Allanach and Allanach

FAMILY COURT OF AUSTRALIA

ALLANACH & ALLANACH

[2014] FamCA 184

FAMILY LAW – CHILDREN – Magellan proceedings – sole parental responsibility – with whom a child lives – best interests of children – allegations of child sexual abuse – meaning of unacceptable risk – relevant standard of proof – where counsel for the mother conceded that the evidence could not support a finding of unacceptable risk that the child would be sexually abused in the care of the father – whether it is appropriate for the father to spend unsupervised time with the children.

Family Law Act 1975 (Cth) s 60B, s 60CC, s 61DA, s 65DAA

M v M (1988) 166 CLR 69
MRR v GR (2010) 263 ALR 368
N & S & The Separate Representative (1996) FLC 92-655
W and W (2005) FLC 93-235

APPLICANT:

Ms Allanach

RESPONDENT:

Mr Allanach

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

PAC

4198

2012

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Stevenson J

HEARING DATE:

24, 25, 26 27 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Friedlander

SOLICITOR FOR THE APPLICANT:

Bainbridge Legal

COUNSEL FOR THE RESPONDENT:

Mr Greenaway

SOLICITOR FOR THE RESPONDENT:

Sarah Bevan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Marsdens Law Group

Orders

PARENTAL RESPONSIBILITY

That the mother have sole parental responsibility for the children B born … 2006 and C born … 2008 (“the children”).
That the mother:
(a)notify the father of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six (6) weeks prior to her making a final decision; and
(b)take into consideration any views expressed by the father about the proposed decision.

LIVE WITH

That the children live with the mother.

SPEND TIME WITH

That the children spend time with the father as follows:
(a)for one calendar month from the date of these orders, the children shall not spend time with the father;
(b)commencing one calendar month after the date of these Orders and for a period of three calendar months, the children shall spend time with the father for two hours each week, with such time to be supervised at a supervised contact centre at such time and day of the week as may be nominated by the manager of the contact centre;
(c)commencing four calendar months after the date of these Orders and for a period of two months, the children shall spend time with the Father from 2:00 pm until 4:00 pm each Saturday;
(d)commencing six calendar months after the date of these Orders and for a period of three months, the children shall spend time with the father:
(i)from 12 noon until 4:00 pm each Saturday; and
(ii)from 12 noon until 4:00 pm on Christmas Eve in 2014 and each alternate year thereafter
(e)commencing nine calendar months after the date of these Orders and for a period of six months, the children shall spend time with the father:
(i)from 10:00 am until 5:00 pm each Saturday; and
(ii)if Father’s Day falls within this period, from 10:00 am until 5:00 pm on Father’s day;
(f)commencing fifteen calendar months after the date of these Orders and until the beginning of Term 1 in 2016, the children shall spend time with the father:
(i)each alternate weekend from 10:00 am Saturday until 5:00 pm Sunday;
(ii)if Father’s Day falls within this period, from 5:00 pm on the day before Father’s Day until 5:00 pm on Father’s Day and
(iii)from 12 noon until 4:00 pm on Christmas Day in 2015 and each alternate year thereafter
(g)from the beginning of Term 1 in 2016 and thereafter, the children shall spend time with the father as follows:
(i)during school terms:
each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday, beginning on the first weekend of the school term; and
(ii)during the school holiday periods at the end of terms 1, 2 and 3:
a.in all years ending in an even number from after school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period; and
b.in all years ending in an odd number from 6:00 pm on the second Saturday of the school holiday period until before school on the first day of the new school term;
(iii)during the Christmas school holidays:
a.where the school holiday period commences in a year ending in an even number:
i.from 6:00 pm on 23 December until 6:00 pm on 24 December; and
ii.from 6:00 pm on 10 January until 6:00 pm on 26 January; and
b.where the school holiday period commences in a year ending in an odd number:
i.from 6:00 pm on 24 December until 6:00 pm on 10 January; and
(iv)on the Father's Day weekend from 6:00 pm on Saturday until 6:00 pm on Sunday;
(v)such other times as the mother and the father may agree to in writing.
That the children's time with the father pursuant to Order 4 herein shall be suspended on each Mother’s Day weekend from 6:00 pm on Saturday until 6:00 pm on Sunday and the children shall be returned to the care of the mother between those times.
That, for the purposes of these Orders:
(a)any references to school terms shall mean NSW Government Schools terms; and
(b)any references to school holidays and school holiday periods shall mean NSW Government School holidays.
That for the purposes of these Orders, unless otherwise agreed between the father and the mother, changeovers shall occur at the children's school(s) if the changeover occurs on a school day; or at Suburb G Railway Station if changeover occurs on a non-school day.

AUTHORISATIONS AND PROVISION OF INFORMATION

HEALTH

That the mother shall:
(a)keep the father advised of the names and addresses of the children’s treating health professionals;
(b)inform the father in writing as soon as is practicable of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to either of the children; and
(c)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the children, within 14 days of the father’s receipt of the report.
That both the father and mother shall be entitled to:
(a)attend any appointments with any treating health professional relating to either of the children; and
(b)discuss the children’s condition with such treating health professional.
That the mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the first 72 hours that the children are to spend with the father.
That the father shall ensure that the mother is notified as soon as practicable if, while in his care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; and
(c)either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.

EDUCATION

That each parent is at liberty to liaise with whichever school the children may attend from time to time in relation to the children's progress at school and request that that school forward directly to the parent, at the parent's expense, copies of all of each child’s school reports, school photos, merit cards, newsletters and any written material pertaining to each child’s academic and extra-curricular activities.
That these orders operate as an authority for the school(s) attended by the children to provide to each parent at the parent's expenses, copies of all of each child’s school reports, school photos, merit cards, newsletters and any written material pertaining to each child’s academic and extra-curricular activities.
That both the mother and the father be permitted to attend any school event relating to either of the children to which parents are ordinarily invited.

CONTACT DETAILS

That the mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

RESTRAINTS AND INJUNCTIONS

That the mother and the father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive or insulting fashion in the presence or hearing of either of the children;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive or insulting fashion in the presence or hearing of either of the children.
That the mother shall ensure that either she or another adult is present when the children are in the presence of:
(a)Mr E; and/or
(b)Mr H E.
That for the purposes of implementation of these orders the father deliver the children to the mother at 9:00 am on Sunday 30 March 2014 at Suburb D McDonalds Restaurant.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That all material produced on subpoena be returned.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Allanach & Allanach has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: PAC 4198 of 2012

Ms Allanach

Applicant

And

Mr Allanach

Respondent

REASONS FOR JUDGMENT

THE PROCEEDINGS

Mr Allanach and Ms Allanach are the parents of two children:
B born in 2006 (7) and
C born in 2008 (6).
These proceedings concern parenting orders in relation to B and C (“the children”).
By an Amended Initiating Application filed on 24 February 2014, the mother sought orders to the effect that she have sole parental responsibility and that the children live with her. They would spend supervised time with the father for two hours each Friday and on special occasions. In response to a question by counsel for the Independent Children’s Lawyer (“the ICL”), however, the mother said “I am happy to have him involved in major decisions”.
In the course of final submissions, counsel for the mother submitted a document entitled “Orders Sought by the Applicant Mother”. It appeared that the mother sought the following orders:
1.That [Ms Allanach] (the Applicant mother) have sole parental responsibility for any major long term issue in the care, welfare and development of the children of the relationship, namely [B], born … 2006, (currently aged 7 years) and [C], born … 2008 (currently aged 5 years) (the children).
2.That the children live with the Applicant Mother and spend time with the Respondent Father as follows, as long as the Father does not make any allegations against the mother and as long as the Father does not remove the children from the Mother’s care:
(a)      Commencing one month after the date of these orders and continuing for a minimum period of 6 months, for 2 hours each week supervised at a Contact Centre;
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3.All costs of the father spending time with the children will be paid wholly by the father.
4.If at any time the Father makes further allegations against the Mother or the Father removes the children from the Mother’s care without the written consent of the Mother or as provided for by these Orders, the Father’s time with the children will immediately cease.
5.If the Father has removed the children from the Mother’s care without the written consent of the Mother then:
(a)       a warrant will issue authorizing and directing the Marshal, all officers of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia to take possession of the said children and to deliver the said children to the applicant mother at her place of residence;
(b)      That any member of the Australian Federal Police and all officers of the Police Forces of all the States and Territories of the Commonwealth of Australia be empowered to enforce any Orders contained in the Order 5(a).
6.That neither party shall remove the children from the Sydney metropolitan area without the written consent of the other party.
7.That both parties shall not criticise, harass, threaten, abuse or denigrate the other party in the presence or hearing of the children.
8.That for the purposes of spending time with the children, a nominated third party, namely, [Mr H E] and/or [Ms J E] and/or [Mr K E] will collect the children from [Suburb G] Station ([I] Street side), at the conclusion of the father’s time with the children and will return to the children to [Suburb G] Station ([I] Street side), at the start of the father’s time with the children.
9.That the father be prohibited from coming within 500 metres of the Mother’s residence or the residence of the maternal grandparents without the written consent of the Mother.
By an Amended Response filed on 10 February 2014 the father sought orders that he have sole parental responsibility and that the children live with him. They would spend supervised time with the mother in a contact centre. In the event that the children live primarily with the mother, the father sought that they spend time with him from the conclusion of school on Friday until the commencement of school on the following Tuesday in week 1 and every Wednesday night in week 2. The children would also spend time with the father for half of all school holidays and on special occasions, with Christmas vacation periods to be divided between the parents on a week-about basis. In his affidavit the father made a suggestion that he wished to relocate the children’s residence to the Central Coast. In oral evidence, however, he abandoned that proposal.
The ICL proposed that the mother have sole parental responsibility, on the basis that she provide the father with six weeks’ notice of any decision in relation to the long term care, welfare and development of the children and take into account his views on any such issue. The children would live with the mother and spend time with the father, after a period of one calendar month, at a supervised contact centre for six months. Thereafter they would spend time with the father for two hours each Saturday for two months. After that period they would spend time with the father from 12:00noon until 4:00pm each Saturday for three months. Commencing on a date twelve months from the orders of the court, the children would spend time with the father from 10:00am until 5:00pm each Saturday for six months. The children would then begin to spend time with the father each alternate weekend from 10:00am on Saturday until 5:00pm on Sunday. From Term 1 in 2016 the children would spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday; for half of all school holidays and on special occasions.

Background

The father was born in 1968 in Sydney and currently is aged 45 years. The mother was born in 1969 in the Philippines and presently is 44 years of age. She migrated to Australia in 1976 at the age of 7 years, with her parents and siblings.
The mother’s parents separated in approximately 1991. Her father then married his current wife, Ms J E. They have a son, Mr K E, who is approximately 20 years old. The mother’s mother died in 2007. The uncontested evidence of the mother and her stepmother was that they enjoy a close and supportive relationship.
The parties met through a telephone dating service in 2004. Their first face-to-face meeting took place in December 2004 and they began to live together on 10 February 2005. They married in April 2006 and first separated in March 2008. In August 2008 they reconciled and lived together until their final separation on 19 August 2012.
On 3 March 2008 the father suffered a psychotic episode. He was scheduled pursuant to the Mental Health Act and placed in a psychiatric unit at Suburb F Hospital. By his own admission, at this time he habitually smoked five to six cones of marijuana each evening.
The discharge summary from Suburb F Hospital, (exhibit 9) dated 10 March 2008, read as follows:
Reason for admission, relevant history, progress, status on discharge:
[The father] is a 39 year old married man, father to 2 young children (under 2), working as a … . His father referred him to EHT concerned about his behaviour and mental state. [The father] reported paranoid delusions, such as that his wife and parents were spiking his drinks and that he was being followed by the police. [The father] had an argument with his wife a few days prior to admission and threatened to cut off her finger with her wedding ring on as a gesture that their marriage was over. He also had tinnitus and a feeling of pressure in his head; he thought this was due to electrical appliances so switched them all off. When the tinnitus still remained he switched off the power to the whole block. [The father] had been smoking 1.5g of cannabis daily for the past year or so (after a period of abstinence of 7 years). His family commented that [the father] has a history of violent mood, and overspending, resulting in significant debts. [The father] was commenced on Ziprasidone in view of being overweight. He states he will not use cannabis again. [The father] denied any psychotic symptoms on further interviews, but had ongoing delusions which he admitted to his family members, eg that he was bitten by a dog 7 years ago which gave him meningitis and this is still in his system. He has good insight into his condition, recognising his original thoughts were delusions. He is willing to continue taking Ziprasidone as prescribed. He will stay with a friend on discharge with a view to a possible reconciliation with his wife in time.
The contents of this discharge summary were put to the father in cross-examination. He maintained that he said to the mother “in jest” “do I have to cut off your fingers?” Otherwise, he took no real issue with the accuracy of these notes.
The paternal grandfather, Mr L Allanach, deposed that he and his wife Ms M Allanach stayed with the father after the parties’ first separation in early March 2008. He indicated that they “realised [the father] was behaving irrationally”, thus they attended Suburb F Hospital to seek advice and assistance. They were informed that hospital staff could not assist “without police having a reason to bring him in for treatment”. A few days later, after they returned to their home on the Central Coast, they were notified by a neighbour of his concerns in relation to the father’s behaviour and welfare. They then contacted police and the father was taken to Suburb F Hospital. As noted, he was admitted pursuant to the provisions of the Mental Health Act 2007 (New South Wales).

The father has not been admitted to a psychiatric facility on any other occasion. After his discharge from Suburb F Hospital he saw a psychiatrist for approximately twelve months. He consulted a psychologist, Mr N, in 2012.
The single expert, Dr O, assessed that the father does not suffer from “a major or serious psychiatric condition”. In his report he opined: “there is no evidence of ongoing psychosis or episodes of mood disturbance suggestive of bi-polar disorder or psychotic symptoms suggestive of schizophrenia.”
In cross-examination Dr O was taken to evidence concerning certain beliefs held by the father. In essence, he believes that his former solicitor, staff of the Department of Family and Community Services (“FaCS”) and officers of Suburb P Police Station have acted contrary to his interests or disregard of his views as to the best outcome for the children in various circumstances. I refer to these beliefs in detail below in these reasons. Dr O opined in this context:
I did not see any evidence of any psychosis last year but some of these ideas sound bizarre, for example, that the mother had one hundred and twenty bags of methamphetamines. It is hard for me to say whether these are delusional beliefs or whether he has been worried about a whole range of things and it is a rationalisation. I concluded that his ideas were a way of desperately trying to justify his actions but if he has a psychosis, it is unlikely that he will be able to comply with orders.
The father alleged that the mother sexually abused the child B in January 2008 and April 2012. The mother denied these allegations and, as appears below, gave credible and logical explanations for the behaviour allegedly observed by the father. The father alleged that the mother again sexually abused B in April 2012. The allegations of sexual abuse of B by the mother are examined in detail below in these reasons.
The father reported the allegations of sexual abuse to police and FaCS in August 2012, which was after the parties’ separation. Before he made these reports he removed the children from their school and retained them in his care, without the knowledge or consent of the mother. Neither FaCS nor police took any action in response to the father’s complaints of sexual abuse.
The father suffers from physical disabilities which arose as a consequence of a workplace accident in which his back was injured in April 2008. This injury was compounded when he fell down stairs at Suburb G Railway Station in August 2010. He suffered two fractured vertebrae and ruptured tendons in his knee. He underwent rehabilitation for approximately two years. Currently the father suffers from obesity and walks with a cane.
On 19 August 2012 the parties had an argument, after the father told the mother to leave the former matrimonial home and informed her that he proposed to keep the children. In his oral evidence the father said that he told the mother “you will be taking yourself and your possessions but not the children”. The peremptory tone of this account contrasted somewhat to his affidavit evidence, in which he deposed that he “asked her to leave our home and the children would stay with me”. The father called the police and they arrived with the mother’s stepmother. The mother and the children then went to the home of her father and stepmother at Suburb P.
The father reported to police on 20 August 2012 that the children were living with a “drug dealer”, and another person who had faced charges of a sexual assault of a child. The alleged “drug dealer” was the mother’s brother Mr H E. Another brother, Mr E, was charged with three counts of sexual assault of his stepdaughter when she was aged between 12 and 14 years. These charges were withdrawn and dismissed on 11 February 2011.
The father sought orders which would place an absolute restriction on the mother bringing the children into the presence of her brothers Mr E and Mr H E. I will consider below the evidence which the father contended was sufficient to establish that these two people constitute an unacceptable risk to the children.
On 20 August 2012 the father reported to police, for the first time, his allegation that the mother sexually abused B in April 2012. A JIRT investigation was discontinued when B made no complaint of sexual abuse (exhibit 13).
In his affidavit the father deposed “I made many reports to FaCS about the welfare of the children” in the days prior to his taking the children from their school. The Magellan report (exhibit 7) detailed lengthy reports to FaCS made on 21 August 2012, 22 August 2012 and 23 August 2012. It seems that the father made the following allegations as to the children’s living conditions:
·they lived with a man who allegedly committed sexual offences against a child;
·police had attended the home on 19 August 2012 and were refused entry;
·at least 10 adults lived in the house;
·the father saw methamphetamines and marijuana in the premises;
·the father saw the mother masturbating B on two occasions;
·the paternal grandmother told the father that B touched C inappropriately on two occasions;
·the father saw B trying to insert his finger into C’s vagina;
·C said that B put his hand inside her pants.
None of these complaints resulted in any action by departmental officers.
On 23 August 2012 the father took the children from their school without the mother’s knowledge or consent. In his affidavit he deposed “I informed [the mother] that I was taking the children to the movies and would take them home later. I did not tell [the mother] which home I was taking them to.”
The mother filed an application for parenting orders in the then Federal Magistrates Court on 21 September 2012. On 29 October 2012 the proceedings were transferred to the Family Court of Australia and included in the Magellan program. On 10 December 2012 interim orders were made which provided that the children live with the father and spend time with the mother each Tuesday from 3:00pm until 6:00pm and every Saturday from 9:00am until 5:00pm. The parties later agreed to vary the Tuesday time to 3:30pm until 6:30pm. These orders restrained the mother from bringing the children into contact with Mr E.
On 7 February 2013 the mother reported to the police that the father had attempted to sexually assault her on 6 January 2013 during a contact changeover at a McDonalds Restaurant (exhibit 4). The relevant COPS entry read in part:
On Thursday the 07/02/2013, Police attended the home address of the VIC in response to the PN sexually harassing her. When Police first arrived, the VIC stated that the PN grabbed her several times on the breasts, saying “There’s my girls.” Whilst at the VIC’s home still, the VIC changed her story several times, but continued with the similar stories. The VIC said, the incident happened on the 06/01/2013 at [Suburb D] McDonalds. When Police asked why it took so long for the VIC to report the matter, she said that she had just been to Family Law Court and her solicitor said to report it. The VIC continued that she was trying to get full custody of the children. Police asked why she didn’t report the incident sooner, she said she didn’t think it was an issue, and that it didn’t bother her. Whilst speaking to the VIC, she also stated that she wanted to get back at him for saying she was selling “meth” and other drugs. The VIC then went to [Suburb P] Police Station where she supplied a 2 page statement of what happened that day. The VIC originally provided a statement, where the POI didn’t even touch her breasts, then when Police asked when he grabbed them, she said, “At the start when we were outside.” The VIC couldn’t say exactly when, and said that he grabbed both her breasts with both hands, then shoved his face in her cleavage. Police asked why she didn’t say it originally, the VIC could not answer. Police said they could retrieve footage from that day, and if that didn’t happen, it would make it look like she lied to make herself look better in Family Court. The VIC asked to remove that part of the statement, and instead added, “During one of the times we were outside, [the father] cuddled me and asked me to cuddle him back. I did, and during that time he placed his head against my chest. I then stroked his hair.
When asked about the contents of this record in cross-examination, the mother agreed that she complained to police that the father made sexual advances to her at a McDonalds Restaurant on 6 January 2013. She confirmed that she told police that he grabbed her several times on the breasts and said “there’s my girls”. She agreed further that the police asked her why it took her so long to report the incident and said “it slipped my mind”. She said that she told the police that she was going through a Family Court process but could not remember if she stated that her solicitor told her to make the report. She said that she was uncertain whether she said that “she was going for full custody of the children” and denied that she stated that “she was trying to get back at him”. She confirmed that police told her that they could obtain CCTV footage but denied that they informed her that “it could make her look bad if it didn’t happen”.
The father alleged that on 17 March 2013, B told him that Mr E and his girlfriend were present during the children’s time with the mother on a previous occasion. The father did not identify a specific date when Mr E was alleged to have been in the children’s presence. He adduced no evidence in support of this contention other than his account of the alleged conversation with B.
The father filed an Application in a Case on 21 March 2013 by which he sought orders that the children spend time with the mother only at a supervised contact centre. He filed a Notice of Discontinuance of this application on 9 April 2013. He deposed that he did so “after I was advised by [B] that [the mother] had asked [Mr E] to leave the McDonalds and not speak to the children”.
The father alleged that, in July 2013, he heard B ask C “do you want to see my willy? do you want to see my willy?”. He deposed further that when he “addressed the issue with [B]” the child’s response was “[AB] asked me if I would like to see his willy last time I was at Mummy’s ([AB] is [Mr H E’s] nickname)”.The father deposed that he said to B “that is not appropriate for you to say that to [C]” and “don’t do that, it is not appropriate”. The father reported this alleged incident to police, who elected to take no action. Mr H E gave evidence in the proceedings, during which he strongly denied any such conduct on his part.
The father alleged that, on the following day, B said: “I feel sad and angry about what [AB] said to me”. He maintained that he said to B “what did you do when [AB] said it?” and that B replied “I ran outside and told Mummy”. The father maintained that he asked B “and what did Mummy say?” and B replied “Mummy said don’t go near him, stay away”.
On 7 July 2013 the father unilaterally suspended the children’s time with the mother. In his oral evidence he said that “a combination of conversations I had with [B] is why I stopped contact”. He then referred specifically to a conversation during which B allegedly said to him inter alia: “I don’t think God wants me to be a naughty boy any more” and “Mummy said I was born a naughty kid and it was my job to be naughty at school and at home”. Curiously, the father deposed in his affidavit that this conversation occurred in August 2013. When I asked the father about this obvious inconsistency in his evidence, he replied only: “now I saw that the [naughty boy] conversation occurred after I stopped contact on 7 July 2013”.
Between 7 July 2013 and the commencement of the trial, the children saw the mother on only two brief occasions. The first meeting was during Dr O’s assessment on 30 August 2013 and the second was a period of two hours, under supervision, on 3 February 2014. That date was close to C’s sixth birthday on 5 February 2014.
At the conclusion of the trial I invited the parties to submit proposals for orders which would see a resumption of the children’s time with the mother, pending delivery of judgment. The ICL proposed the following interim orders:
1.That the children, [B] born … 2006 and [C] born … 2008 live with the father.
2.That the children spend time with the mother each Sunday from 9:00am until 5:00pm
3.That unless otherwise agreed between the mother and father in writing the father or his nominee shall deliver the children to the mother or her nominee at the [Suburb D] McDonalds Family Restaurant at the beginning of the children’s time with the mother and collect them from the same location at the end of the children’s time with the mother.
4.That the mother shall ensure that either she or another adult is present when the children are in the present of
a)[Mr E]; and/or
b)[Mr H E].
The mother essentially acceded to the scheme of this proposal but requested that she spend time with the children twice per week. The father insisted that the children spend time with the mother only under supervision. I made the following orders on 27 February 2014:
1.That the children, [B] born … 2006 and [C] born … 2008 live with the father.
2.That the children spend time with the mother each Sunday from 9:00am until 5:00pm.
3.That unless otherwise agreed between the mother and father in writing the father or his nominee shall deliver the children to the mother or her nominee at the [Suburb D] McDonalds Family Restaurant at the beginning of the children’s time with the mother and collect them from the same location at the end of the children’s time with the mother.
4.That the mother is restrained from bringing the children into contact with [Mr E] or [Mr H E].
5.That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Approach To These Proceedings

In making a parenting order, the court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the court must have regard in determining what orders are in a child’s best interests.
The court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)). If there is no order for equal time, the court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5). There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 263 ALR 368 the High Court of Australia said:
[8] Subsection (1) of s 65DAA is headed “Equal time” and provides:
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Subsection (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the court is obliged to:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time”.
[9] Each of subss (1)(b) and (2)(d) of s 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subss (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”…
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.”…
[15] Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …

A leading decision on the approach of the court to allegations of sexual abuse of children is that of the High Court of Australia in M v M (1988) 166 CLR 69. Their Honours said (at page 76):
“…the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse…”
and at page 75:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
In M and M (at pp 76-77) the High Court identified the relevant standard of proof in these terms:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362. There Dixon J said:
‘The seriousness of an allegation made, the inherent likelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’
The “Briginshaw test” is now encapsulated in section 140 of the Evidence Act 1995 (Cth), which provides:
140(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters which a court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)    the nature of the cause of action or defence; and
(b)   the nature of the subject matter of the proceeding; and
(c)    the gravity of the matters alleged.
The High Court in M and M addressed the issue of “unacceptable risk” of sexual abuse and said (at page 77):
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access.
In W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 the Full Court (Warnick, May and Boland JJ) discussed the “the unacceptable risk test”, and said:
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
The Full Court in W and W cited with approval the following passage from the judgment of Fogarty J in N and S & the Separate Representative (1996) FLC 92-665:
In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
I would respectfully observe that this series of questions is a useful, practical tool for a court to utilise in assessing whether there exists an “unacceptable risk” of sexual abuse of a child.

The Evidence and Witnesses

The applicant mother relied on the following affidavits:
1.Ms Allanach (the mother) sworn on 31 May 2013 and 22 January 2014
2.Mr R E (the maternal grandfather) sworn on 31 May 2013 and 22 January 2014
3.Ms J E (the mother’s stepmother) sworn on 31 May 2013 and 22 January 2014
4.Mr H E (the mother’s brother) sworn on 23 January 2014 and 19 November 2012
5.Mr E (the mother’s brother) sworn on 1 February 2014
Mr R E was not required for cross-examination, as the father recognised that he suffers from poor health. Additionally, I ruled that I would completely disregard any opinion expressed by Mr R E as to the mental condition of the father.
The respondent father relied on the following affidavits:
1.Mr Allanach (the father) sworn on 10 February 2014
2.Mr L Allanach (the paternal grandfather) sworn on 30 May 2013
3.Ms M Allanach (the paternal grandmother) sworn on 30 May 2013 and 3 June 2013
The father and each of the paternal grandparents were required for cross-examination.
I had the benefit of a Family Report prepared by Ms T, who gave oral evidence. I was assisted by a report dated 20 October 2013 and oral evidence from the single expert, Dr O. Also in evidence was a Magellan report dated 6 December 2012, which summarised notifications made to that point to the Department of Family and Community Services.

The Father’s Allegations of Sexual Abuse of the Child B by the Mother

In his affidavit of 10 February 2014, the father deposed:
6.Prior to our March 2008 separation, in around January 2008, I returned home from work and witnessed [the mother] inserting her finger into [B’s] anus. I was alarmed by this incident, particularly considering [the mother] had at that time informed me that she suspected our flatmate, [Ms U] of performing paedophilic acts on [B]. Although this disclosure was made we did not have evidence of this occurring and thus we did not approach [Ms U]. I now realise it was not possible for [Ms U] to do anything to [B] as he was never left alone with [Ms U]. I asked [the mother] with the words to the effect “What do you think you are doing?” and [the mother] broke down and told me with words to the effect of “I was assaulted as a child by a family member”. [The mother] and I discussed this further and [the mother] disclosed that it was her “Lolo” which is grandfather in the Philippines. At this stage, [the mother] was very upset and was crying uncontrollably so I comforted her. We discussed that [the mother] needed some counselling and she agreed that it would be helpful in relation to this matter, as well as in relation to her aggressive behaviour.
7.On late February 2008, the police attended at our home following an argument between [the mother] and I. [The mother] was heavily pregnant at the time. I am unsure what the argument was related to but recall that [the mother] had phoned her father to come and get her as I had ended the relationship and asked her to leave. My solicitor has provided me with a Magellan Report dated 6 December 2012 and I note it included the police report to the Department of Family & Community Services of this incidence. I say I did not report the incident of [the mother] sexually assaulting [B] to the Police on this occasion because [the mother] was heavily pregnant and we had agreed that she would be attending counselling. Further I did not want to see [the mother] get into trouble. (as per original)
The Magellan Report (Exhibit 7), in fact, made no reference to any report of sexual abuse of the child B by the mother in 2008. The father first reported this alleged incident to officers at Suburb P Police Station on 20 August 2012. There were apparently three reports to FACS in February and March 2008 but there was no mention of any allegation of sexual abuse.
In cross-examination the father was taken to his affidavit of 24 October 2010, where he deposed:
6.[The mother] and I also separated in or around February 2008 for a period of approximately five (5) weeks. In late January 2007 I returned home unexpectedly and witnessed [the mother] inserting her finger into [B’s] backside. I was alarmed by this which followed accusations by my wife that my former flatmate, [Ms U’s given name] (I do not recall her surname), had been performing paedophilic acts on [B], I have come to realise that this was not possible as [B] had been sleeping in our room at the time and she was hardly left alone with [B] to complete such act.
The father said “late January 2007 is incorrect, a typo by my previous solicitor”. During his oral evidence the father made several complaints about the conduct of his former legal representative. He said, inter alia, “I let these solicitors go due to highly unprofessional conduct!” I refer below to the father’s stated beliefs in relation to these solicitors’ conduct of his case.
It appears that the father told no person or authority of this alleged incident of sexual abuse of B by the mother. He continued to leave the children in her sole care, while he was at work, between January 2008 and his admission to Suburb F Hospital in March 2008. After his discharge on 10 March 2008 the father took no steps to prevent the children from living with the mother in the home of her father and step-mother.
The Family Consultant discussed this allegation with the father and reported:
49.[The father] alleged that [the mother] was sexually abusive to [B]. He said that, in 2008, he witnessed [the mother] insert her finger into [B’s] anus in a “sexual manner”. He said that he “asked her what was going on” but did not report the incident to the police at the time.
Dr O also discussed this allegation of sexual abuse with the father. He reported:
In 2008 was when he came home unannounced and he then saw what he believed was [the mother] putting her finger into [B’s] rectum. [B] was 18 months old at the time. “I came home early. I walked into the back of the duplex. [The mother] was there. [B] was on hands and knees and [the mother] was moving her finger in and out”. He said he asked her to put a nappy on. Later she broke down and sobbed, he said. He said she said she was abused by her grandfather and then [C] was born two weeks later. These series of events seem rather odd. It seemed extraordinary that an 18 month old child would be on all fours allowing a parent to digitally penetrate. I note later that [the mother] stated that she touched the child’s anus because she was trying to clean some constipated faeces.
The Family Consultant discussed this allegation of sexual abuse with the mother and reported:
38.[The mother] denied the allegations that she was sexually abusive towards [B]. She denied that she put her finger in his anus in 2008 and said that, at the time, [B] suffered constipation and she rubbed his lower back to help him with his constipation.
The mother gave a similar explanation to Dr O, who reported:
I asked about the anal penetration. She said when he was a small baby he did get constipated and she as a [healthcare worker] knew that he might need some help. She explained that she tried to help him with the constipation. She denied that she had ever sexually abused him.
In her oral evidence the mother said words to the effect:
It is untrue that I inserted my finger into [B’s] anus. I remember doing something to [B’s] anus but not in January 2008. I was cleaning my son’s bottom. I was about four months pregnant. It happened in the bathroom, I could tell he was having a hard time and I cleaned faeces from his bottom. I was pouring cold water near the crack and when I saw the faeces I cleaned, scraped it off. I did not put my finger into his anus.
The mother denied that she was ever sexually abused by any member of her family as a child. Specifically, she denied that she said to the father words to the effect “I was abused by Lolo”.
The father alleged that he witnessed a second act of sexual abuse of B by the mother in April 2012. He deposed:
21.In April 2012 I approached the bathroom and I could hear [the mother] saying words to the effect of “What do you use this for? What do you use this for?” As I approached the bathroom, I saw [B] standing up in the bath and saw [the mother] doing an action of masturbating [B]. I asked [the mother] “What are you doing?” and [the mother] responded with words to the effect of “What? What?” I calmly asked [the mother] to get [B] out of the bath and I asked [B] to dry off and get dressed and then told [the mother] that we needed to have a talk. I put [B] in his room with some colouring books so he didn’t hear the conversation. I asked [the mother] what she was doing and she responded “What? What?” I then told [the mother] with words to the effect of “I hope that is not acceptable in your country but it is not acceptable in this country and if I see you doing that again, I will report it to the authorities”.
22.I didn’t make a report to the Police at the time because I did not want my wife to get into trouble and I felt I could deal with it at home by monitoring her and not allowing her to be alone with the children.
The Family Consultant discussed with the father this allegation of sexual abuse. She reported:
50.[The father] said that, in April 2012, he witnessed [the mother] masturbating [B] in the bath, which he reported to the Department of Family and Community Services. He confirmed that he again contacted Community Services in November 2012 to advise them he did not believe [the mother] was masturbating [B], but rather, was cleaning him. However, during the family report interview, [the father] said that, despite what he said to Community Services in November 2012, he still believed that [the mother] was masturbating [B]. He said that he told Community Services he no longer believed that because [the mother] at the time had “agreed to get counselling”.”
Dr O also raised this allegation of sexual abuse with the father. He reported:
The second event of sexual abuse [the father] claimed was in 2012. “I witnessed what happened”. He said he was watching television. He said he had already had talks to the children about “personal zones”; when the children were in the bath the bathroom door was open. [The mother] was in the bathroom with [B]. When he walked in he was standing in the bath and he believes that he saw [the mother] masturbating [B] with an erect penis.
In her oral evidence the mother said of this allegation words to the effect:
The father never talked to me about an incident in the bathroom. I brought it to his attention in 2011 when he had an infection. It is not true that I was playing with [B’s] penis. I never said to [B] “What do you use this for?” I call his penis his “wee wee”, not “willy”. In 2011 he had an infection inside his foreskin. I taught him to pull it back every time he had a shower. At this age it is not appropriate to touch his penis. It is not true that I masturbated him in April 2012. The father never said to me “I hope that is not acceptable in your country but it is not acceptable in this country…” It is not part of my culture.
The father first reported this alleged incident of sexual abuse of B by the mother to officers of Suburb P Police Station on 20 August 2012, that is, some four months after the alleged event. The parties had separated on 19 August 2012 when the mother took the children to the home of her father and step-mother. Suburb P Police took no action in response to this complaint by the father.
The FaCS records (Exhibit 13) demonstrate clearly that the father retracted his allegation that the mother sexually abused B by masturbating him in April 2012. An assessment record dated 19 November 2012 read, inter alia:
Secondary assessment 6/11/2012 “[The father] confirmed he was talking about the mother cleaning [B’s] penis in the bath and him interpreting this as her masturbating [B]. [The father] confirmed that he did not believe the mother was masturbating [B] and that he wanted to correct this statement …
A FaCS file note dated 14 November 2012 read in part:
…it had become clear to him during this time that the issue of sexual abuse he had recently reported was related to circumcision. I asked him to clarify what he meant by “it was related to circumcision” and he said “well, the lack of”. [The father] said that he was “done as a child” and “was not familiar with the requirements”. When promoted further, [the father] confirmed he was talking about the mother cleaning [B’s] penis in the bath and him interpreting this as her masturbating [B]. [The father] confirmed that he did not believe that the mother was masturbating [B] and that he wanted to correct this statement…
In his oral evidence, the father stated “I was coerced into ringing DoCS and saying that she may have been cleaning [B’s] penis. I did not believe it”. He agreed with this proposition “Yes, I was protecting someone I believed to be a child abuser”. Nonetheless, the father reinstated these complaints to FaCS on 20 November 2012. The Department took no action in respect of these allegations of sexual abuse.
The father was asked in cross-examination to explain why he took no action to remove B from the mother’s care immediately after either of the two alleged acts of sexual abuse. He said, inter alia:
[The mother] was heavily pregnant and about to give birth to our second child.
I had a nervous breakdown as a result of the distress this caused me.
I was unable to assume care of the children until August 2012, when I had recovered sufficiently from my accident.
I did not report her sexual abuse of [B] in April 2012 because I was unable at that stage to physically care for the children and I did not want them to go to FaCS!
It seemed to me to be no coincidence that the father made reports of sexual abuse only after the parties’ final separation. I am persuaded that he did so in order to justify his unilateral removal of the children from their school and to bolster his attempts to retain them in his care.
The Family Consultant spoke to B about “sexually inappropriate behaviour”. She reported:
75. …He said that no one had spoken to him about “rude parts” but he knew that no one was allowed to touch his “rude parts” and he was not allowed to touch anyone else’s. [B] denied that he had ever touched any one’s “rude parts”, but was noted to become evasive and break eye contact while discussing this topic.

Dr O expressed these opinions on the nature of the children’s relationship with the parents:
The children appear to be very strongly attached to the mother. I formed the view that she responded well on them [sic]. She appeared to be focussed on their needs and tuned into them very well. I formed the view that the children have a very close attachment and bond to her. It appeared to be probably stronger than with the father.
Dr O opined further:
Both children appear to have a very good attachment to both parents. Both [B] and [C] were very keen and pleased to see their mother. They seemed to respond very warmly to her. They also had a strong relationship with the father and seemed to be positive towards him. However the interaction that I observed led me to believe that the mother appeared to be more skilled at tuning into the children’s needs and responding to them than the father.
The father seemed rather less involved and less intuitive in wanting to respond to them. The mother was very responsive and they appeared to focus better on her. It was also possibly that they hadn’t seen her for some period of time and therefore were particularly pleased to see her. However the mother presented as more impressive. I formed the view that the children’s first wish would be for the parents to be back together. Otherwise I don’t believe that the children have a clear view about which parent they should reside with. They both clearly wanted to see both parents.
I consider that a significant complication with the children’s ongoing relationship with the father is his fixed belief that they are at risk in the care of the mother and in the presence of her brothers. This belief generates his propensity to question them in order to elicit statements to support his position. This prospect was a matter of significant concern to Dr O, who reported:
The aim of supervised contact of perhaps two hours each week would be to minimise the chance of the father trying to elicit information that would be used to involve Community Services and result in further investigations against the mother. I have major concerns that it is highly likely that future spurious allegations could occur.
Dr O reiterated this concern in his oral evidence, when he said:
My concern is that he will continue to question the children and elicit information and that will lead to further allegations.
In his report Dr O opined: “I formed the view that on balance it is more likely that the father had been inappropriately questioning, suggestively questioning and eliciting responses from [B]” in the context of the sexual abuse allegations.
The extent to which the father’s fixed belief that the mother and her family place the children at risk pervades his daily life became readily apparent during his oral evidence. He made references to unfair or inappropriate treatment of his concerns and complaints by a number of persons and authorities. He said, inter alia:
I spent twenty two minutes with Dr [O] and I am at a loss to come up with the things that he did.
There are major discrepancies in the police and FaCS records of what I said.
I can’t answer if my previous solicitor deliberately put my signature on my affidavit of 21 November 2012.
I think there are issues of FaCS covering their own backsides, by ringing [the mother] and warning her that I was going to take the children and she placed them in a position of danger.
I was stonewalled by police and FaCS.
I believe my ex-brother-in-law who is [employed in the criminal justice system] has a lot of friends at [Suburb P] Police Station. There would be no other reason that I would be refused an opportunity to make a statement about criminal activities. I do indeed believe there was a conspiracy at [Suburb P] Police Station.
Dr O was asked about the father’s contention that their meeting lasted only 22 minutes:
It is highly unlikely that I spent twenty minutes with the father, that would not be enough time to take a comprehensive history. The father did appear to be wary of the process, he seemed to feel it was a burden and unnecessary, an imposition on him. He appeared irritated and annoyed by the process.
The father stated that he was in possession of a document “on FaCS letterhead” in which departmental officers made admissions of inappropriate or inadequate treatment of his complaints. On the following day of the trial he produced a letter dated 24 November 2013. In my view, the contents of this letter fell very far short of constituting any such admissions. The document (exhibit 15) read in full as follows:
Dear [the father’s name]
I refer to our phone conversation today regarding your complaint to the Community Services Enquiry, Feedback and Complaints Unit on 26 August 2013.
I understand that there is a current Family Court matter related to the custody of your children [B] and [C].
I confirm that information was received relating to concerns about your children on 21 August 2012 about sexual harm. Information was also received about illegal drug storage and selling related to a brother of [the mother] which was observed 8 months prior to the information being received.
Separate phone contact was made with you and [the mother] regarding these allegations and on the basis of these discussions the matter was closed.
I also confirm that it was another caseworker who contacted your ex-wife [the mother’s name] and not the caseworker you indicated in your complaint. At the time of the phone call the children were residing with [the mother]. No formal custody order was in place. At the time [the mother] was concerned for the welfare of her children and in that context the caseworker advised her of your intention to collect the children from school.
Should you wish to discuss this matter further, you can contact me at [Suburb G] Community Services Centre during business hours on phone … .
Yours sincerely
Dr O harboured major concerns as to the capacity of the father to facilitate a relationship between the children and the mother, in the event that they continue to live with him. He wrote in his report:
I formed the view that the father could probably continue to parent the children. However I do have concerns about his ability to maintain a relationship between the children and the mother. I believe he is looking for excuses to interrupt the relationship between the children and the mother and to try and undermine that relationship. In a sense it seems more plausible that the father has been trying to influence the mother to come back to the relationship and that he has found her rejection of him difficult. However it is also inconsistent that if he believed that there had been sexual abuse in 2008 that he would not have taken more serious steps to address that issue if he seriously believed that it was sexual abuse. Similarly his response when he stated that he believed that the mother was masturbating the child in 2012. It was the mother who decided to leave the relationship; not the father who was wanting to take the children to protect the children. Therefore the motivation here seems to be inconsistent and not particularly logical.
The father maintained that it was he who made the decision to end the relationship in 2012. In my view, even if that were the case, the concerns of Dr O are supported by events subsequent to his report. As noted above, the father unilaterally terminated all contact and interaction between the mother and the children in July 2013 and claimed that the children were “indifferent” to this loss of a parent. History thus demonstrates that the father acted in precisely the manner which was predicted by Dr O.
Regrettably, the father appears to be bolstered in his belief that the mother and her family constitute a risk to the children by the attitude of the paternal grandmother. In her affidavit, she deposed:
22. In or around 2011 [the father], [the mother] and the children came to our house. [The mother] and the children were rough-housing in the bedroom. I was also in the bedroom. I noticed that [the mother] was tickling [B’s] genitals, [B] was approximately five (5) years old. Approximately one month later the children were roughhousing again and I noticed that [the mother] was tickling [B’s] genitals again. On this same weekend my daughter’s partner [Mr Y] was playing with [B] in the backyard, after a period of time he came back into the house and told us with words to the effect of “[B] just grabbed my genitals and when I told him not to do that he did it again. [The father], [the mother], myself and my daughter, [Ms Z Allanach] were present for this conversation. I do not recall [the father] and [the mother] speaking to [B] about the situation. I feel that they were not sure how to deal with the situation in the correct way so as to not make problems for [B] by overreacting.
23. In or around December 2012 or January 2013 [the father] and the children came to our house. I took [B] and [C] around to [Ms Z Allanach’s] house to see their aunt and their cousin, [AB] who was approximately 13 months old. [B] picked [AB] up and sat him between his legs and was saying “you’re a lovely little boy, I love you” and was gyrating his penis against [AB]. [B] was wearing speedos at the time and [AB] pulled away from him to play elsewhere. I noticed when [AB] got off the lounge that [B] had an erection. We were unsure how to deal with the situation and [B] quickly got up and went into the bedroom to put on his board shorts. He then tried to pick [AB] up again and I told [B] “no [AB] doesn’t want to be picked up”. When I told [the father] about the incidence he was horrified and we discussed how he needed to get help for [B] which I understand [the father] did.
In her oral evidence she stated that she had made reports to “DoCS” and that she told the father of conduct on the part of B which was of concern to her. Inter alia, she said:
I saw him rubbing his penis on [C’s] backside about half a dozen times. He was lifting her up and putting her down
and:
This year I have observed [B] shake his bottom in a very inappropriate way.
I agree with the submission of counsel for the ICL that the matters raised by the paternal grandmother “do not warrant her level of concern”.
Considerable attention was devoted in the cross-examination of the mother to her current living circumstances. She maintained that she lives primarily in a rented property at Suburb BC but was largely resident in the home of her father and stepmother during the two months prior to the trial. She explained, convincingly in my view, that she feels the need for emotional support from her family as a result of the stress of these proceedings and her separation from the children. The mother gave evidence that she will return to her rented premises at Suburb BC “after this case is over, with or without the children”. She was adamant that she will not continue to live with her father and stepmother.
It may well be that the mother’s physical circumstances are less than optimal for the children. There is clear evidence, however, that the emotional environment offered to them by the father is one of considerable disadvantage to them.
Much attention was focussed during the trial on certain sexually explicit text messages which the father was said to have sent to the mother since their separation. The father denied that he sent these messages and contended that the mother had in some way duplicated messages which he admitted to sending to her during their courtship. I was left in no position to make a finding as to which of the parties was responsible for the creation of these messages.

The Presumption of Equal Shared Parental Responsibility

In practical terms, I consider it highly unlikely that the parties would be able to cooperate or participate jointly in making decisions concerning the long-term care, welfare and development of the children. It seems likely to me that the father would attempt to dominate the mother and impose his will on her. To the end of the trial, he persisted with his view that he should have sole parental responsibility. On the other hand, the mother was prepared to involve the father in decision-making.
For these reasons, I consider that the presumption is rebutted by evidence that it would not be in the children’s best interests that the parties have equal shared parental responsibility. It follows that I am not required to consider whether it is in the children’s best interests, and reasonably practicable, that they spend equal or substantial and significant time with each parent. I am at liberty to proceed to consider directly what orders would be in the children’s best interests.

Conclusion

I have little confidence that the children’s relationship with their mother will survive if they continue to live with the father. I have great concern that he will continue to question them in order to elicit statements which he will use to initiate further complaints to FaCS and the police. He has demonstrated clearly that he is prepared to terminate the children’s time with the mother unilaterally and that he has no insight into the likely adverse emotional impact on his actions upon them.
I agree with Dr O’s opinion that the father “sought to gain leverage” over the mother with his allegations involving the children. His complaints resulted in the children being interviewed by FaCS and police officers. In contrast, the mother’s false report to police of a sexual assault of herself by the father did not involve the children. I do not condone this conduct of the mother in any way but, at least, she did not entangle the children in her attempt to bolster her position in the proceedings.
I gain no comfort from the father’s proposal that there be a “mechanism” to prevent the father from continuing with his prior pattern of conduct. That “mechanism” would be a restraint on his making any further allegations to FaCS or the police, without the leave of the court. In final submissions, the father’s counsel submitted a Minute which included these proposed orders:
3. That the father be hereby restrained from making any complaint regarding the mother in relation to the children or either of them to the Department of Family & Community Services or the NSW Police without leave of the court.
4. That for the purpose of facilitation Order 3 hereof that leave be granted for the father to relist the matter on 48 hours’ notice.
These proposed orders were offered in support of the father’s alternative application for time with the children for five nights per fortnight and half of all school holidays.
I see it as no function or responsibility of the court effectively to supervise the father’s parenting for the next 12 years. It is for the father to act responsibly as a parent and in the best interests of the children. If he cannot do so, orders must be made to address his difficulties but not effectively to abrogate his parental responsibilities to the court.
In my view, the children’s best interests will be met by orders that they live primarily with the mother. Both the Family Consultant and Dr O assessed that she is more attuned to their emotional needs than is the father. He demonstrated that he is not appreciative of their emotional needs in two serious sets of circumstances. Firstly, he embroiled them in numerous complaints about the mother and her brothers which resulted in their being interviewed by FaCS and police officers. Secondly, he unilaterally terminated their time with the mother and astonishingly claimed that they were “indifferent to being deprived of their relationship with her”.
I have little confidence that the father is willing or able to facilitate a relationship between the children and the mother, if they continue to live or spend extensive, unsupervised time with him in the near future. I am greatly concerned that the father will continue to question the children and make further spurious allegations, if orders are made that the children live with the mother and spend long, unsupervised periods in his care.
I agree, essentially, that the proposals of the ICL meet the children’s best interests. I consider that the children should have a break from the father’s pressure for one month to enable them to settle into the care of the mother. Thereafter, I will adopt the framework of the ICL’s Minute of Proposed Orders but with shorter periods in a contact centre and unsupervised day-only time. I note that both of the paternal grandparents gave evidence that they are in no position to act as supervisors.

I certify that the preceding one hundred and thirty one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 28 March 2014.

Associate:

Date: 28 March 2014

[2014] FamCA 184

28 March 2014

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Procedural Fairness