children’s school on a school day; and
(b)On all changeover that do not otherwise take place at the children’s school, the father shall collect the children from the paternal grandmother’s home at the commencement of his time with the children and the father shall return the children to the paternal grandmother’s home at the conclusion of his time with the children on a non-school day.
15.That the mother shall be authorised by this Order to receive directly from the children's schools copies of all reports for the children, school photos of the children (at her cost), newsletters, and other documents or information normally provided to parents.
16.That the father shall be authorised by this Order to receive directly from the children’s schools copies of all reports for the children, school photos of the children (at his cost), newsletters, and other documents or information normally provided to parents.
17.That the mother shall be restrained by injunction pursuant to s 68B of the Family Law Act 1975 (Cth) from:
(a)Communicating or attempting to communicate with the children in any way without the prior written consent of the paternal grandmother and father;
(b)Attending the children’s school and/or extra-curricular activities without the prior written consent of the paternal grandmother and father;
(c)Attending the home of the paternal grandmother without the prior written consent of the paternal grandmother;
(d)Attending the home of the father without the prior written consent of the paternal grandmother;
(e)Approaching within 100 (one hundred) metres of:
(i)Any school attended upon by the children;
(ii)The paternal grandmother’s residence; or
(iii)The father's residence.
18.That the children spend time with the maternal grandmother and the step-grandfather as agreed between them and the paternal grandmother but, failing agreement, on not less than one occasion each month, and ZZ may be present.
19.That the father shall have the sole responsibility for giving consent and making arrangements for the issuing of a passport for the children.
20.That subject to any other requirements of the Department of Foreign Affairs and Trade a passport be issued to the children to enable the children to leave Australia notwithstanding that the consent of the mother has not been obtained.
21.That unless otherwise agreed between the paternal grandmother and the father, the father shall retain the passports for the children.
22.That pursuant to s 65Y of the Family Law Act 1975 (Cth), the father and the paternal grandmother are permitted to remove the children from the Commonwealth of Australia without the consent of the mother.
23.That each party be restrained from:
(a)Discussing these proceedings, or showing any document related to these proceedings, to the children, or permitting any other person to do so;
(b)Denigrating the other party, or members of the other party’s family to the children or in the hearing or presence of the children, or allowing other persons to denigrate the other party, or members of the other party’s family to the child or in the hearing or presence of the children.
24.That the Independent Children’s Lawyer be discharged 12 months following the making of the Orders and this Order shall act as an authority for the Independent Children’s Lawyer to make contact with any therapist or school attended by the child and obtain copies of any reports that may become available following any supervised time between the mother and the children.
25.That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under Ainsley & Ainsley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Mr Ainsley (“the father”) and Ms Ainsley (“the mother”) are the parents of X born in 2015 and now aged eight years and Y born in 2016 and now almost seven years (“the children”).
The proceedings before the court relate to the parenting arrangements for the children.
Both parents agree that Y has had behavioural problems since he was very young. He has been diagnosed with Attention Deficit Hyperactive Disorder (“ADHD”) and with Oppositional Defiant Disorder (“ODD”).
The parties to the proceedings are the father, the mother and the paternal grandmother. Until very shortly before the hearing, the maternal grandmother and step grandfather were also parties but they withdrew their application.
The parents separated on 6 January 2019 when the children were aged almost four and three years. They remained in the care of the mother. In January 2019, the mother proposed that the children live with her, that she have sole parental responsibility for them and that the father have time with them supervised.
It is common ground that the children have not spent unsupervised time with the father since the parents separated.
These proceedings were initiated by the father in April 2019 when the mother refused him contact with the children, asserting that he had sexually abused X and physically abused Y.
In May 2019, the father commenced a relationship with Ms T who is now his partner. They have a son WW who is two years old.
An investigation by the police did not substantiate the mother’s allegations of abuse. The evidence surrounding the allegations will be considered later in these reasons.
On 29 August 2019, consent orders were made which provided that the father have professionally supervised time with the children and, commencing in September 2019, the supervising agency, F Contact Service, provided reports of each visit. He continues to have supervised time with them.
A single expert psychologist, Dr J, was appointed to prepare a report. Dr J had the opportunity to consider the supervision reports and, in her third report dated 4 May 2022, she summarised the supervision reports in the following terms:
3.Reports from the supervising agency [F Contact Service] were favourable, although [X] continued to make CSA disclosures to the supervisor, albeit cheerfully and in the context of a safely monitored environment.
Dr J’s first report was prepared in October 2019. She summarised her conclusions of that report in her second report:
5.… In a nutshell, although I made no finding of fact about the [Child Sexual Assault] allegations, I was concerned that unusual CSA allegations continued to arise in forms and contexts which made such spontaneous disclosures by children seem improbable. I raised concerns about the parenting capacity of both parents. I recommended that the children continue to live with their mother and that their time with the father progress in the usual way unless CSA was substantiated in which case all time spent with him should be extinguished. I recommended that change of residence should be considered in the event that new CSA allegations continually arose only to be proven false.
…
7.… I had advised that children’s escalating disclosures should alert the Court to a looming problem, especially if those disclosures seemed bizarre or improbable in context.
On 12 December 2019, a judge of the Federal Circuit Court (as it then was named) heard applications in relation to interim parenting orders.
On 16 December 2019, orders were made placing the children in the care of the paternal grandmother where they have lived ever since.
The orders provided for the father to have contact with the children, supervised by F Contact Service. The mother was to have contact with them, also supervised by F Contact Service on two occasions each week, each for one hour. The mother was restrained from approaching the home of the paternal grandmother or the children’s school or day care facility and from removing the children from the care of the paternal grandmother or their school or care facility.
The children met Ms T for the first time in December 2019.
The mother’s third child, ZZ, was born in 2020. The identity of ZZ’s father is not disclosed. Before ZZ’s birth the mother met with a case worker from the Department of Community and Justice (“DCJ”). The case worker recorded that the mother told her she had received death threats from ZZ’s father. ZZ continues to live with the mother.
After ZZ was born, the mother formed a relationship with Mr VV who was not ZZ’s father. Mr VV died in 2021.
On 3 June 2020, orders were made which provided for the father to spend three hours of supervised time with the children on each of Saturday and Sunday and for the mother to spend “… two hours each Tuesday and Thursday from 4pm to 5pm …” and such other times as agreed between the mother, F Contact Service and the paternal grandmother.
Those orders also provided for the maternal grandmother and her husband to spend time with the children on each third Sunday between 9.00 am and 5.00 pm but the mother was not permitted to be present. The paternal grandmother was authorised to take Y to a developmental psychologist for assessment. Y was displaying concerning behaviours.
The mother’s attendance at the supervised visits was not consistent. In April 2021, F Contact Service advised the mother they would no longer supervise the visits. She has not spent time with the children since that time. She did not make any application to the court to change the supervision orders.
Before me, the father initially sought orders that the children live with him. In the course of his cross-examination, his position changed and he sought orders that the children live with the paternal grandmother and that they spend unsupervised time with him as agreed between him and the paternal grandmother.
The mother sought sole parental responsibility and that the children live with her and spend no time with the father or the paternal grandmother.
The paternal grandmother sought orders that she have sole parental responsibility for the children and that they live with her. She did not propose that they spend any time with the mother.
At the commencement of submissions, the father, the paternal grandmother and the Independent Children’s Lawyer (“ICL”) had reached a consensus and they presented a minute of the orders to which they all subscribed.
THE HEARING
A single expert psychologist, Dr J, had prepared three reports in relation to the family, the most recent dated 4 May 2022.
The father relied on an affidavit sworn by him on 9 March 2022 and an affidavit of Ms T sworn on 9 March 2022. Ms T was not required for cross-examination after the father’s position changed and he no longer sought orders for the children to live with him. He sought to rely on a tender bundle and an exhibit containing, in all 1,055 pages of documents.
The mother relied on an affidavit sworn by her on 28 June 2022. She sought to rely on a further affidavit sworn on 23 February 2023 but was not permitted to do so. The affidavit contained nothing that had arisen since the filing of her earlier affidavit. The mother filed five bundles of exhibits containing a total of 665 pages. The mother also relied on an affidavit of the maternal step-grandfather, Mr Magnus sworn 8 September 2022. The maternal grandmother had sworn an affidavit in the proceedings but the mother told the court she did not rely on that affidavit.
The paternal grandmother relied on an affidavit sworn by her on 7 March 2022 with 256 pages of annexures and a tender bundle of 347 pages. She was permitted to rely on a brief updating affidavit confined to Y’s current treatment. She also relied upon an affidavit of her husband, Mr M sworn 4 March 2022. Mr M was not required for cross-examination.
The ICL’s tender bundle was of 496 pages.
At the commencement of the hearing, having regard to the volume of material sought to be relied upon of some 2,819 pages, the parties were told that none of the material in either a tender bundle or an exhibit was before me and that such material would be considered by me only if it were tendered and marked as an exhibit.
As the hearing unfolded, the issues became clear:
·The mother’s allegations that the father had sexually abused X and physically abused Y.
·The mother’s allegations of family violence perpetrated by the father.
·Whether it was possible to craft orders that would facilitate the children’s having a relationship with both the paternal and maternal families.
·If the children were to live with one side of their family and have no, or very limited, contact with the other, with whom should they live?
On the last day of the hearing, after Dr J had given her evidence, and the joint Minute of Orders of the father, the paternal grandmother and the ICL had been tendered, I heard oral submissions from the three counsel representing them.
The mother was, understandably, considerably distressed and, without objection, I allowed her to prepare written submissions. The mother has filed three sets of written submissions, the last at 6.18 pm on 20 March 2020. I propose to rely on that document and disregard the earlier versions. To the extent that the mother’s submissions include material which was not before me in the trial, I have disregarded that material.
THE MOTHER’S ALLEGATIONS OF SEXUAL ABUSE
This was the issue that dominated the hearing.
The mother asserted that the father had been a person of interest in relation to a sexual assault in 2018. However, the document upon which she relied was a summary of the father’s criminal history prepared by her former solicitor and she did not tender any record from the documents produced by the police to substantiate that assertion.
At paragraph 28 of her Case Outline filed on 9 March 2023, the mother stated:
The mother’s case was that the father posed an unacceptable risk of harm to the children because, historically, he had physically and sexually abused the elder child. The mother has not raised this since child protection closed their investigation, the mother has accepted that the children could potentially have been lying or the child is confused. Therefore the mother has done all things necessary to mediate, however the father and the paternal grandmother has requested no time to the mother.
However, in cross-examination, the mother resiled from that position and said that she firmly believed that the father had sexually abused X.
The father gave evidence that he believed that the mother had deliberately fabricated the evidence of sexual abuse on which she relies.
The mother asserted that X began to make disclosures of sexual abuse when she was 18 months old, saying “Daddy put his fingers in my bum-bum” or “daddy put his fingers in my wee-wee”. She did not report her concerns at that time. The mother conceded that the father often changed X’s nappies and bathed her and that it was likely that he had, in fact, touched X’s bottom and genital area while doing so. When it was suggested to the mother that it was unlikely that an 18 month old child would use that language, she said that X was “highly advanced … exceptionally advanced”.
The mother relied upon a text exchange between her and the father which occurred on 11 November 2018 at 9.45 am. The father texted, “Hi can you call me please it’s urgent”. The mother replied, “I hope ur not sleeping in ur daughters bed”. I am unable to draw any inference from that exchange. The father in cross-examination by the mother said that he slept in X’s bed when X slept with the mother and that, about once a week, he fell asleep in X’s bed when he was reading her a bed-time story.
On 3 January 2019, three days before the separation, there was a further exchange. The mother was using a bedroom upstairs and the father was sleeping downstairs. At 12.04 am the mother texted, “I don’t know what’s going on but X said you went in her room took her dress off and put it on her shelve”. The mother said, in cross-examination, that X had woken and come to her bedroom. The father replied “I’m not going to tell you again”. The significance of that reply was not explained. The mother texted, “Well something is going on with X and I have ever[y] right to ask getting hostile is not the solution”. The father replied, “I didn’t take her dress off …”. The mother texted, “Did u let Y out of his room she is saying that also”. The father replied, “No”. The mother texted, “Ok well X is scared”. The father replied, “I didn’t even no he was up until I herd [sic] them crying”. The mother texted “This is terrible Talk tomorrow”.
They separated on 6 January 2019.
On 22 January 2019, an email was sent to the father by the mother’s solicitors enclosing an Application for Consent Orders in relation to parenting and property. The father was invited to sign and return the document. In the attached application, the mother sought orders that she have sole parental responsibility for the children; that they live with her and that they spend time with the father each alternate weekend from noon on Saturday until 4.30 pm on Sunday commencing on 16 February 2019. The application included the statements by the mother’s solicitor,
I certify that I do not, or the party that I represent does not consider that a child concerned in the proposed order has been or is at risk of being subjected to or exposed to abuse, neglect or family violence.
(Emphasis in original)
Further the solicitor wrote,
I certify that no allegations of or risk of abuse, neglect or family violence have been made in:
•Any document filed or exhibited in the proceedings; or
•Any report prepared for the proceedings; or
•Any document subpoenaed to the court in the proceedings.
In cross-examination, the mother agreed that her solicitor was an accredited specialist in family law. She said that she discussed her allegations of abuse with the solicitor but instructed him to make no reference to them. However, she denied that she did not, at that time, regard the father as a risk to the children.
When cross-examined about the apparent inconsistency in her approach, the mother said that she knew the children would be safe with their paternal grandmother, however she also conceded that the proposed orders made no mention of the paternal grandmother and contained no requirement that the children spend time with the father at her home.
Notes produced by the children’s pre-school record that on 24 January 2019, the mother,
… called to say she was really worried [the father] would come and get the children and stop them from going on holiday to [Country A] on Saturday – And if he was to come to call Police immediately
She also messaged concerned about [Y’s] welfare and that [the father] would not sign papers so orders need to go to court
(As per the original)
The father’s solicitor responded on 4 February 2019, stating that the father did not agree with the mother’s proposal and that he sought equal shared parental responsibility; time with the children on Tuesday and Thursday afternoons and alternate weekends from Friday afternoon until Sunday afternoon.
Notes produced by the children’s pre-school record that in February 2019 the mother spoke to a worker “to discuss disclosure while they had been on holidays. [X] has told mum a few things. Mum has contacted FACS”. On the same day, a complaint was made to the police by either the mother or the mother’s friend Ms XX. On the same day, the police attended at the mother’s house and spoke to the mother.
In February 2019, X was interviewed by the Region N Child Abuse Squad, but she made no disclosures to the investigator in relation to sexual abuse by the father.
In February 2019, a provisional Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the children. The facts upon which the ADVO was made were provided by the mother. The “Grounds of Application” state, inter alia:
The [mother] stated that [X] has stated on a number of occasions of late, “Daddy touches my wee wee”.
…
Disclosures of this nature have been occurring since [X] was 18 months old however have gone unreported by the [mother]. The [mother] stated that when these disclosures were initially made by [X] she addressed them with the [father]. The [father] denied touching [X] on her vagina.
…
One particular incident occurred about 1.00am on 02/01/2019. [X] and [Y] ran upstairs crying. [X] was naked. The [mother] asked [X] why she was naked and she stated that [the father] had taken her clothes off, jumped on the bed and smacked her.
Of late, multiple disclosures have been made by [X] to the [mother]. The nature of these disclosures have included the [father] touching [X] on the vagina which made her cry because it hurt and the [father] urinating on [X’s] nightie and in her bed.
…
The [mother] further stated that the [father] has always been physically violent towards their 2 year old son [Y]. She alleges that the [father] has stated on numerous occasions that he does not love [Y], that he would throw him out a window and not to ever leave him alone with the child. The [mother] stated that [Y] would have bruises over his body to which the [father] would state “He fell over”.
…
The [mother] was very emotional whilst speaking to Police about this matter and expressed genuine concerns for her safety and the safety of her two children.
If orders are made in relation to the custody of the children and the [father] is granted access, the [mother] fears that the [father] will continue to sexually abuse [X] and physically abuse [Y].
The “Grounds” further state:
On […] 2019 [X] was interviewed by [the Region N Child Abuse Squad] however made no disclosures to the investigator in relation to sexual abuse by the [father].
On […] 2019, the [mother] has reported that whilst at their home address, she asked [X] why she had not told the Police what she had told her. [X] said, “Because I was too scared”.
The [mother] states that [X] then pulled down her pants, spread her vagina and said “Daddy touched me here”.
[X] then went under the dining room table and urinated.
The [mother] provided handwritten notes to Police detailing previous indirect threats being made by the [father] towards the [mother]. These have included:
•If the [mother] got a new boyfriend, he would have someone bash him.
•If the [mother] was a male, he would punch her.
•If he ever wanted to kill someone, he would take the body somewhere no one would ever find it.
•Reminders that his family have guns and that he is associated with [an outlaw gang].
•He knows “stand over men” that aren’t scared of anything.
Also on 16 February 2019, the mother made three recordings of X which she showed to the police in March 2019. The three recordings are in evidence.
The first video starts at 9.41 am but, clearly, not at the beginning of the conversation.
[X]: Yup.
MOTHER: You’ve just said something that I just need you to repeat sweetheart.
[X]: (Puts her finger in her nose and makes inaudible sounds)
MOTHER: You said that daddy goes into your room and what does he do sweetie?
[X]:Um… I say “Ooh stop it, stop it, stop it, stop it, stop it, stop it, stop it, stop it, I don’t like it, I don’t like it, I don’t like it, I don’t like it, I don’t like it…
MOTHER: Yeah but what is he doing?
[X]: … I don’t like it, I don’t like it, I don’t like it, I don’t like it…
MOTHER: What… alright… calm down. And what is he doing?
[X]: Um, he was, um…
MOTHER: Where did he touch you, sweetie?
[X]: Um he…
[Y]: (Loud screaming)
[X]: Um he, Daddy…
[Y]: (Loud screaming, unable to hear X)
[X]: And he, and he gets my… gets my… my hand…
MOTHER: What does he do?
[X]:Um daddy, daddy touch my fish and he pull it out and he put it back in and he (inaudible) with his hands.
The second video starts at 1.54 pm. A woman can be heard speaking but her comments are not audible. The mother in cross-examination said she was filming from the front. I infer that the other woman was standing to X’s right out of camera. Again the conversation is not filmed from the beginning. X is dressed as a fairy and holding up a fairy wand.
[X]: Daddy.
[X]: Daddy.
[X]: Daddy broke my wand.
[X]: (Looks towards the right)
[X]: And he smacked me on the bottom. And he put his fingers in the bottom.
[X]: (Looks towards the right)
[X]: And, and, and I don’t know and…
[X]: And he smacked me on the eye.
[X]: (Looks towards the right)
[X]: And he and he smacked me on the face and…
[X]: (Looks towards the right) and the tummy and the belly button.
Y appears in the background.
The third video commences at 5.10 pm.
[X]:(Inaudible)... and daddy broke my arm and he… and he put his fingers in my um, bum.
[Y]: (Interrupts)
[X]: And he… and he (lifts up dress).
[Y]: (Interrupts)
[X]: (Walks around the room holding up her dress) and he put it in here (points to her own bottom).
[Y]: (Interrupts)
[X]: … and he touched my… he touched…
[Y]: (Interrupts)
MOTHER: (Pushes [Y] out of the way and lifts up [X’s] dress further) Tell me [X], where?
[X]: Right here (points to her genital area).
[X]: And he touched me with his fingers. And he (inaudible) like this.
MOTHER: And he what, he what?
[X]: And he (inaudible) like this (moves her arm towards her genital area and smiles towards the mother).
MOTHER: Okay.
[X]: So I need to tell the police and I need to tell the police and go to the police.
Y is present throughout the video, pushing in front of X to take part and shouting “bum bum”.
In cross-examination, the mother denied that the videos show her coaching the children. It is difficult to place any other interpretation upon them, although I accept that the mother may not have thought she was coaching them.
Dr J was shown the three recordings before she was cross-examined. Asked about her interpretation of the videos, she said the mother was coaching X.
Pre-school notes record that on 19 February 2019,
[X] said her dad was in jail because he hit her mum and that she only loves her mum.
On 20 February 2019, X was noted saying again at pre-school that “Dad is in jail because he hits my mum”.
In February 2019, the mother took X to Dr R “with issues of incontinence, nightmares and sexualised behaviours”. Dr R prepared a short report dated 30 July 2019 stating,
My opinion is, as an experienced forensic sexual assault examiner, [X] is displaying behaviour that is often found in young victims of sexual assault and for this reason needs ongoing clinical psychological therapy.
On 26 February 2019, Ms AA, who was a Nominated Supervisor at the children’s pre-school made a note of a conversation with the mother. The notes of the pre-school were produced on subpoena. The notes record:
[The mother] called to say that [X] had disclosed more yesterday while at her nan’s. She told her nan that she was going to tell me everything she thinks I’m the police. She asked that I call DOCS to inform them as soon as she says anything and that I document everything.
[The mother] said if I could say to [X] is there anything you want to tell me and apologies for the detail in which she will talk. The info is quite disturbing.
I finished at 4:30 [X] didn’t say anything at all to me today.
(As per the original)
The mother denied that she had this conversation with Ms AA. Ms AA subsequently in April 2019, gave a statement to the police about this and subsequent conversations. There is no other reasonable explanation for Ms AA’s making the handwritten notes and giving a statement to the police. I accept that the conversation occurred as Ms AA described.
Ms AA noted a conversation with X on 28 February 2019. The handwritten notes record:
[X] came to me and said my mum said I have to talk to you [I] asked what about. She said my daddy. I said OK, let me put my things down and we can talk. We went into the staff room with [another member of staff] to chat. She jumped around, and said my daddy is in jail, I asked why. She said because he hurts my mum. I said is there anything else you want to tell me she said
My daddy puts his fingers in my bum bum, then held up 2 fingers and said 2 fingers in my bum bum.
She then said he smacks her, takes her top of and throws it on the shelf
-Broke my pants
-smacked my eye – she punched herself in the face when she said this
-he broke my toes
-she was fidgety and giggly when she was talking
-Then she asked to go back to the room.
(As per the original)
Ms AA asked X if there was anything else she wanted to say and X repeated what she had said.
In March 2019, X was interviewed by police.
Before X was interviewed, the police officer spoke to the mother. The record produced by police states:
… spoke with the mother … stated she was happy to have the child reinterviewed in light of recent, more frequent disclosures. [Police] explained that due to the issues with the first interview; being the lack of disclosure, the child failing to understand truth and lies and being unable to give proper context or specific details to versions and events it was unlikely that the matter would proceed criminally even if a disclosure was made. The mother appeared to show an understanding of this.
There is no transcript of the interview but the DVD recording is in evidence. The summary report on the file produced by the police notes that the officers could not be satisfied that X knew the difference between truth and lies. The notes record, “… when asked what usually happens when someone tells a lie the child said, ‘bum bum’ and laughed”.
The summary records that on a number of occasions X said “daddy put my fingers in my bum” and that she confirmed, when queried, that it was her fingers that were used.
The summary records that X was unable to give any details and kept saying “Daddy put my fingers in my bum bum”.
Later in the interview, according to the summary,
The child provided limited details but was able to tell [police] that she was sleeping in her room when this happened and that her mother was upstairs. The child immediately changed to talking about her colouring in that she was doing. The child said she did not know if there was anyone else in her room when this happened and that her dog walked in…
The child first said that she was in her bed and that her dad was in there too. The child then changed and said that she was in [Y’s] (her brother’s) bed and that [Y] was in there sleeping too. When asked further where [Y] was, the child said “I don’t know”.
[Police] spoke to [X] about her telling her mother that her Dad had hit her on the arm and broke her arm. The child said “Yes” and that “Daddy broke my wands”. While talking about this the child said “Mummy taught me”. [Police] tried to clarify and the child said “I don’t know”.
[Police] asked the child if anyone had told her to say that Daddy had put his fingers in her bum bum and the child said “Yes” and then repeated “Daddy put my fingers in my bum bum” The child said someone taught me fingers in my bum bum. When asked who the child replied “[Ms XX]”. (In cross-examination the mother said that [X] was referring to [Ms XX] who was a friend of the mother). The child also said “[YY]” and that she was a friend. The child did not provide any further details.
[Police] attempted to address that she continued to say “daddy put my fingers in my bum bum”. The child told [police] that she meant her dog’s fingers [...]. (The mother in cross-examination confirmed that the family dog was called [...]).
The child stood up and pulled her pants down and demonstrated touching her vagina …
The child’s demeanour did not change during the duration of the interview. She appeared happy bright and bubbly; even when speaking about the allegations against her father.
(As per the original)
On 29 March 2019, X met with a caseworker who noted that, without prompting, X said “Daddy put his fingers in my bum bum… he’s in jail. He did something naughty”.
In April 2019, X spoke with a counsellor, Ms G, from NSW Health, who noted that she was “happy, active, bubbly and giggled” throughout the session which concentrated on naming body parts, and particularly on naming X’s genital area as her “vagina”. The mother was present during the session.
On 8 May 2019, the mother reported to Ms G that X sneaked into Y’s room at night and that, in the morning, Y was wearing his pyjama bottoms but not his underpants. The mother also reported that X said she had put sand in her vagina at school and that X’s genital area was sore.
On 9 May 2019, a case worker contacted the pre-school and asked whether X had demonstrated sexualised behaviour at the centre and was told X had “never” displayed sexualised behaviour at pre-school. The case worker was told that X had not been observed to put sand in her vagina and had not told anyone about doing so.
Also on 9 May 2019, the mother sent an email to Ms G saying,
Just wanted to let you know I have received a call from FACS today and they have advised me that they will not be substantiating the last video as there was not a lot of context around the discloser [sic]. So in regards to protecting [X] and making sure she is safe this is going to make the family court proceedings very hard and I am extremely concerned for [X] welfare as I discussed with you yesterday.
On 22 May 2019, Ms G wrote to the pre-school, asking that X be monitored, especially in the sand pit.
The mother filed a Response to the father’s application on 22 May 2019. She sought an order that the children live with her and spend no time with the father. She also filed a Notice of Risk in which she stated, inter alia,
The Father has been verbally and physically abusive towards the chid [X] including screaming at her, belittling her, inappropriately touching her genitals and anus and exposing himself to her.
The mother had made no earlier report that X said her father exposed himself to her.
On 23 May 2019, orders were made for the father to spend time with the children under the supervision of AC Contact Service. That did not occur.
In her Amended Response filed 28 June 2019, the mother sought orders which had the effect that there should be six periods of supervised contact after which the father’s time would be unsupervised on alternate weekends from Saturday noon until Sunday at 4.30 pm.
The mother did not accept that her Amended Response was inconsistent with her stated belief that the father had sexually abused X.
On 2 July 2019, the pre-school record notes,
[Y’s] and [X’s] behaviour has changed over the last 2 weeks. I spoke to [the mother] last night about [X’s] behaviour in particular as she is lashing out and hurting other children. [The mother] advised that both [Y] and [X] are having supervised visits with dad. She also stated that [X] has reverted to wetting the bed at night.
The supervised visits with the father had not started at that time.
The mother, in cross-examination, said that around this time, she and the children were watching lots of YouTube videos around disclosure and child protection.
On 15 July 2019, further orders were made which provided for the father to spend time with the children supervised by F Contact Service.
The first occasion of supervised time was to be in August 2019. The F Contact Service report states:
[X] seemed to enjoy herself at the play centre until [the mother] told her she was going to leave, and that [the father] was coming to join them at the play centre with worker. She became really upset when [the mother] tried to leave a number of times and hence the contact was cancelled. [X] was the most visibly upset by this experience and although [Y] became more demanding and agitated in his demeanour it was more difficult to gauge his reactions to the proposed contact.
The mother and the children left at 10.39 am.
In August 2019, the mother posted on social media,
12.04 pm 3 hours since I was forced to take my children to a supervised visit with their “Father”. Thankfully they weren’t forced to see their “Father” because now more than 3 hours later [X] still hasn’t spoken, made eye contact or barely removed herself from the fetal position. Thank you family court for failing me and my children at every angle. Thank you god that the visit didn’t go any further!
(As per the original)
The mother then posted on social media the second video of X made on 16 February 2019 with the caption,
He may pull the wool over everyone’s eye but this little girl words matter and if I’m the only one that believes her then that is all that matters.
(As per the original)
The father’s solicitors wrote to the mother’s solicitors asking that the posts be removed and suggesting that the visits be facilitated by Mr Magnus.
On 12 August 2019, the mother’s solicitor wrote to the father’s solicitor,
In light of the report issued by [F Contact Service], it is submitted that the children were returned to my client as a result of unacceptable risk. Accordingly, it is submitted Order 5 of the Orders made 15 July 2019 should be applied and the Father’s time suspended until the next Court appearance, at which time we will have the benefit of the Expert’s Report.
With regard to the [social media] posts, my client is removing them, but it is noted that your client has been posting a number of posts in relation to this matter since separation. These are being monitored for any potential breach of s121 of the Family Law Act.
The father’s posts were in evidence. They were innocuous.
On 22 August 2019 the pre-school notes record concerns of staff members about the children’s behaviour, particularly that of Y and that other children were being hurt. The notes refer to hitting, throwing a rock at another child, pulling hair, pushing and screaming at other children and teachers. The notes record,
… both children are always coming in saying they are “starving” and, on the days that they haven’t said that, they usually come in eating Hungry Jacks or bread rolls.
The father made a further application to the court. On 29 August 2019, further orders were made, by consent, for the father to have contact supervised by F Contact Service and for Mr Magnus to attend. The proceedings were adjourned to 12 December 2019 for an interim hearing.
On 27 August 2019, the children arrived at pre-school saying they were hungry. They had no bags or jumpers and X said she was cold. The notes record, "[The mother] said to the Educators "Take her" and pushed [X] back in the door."
The first supervised visit was on 9 September 2019. The F Contact Service report is in evidence. Mr Magnus brought the children to the venue. The reporter noted that, “… we sat at a table talking, both children appeared relaxed and nil visible signs of anxiousness or fear noted”. The supervisor noted:
[Y] was heard by the worker start to question [the father]. [Y] was very direct and determined with his wording regarding this line of questioning surrounding “money”, “daddy… you need to give mummy back her money”, [the father] tried to redirect [Y] but to no avail, worker intervened this questioning by [Y] and asked him to stop as this was not a conversation he needed to have with his dad this was a conversation for adults. It took the worker 3 times to stop [Y] with his questioning of [the father] but eventually the worker was able to get [Y] to stop and reengage with Dad on other subjects.
At the time of this visit, Y was three years old. It is unlikely that he would have been aware of financial issues between his parents unless he was told about them. He had not seen his father since his parents separated.
The children were noted to be “completely relaxed”. They played with their father and hugged him. When they left, the worker observed X “waving to [the father] furiously through the window”.
The notes produced by the pre-school record a conversation with the mother at 9.20 am on 10 September 2019.
[The mother] approached me to tell me how the first supervised visit went with [X], [Y] and their father yesterday afternoon. [The mother] explained that both [X] and [Y] came home very excited that they saw their father… and that they had a really good time. [The mother] said that the first think that [X] said to her when she got home was “Daddy said sorry for touching my vagina”. [The mother] asked [Mr Magnus] who was present at the visit and he said he didn’t hear that being said but there were lots of cuddles so if he did say it he may have whispered it, but he wasn’t sure if it was actually said. [The mother] went on to say that [Y] said “daddy was really nice to me today” and had a big smile on his face. As the conversation went on about the visit and that [the father] could potentially have visitation rights with no supervision, [the mother] began looking very distressed and began crying. [The mother] then went on and said, “I am at my whitts ends, I don’t know how else to protect them from their father. It’s so sh**. I have boked [sic] myself in to a clinical psych after I leave here. I feel like I want to kill myself and take my kids with me to protect them or just run away”.
…
[The mother] then went on again and spoke about how she doesn’t want the supervised visit to go well today and she wants her children to act out because she knows [the father] will get unsupervised visit and will “do it again” to both of them.
A report was made to DCJ of the conversation.
In cross-examination, the mother denied that she had this conversation with the teacher. She said that the report was made up, even though she conceded that only she, Mr Magnus and the F Contact Service supervisor could have known about what X said. She theorised that, because Ms T is also an educator, although at another school, Ms T might have somehow fabricated the report.
The mother tendered a letter from the manager of the pre-school dated 15 April 2022 which stated,
The statement “I am going to kill the children” is not in any correspondence or documents we have at the centre. This was not said to anyone nor was this reported by our service or educators at the service.
Since the notes do not record the mother saying “I am going to kill the children” I do not accept that the letter is evidence that the centre’s notes are fabricated.
It is more likely that the mother said what the teacher reported and I accept that she did.
The notes record that both children appeared to be very excited about the visit with the father.
The next visit was at 10.45 am on 10 September 2019. The report records:
[Mr Magnus] disclosed to worker that [X] stated to her mother upon walking in the door, in front of [Mr Magnus] that “daddy said he was sorry for touching my vagina”. [Mr Magnus] stated, “he was shocked at this statement by [X] because at no point during the contact was [X] away from the worker, for the worker not to have heard something like this being said”.
(Emphasis in original)
At this visit, Mr Magnus left for a while, leaving the children with their father and the supervisor. The worker observed the children “engaging happily” with the father and they hugged him and told him they loved him.
On 18 September 2019, F Contact Service supervised the father's contact. The notes record that X whispered to the supervisor "Daddy touched my vagina" and "Daddy also touched [Y]". The notes record,
Worker leaned into [X] and asked her why she decided to tell [me] now? [X] turned and looked directly at the worker's eyes and stated, "Mummy told me to tell you". [X] told the worker that she had told her last night.
The supervisor noted that there was no change in X's demeanour and both children enjoyed a positive engagement with the father and hugged and kissed him goodbye.
The notes of the pre-school record that on 19 September 2019, X said, “I am brave today … I saw Daddy yesterday and he touched my vagina”. Questioned about this, X said, “I don’t know”.
On 24 September 2019, Y told a supervisor at the pre-school, “Daddy touched my vagina”. The notes record,
I said, “Your daddy touched you where?”
[Y] said, “My daddy … locked me in my room.”
I asked, “Who got you out?
Mummy did.
(As per the original)
On 26 September 2019, the pre-school wrote to the mother, stating that the children’s hours at the centre need to be limited to 9.00 am to 3.00 pm, “for the safety and protection of all children and educators at the service”. The letter stated:
Identified Challenging behaviour issues:
[Y]
Hitting, kicking, pulling, biting adults and children, spitting, screaming aggressively, hair pulling, climbing the fort and pushing other children off, throwing furniture, toys, glass, etc, running out of class into foyer and outdoor area without supervision, hissing and growling at educators and peers, encouraging peers to mimic his negative behaviour. Swearing at peers and educators…
[X]
Defiant and does not respond to adult direction, has trouble self-regulating her emotions, ignores guidance and direction from educators, lies to educators, will hurt others for attention, will shut down and withdraw from group experience and loses interest very quickly.
At the Centre currently we are not able to have [Y] and [X] in the same room or outdoor space as they [sic] play is very rough and they not only hurt other children they hurt each other.
… we aim to be an inclusive Centre but at this time we have exhausted all avenues of getting support for [Y] and [X] and the educators to ensure we have a safe environment for all. We have also received serious complaints from families who witnessed their behaviour, especially [Y’s] where they expressed concern for their child’s safety.
(As per original)
The notes on 29 September 2019 record, “[X] and [Y] no bags. [X] very upset. Mum has court today”.
In her Further Amended Response filed 1 October 2020, the orders sought by the mother provided for the children to spend time with the father on alternate weekends from Thursday after school until Monday morning and, in the alternate week, overnight on Thursdays. Again the mother did not accept that her position was inconsistent with her belief that the father had sexually abused X.
The F Contact Service reports note that, on 2 October 2019, after the father had left, X said to the supervisor, “… I have to tell you something, daddy touches my private parts and comes into my room and sleeps with me!” The supervisor commented that X did not appear distressed but smiled and giggled.
The pre-school notes record that on 15 October 2019, Y said,
Daddy … is a monster. Mummy said he is a monster. Later he said Daddy
touched [X's] ‘gina, daddy touched my “bagina”. It's my body!
(As per the original)
The children attended on Dr J in October 2019.
Dr J’s report was released to the parties on 25 October 2019. Dr J made a number of recommendations:
94.On an interim basis the children should live with their mother and visit their father regularly, progressing from agency-supervised visits to family-supervised daytime visits in the home of the paternal grandparents, then weekend visits in the same venue. The paternal grandparents should remain throughout visits, at least during the first year.
95.Substantially-shared care should not be set as a goal for these high conflict parents.
96.Handovers should be to and from pre-school/school: Friday pm to Monday am for example. Otherwise, handovers should be managed between the maternal grandfather and the father.
97.Within any limits the Court stipulates, the mother should make all day-to-day decisions about the children’s care, keeping the father informed via Our Family Wizard.
98.[Y] requires immediate medical and allied health intervention to address his hearing problems, which may be impeding normal language development and socialisation.
99.Both children require strategic parenting which is consistent across households. The family should be referred to an appropriate child psychologist (who has never been previously engaged with either parent) who can devise a behaviour management program for the parents to implement with children. The parents should attend separately. The clinician should liaise directly with educators as required. The clinician should see this report.
100.The father’s time should be extinguished if new allegations of CSA arise and be substantiated. If so, consideration should be given to making separate arrangements for the children to safely maintain their relationships with other paternal kin.
101.A change of principal residence should be considered in the event that new CSA allegations continually arise only to be proven false. Any bizarre and/or inherently improbable CSA allegations emerging should alert the Court to a looming problem.
102.In the first instance this report should be released to the ICL, who may need to issue further subpoenas.
On 31 October 2019, the F Contact Service reports note that, in the father’s presence,
… [Y] had an outburst and aggressively stated “you touched my bagina (this is the way it was said by [Y]). [The father] asked [Y] who told you to say that. [Y] said, “not talking to you”.
The supervisor then spoke privately to Y. She reported,
The worker asked [Y] if he felt like telling her why he sounded upset, [Y] stated, “daddy touched my bagina”. The worker and [Y] were sitting in the same place/position when [Y] stated – “He took off his shirt, took off his shorts off and “jumped”! into [X’s] bed”. [Y] stated aggressively “I “heard”! daddy jump into [X’s] bed then he went downstairs and ate all the food”. Worker thanked [Y] for feeling he could talk with her… [Y] turned and said to the worker, “I’m getting a lolly pop from mum now from her car”!
(As per the original)
On 11 November 2019, the mother asserts that Y pushed a toy inside X’s vagina when the children were in the bath together.
The mother’s solicitor wrote to the father’s solicitor on 20 November 2019 advising of the injury and stating that the mother had taken X to be examined by Dr R.
The mother was interviewed about this incident on 4 December 2019 by a case worker. The notes record, inter alia,
[The mother] said the kids were bathing and her phone had rung and she had gone to answer it and it was her solicitor. She heard [X] crying and [X] said [Y] put a toy in her vagina. [The mother’s] words were “I stepped outside and they were playing with toys, then he just did it” … He heard her saying “It’s sore”. He asked me to assess if there was any blood and I lay her on the floor and looked it was red … On the next day, Wednesday, I took her to [Dr R] and she reassured me she was fine and the hymen was intact and there was no bruising or scratches. She couldn’t do a proper exam though cause [X] kept closing her legs and wouldn’t let her so she couldn’t see any bruising. I questioned how a Dr could tell a hymen was intact when she wasn’t able to tell if there was bruising. I also questioned whether [Dr R] was a sexual assault Dr? Also questioned why it had taken from Monday to Wed to go to the Dr and if the Dr explained the time frames around healing in this area. [The mother] immediately backed off getting distressed over questioning to make sense of this.
(As per the original)
There was no report in evidence from Dr R relating to an examination of X on November 2019.
The interim application in relation to parenting was heard on 12 December 2019. Dr J was cross-examined. Judgment was reserved until 16 December 2019 on the basis that the children would live with the maternal grandmother and Mr Magnus until then. There was no order about where the mother would live and no restraint upon her living with the children.
On 13 December 2019, the mother arranged for X to be interviewed by a person described as an officer with AJ Family Services. There is no evidence about the identity or qualifications of this person. That person then made a lengthy and detailed report to the police, asserting that X had disclosed that her father had sexually assaulted her and including a critique of previous interviews of X conducted by police.
Judgment was handed down on 16 December 2019. The orders provided for the children to live with the paternal grandmother and for both parents to have contact with the children supervised by F Contact Service. The supervision reports are in evidence and will be discussed later in these reasons.
On 12 February 2020, F Contact Service supervised a contact visit with the father at the home of the paternal grandmother. At the dinner table Y said “this is the last visit till mummy has the baby”. X then said “mummy told me you killed the other baby”. The mother, in her trial affidavit, deposed to losing a baby in late 2017. X was two years old in late 2017. It is highly unlikely that she was aware of the pregnancy or the miscarriage.
The mother tendered a note book which had been in the possession of the maternal grandparents. Mr Magnus gave evidence that the book was X’s book and was kept at his home. X wrote in it occasionally. He was not asked to identify the handwriting or whether anyone else had access to the notebook.
The maternal grandmother did not give evidence and therefore could not be asked about where the book was kept, who had access to it, how and when the entries were written and by whom.
There are a number of items in the notebook about the paternal grandmother on which Dr J was cross examined. None of the items is dated and the evidence does not establish when they were written. The paternal grandmother said the writing was not X’s writing.
One entry states, inter alia, “I still remember dad touching me…”
Dr J did not accept that the notebook entries could be given any weight.
EVALUATION
In the course of Dr J’s interviews for the first report in 2019, the mother told her that she had been sexually abused by her father between the ages of three and a half and six years during contact visits with her father. The mother first disclosed the abuse to the maternal grandmother when she was four years old but was not believed and the visits continued. The nature of the abuse was serious. Dr J reported,
21.… When asked how she had reacted during the time she was being abused, [the mother] said, “Just like [X]… telling everyone, sexualised behaviour”. She told other children about her father’s behaviour. She inappropriately touched other children and asker her brother… to touch her. However she was not naughty and defiant like [X]. She said that she was “super-compliant” to avoid being rejected.
When the mother was six years old and her brother confirmed her disclosures, the maternal grandmother ended the contact and reported the abuser to the police. He was ultimately charged and convicted.
The mother did not give evidence about the effect on her of her childhood experience of abuse but it is inevitable that her own lived experience would make her vigilant about the possibility of her own children’s being abused.
Dr J gave evidence about the nature of the children’s alleged disclosures. She said,
… the usual thing children do about child sexual abuse is nothing. They don’t usually make disclosures, and when they make disclosures, they are usually very taciturn, hesitant, and… not like [X].
…
[X’s] disclosures and her manner of disclosures are atypical of how children usually disclose child sexual abuse, given that they mostly don’t, and in the first video, when she is showing her bottom and her anus and, you know, taking her pants off and so on, again – admittedly, she is doing it to her mother, someone that is a safe person to show those parts of her body to, but it is still highly atypical, and she is in quite an elevated mood, not the sort of mood you expect of a child who is disclosing something distressing. It is like she is a star of a show. It is – in every way, they are atypical to me, as a clinician. They are atypical.
…
… what we know about children who disclose actual sexual abuse, even though there are often discrepancies because of the way children’s memory works, over time, their disclosures tend to be less elaborated and less histrionic, and just go to the core… But what they don’t do is keep on adding extraneous elaborations, and in my assessments, it seemed to me that – and they don’t also unnecessarily contradict core elements. It seemed to me that [X’s] accounts added extraneous elements, were too histrionic, became more elaborated over time and they – they varied in their content quite a lot, but not in a way that is the difference between general and specific memory, but is between a lot of specific things tied to a specific time, but those specifics varied.
Dr J said that the mother may believe things that started out as fabrications were true “and she clings to the delusion still”.
Another explanation is that, because of her own experiences, the mother heard X say something that the mother interpreted as a disclosure of abuse and she built on that disclosure.
The texts on 3 January 2019 are instructive. According to the texts, X told the mother her father took her dress off and put it in a shelf.
By the time the mother made the statements to the police that grounded the provisional ADVO in February 2019, the mother said that X was naked and crying and that X said her father had taken her clothes off, jumped on the bed and smacked her.
X’s asserted disclosures became more and more improbable and the mother, in cross examination, agreed that the father had not, as X reported to Ms AA on 28 February 2019, broken her toes. Nor did he break X’s arm as she told police in March 2019.
In the Notice of Risk filed by the mother on 22 May 2019 the mother asserts that the father had exposed himself to X. That assertion had not previously been made and there is no record in evidence of X ever saying that her father exposed himself to her.
Although the mother denied in cross-examination that she coached the children to repeat their disclosures, I accept that she did. The videos made on 16 February 2019 are strongly suggestive of coaching.
The confused nature of X’s statements in the police interview in March 2019 is reminiscent of a child who is herself confused about what she is saying. I note, for example, her statement that the father put the dog’s fingers in her bottom.
It is difficult to explain Y’s statements to the effect that his father touched his “bagina”. Y may have heard X and the mother talking about that. It is clear from the videos on 16 February 2019 that Y was present and there is no attempt to ensure that he does not hear what was said. In the second video, Y repeats what X said in what appears to be a bid for attention.
On 28 February 2019 X said to Ms AA “My mum said I had to talk to you”. In March 2019, X told the police interviewer that “Mummy taught me” and that “[Ms XX]” taught her. On 18 September 2019, X told the F Contact Service supervisor that her mother had told her last night to tell the supervisor. It is likely that X felt under some pressure or obligation to make disclosures.
Y’s statement to his father on 9 September 2019 that “…you need to give mummy back her money” is likely to have emanated from the mother.
X’s statement on 12 February 2020 that “mummy told me you killed the other baby” is likely to have emanated from something the mother told X.
I am satisfied that the children were influenced by their mother to make disclosures. I cannot make a finding about whether the mother understood that this was what she was doing.
In coming to this conclusion, I have formed the view that the mother’s evidence in relation both sexual and physical assaults alleged to have been perpetrated by the father cannot be accepted as reliable. I place particular weight on her statements to the police, discussed later in these reasons, that the father posed a risk to Y. She knew, when she gave that information to the police that there was no threat intended in the father’s words but she used the incident to gain her objective. Her statement to the police was not truthful and was designed to achieve her purpose.
Taking into account the whole of the evidence, I do not accept that the evidence establishes that the father has sexually abused either X or Y or that he poses any unacceptable risk to the children.
FAMILY VIOLENCE
The mother asserted that the father had been violent towards Y and towards her.
She also asserted that the father had made, and continues to make, threats against her including threatening to harm her.
The father denied those allegations.
One of the mother’s allegations of violence towards Y is found in the information she gave the police to ground the ADVO in February 2019. The “Grounds” upon which the police relied included the following:
The [mother] further stated that the [father] has always been physically violent towards their 2 year old son [Y]. She alleges that the [father] has stated on numerous occasions that he does not love [Y], that he would throw him out a window and not to ever leave him alone with the child…
She cross-examined the father about a conversation when Y was younger, where he said to her “Can you take him. Otherwise he’s going out the window”.
On 17 May 2019, DCJ notes record,
Consideration was given to “Threats to kill/injure” for [Y] (2) whose father… said he was going to “throw him out the window”. This comment was made in the context of [Y] being a difficult baby who would not stop crying. It was initially thought by the reporter that the comment was made in frustration. Unable to establish this as a credible threat.
The mother sent a text to the father on 25 June 2018 at about 7.47 pm, referring to Y saying,
Can u put devil child to bed please
His yelling no at the door
Smack the little shit and tell him to stop saying no
Hurry or I’ll break his neck
(As per the original)
In cross-examination by counsel for the father, the mother said this was a joke and she should have added “LOL”. Pressed, she said the father’s statement should be regarded in the same way and that it should be disregarded.
I do not accept that the mother ever believed that the father had threatened to throw Y out of the window, any more than that she would break Y’s neck, but she used the statement, knowing it to be innocent, in order to convince the police that the father posed a risk to Y.
There is no record in the files produced by the police that, at the time the mother was making these complaints to ground the issue of an ADVO, she told police that she was also offering to settle the parenting arrangements on the basis that the father have weekend contact with the children.
The mother’s willingness to prosecute her claim that the father was violent towards Y on grounds that she knew were spurious was dishonest and manipulative and leads to the conclusion that she is a witness who will tell lies to gain her objective.
The mother tendered a text exchange between herself and a friend on 10 December 2017. The mother was asking for help because the father had been drinking and was “smashed not pissed” and wanted to drive. The mother asserted that the father had splashed boiling water over her and she had locked him outside but he was trying to open the door. The father in cross- examination sought to minimise that incident. He conceded that he had a few drinks and the mother locked him out. He denied the mother’s assertion that he had splashed boiling water over her. I am unable to determine what happened on that occasion.
The most serious allegation made by the mother related to threats to harm her which she believes to have emanated from the father. There is no doubt that the mother has received threats, some of which are extremely serious and have been reported to the police.
The messages fall into three categories. Firstly, there are messages from the father’s supporters which were left on the website of the mother’s business. Those messages, from named senders, berate the mother for her actions and treatment of the father and warn clients of the business about the mother. I do not propose to set out all of the messages but the one that follows is representative:
[The business] will help with nothing. [The mother] will take your money and gamble it away like the rest of her savings. People don’t use this company they are scammers. [The mother] lied to her lawyers about her kids and ex husband and was proven in court, which is why she does not have custody of her own children. This is a money scam to pay out her lawyers who she owes hundreds of thousands. She doesn’t pay child support for her 2 kids and hasn’t seen them in over six months by her own choice. Stay away people.
(As per the original)
The father in cross-examination conceded that he had told friends about the proceedings and that some of the information had come from him. To that extent, he said, he was responsible for the messages. He denied that he had asked people to send the messages. He had clearly read the messages as he had “Liked” one of them.
There are messages from unnamed senders which appear to be from people associated with the family of the mother’s late partner, Mr VV, berating the mother, inter alia, for claiming Mr VV’s superannuation. One such message reads:
… Been waiting at the court house to see you but you keep no showing. Maybe your scared to turn up to court because they’ll take your other kid off you. It’s only a matter of time before your all alone with no one to help with your sad life. Keep digging that hole you fat bitch and if you need a spare shovel I have plenty.
(As per the original)
Another reads,
You are the reason [Mr VV died], the kids are better off not knowing who their mother is and will grow up hating you like everyone else you know does. You caused all this now sit back and enjoy the ride.
This message appears to reference Mr VV’s death.
The last category of messages were posted to the mother, one in an envelope to her address. The envelope and the enclosed letter refer to the fact that the mother, in 2007, was injured in an assault. A message dated 23 March 2022 commences,
Fucken cunt face […]. Bet you wish you were dead justdo your kids a favour and kill yourself…
(As per the original)
The last message, received in October 2022, states,
[…]. Cant wait until you are dead. Why don’t you do everyone a favour and hang yourself to. So many people will be happy when that day comes. The most hated person in town are you.
(As per the original)
I accept that the first category of messages, by named senders, were primarily sent by persons seeking to support the father, although some of the messages on the business website appear to be from genuinely disgruntled clients.
However, although I accept that the mother believes that the other messages were sent by the father or at his instigation, I do not accept that they were. It is more likely that they were sent by associates of Mr VV.
The third category of messages are anonymous, very threatening and very frightening. However, there is no evidence that links them to the father and I do not accept that he instigated them.
I do not accept that either the mother or the children have been subjected to family violence by the father.
Throughout the proceedings before me the mother has made references to police involvement and investigation of the threats against her.
When Dr J commenced the preparation of her third report, the mother had not filed her trial material. In an email to Dr J dated 14 March 2022, the mother stated,
The [Region N] Police and CIRS, are currently undertaking an investigation. Given the amount of evidence they have stated that it could potentially take 2-3 years. The appropriate AVOs and DVOs will be served on the parties in the proceeding after the protection of the children is in place. Given the death threats and threats that I will have no children if I file for court is concerning. Including [X] repeating this information, the lengths they have gone to is insanity.
(As per the original)
On 16 March 2022, the mother emailed Dr J stating, inter alia,
The submissions in any attempt will consist of concise, evidentiary, factual substance as it will be forwarded the legal Commissioner, NSW POLICE, CIRS as this was a direction given to me in January. The significant amount is extremely time consuming, so I apologise for the noncompliance of lodgement. I am doing all things necessary to ensure that every inch is covered by evidence to avoid any further procedural injustice.
The criminal material and the restrictions on releasing information, given the privacy act without seeking leave. Redaction or identifying indicators will be blacked out, as well as any material that could provide ground for defence prior to the proceedings is detrimental:
(As per the original)
On 18 March 2022, the mother emailed Dr J stating,
Please note that I have been directed to relocate to a protected area my plane leaves later today. Confirmation of my arrival will then allow me to submit the material.
On 21 March 2022, the mother emailed Dr J stating, inter alia,
Please see notice of risk that has been lodged in the court portal. If you do not have access to this, I can forward you this. All parties have access to the portal.
As previously stated, the ICL has not only provided inaccurate information but as well as misleading. Which has been inconsistent and has failed to put significant concerning information before the court. Either is an admissible format or at all. In circumstances where it is paramount importance, above and beyond a lawyers duty to one's client that each practitioners upholds their duty to the court. In the regard, all practitioners must take care in their communication.
…
There is additional information to be submitted, you cannot and will not be able to complete your assessment in accordance with section 60CC, in the absent of the information. As you will see in the material it now has been potential to cause harm to the children, given their current living situation. The childrens court in any event would not recommend this.
Additionally, the court has sealed the document immediately and I have sought the application for ex parta orders once the additional information is made available to her honour: I hope this covers the importance of my concern. Therefore, the information is solely allowed to be provided to yourself, in accordance with the rules of court, and child safety. In the event that the ICL continues to invite the Paternal Grandmother and the Father to object to material which provides the court of any risk of harm, the attorney general will be intervening.
(As per the original)
In her Notice of Risk filed 23 March 2022, the mother stated,
DUE TO THE CONCERN FROM THE POLICE, AND CHILD SAFETY IT WOULD BE IN THE BEST INTEREST TO SEEK A RELOCATION, WITH SOLE PR UNTIL CRIMINAL INVESTIGATION IS COMPLETE.
THE FATHER HAS BEEN IDENTIFIED, AND THE PGM IP ADDRESS HAS BEEN SEEN THROUGH VARIOUS CYBER MATERIAL.
I HAVE NO DOUBTS THAT THE CHILDREN ARE NOW AT FURTHER RISK, AS THE ICL WOULD NOT ALLOW THE EXPERT TO HAVE THE BENEFIT OF THIS INFORMATION…
(As per the original)
The mother emailed a copy of that Notice of Risk to Dr J.
On 21 April 2022, the mother emailed Dr J,
1000 documents will be filed first thing tomorrow morning I have just compacted and divided them into each person in the proceedings.
The information is significant, [Ms Randall] has disclosed to [X] that she will steal the children and run away if they try and remove them from her.
When this gets filed, I would like you to do the honourable thing and make sure they are protected. The ICL will not protect them, and the Day-care has provided me with a personal letter in relation to fabrication of material. So in regards to sending this email to you and only you, it will be approved based on the level of risk.
Royal commissioner, and legal commissioner are waiting for this material.
I have received further threats so either myself will get harmed or the children. That is the level we are on. You will believe it when you see it.
(As per the original)
On 22 April 2022, the mother emailed Dr J,
REFER to the Australian Law Reform Commission (ALRC) for inquiry and report, pursuant to ss 20(1) of the Australian Law Reform Commission Act 1996 (Cth), a consideration of whether, and if so what, reforms to the family law system are necessary or desirable, in particular in relation to the following matters: y y y the appropriate, early and cost-effective resolution of all family law disputes; the protection of the best interests of children and their safety; family law services, including (but not limited to) dispute resolution services; family violence and child abuse, including protection for vulnerable witnesses; the best ways to inform decision makers about the best interests of children, and the views held by children in family disputes.
Kind Regards [the mother] […]
(As per the original)
X chatted with Dr J. She said that Y “used to be very naughty at school” but was better since he has been taking medicine. She spoke affectionately about WW and ZZ.
Dr J administered the “Child-parent relationship questionnaire” which probes the child’s view of the attachment adequacy provided by a caregiver. The results showed that X found all her caregivers to be supportive although the mother received the lowest score.
Dr J canvassed X’s views. She wrote,
58.… My approach is to ask ambiguous questions which open up a conversational space in which children can express views if so inclined. For example, when asking [X] to complete the CPRQ about her mother I said “Oh, you haven’t seen Mum for a long time though, have you?” to which she replied “No but I can still remember her.” She did not elaborate when I remained silent for several seconds before proceeding. Another opportunity to [sic] for children to express wishes and concerns is provided by the Magic Wand task which offers them three wishes. [X’s] wishes were 1. A pet pony 2. “Oh it’s hard!” (Long pause, eyes cast upwards) “For [Ms T] to have a baby girl” 3. “For the sky to rain candy.” These responses index age-appropriate, egocentric hedonism and suggest that [X] is not preoccupied with this dispute or with family separation. Children who are preoccupied with the family conflict or with separation from a family member typically use this task to express a desire for harmony, residential change or more time with the absent parent/relative.
Dr J was unable to engage Y but noticed that he often approached the paternal grandfather for affection.
Dr J spoke with Y’s Year one teacher who had also taught X in Kindergarten. She reported that X is achieving well at grade level, is well behaved in the classroom and has formed friendships. Y, however, was described as “struggling with peer relations as well as learning.” Dr J reported,
94.[Y] had not met the learning outcomes for his grade level in 2020 or in 2021. With some additional learning support he had made pleasing progress with numeracy this year. A prominent concern was [Y’s] inability to control his attention or his impulses. She noted his poor task concentration, poor frustration tolerance and aggressive outbursts. [The teacher] described having a warm rapport with [Y] and a strong desire to help him succeed. All her comments about [Y] were positive and non-blaming. She apparently views him as a child unable to control himself when thwarted who is in need of support to learn self-control rather than a child to be reproached for deliberate naughtiness. In order to ensure his continuity of care, she and the Principal had decided it would be best for her to teach Year 1 in 2022. At the end of the year decisions will be taken about [Y’s] class placement for 2023, including whether it would be of benefit for [the teacher] to remain his class teacher. She mentioned the letter she had written to the paediatrician who was to see [Y] 23 March 2022. She mentioned having liaised with the children’s counsellor from the [AH Program] about strategies to help [Y] and having subsequently advised [the paternal grandmother] about the importance of remaining calm while implementing such strategies. [The teacher] was encouraged to hear from [the paternal grandmother] about an incident in which she was able to apply that advice productively. [She] seems an exceptionally empathic, conscientious teacher.
Dr J considered the mother’s assertions that the father had threatened her life. She wrote,
100.[The mother] contends that [the father] has threatened her life should she continue with these Family Law proceedings, has stalked her with electronic devices and persecuted her via social media (with the assistance of others). When this assessment process began [the mother] had not filed updated pleadings. She explained her failure to file evidence with the Court in an email 16/3/22 (APPENDIX) in terms of being unable to cope with the volume of documentation and having been directed by an (unnamed) authority to proceed in this way “The submissions in any attempt will consist of concise, evidentiary, factual substance as it will be forwarded the legal Commissioner, NSW POLICE, CIRS as this was a direction given to me in January. The significant amount is extremely time consuming, so I apologise for the noncompliance of lodgement.”
101.[The mother] also said that she felt constrained from providing evidence the release of which would compromise other investigations or prosecutions. The validity of these claims will be a matter for the Court to consider. However, in the absence of compelling, objectively-verified evidence I am sceptical about the notion that [the father] is either a would-be murder or a fixated person. I am not aware that he has a criminal record for stalking and intimidation, or for other forms of anti-social violence. I find it inherently implausible that he would have the time, energy or funds to pursue the campaign of persecution which [the mother] alleges for him, given that he is in full-time employment and when not at work has a home, a domestic partner and a young son to care for – as well as twice-weekly visits to [X] and [Y] to fit into his schedule. It is unclear to me how it would benefit [the father] or [the paternal grandmother] to prevent [the mother] from filing pleadings which would progress this matter to Final Hearing. These remain issues for the Court to decide. It may assist the Court to consider the evidence in terms of the extent to which either parent is alleged to display, common features of spousal abusers…
(Emphasis in original)
Under the heading “Conclusions and Recommendations”, Dr J stated,
134.No immediate need for a change in the care arrangements for [X] and [Y] has been demonstrated. Based on aggregated information, it is my concluded opinion that the disruption inherent in a change of residence and school enrolment would exceed any benefit to the children at this time[.]
Further she stated,
136.[If]… the Court finds that the paternal kin pose no risks of lethal harm to the mother and/or children AND draws the conclusions that the mother has been deliberately deceptive and/or delusional in propounding conspiracy theories, should the mother nonetheless continue to express unshakeable persecutory beliefs, THEN it must be assumed that [the mother] is so emotionally- disturbed that it would be in the children's best interests to sever all contact with her.
As to the father’s time with the children, Dr J recommended,
137.Should the Court find that the father does not pose an intolerable risk of harm to [Y] and [X], then his time with the children could quickly progress to 4 overnights per fortnight (i.e. every weekend), school holiday visits and other time as agreed. While restoration of the subject children to the full-time care of father may eventually prove viable, before further changes in [Y’s] living circumstances are considered, he should be achieving academically at grade level and showing age-appropriate behavioural self-control at home and school.
In cross-examination, Dr J expanded on her report.
She recommended that the children continue to live with the paternal grandmother, at least until Y finishes primary school but she also queries whether it would ever be appropriate that they live with the father. She said that it would be appropriate for the children’s time with the father to graduate to four nights in each fortnight and also to graduate to spending half the school holidays with him.
In relation to the children’s time with the mother, Dr J recommended that they have very limited, supervised time. She suggested at Christmas and birthdays.
The reasons for that recommendation were explained. She said that if the children spent substantial time with the mother, they would be recruited to her view of their father and of their paternal grandmother which would destabilized the children’s placement with the paternal grandmother. Dr J said,
… children rely on their parents to mirror the world back to them and mirror back their lived experience, and help them have frameworks to interpret the meaning of lived experience. Clearly, a delusional parent can’t do that, particularly in areas where there are conflicts of interest between the child, the child’s needs, and the parent’s needs and the parent’s delusional beliefs. So the impact on the children, if they are continually misinformed is to confuse them and to scare them, because it’s very frightening to a child to believe that a primary care giver is incapable. So they have to choose between believing impossible things told by the caregiver and feeling comfortable with a caregiver, or feeling scared, because they are … are relying on someone who has lost contact with reality. Now, that is not helpful. In this particular case, the danger – the danger is that if they remained living with their paternal grandmother and father, who present to them one view of reality, the normative view, the consensual view, presumably, and they are hearing a different view from their mother, they have to choose whose version of reality to believe, and they are not yet at the stage where they can make any objective assessments, where they can see the evidence, critically review it, think through on the basis of those principles, etcetera, and so that – they are going to be conflicted, it is going to distress them, … they have to choose who to believe, and they are going to either idealise or demonise one or the other, and if they demonise the people they live with, that undermines their sense of safety and security in the world.
Dr J classified the mother as a delusional parent. She said,
… [Delusional parents] are psychologically harmful to the children, because they conflate their own need with the child’s need. They can’t separate it. The children are not really – really in their mind as separate individuals. Under those conditions, when they are – they have a delusional and/or – and/or antagonistic, even if it isn’t delusional, antagonistic view to the other parent or other people in the – in the family, they cannot censor themselves. In fact, they – they probably think they are doing something helpful by trying to put their children on guard, to turn them against these people that they see as noxious, even though they are not noxious to the children. So that would be extremely damaging to the – the other family relationships.
She said it was necessary for there to be contact with the mother to give the children the opportunity over time to form an objective opinion about her and that they would not interpret complete banishment of their mother to mean “Nannie is a bitch”.
Dr J said,
I am thinking what is usually done in the Children’s Court, where – where, very often, it is uncontroversial that a parent is too dangerous to allow near children, but the longstanding practice is to allow identity contact so that over time children can make their own opinion based on their own interaction, not based on filtered information, which is inaccurate, or fantasy about what that person is like.
In relation to the children’s spending time with the maternal grandparents, Dr J said that should not be regulated by orders but should be agreed between the two sets of grandparents. Ideally, she said, ZZ could be included in that time if the mother agreed. She said that Mr Magnus, in particular, needs to be part of Y’s life. However, she opposed unsupervised access for the maternal grandparents because of the negative messages the children might receive in their home about the paternal grandparents.
Asked about the importance of the children maintaining a relationship with ZZ, Dr J said,
… that is a problem, isn’t it? That is a problem, and they – I don’t know if that is as important – if anything has come out of that – it’s as important to [Y] as it is to [X], but it does seem to be important to [X]. Yes. That is a problem. That is a problem. Your Honour, nothing is going to be perfect, and whatever happens, these children will suffer loss. The main thing is going to be, in which situation is the risk of harm less, and just accept the losses that go with that, whatever that turns out to be …
She said,
… my recommendation with regard to the attachment between [ZZ] and her siblings, if there’s a way to safely do it, it should be done. And I’m afraid it’s up to her Honour to work out if that’s dangerous or not. I’m afraid all that is beyond me, your Honour.
Dr J was asked to comment on the negative comments written in X's diary about the paternal grandmother.
Dr J said,
That may or may not be her view. That may or may not be her handwriting but what I’m interested in is that if you look at the last assessment I did with the children, [X] completed the child-parent questionnaire and you will see, that according to her – all her caregivers are trustworthy and reliable… So she didn’t really discriminate and certainly, Nan has as good a rating as Pop or Dad or [Ms T] etcetera.
Dr J said that what was written in the diary is not consistent with her assessment.
That’s the first point. That she finds all these people consistently sympathetic, attentive and helpful. That’s the first point. The second point is [X] is not a shrinking violet. If she wanted to tell me something, I think she could have found a way to tell me. And she was on her own with me.
Dr J pointed out that X was given every opportunity during the assessment to indicate her views and preferences by indirect means such as a magic wand and three wishes exercise and that her wishes, are not consistent with hating her paternal grandmother and wanting to get away from her. Dr J said,
So this is not consistent with that diary of vitriol. Now, children can do things – it looks like childish handwriting. I can’t say if it’s hers or not. But children also know what to do in certain situations to survive, and they know what will please some people, and they know how to tailor what they do. And I would say that [X] … from what I heard from the school and what I heard previously from the preschool and what I perceived myself, is quite a histrionic little girl who likes to be the centre of attention, and she is quite smart at working out what to do to please adults. So I could see that that diary entry could have been written by her in the context of what she might have been primed to think would be acceptable. Even if she wasn’t explicitly told to write it, I can imagine that is possible. And it’s not consistent with – with how she presented to me, or how I saw her behave towards her grandmother and her grandfather when they brought her to see me. Not consistent.
Asked why X would write such things, Dr J said,
Well, it would show that she was aligning herself with people in turn. Presumably, in her own self-interest, she aligns herself with the paternal grandfather and her father, and she wouldn’t be mean to her paternal grandfather in front of her father because that’s going to make her unpopular with him and [Ms T], and she likes [Ms T] and the baby. You know, that’s one way of behaving. And in another context, she does what she thinks will make her popular there. So you can’t – you can’t really evaluate that – that comment out of context.
Dr J said that it was inherently improbable that the paternal grandmother would tell the children, as the mother alleged, that the mother was going to die. She said,
It doesn’t mean that [X] didn’t misconstrue something. It doesn’t even mean that maybe she made it up because she thought this would be lovely. Mum would think, you know, what a little warrior I am for her. I’m saying just how mean Nanny is. She makes up terrible things, and she lies. I can’t explain it, but I think it’s unlikely that the grandmother said it.
The mother cross-examined Dr J about the threats she had received. Dr J said,
Well, there’s no condition under which that would be a good outcome for the children. If – if you are suggesting that there are people that do want to kill you, then – and would stalk you and pursue you and do so, then I’m more in favour of the children having no contact, because I don’t want them to be with you and someone who might hurt you and hurt them. If that is your case, then I would say no contact, because it puts them in danger.
Dr J said that it is necessary for both children to engage in supportive counselling to allow them to process the parenting arrangements that will be put in place. She said that, if the mother has identity contact with the children, they will need to see their counsellor both before and after every visit.
CONSIDERATION
The Family Law Act 1974 (Cth), (“the Act”) requires me to consider, as a primary consideration, the benefit to X and Y of having a meaningful relationship with both of their parents.
Unfortunately, in this case, none of the parties submits that there is any prospect of such an outcome.
The mother seeks orders that the children have no contact with either the father or the paternal grandmother. The only members of the paternal family she is willing to include in the children’s lives are Ms T and WW.
The paternal grandmother and the father propose only identity contact for the children with the mother.
Nothing in the mother’s evidence suggests that, if she were to have substantial, or any, unsupervised time with the children, she will not continue to elicit disclosures of abuse from them.
If the children can only have a relationship with one side of their family, which should it be?
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
There is no evidence before me of the children’s current views.
X was given the opportunity to express her views to Dr J by appropriate, indirect means but she did not do so. Y did not engage with Dr J in the exercise.
I have no doubt that if the children were asked directly to say where they want to live, they would say that they want to live with their mother, as they have done in their electronic communication with her which will be discussed later in these reasons, but, I cannot say that is their real view.
I accept the evidence of Dr J about the dynamics that might affect anything the children say when communicating with the mother. Specifically, I accept that X in particular understands what she needs to do to please adults.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
I accept that the children love all of the adults who are currently involved in their lives.
At least during the period of their electronic communication with their mother, they expressed their love for her.
I accept the evidence of Dr J that X finds all her caregivers to be supportive, sympathetic, attentive and helpful.
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The mother has not spent time with the children since April 2021 when F Contact Service indicated they were no longer prepared to supervise.
She did not explain why she did not make an application to the court to change to a different supervisor or, in any other way, to vary the existing orders so that she could spend time with the children.
The paternal grandmother deposed that on 23 May 2021, after the children had spent the day with the maternal grandparents, X told her “We had FaceTime with Mummy”. The solicitors for the maternal grandmother on 10 June 2021, wrote to the solicitors for the paternal grandmother denying that there had been FaceTime communication with the mother on 23 May 2021. However, the letter states,
Our clients did not facilitate any such Facetime call. Rather, we are instructed, the most likely explanation for the comments allegedly made by [X] to your client involving the mother being overheard by [X] and/or [Y] while the subject children and sibling [ZZ] were in their care.
In September 2021, the mother commenced to have electronic communication with the children. She did so surreptitiously and without the knowledge of the paternal grandmother using the children’s iPads. I do not accept that it was X who initiated the communication. It is unlikely that X, then aged six years, would have worked out how to post comments on the mother’s business website or to use Yammer.
The communication continued for about six weeks. The mother set up a SharePoint page on the business website to which X had access, along with the mother, the maternal grandmother, and three other women. In cross-examination, the mother agreed that she had set up the SharePoint page so that she could communicate with X. The messages between the mother and the children are annexed to the paternal grandmother’s affidavit although the mother in cross-examination said there were many more messages. The mother told Dr J she had 500 or more messages.
On 29 September 2021 there were a number of messages between the mother and X relating to X’s attempts to use the password provided by the mother and the mother telling X that she should delete the messages received from the mother.
On 1 October 2021, the mother sent a message to X saying, “Do you want to come and be with Mummy?”
On 9 October 2021 the mother messaged X, “Ask that grandmother if you can have a sleepover at [the maternal grandmother’s]. Later the mother messaged, “I have a plan”.
In an exchange on 10 October 2021, the mother told X that she was trying to “set something up where we can do voice messages in here”.
X made a number of derogatory remarks about the paternal grandmother in her messages.
The paternal grandmother deposed that she discovered the communication when she borrowed X’s iPad to look for holiday accommodation. She confiscated the iPads. She deposed,
On 10 October 2021, [X] handed me a note that said, “I love you, you are the best Nan”. I said to [X] words to the effect, “[X], you hand me a note saying this but you have been on your iPad talking to Mum and saying I’m mean.” I observed [Y] start laughing and he said to me words to the effect, “How did you find out?” I observed [X] start crying. I said to [X] words to the effect, “Who put this on your iPad?” [X] replied, “Mum”. [Y] then said words to the effect, “Mum did it at Nan and Pop’s”.
A letter was written to the mother’s then solicitor asking when and how the communication had been set up but, despite a follow up letter, no response was provided.
The mother in cross-examination conceded that she knew that the communication with the children was contrary to the scheme of contact provided by the court orders. In cross- examination, asked why she didn’t bring an application to have contact with the children, the mother said “I elected to communicate directly with the children”.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children have now lived with their paternal grandmother since December 2019. They have had regular supervised contact with their father for over three years at considerable financial costs. I accept that the father’s persistence with the supervised contact is an indicator of his commitment to the children.
They are now accustomed to not spending time with their mother whom they have not seen for almost two years.
It is an unfortunate circumstance that the children have two half siblings, ZZ and WW and that they are unlikely to maintain a relationship with both of them.
Ms T was not cross-examined and her attitude to the mother’s proposal that she and WW could spend time with the children is not known.
The mother in the past has allowed ZZ to spend time with the children in the care of the maternal grandparents. Whether this will continue is not known but it is clear that, if the children remain in the care of the paternal grandmother, the time the children spend with ZZ will be very limited.
The relationship with their maternal grandparents is important to the children and it is important that it be maintained. I accept the evidence of Dr J that there should not be orders about how contact between the children and the maternal grandparents is to occur, but I propose to make orders that will ensure it continues to occur, albeit that when, where and under what conditions it occurs, are to be agreed between the respective grandparents.
If the children were to live primarily with the mother, they would be able to build the relationship with ZZ and Y would be able to spend frequent and overnight time with Mr Magnus but the children would have no relationship with their father and paternal grandmother.
The mother proposes to relocate although she gave no evidence about where she intends to go.
If the children live with the paternal grandmother, they will have significant time with their father, Ms T and WW but only identity contact with their mother, although I accept that, as the children get older, they will be able to initiate electronic contact with their mother and it would be impossible to prevent them from doing so.
There are significant losses to the children on either scenario.
As Dr J said, and I accept,
… nothing is going to be perfect, and whatever happens, these children will suffer loss. The main thing is going to be, in which situation is the risk of harm less, and just accept the losses that go with that, whatever that turns out to be…
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There are significant concerns about the mother’s ability to care for the children’s needs.
The children’s behaviour in her care, as demonstrated from the records of their pre-schools, was dysregulated and very difficult. They were seen as a danger to one another and to other children. It would also seem that their physical care was neglected, having regard to the notes of the pre-school about their presentation from time to time.
Most significantly, the mother persisted with her attempts to elicit a disclosure of abuse from X until the children were removed from her care and the evidence does not suggest that she will not resume those efforts if the children are in her care.
I accept the evidence of Dr J about the effects of the mother’s parenting on the children’s psychological well-being.
The paternal grandmother has provided for the children and in her care they have thrived. The evidence from the school is that X is doing well at school and has friends. Y’s behaviour has shown marked improvement from that witnessed by his pre-school.
I accept the mother’s submission that the paternal grandmother’s absolute dismissal of the possibility that the father may have sexually abused X, without her having examined any of the evidence, is a matter of concern. The tenor of the paternal grandmother’s evidence was that nothing could convince her that the father could have committed an act of abuse.
The father has demonstrated his commitment to the children but I accept the evidence of Dr J that he underestimates the challenges involved in parenting Y.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has persisted with supervised contact for close to four years. The paternal family has paid for the supervision.
The mother chose not to do so. I accept that, as she told Dr J, the mother believes that she was treated unfairly by F Contact Service but that is not an explanation for her failure, over the last two years and many court appearances, to seek to vary the orders to allow her to spend some time with the children.
violence involving the child or a member of the child’s family;
I propose to deal here with the threats that the mother has received from persons unknown. I accept that those threats are real and that the mother believes she has reason to fear they will be carried out.
The mother herself, in the course of the hearing, expressed her concerns about the children and ZZ being placed at risk because of the threats.
She speculated that perhaps she should walk away from the children in order to protect them.
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I am satisfied that, if the children were to live with the mother, there would be further allegations of abuse and further litigation.
CONCLUSION
Consideration of all of the matters set out above leads to the conclusion that the paternal grandmother is the person who is best able to promote the children’s psychological health, their day to day stability and their physical safety.
The orders will provide for them to live with the paternal grandmother and have contact with their mother as recommended by Dr J.
I certify that the preceding three hundred and one (301) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 30 March 2023
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