Allum & Ervin - [2022] FedCFamC1F 177

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Allum & Ervin [2022] FedCFamC1F 177

File number(s): PAC 643 of 2016

Judgment of: HANNAM J

Date of judgment: 25 March 2022

Catchwords: FAMILY LAW – PARENTING – Where the mother makes serious allegations against the father including in relation to sexual abuse of the child and family violence – Where the mother also alleges that the child’s mental health difficulties arise from the child’s fear of the father and her experience of being sexually abused by him – Where the father alleges that the mother maliciously and intentionally constructed a false allegation that he sexually abused the child – Where the parties otherwise make competing contentions about the risk of psychological harm posed to the child – Where differing suites of orders are proposed depending on the findings of the Court – Where the Court is not satisfied that the father poses an unacceptable risk of harm to the child on any basis – Where in light of expert evidence the Court considers that the mother holds an overvalued belief that the father had abused the child rather than maliciously constructed a false allegation – Where the Court considers the psychological difficulties experienced by the child most likely arise from her exposure to the parental dispute and dynamics – Where significant weight is attached to the expert’s opinion about the steadfast nature of the mother’s beliefs in finding that the child would be at an unacceptable risk of psychological abuse if she were to continue to live in the mother’s primary care – Orders made in the terms proposed by the ICL providing in summary that the father hold sole parental responsibility for the child and that the child live with the father and spend defined time with the mother conditional upon the mother continuing to engage in psychological treatment and the family attending family therapy – Orders otherwise made as proposed by the mother that the child’s surname be changed to include the mother’s surname and be hyphenated.

Legislation:
Australian Passports Act 2005 (Cth) s 11(1)

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC

Births, Deaths and Marriages Registration Act 1995 (NSW) s 28

Cases cited:
Beach and Stemmler (1979) FLC 90-692

Chapman and Palmer (1978) FLC 90-510

Flanagan & Handcock (2001) FLC 93-074

Fooks & McCarthy (1994) FLC 92-450

Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Johnson & Page (2007) FLC 93-344

Langmeil & Grange (2010) FLC 93-427

M v M (1988) 166 CLR 69; [1988] HCA 68

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405; 41 Fam LR 483;

Napier & Hepburn (2006) FLC 93-303, (2007) 36 Fam LR 395

Reynolds & Sherman [2016] FamCAFC 240

Division: Division 1 First Instance

Number of paragraphs: 465

Date of hearing: 6-10 September 2021, 22 October 2021

Place: Parramatta (via videolink)

Counsel for the Applicant Mr Blank

Solicitor for the Applicant Litigant in person

Counsel for the Respondent Ms Kennedy

Solicitor for the Respondent Broun Abrahams Burreket

Counsel for the Independent Children’s Lawyer Ms Lioumis

Solicitor for the Independent Children’s Lawyer Legal Aid Blacktown

ORDERS

PAC 643 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ALLUM

Applicant

AND:
MS ERVIN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

25 MARCH 2022

THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the child Z born 2014 (“the child”) are discharged.
2.The father shall have sole parental responsibility for the child, subject to the following:
2.1In the event the father intends to make a decision in accordance with Order 2, the father shall advise the mother as soon as practicable of the decision and invite and consider the mother’s views and input in relation to the decision;
2.2The father shall advise the mother within 7 days of making the decision.

3.The child shall live with the father from the date of these orders.

Child’s time with the mother:
4.Subject to the mother’s compliance with Orders 8 and 10, the child shall spend time with the mother for a period of six months from the date of these orders as follows:
4.1Time shall be supervised by an agreed private supervision agency and failing agreement, the father shall nominate at least three agencies from which the mother shall elect the agency to engage (“the supervision agency”);
4.2Time shall occur from 12noon until 4pm on the second Sunday of each month;
4.3In relation to the supervision agency’s fees:
4.3.1Each party shall meet the cost of their intake assessment process;
4.3.2The parties shall equally share the cost of the child’s intake assessment process;
4.3.3The parties shall equally share the costs of supervision including any reasonable travel expenses and report writing fees;

4.4Changeover shall occur at a location agreed upon between the parents in consultation with the supervision agency.

5.Upon completion of the six month period provided for by Order 4 and subject to the mother’s compliance with Orders 8 and 10, the child shall spend time with the mother for a further six month period as agreed and failing agreement, from 12noon until 4pm each alternate Saturday with changeover to be facilitated by the supervision agency.
6.Upon completion of the further six month period provided for by Order 5 and subject to the mother’s compliance with Orders 8 and 10, the child shall spend time with the mother thereafter as agreed in writing between the parents and failing agreement:
6.1Each alternate weekend from the conclusion of school Friday (or 5pm if a non-school day) until the commencement of school Monday (or 9am if a non-school day);
6.2From 5pm Saturday until the commencement of school Monday (or 9am if a non-school day) on the Mother’s Day weekend;
6.3From 5pm on 23 December until 12noon on 25 December in odd numbered years;
6.4From 12 noon on 25 December until 5pm on 27 December in even numbered years;
6.5Such other times as agreed in writing between the parties.
6.6For the purposes of Order 6, changeover shall occur at the child’s school where that time begins at the start or end of a school day and on all other occasions (unless otherwise agreed in writing at least three hours in advance of the changeover event) outside the father’s residence at the commencement of time and outside the mother’s residence at the conclusion of time.

7.Notwithstanding Orders 4, 5 and 6, the child’s time with her mother shall be suspended and the child shall instead live with her father:
7.1From 5pm Saturday until the commencement of school Monday (or 9am if a non-school day) on the Father’s Day weekend;
7.2From 5pm on 23 December until 12 noon on 25 December in even numbered years;
7.3From 12 noon on 25 December until 5pm on 27 December in odd numbered years;
7.4Such other times as agreed in writing between the parties.

Healthcare and education
8.The mother shall continue to attend upon Ms B of the C Service for therapeutic counselling and support as follows:
8.1The mother’s engagement with Ms B shall address issues including but not limited to supporting the mother to accept the outcome of these proceedings and the Court’s findings; her emotional regulation during time and communication with the child and implementing these orders and her entire life experience as recommended by the single expert Dr D;
8.2The mother shall comply with all reasonable directions and requests made by Ms B including attending for appointments at such frequency and over such period of time as requested by Ms B;
8.3The mother shall continue to engage with Ms B until such time as Ms B recommends that her engagement should cease;
8.4In the event Ms B recommends or refers the mother to an additional or alternative practitioner or service provider, the mother shall engage with such additional practitioner or service provider in the manner and time frame recommended by Ms B, and continue to engage with such additional practitioner or service provider until such time as they recommend her engagement should cease;

9.The father shall attend upon Ms E of the F Centre for therapeutic counselling and support as follows:
9.1The father’s engagement with Ms E shall address issues including but not limited to assisting the father with tools and strategies to implement these orders and support the child to re-integrate to his household, and to appropriately respond to the child’s behaviour and emotional regulation;
9.2The father shall comply with all reasonable directions and requests made by Ms E including attending appointments at such frequency and over such period of time as requested by Ms E;
9.3The father shall continue to engage with Ms E until such time as Ms E recommends that his engagement should cease;
9.4In the event Ms E recommends or refers the father to an additional or alternative practitioner or service provider, the father shall engage with such additional practitioner or service provider in the manner and time frame recommended by Ms E, and continue to engage with such additional practitioner or service provider until such time as they recommend his engagement should cease.

10.The child and the parties will engage in Family Therapy with Mr G and in the event Mr G is unavailable or unwilling to undertake the Family Therapy, with a family therapist recommended by Mr G as follows:
10.1Each party shall comply with all reasonable directions and requests made by the family therapist including providing information and attending for appointments at such frequency and over such period of time as requested, and facilitating the child’s attendance for appointments at such frequency and over such period of time as requested;
10.2Within 7 days from the identity of the family therapist being confirmed, each party will attend with their general practitioner to obtain a referral and Medicare subsidised GP Health Care Plan referring them to the family therapist for therapy;
10.3Within 7 days from the identity of the family therapist being confirmed, each party shall provide any authority or consent necessary to facilitate any other therapeutic practitioner engaged by the parties or the child, and the child’s paediatrician, to communicate with the family therapist.
10.4Each party will solely meet the costs of any out of pocket expenses for sessions they attend with the family therapist;
10.5The parties will equally share the costs of any out of pocket expenses for sessions the child attends in the absence of either parent with the family therapist;
10.6The parties shall continue to engage with the family therapist until such time as the family therapist recommends that engagement should cease;
10.7In the event the family therapist recommends or refers the parties or either of them, or the child to an additional or alternative practitioner or service provider, the parties shall engage with such additional practitioner or service provider in the manner and time frame recommended by the family therapist, and continue to engage with such additional practitioner or service provider until such time as they recommend engagement should cease.

11.The parties shall do all things reasonably necessary to facilitate the child’s continued attendance upon Dr H, paediatrician, for continued assessment and treatment of Attention Deficit Hyperactivity Disorder (“ADHD”) or any other medical issue concerning the child for which treatment by a paediatrician is required:
11.1Each parent shall do all things reasonably necessary to comply with any treatment recommendations of Dr H including but not limited to facilitating the child’s attendance for appointments, administering medications and complying with treatment plans;
11.2In the event Dr H recommends the child be assessed or treated by any additional practitioner, including a child psychologist, the parties shall do all things reasonably necessary to facilitate such further assessment or treatment in the manner and time frame recommended by Dr H and the recommended practitioner.
11.3In the event Dr H should become unavailable to provide such assessment and treatment, the parties shall do all things reasonably necessary to facilitate the child’s attendance upon such alternative paediatrician as may be recommended by Dr H or in her absence, by Dr H’s practice.

12.In the event the child suffers an illness or medical emergency that requires medical attention whilst in either parent’s care, that parent will as soon as practicable:
12.1Advise the other parent of the nature of the child’s condition including any diagnosis, treatment and prognosis;
12.2Advise the other parent the full name and contact details for any health care practitioner or facility the child may attend upon for assessment or treatment;
12.3Authorise the health care practitioner or facility to contact the other parent in relation to the child’s diagnosis, treatment and prognosis and provide to the practitioner or facility the other parent’s contact telephone number and email address to facilitate the same.

13.In the event the child should be admitted to hospital, each parent shall be at liberty to visit with the child in hospital regardless of whether the child would ordinarily live with the other parent at that time.
14.Each party shall be and is hereby authorised to obtain directly from the child’s school all information and documents (at their own expense) ordinarily made available to parents of children attending the school, including but not limited to school reports, newsletters, photo order forms, invitations to events and functions, test results, invitations to parent teacher interviews, and notification in the event the child is removed from the school for the purpose of emergency medical care or assessment.

Restraints
15.The parents are restrained from:
15.1Denigrating the other parent, members of the other parent’s family or household in the presence of hearing of the child and shall remove the child from the presence or hearing of any third party who does so;
15.2Discussing these proceedings, allegations raised in these proceedings or documents prepared or produced for the primarily purpose of these proceedings with or in presence or hearing of the child unless:
15.2.1In accordance with the direction or recommendation of any therapeutic practitioner engaged by the parties pursuant to these Orders;
15.2.2To facilitate court ordered appointments or meetings with the Independent Children’s Lawyer;
15.2.3As is reasonably necessary to facilitate compliance with these orders.

15.3Posting any information or documents on social media in relation to allegations raised in these proceedings or denigrating the other parent.

16.The mother is restrained from:
16.1Presenting, or causing the child to be presented, for interview or examination in relation to allegations of sexual assault or abuse, unless with the written consent of the father;
16.2Photographing, videoing or recording the child for the primary purpose of recording alleged disclosures of abuse or evidence of alleged abuse;
16.3Requesting or allowing any third party including but not limited to the maternal grandmother to photograph, video or record the child for the primary purpose of recording alleged disclosures of abuse or evidence of alleged abuse;
16.4Providing a copy to, or allowing the viewing by a third party of, any or recordings in her possession, custody or control previously created or obtained for the primary purpose of recording alleged disclosures of abuse or evidence of alleged abuse;
16.5Attending upon the child’s school whilst the child is present on school grounds, except for at times provided for by these Orders or with the father’s prior written consent.

Child’s passport and overseas travel
17.Pursuant to s 65Y(2)(b) of the Family Law Act 1975 (Cth) the father is permitted to take the child outside of the Commonwealth of Australia and travel with her during any period the child is living with the father pursuant to these Orders.
18.The father will be the custodian of the child’s Australian passport.
19.The necessity for the consent of the mother to the issue of a passport or other travel document for the child is dispensed with and the father is solely permitted to do all acts and things and sign all documents as may be necessary to cause the issue of an Australian passport or other travel document to the child, including but not limited to solely signing any declaration on the application in the form approved by the relevant Minister to enable the child to leave the Commonwealth of Australia.
20.For the purposes of s 11 of the Australian Passports Act 2005 (Cth) it is noted that:
20.1The child is permitted to have an Australian passport or travel-related document provided and the father may sign any declaration on the application in the form approved by the relevant Minister.
20.2The child is permitted to travel internationally with the father;
20.3The child is permitted to live with the father when she is outside the Commonwealth of Australia.

Communication
21.For the purposes of the parties communicating with one another, unless otherwise agreed in writing between the parties:
21.1For matters that do not require attention within 72 hours, the parties shall utilise an agreed upon co-parenting app with the parties to equally share the costs of the app;
21.2For matters that require attention within 72 hours, the parents will in the first instance communicate by text message.

22.The parties shall not permit the child access to the co-parenting app utilised by the parties or any text messages exchanged between the parties in accordance with Order 21.
23.The parties shall advise one another within 48 hours in writing their residential address, mobile phone number and email address and shall advise one another in writing within 48 hours of any change to such details.

Information sharing
24.The Independent Children’s Lawyer shall have leave to provide a copy of these orders and the Judgment of the Honourable Justice Hannam (“the documents”) in relation to these orders to the following:
24.1The mother’s therapist, Ms B;
24.2The father’s psychologist, Ms E;
24.3The family therapist engaged pursuant to Order 10;
24.4The child’s paediatrician Dr H;
24.5The child’s school counsellor;

provided that any person receiving the documents undertakes prior to receipt to securely store the documents and securely destroy the documents upon the completion of their engagement.
25.The parties shall have leave to provide a copy of these Orders to:
25.1Any educational or child care facility attended by the child; and
25.2Any health care or therapeutic practitioner who may assess or treat the child.

Change in child’s name
26.A declaration is made that it is in the child’s best interests that her name henceforth be changed to Z and the formal record of this should be made according to the laws and practice of New South Wales.

27.For the purposes of Order 26, the father is to the apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child, Z born 2014, and it is requested that the Registrar of the Births, Deaths and Marriages for the State of New South Wales, upon the application of the father, give effect to this Order by doing all acts and things necessary to register the change of name of Z born 2014 to Z pursuant to s 28 of the Births, Deaths and Marriages Registration Act 1995 (NSW).

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 the pseudonym Allum & Ervin as been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

The parties (“the father” and “the mother”) have been engaged in a dispute in relation to their only child, a little girl aged eight (“the child”) for almost the entirety of the child’s life.
Since separation in 2013 or 2014, the child has lived with the mother and spent quite limited time with the father under various arrangements including supervised time and some limited overnight time. The child has not spent any time with the father since January 2021.
It is the father’s contention that unless orders are made that will see the child live with him, he exercise sole parental responsibility and the child spend defined time with the mother which is initially supervised, the child will not receive the benefit of having a meaningful relationship with both parents and will not be protected adequately from psychological harm.
It is the mother’s contention that the father poses an unacceptable risk of harm to the child arising from sexual abuse and seeks orders that will see the child live with her and spend no time with the father and she have sole parental responsibility for the child. In the event that the Court does not find that the father poses an unacceptable risk of harm on the basis of sexual abuse, the mother contends that there are other risks posed by the father if the child were to live with him including that his capacity for such a role is untested.
The Independent Children’s Lawyer (“ICL”) takes the position that the evidence is capable of supporting a finding that the mother poses an unacceptable risk of harm to the child should the child remain living with her. If the Court makes a finding that the mother does pose such a risk, the ICL supports similar though not identical orders to those proposed by the father. The ICL contends that it is not possible for the Court to find that there is an unacceptable risk of sexual abuse posed by the father.
The question for me to determine is which of the competing proposals is proper having regard to the best interests of the child as the paramount consideration.
BACKGROUND
The parents who are both in their 40s started a relationship in 2012 and began living together in the latter half of the same year.
In 2013 the child was conceived and difficulties between the parties in their relationship began to emerge a few months later.
The relationship between the parties was short lived. The father moved from the home he had occupied with the mother in late 2013 and the mother considers that the relationship was then at an end. The father contends that the parties did not finally separate until about 12 months later.
The child was born in 2014 and for at least a month or so the father spent some nights each week at the mother’s home assisting in providing care for the child.
The father contends that the parties separated on a final basis in late 2014 when the child was nine months old. At that time the father declined a job opportunity interstate in order to stay in Sydney to continue his involvement in the child’s life. From this time the child spent time with him on a weekday evening including over meal time and for a longer period each Sunday.
Despite the parties agreeing that by late 2014 their relationship was at an end, in early 2015 the mother and child spent time at the paternal grandparents’ home with the father. In early 2015 they engaged in sexual activity which the father maintains was consensual but which the mother asserts was non-consensual. This matter is considered later in these Reasons when considering the question of family violence in the parties’ relationship.
A few days after the last-mentioned incident, the mother contacted the father by email informing him that until they reached agreement about the father’s payment of child support she would not be “confirming any visitation agreements”. The mother then ceased facilitating the child spending time with the father due to this dispute about child support.
By early 2015, the child was once again spending time with the father each week on one weekday evening and for six hours on a Sunday but the midweek time was subsequently ceased by the mother on the basis that she claims to have felt unsafe in the father’s presence. The father denies that there is any basis upon which the mother could feel unsafe in his presence.
Between mid and late 2015 the father began taking the child to a pre-school playgroup for two hours on a weekday morning and the child’s time with him for six hours on a Sunday continued.
From late 2015 to early 2016 the mother did not facilitate the child seeing the father or the paternal family (including over Christmas) which apparently was related to the father withholding consent for the mother to take the child overseas. The parties also became engaged in another argument about child support.
In February 2016, the father commenced these proceedings in the Federal Circuit Court (as it was then known). In the same month he moved to live a further distance from the home of the mother and child.
In the following month, the parties attended mediation and agreed for the child to spend a three hour period with the father each Sunday which was to increase to five hours and ultimately 11 hours per fortnight from mid-2016.
It is the father’s case that from early 2016 the mother began making unsubstantiated allegations about him and his parental capacity.
In mid-2016 interim parenting orders were made with the consent of the parties in accordance with the agreement they had reached, that the child live with the mother and spend time with the father each weekend, alternating between block periods of four hours and seven hours on a Saturday or Sunday.
In late 2016 a judge of the Federal Circuit Court ordered that a Family Report be prepared for the purposes of the proceedings.
The father contends that from late 2016 the child began saying things in his presence that indicated she was being exposed to negative views about him in the maternal household.
From mid-2017 the parties appear to have been in dispute about the child’s enrolment in a private school that she was due to commence in 2020.
In mid-2017 the family consultant met with both parties and members of their respective families for the purposes of a Family Report. The Family Report dated 27 July 2017 (Exhibit 6) was released to the parties on 9 August 2017.
Family Report – 27 July 2017
It sufficies to say for the purposes of this background that the child when assessed appeared to the family consultant to have a very good relationship with both parents and also with her maternal grandmother and paternal grandparents.
At the assessment, neither the mother nor maternal grandmother gave examples of the child having been physically or psychologically harmed by the father but the mother was recorded as being strongly of the view that if the child were to spend more time with the father, including overnight time, the child would be at a psychological risk of harm because she maintained that he suffered with one of three possible personality disorders.
The family consultant also recorded that based on the information available in the assessment there were no concerns that the father was likely to be physically violent towards the child and no concerns arose regarding his interactions with her. The family consultant also did not consider that the child’s mental health would be significantly negatively impacted by spending more time including overnight time with the father. The family consultant said that the assessment may change if the Court were to find that the father had perpetrated coercive controlling violence towards the mother or that his personality functioning was poor.
In summary, based on the information contained in the assessment the family consultant recommended that the child continue to live with the mother and that unless the Court finds that spending extended time including overnight time with the father would cause the child unacceptable risk of psychological harm the child spend a gradually increasing amount of time with the father.
The family consultant also suggested a regime to implement a parenting arrangement in accordance with her overall recommendations which included a commencement of overnight time with the father once per fortnight while continuing to spend daytime with him.
In late 2017 the father moved back to Sydney, closer to the mother and child.
In late 2017 the mother maintains that concerns arose about the child exhibiting behaviour which the mother considered to be unusual and sexualised.
In early 2018 the parties engaged in further mediation and on 16 February 2018 orders were made with their consent that the child who was then aged almost four was to spend time with the father each alternate weekend from Saturday morning to Sunday afternoon and that they equally share parental responsibility for the child (“the February 2018 orders”).
The child’s time with the father from March 2018
In March 2018 the child spent overnight time with the father for the first time in accordance with the February 2018 orders.
By mid-April 2018 the child had apparently begun expressing some reluctance about spending time at the father’s home on occasions but generally, as I understand it, such time did generally occur in accordance with the orders.
From around May 2018 the parents appear to agree that the child was experiencing difficulties and exhibited some changed behaviours from the start of overnights with the father. At around this time the child saw a child psychologist (“the child’s psychologist”) in relation to these behaviours.
From mid-2018 the mother contends that the child began to frequently suffer from various medical conditions which it appears the mother then believed were of some significance in relation to the father’s care of the child and sexual abuse and is a matter to which I will return.
In the course of an appointment with the child’s psychologist in mid-2018 the mother asked the psychologist about the process that would be followed if the child were to make a disclosure (of abuse) in the course of a therapy session.
From late 2018 the child began refusing to show affection to the father at changeover at the end of her time with him.
From around this time the child also began making complaints about the father to the maternal grandmother and engaging in conduct which the maternal grandmother considered concerning.
The sexual abuse allegations
In late 2018 the mother claims that the child disclosed in the course of a conversation that the father had touched her on and in the genital area.
The mother claims to have had her concerns about sexual abuse confirmed by a medical practitioner in the ensuing days and that from this time the child began expressing a desire to hurt herself.
On 17 December 2018 at a court event in the Federal Circuit Court for the purposes of fixing final hearing dates, the mother’s solicitor in her absence raised the allegation that the father had been sexually abusing the child. The Federal Circuit Court judge transferred the proceedings to this Court on that day.
The mother maintains that throughout late 2018 the child continued on various occasions to make disclosures about the sexual abuse and exhibited concerning behaviours which the mother appears to consider were consistent with sexual abuse.
The mother also maintains that the child continued making disclosures about the father’s sexual abuse in various contexts throughout early 2019 and that for this reason she re-engaged the child with her psychologist.
The child was interviewed on two occasions by police about these alleged disclosures, including by police attached to JIRT[1] and by officers from the Department then known as Family and Community Services (“the Department”).The mother also engaged the child with a child protection counselling service in early 2019 without the father’s knowledge.
[1] JIRT - The Joint Investigation and Response Team, made up of officers from police and Community Services which investigated allegations of serious child abuse.
The father has at all times denied any abusive or untoward conduct towards the child. This central matter in the parenting dispute is a matter which will be dealt with at length later in these Reasons. The mother’s contentions about the child’s expressions of psychological distress, mental health difficulties and alleged fear of the father which the mother contends date from this period and are ongoing, are also matters to which I will return.
After transfer to this Court the proceedings were allocated to the Magellan protocol[2]. A Magellan Report[3] was released to the parties in May 2019.
[2] The Magellan protocol is a fast–track case management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
[3] A Magellan Report sets out the involvement of the Department with the family.
According to the Magellan Report, all of the alleged disclosures deposed to by the mother in her affidavit said to have been made by the child between late 2018 and early 2019 were also reported to the Department. The Department also received reports of a risk of psychological harm to the child on the basis that she may have been subjected to pressure or coaching from the mother. The JIRT investigation into the allegations was still ongoing as at 3 May 2019, the date of the Magellan Report. Subsequently, the relevant Departmental officer advised the Court that the allegations of sexual abuse were not substantiated.
In mid-2019 an expert child and family psychiatrist (“the expert”) was appointed to assess the family and provide a report for the purposes of assisting the Court in the proceedings. As the child had not been spending any time with the father since her initial disclosure in late 2018, orders were also made with the parties’ consent for the child to begin spending supervised time with the father for two hours per fortnight at a contact centre.
According to the mother, the child continued expressing concern about spending the time with the father and expressing worrying statements about fears of the father, self-harm and self-loathing throughout 2019. The mother also contends that the child continued to engage in inappropriate and sexualised behaviour throughout the same period. These matters will be set out in detail when considering the allegations of sexual abuse.
The expert interviewed the parties and other members of the family and observed the child with each parent and other family members over two days in late 2019. At some point prior to the assessment the father had formed a new relationship and his then partner was included in the expert’s assessment. The Expert’s Report dated 6 December 2019 was released to the parties on 16 January 2020.
The Expert’s Report
The Expert’s Report is a matter to which I will return in greater detail. It suffices to say at this stage that the expert recorded that the child’s development has been compromised by her parents’ chronic conflict and noted that the child’s attitude towards her father “was remarkably variable”. In particular, when she arrived at the interview with her mother the child was ready to refer to her father in a negative manner. It was only after her mother’s encouraging prompts for the child to “tell”, that the child alleged that her father had touched her vagina “lots of times, every single time I went to see him”. The expert opined that “it was difficult not to conclude [the child] was primed to provide this information” and noted that the child’s affect was not congruent with the narrative. The expert questioned in her report whether the child ever experienced the abuse as alleged.
The expert records that the child’s behaviour when seen with her father was “markedly inconsistent with what she had reported”. The expert describes the child as overexcited, delighted to see the father and that she sought to engage him in an age appropriate manner, without any sexualised interactions.
The expert also considers in her report the matters that the mother appeared to consider consistent with sexual abuse such as redness in the child’s vulva and the child’s unsettled behaviours following spending time with the father and explained why each of these matters are not necessarily consistent with the mother’s concerns about sexual abuse.
The expert opined that the father’s relationship with his then partner appeared mutually supportive and comfortable but observed that this relationship was at an early stage. The expert opined that should the Court consider it necessary for the child to live with the father, he and his partner together were capable of providing for the child’s needs provided that their relationship progresses satisfactorily. The father in the opinion of the expert did not meet criteria for a clinical psychiatric disorder.
The expert identified some significant shortcomings in the mother’s parenting capacity.
When considering mental health, the expert opined that the mother had an overvalued idea that the child was repeatedly abused by the father and had significant anxiety around the issue. The expert also held concerns that the child had an enmeshed relationship with her mother and, given the mother’s beliefs and anxieties, considered that the chance of further disclosures by the child was high.
The expert opined that the child was vulnerable and despite her many strengths was at risk for further psychopathology. It was the expert’s opinion that it would be markedly detrimental to the child’s development if she were not to spend time with the father and to grow up believing he had sexually abused her if this were not the case.
Overall, it was the expert’s recommendation that the child promptly commence significant unsupervised time with her father and his partner.
Events following release of the Expert’s Report
At the beginning of 2020 the child began kindergarten at a private school paid for by the mother. From the time the mother completed the enrolment documents for the child at this school in late 2019, and on numerous occasions after the child commenced school, the mother made statements to various staff members at the school to the effect that the child had been abused and traumatised at the hands of the father.
From around the time the child started school the child exhibited various behaviours which, in the opinion of the child’s general practitioner, were consistent with ADHD and required assessment. Concerns about dark themes in the child’s artwork at school and her aggressive behaviour towards other children were also apparently raised by the school.

Up until early 2020 the father had been spending supervised time with the child at a contact centre but this was discontinued at this time due to restrictions associated with the COVID-19 pandemic.
On two occasions in mid-2020 the contact centre supervised time between the child and father via a video platform but the father chose to not have any other supervised contact via video with the child until late 2020.
The mother maintains that the child did not self-harm or speak negatively about the father or the sexual abuse allegations during the period in which the child spent no time with the father. There were, however, a number of difficulties with the child’s aggressive behaviour at school and it was recommended that it may be beneficial for the child to see the school counsellor. This is a matter to which I will return.
The child’s time with the father after October 2020
On 6 October 2020 further orders were made with the parties’ consent in relation to the resumption of the child’s time with the father (“the October 2020 orders”). Orders were also made that the parties and child participate in family therapy with a nominated family therapist (“the therapist”) agreed upon between the parties and the ICL.
According to the mother’s evidence, when the child’s time was due to recommence she observed a regression in the child’s concerning behaviour including moodiness, self-loathing, anxiety and inappropriate sexualised conduct and threats to kill herself.
On three occasions in late 2020 the child did spend time with the father and his partner, though on one occasion this occurred at a park with the mother and a maternal aunt present.
In late 2020 the father attended upon the therapist for the first session of family therapy. Four days later, the child who was due to spend time with the father pursuant to the orders did not pass into his care due to her resistance. The mother continued to maintain that the child was engaging in inappropriate conduct and needed to attend upon another therapist for psychological issues.
The father continued to engage with the therapist in late 2020. The child continued to spend periods of six hours during daytime with him each week and on one occasion spent time with him overnight.
The child spent time including overnight with the father and paternal grandparents on two further occasions in early 2021. The mother maintains that the child continued to make complaints about the father and his partner and their care of him, further disclosures of sexual abuse at the hands of the father and exhibit extreme anxiety about spending time with him including statements to the effect that she would be better off dead.
On 26 January 2021 the mother took the child to hospital. She deposes to the child being referred to the J Service (“J Service”) but that when the service contacted her she advised that the consent of the father was required and she would get back to the service if that consent was forthcoming.
Upon her return to school after the summer school holidays in 2021, the child is said to have made a disclosure regarding suicidal ideation to a teacher.
A notification was made to the Department about these two last-mentioned events by hospital and school staff as mandatory reporters and some investigation into these reports was undertaken by Departmental staff.
At around this time, the mother stopped facilitating the child’s time with the father and filed an application seeking a stay of operation of the interim orders and that the child attend upon another psychologist for therapeutic counselling. The mother contends that the child continued to express thoughts along the lines of killing herself because she didn’t want to see her father.
On 8 February 2021 the father filed an amended application proposing orders for the first time that would see him have sole parental responsibility for the child, and that she live with him and spend defined time with the mother which would be initially supervised.
By agreement between the parties, the child attended upon a new child psychologist (“the assessing psychologist”) in early 2021 for the purposes of an ADHD assessment.
In early 2021 I declined to list the mother’s interim application for a change in orders prior to final hearing.
In early 2021 the father requested through an email to the mother’s solicitor that the mother recommence making the child available to spend time with him in accordance with the orders.
In early 2021 the therapist informed the parties that she no longer saw a role for herself providing family therapy.
In early 2021 the father attended at the changeover location in accordance with the orders so that the child could recommence spending time with him but the mother did not attend with the child and after 15 minutes the father left.
The investigation undertaken by the Department in relation to concerns about the child’s behaviour and presentation in the early months of 2021 did not result in any further action being taken by the Department.
The mother maintains that the child continued to threaten suicide and exhibit distress at the prospect of having to spend time with the father and that the mother felt too scared to risk the child carrying out these threats by attempting to have this contact occur.
From early 2021, the mother engaged with a clinical and forensic psychologist (“the mother’s treating psychologist”) for personal counselling relating to issues arising from the parental dispute. The opinion of the mother’s treating psychologist is a matter to which I will return when considering the contentions of the father and ICL about the mother’s psychological state.
The father sent a present and card by courier to the child’s home the day before her seventh birthday in 2021. The mother deposes that the child opened the package and upon discovering that it came from the father threw the card across the room and began crying and saying “I hate him! I don’t want his stupid presents!” She deposes that the child then threw the presents in the bin unopened and was teary and withdrawn for the balance of the day.
After receiving confirmation from the Department declining to become further involved, the father wrote to the mother’s lawyer enquiring whether the mother intended to comply with court orders in relation to the child’s time with him when it was next to occur. Neither the mother nor her lawyer responded to the father’s letter and when the father attended at the changeover place on the day, neither the mother nor the child were there.
The father attended at the next appointed changeover location but the mother again did not attend.
In mid-2021, the child was diagnosed with ADHD.
In mid-2021, the father and his partner separated and the father’s partner moved from the father’s home. The father also commenced a new job at around the same time which allows him to work from home and to have flexibility in relation to work hours.
According to the mother, the child continued over the following months to complain about the father in a negative manner and of having intrusive thoughts about him. She deposes to numerous occasions on which the child referred to the father as “poopy head”.
The assessing psychologist reported in early 2021 that the child fulfilled the criteria for ADHD, and recommended that this diagnosis be confirmed by a paediatrician. For various reasons, including illness of the paediatrician selected and the necessity to engage an alternate paediatrician, the appointment to confirm the diagnosis was not booked until after the proceedings were complete.
THE AREAS OF DISPUTE
Sexual abuse allegations
In the seminal case of M v M [4] the High Court said at [23]:
…there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
[4] (1988) 166 CLR 69; [1988] HCA 68.
However, as the Full Court observed in Johnson & Page,[5] when discussing the “unacceptable risk test” formulated in M v M (supra):
…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.
[5] (2007) FLC 93-344 at [65].
This is one of those cases where I am impelled by the particular circumstances to determine whether the sexual abuse allegation has been proved.
The mother’s allegation that the father sexually abused the child is central to her position in this dispute. She seeks a positive finding that the father either touched the child on the genital region or digitally penetrated the child’s vagina on at least one occasion in about late 2018. The mother also contends that there is an unacceptable risk that the father will sexually abuse the child in the future and seeks that the Court be satisfied also as to this matter.
The father denies having sexually abused the child either intentionally or accidentally and it is his case, with which the ICL agrees, that the evidence is not capable of proving that he either sexually abused the child or that he poses an unacceptable risk of harm to the child on this basis.
In M v M (supra) the High Court said the following in relation to the standard of proof for such matters at [22]:
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.
In Johnson & Page (supra) the Full Court said that reference to the Evidence Act 1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140 (2)(c) of that Act.
In the course of final submissions it was submitted that there were 11 factors, items or categories of evidence that the mother relies upon in seeking a finding that the father sexually abused the child, though one of these matters was not ultimately pressed. It can also generally be observed that the mother’s affidavit and the tenor of her oral evidence indicate that prior to final submissions she also relied upon some other additional evidence to ground her belief in this regard.
These 10 items of evidence ultimately relied on are as follows:
(1)Comments made by the child to the father in late 2018;
(2)The consistent disclosures since late 2018 made by the child of abuse including to the mother and maternal grandmother;
(3)The disclosures made by the child in her two recorded interviews with police;
(4)The disclosure made to a psychologist in early 2019 (date incorrectly recorded);
(5)The child’s disclosure by way of drawing made to the contact centre in mid-2019;
(6)A disclosure to the expert in interview in late 2019;
(7)The child’s behaviour in the bath in late 2020;
(8)The child’s disclosure by way of drawing made to the ICL in early 2021;
(9)The father’s acknowledgement that he had touched the child on the perineum and his evidence under cross-examination that this occurred during nappy change/toileting; and
(10)The expert’s opinion concerning the reliability of children’s allegations about sexual abuse.
The child’s comments to her father in late 2018 (1), disclosures since late 2018 (2), disclosures in her two recorded interviews with police (3), disclosures by way of drawing on two occasions (5)(8), disclosure to a psychologist in early 2019 (4), and the child’s conduct in late 2020 that the mother considered sexualised will be set out in detail shortly. The opinion of the expert in relation to the alleged sexualised conduct (7), the “disclosure” to the expert when assessed in late 2019 (6), and the expert’s evidence more generally including her opinion concerning the reliability of children’s disclosures of sexual abuse (10) will be considered separately when dealing with the totality of the expert’s evidence.
Although the mother effectively abandoned reliance upon other evidence in her affidavit related to sexual abuse, I am required to consider it for the purposes of the father’s case. In particular, the father seeks a finding that the mother’s allegations that he sexually abused the child were made maliciously, that is, intentionally and knowing them to be untrue, and most likely for strategic purposes associated with these proceedings. Further, (although the ICL does not contend that the mother’s allegations of sexual abuse by the father were made maliciously) the ICL’s contentions about the risks of psychological harm to the child posed by the mother relate to the mother’s steadfast belief that the father did sexually abuse the child. For these reasons, the genesis of that belief and its development over time must also be considered.
For the foregoing reasons, the totality of the evidence in relation to this allegation will be set out and considered, rather than only the evidence that the mother now contends will lead to the Court finding that the father did sexually abuse the child.
The mother’s evidence
Under the heading of “Allegations of sexual abuse” in her trial affidavit, and a subheading titled “Initial concerns before commencement of overnight time” the mother deposes to various incidents dating from as early as 2017, nearly 18 months prior to the child’s initial “disclosure” of sexual abuse.
In setting out this history, the mother first deposes to an occasion in 2017 when the child, then aged three, while travelling in the car began banging her head against her car seat and crying. When asked what was wrong the child responded “I want to tell you about daddy but I can’t”. The mother then encouraged the child to speak to her pre-school teacher about what was upsetting her that day. When the mother collected the child from pre-school that afternoon the pre-school teacher told her that the child was “upset and said daddy was bad and doesn’t want to see her again” and that she “doesn’t want to sleep at daddy’s house”. The mother also deposes that this teacher advised her to be “very concerned” about what the child had said and gave her a handwritten note recording the conversation with the child.
The mother deposes that later that evening the child told her that she wanted to tell her maternal aunt “about my secret with daddy” and that for this reason the mother organised a video telephone call between the child and maternal aunt.
The maternal aunt deposes to having a conversation with the child in which the child initially said that she didn’t have something to talk about but when asked whether she was sure, the child said she had “a secret” and that it was “a secret about my dad”.
The mother did not raise this incident with the father.
Under the same subheading, the mother deposes to another occasion in late 2017 when she collected the child from pre-school and the child’s teacher reported an incident that day in which the child removed her underwear and “exposed herself to other children”.
The mother also deposes that the child started to develop behaviours which the mother describes as “of a sexual nature”. The mother gives as an example her observations of the child touching her “vagina through her clothing” and saying that “it feels great”. The maternal grandmother also deposes to noticing the child regularly touching and rubbing at her labia through her clothes from around 2017 and in late 2017 insisting upon kissing the maternal grandmother on the lips rather than on the cheek or forehead which had been their usual custom.
The mother further sets out an incident when the child in the course of play with other children ran into the bedroom, took off her underwear and lay on the bed, spreading her legs open.
According to the father’s oral evidence, he had not observed any of the foregoing behaviour in the child when she was spending time with him. He was also unaware that the mother considered any of this behaviour concerning at that time.
There is no dispute between the parties that on the first occasion of overnight time with the father (early 2018) the child became somewhat unsettled and reluctant to remain at the father’s house overnight and that the father agreed for the mother to collect the child from his house.
It is also common ground that the following week when overnight time with the father was tried again the child became upset and the father rang the mother. The mother deposes that child was crying and told her “to come and get me, daddy isn’t safe”. According to the father, on this night the child had a tantrum when she was denied dessert for misbehaving. The child did successfully stay overnight with the father on this occasion.
According to the mother’s affidavit, from about this time she observed changes in the child’s behaviour including the child having regular nightmares, beginning to wet herself during the day, at pre-school and occasionally at night, becoming increasingly clingy and resistant to separating from the mother including when dropped off at pre-school, becoming resistant to leaving the house for any reason and beginning to sleep in the mother’s bed for at least part of the night.
Shortly after the child began spending overnight time with the father, the parties agreed that they should engage a psychologist to assist the child’s adjustment to this new development. The mother also claims that the child’s psychologist was to assist with the various behaviours described in the foregoing paragraphs, which she found concerning, but the father denies that the professional was to assist with these matters as he maintains they were not raised as being of concern at that time.
Although the mother does not depose to this matter in her affidavit, it came to light on the final day of the hearing that she later reported to her doctor that in early 2018 the child had made some concerning remarks. According to the doctor’s notes, the mother reported that the remarks were forthcoming when the mother “went through the drill of who is ok to touch you”[6]. According to the record, the child nominated that one such person was her father while pointing to her vulva area but the child retracted the information “and instead stated that it was just when Daddy wiped her bottom”.
[6] From progress notes for the mother by her general practitioner - Exhibit 18.
Although the mother initially claimed to have no recollection of giving this information to the doctor, she was then shown documents which formed part of the doctor’s notes including a handwritten note by the mother herself in which she had written:
In [early] 18 she told me her Dad had touched her there, then said (after I gave her the words) that it was only when wiping her bottom.
Under cross-examination the mother agreed that in late 2018 she had written this document reporting to the doctor about an incident in early 2018. When asked about “giving the child the words”, the mother said:
In the context of this, I imagine it would have been – she told me that her Dad had touched me there, and then I said “do you mean when he was wiping your bottom?”
The mother confirmed that the reference to the father touching the child “there” was a reference to the child’s vagina. She also agreed that this conversation with the child is not contained in her affidavit, and claimed to have forgotten about it. The mother did, however, agree under cross-examination that from early 2018 she was concerned about what the child was telling her about the father and was talking to the child about touching and who was allowed to touch her.
Although the mother does not refer to a particular consultation with the child’s psychologist in mid-2018 in her affidavit, records of the child’s psychologist were produced on subpoena. The psychologist’s records for this session indicate that when the child was seen with her mother on that day, after discussing the difficulties for the child after she began spending overnight time with the father and the like, the mother then asked the psychologist about the process that would be followed if the child “disclosed” something in the session. The psychologist advised that “FACS” (the Department) would be notified but that the procedure depends on what is disclosed. Under cross-examination, the mother had no recollection of raising this with the child’s psychologist but did not dispute the record and agreed that if such an entry appears in the psychologist’s notes it is likely that she did raise it.

The next incident relevant to these allegations in the mother’s affidavit was in late 2018 when the mother attended the father’s home to collect the child after her time with him. The mother deposes to hearing the father ask the child to give him a kiss and that when she and the child were leaving the home the child said “yukky daddy…[s]tinky daddy” and wiped her mouth with her arm.
A few days later when bathing the child after she again returned from time with the father, the mother deposes to noticing a bruise on the outside of the child’s thigh which she describes as appearing to be a “handprint mark”. The mother asked the child how she got the bruise to which the child responded “I don’t know”. The mother deposes that she took a photo of the bruise while the child was in the bath, though the photo is not annexed to her affidavit.
In late 2018 the mother deposes that when she wiped the child after using the toilet the child “yelped” in pain and the maternal grandmother reported that the child had reacted in the same way when taken to the toilet on the same day. The mother also deposes that on this day the maternal grandmother bathed the child and following a bath called the mother to the bedroom and drew her attention to a small round bruise on the child’s upper thigh. The mother also says she observed that the child’s vulva was red and appeared swollen or inflamed. Under cross-examination the mother said that she made these observations when the child was lying on the bed with her legs apart. The mother asked the child questions about what had happened (to cause the injury) including “did anything hard push up against you?” which the child denied. The mother then took a photograph of the bruise and the child’s genital area before dressing the child.
According to the maternal grandmother’s affidavit, from around mid-2018 the child began to frequently suffer from high temperatures and “tummy aches” shortly after returning home from spending time with the father which the maternal grandmother believed indicated that the child was suffering from urinary tract infections. The mother also deposes to the child having urinary tract infections within a couple of days of returning from spending time with the father. The mother confirmed under cross-examination, however, that the child had never been diagnosed with such an infection. She also confirmed that she had never sought medical attention for the child for these “infections” or reported them on any occasion to a doctor throughout 2018 until after the child disclosed sexual abuse by the father.
The father’s evidence
According to the father’s affidavit, from around late 2018 the child began to act strangely on occasions and make odd comments when spending time with him. In particular, he deposes that in late 2018 he and the child were “playing rough and tumble” on the couch as they often did and after settling down the child said to him “daddy shouldn’t touch me like that”, “no, you’re bad daddy…[b]ut don’t touch me” and “daddy touches me in a bad way”.
The following day, when the father delivered the child to the mother following her time with him, the child refused to hug or kiss him goodbye as usual. There is no dispute between the parties that on this occasion the mother said that the child did not need to give him a kiss and also said words along the lines of “I am teaching her that it is her body and if she doesn’t want to share it, then it’s her choice”. The parties also agree that instead of giving the father a kiss the child performed a “goodbye dance” for him. The father felt that this dance appeared choreographed and he found it very unusual.
There is also no dispute between the parties that following a Christmas concert at which changeover into the mother’s care was to occur the child effectively rejected the father in the mother’s presence and refused to sit next to him. When the father asked the child whether she wanted him to leave, the child said “yes” and he left the concert.
The disclosures
According to the mother’s affidavit, following the child’s evening bath in late 2018 when in the mother’s bedroom the child first disclosed that the father had touched her genitals. She deposes to the following circumstances in relation to this conversation:
After [the child]’s evening bath on […] 2018, we were in my bedroom and had a conversation in which [the child] first disclosed that [the father] had touched her genitals. In a prior affidavit filed in these proceedings I provided an excerpt of this conversation. I now set out a full version of my conversation with [the child] below:
[Mother]        Daddy and I are talking about Daddy spending more time with you.
[The child]      Less time.
[Mother]        What?
[The child] did not respond and moved to the corner of the room, sat down on the floor and positioned a number of cushions around her and on her, so that only her head and shoulders were visible.
[Mother]        Why do you say that?
[The child]      Daddy is stinky. I don't like Daddy.
[Mother]        Come on, I am stinky sometimes too!
[The child]      No, he is mean to me.
[Mother]        What do you mean?
[The child]      He yells at me.
[Mother]        I yell at you sometimes too.
[The child]      No, he hurts me.
[Mother]        Does he smack you? Or scratch you? Or hit you?
[The child] shook her head "no" moving her head from left to right.
[Mother]        Does he touch you and you don't like it?
[The child]      Yes.
At this point, I did not know what else to do, so I took out my phone and made a video recording the conversation. A copy of this recording was provided to JIRT in the course of their investigations, and can be produced to the Court if required.
[Mother]You were just saying before that you didn't like going to your Dad and I asked you whether your Dad touches you anywhere or does anything you don't like. And what did you say?
[The child]      I don't know. I said "Don't do that, don't do that, don't do that"
[Mother]        Who says that?
[The child]      Me.
[Mother]        You say that? You say "don't do that?"
[The child]      Yes.
[Mother]        What do you say "don't do that" about?
[The child]Toilet talk. And do you know what he says for toilet talk? He says "potty talk".
[Mother]        Oh well, it's the same thing. Toilets and potties are similar, aren't they?
So, does Daddy smack you?
[The child]      No.
[Mother]        Does Daddy push you?
[The child]      No.
[Mother]        Does he pull your hair?
[The child]      No.
[Mother]        Does he scratch you?
[The child]      No.
[Mother]        Does he touch you anywhere you don't want him to?
[The child]      YES!
[Mother]        Where does he touch you?
[The child] opened her legs and pointed to her genitals and said "Inside here".
[Mother]        Can you show me how he does that?
[The child]      No, I don't want to get stinky fingers.
[Mother]When does he touch you inside there? Does he do it much? Or sometimes? Or all the time?
[The child]      Sometimes.
[Mother]        And what are you normally wearing when that happens?
[The child]      Clothes. No clothes. I don't know what I'm wearing.
[Mother]Ok. So can you give me an example of one time he touched you inside there?
[The child]      Ummmm, no.
[Mother]Did he do it the other day when you were there staying on the weekend?
[The child] shook her head 'no'.
[Mother]Did he do it when you were at his house for dinner last Wednesday night after you had a bath?
[The child]      No.
[Mother]        Ok. So can you remember the last time that happened?
[The child]      Ummmm, no.
[Mother]        So where does he touch you and how does he do it?
[The child]      I don't want to show you.
[Mother]I need you to show me sweetheart, because if something is happening that shouldn't be happening then I need to know about it.
[The child]      He wipes my back bottom with toilet paper.
[Mother]        Yes, I know he wipes you with toilet paper. And then what?
[The child]      And then, I don't believe him that it's clean.
[Mother]        Right, and then what?
[The child]      Nothing else.
[Mother]        But you said he touches you inside there. Inside your vagina.
[The child]      Don't even think about it (indicating she doesn't want me to touch her)
[Mother]I'm not going to do it! Because I understand that's private. So when does that happen?
[The child]      Ummm, I don't know. Hug Hug Hug.
[The child] then got up and gave me a hug. I then picked up one of her toys and said "Can you show me on "[K]" (a small pink penguin) how Daddy touches you?" [the child] then took the toy from me and using her index finger began poking it in the genital area.
[Mother]        Like that? What does his finger do?
[The child]      He does what I am doing.
[Mother]        Is that on [K]’s bottom where there's poo?
What's happening? Or is that on [K]’s vulva, or is that on [K]’s bottom.
[The child] then spread her legs open and said "If her bottom's here and my bottom's here, we go" and pointed to her genitals, specifically at her vaginal opening.
[Mother]        Inside there?
[The child] continued to point to her vagina.
[Mother]        Is that her bottom or her vulva?
[The child]      Vulva.
She then turned the toy around and said "Because the bottom is here"
[Mother]        Right. So Daddy does that to your vulva, does he?
[The child]      Yes.
[Mother]        Thank you for telling me.
I reached to touch [the child]'s leg and she flinched backwards and made a sound similar to "No".
[Mother] Let's put your clothes on. What do you say to Daddy when he does that?
[The child]      I want to sleep naked.
[Mother]Ok, you can sleep naked. What do you say when Daddy does that to you?
[The child]      Stop it, stop it, stop it.
She then made kicking motions with her legs.
[Mother]        What does Daddy say when you say that?
[The child]      Nothing.
[Mother]        Does he stop or keep doing it? What does he do?
[The child]      I don't know,
[Mother]Thank you so much for telling me that. That would have taken a lot of trust and courage for you to tell me that. Thank you for trusting me as your Mummy and telling me that. It must be hard to tell me that. Why was it hard for you to tell me that?
[The child]      Nothing. I just don't know the answer because he never tells me.
Under cross-examination, the mother agreed that the child referred to her father engaging in “toilet talk” or “potty talk” when being asked about being touched by him. She also agreed that it did occur to her that the child was referring to something going on in the course of toileting. However, when asked about the child telling her that the father “wipes my back bottom with toilet paper”, she did not understand that the touching was happening while the father was wiping the child’s bottom in the toilet. The mother did not accept it was happening in that way “because the conversation and [the child’s] manner up until that point was indicating to me that there was more to the story”.
The mother also agreed that the child did not use the word “vagina” at any point and that is a word inserted by the mother into the conversation.
When asked about her evidence that the child was poking the toy penguin “in the genital area” by way of demonstration, the mother agreed that this toy was not anatomically correct.
Under cross-examination by the ICL, the mother said that she now understands that she did lead the child through the conversation and put words to her that she had not said.
The mother confirmed that on the date this conversation occurred she believed what the child was telling her, being that the father had digitally penetrated her, and that such actions constituted sexual abuse. Almost immediately thereafter under cross-examination, the mother said that she did question what had happened and was not wholly convinced at that point. She then said that she had “no doubt” on the day she gave her evidence about the matter.
Events following the disclosure
According to her affidavit, later on that evening the mother telephoned her general practice to make an appointment for the following morning with a female doctor. The mother says that she informed the receptionist that the child had just made disclosures of sexual abuse.
The mother deposes that on the following morning she received a telephone call from the practice manager who told her to see a particular doctor and that she should come alone without the child.
The mother deposes that after dropping the child at pre-school she met with the general practitioner and “repeated what [the child] has (sic) said to me the night before”. The mother also deposes to telling the doctor that the child had experienced more urinary tract infections than previously and on one occasion after an overnight visit had a lot of milky discharge coming from her vagina. The mother also says she showed the doctor the photographs she had taken of the child on the two occasions in late 2018. The mother deposes that she then asked the doctor “do you think this is consistent with sexual abuse?” to which the doctor replied “it looks like it”. The appointment ended on the basis that the doctor would confer with her colleagues and contact the mother to discuss “the next steps”.
Under cross-examination the mother had no recollection of what she had said to the doctor other than repeating what the child had told her the night before. It was then drawn to the mother’s attention that the doctor’s records indicate that it was reported the child articulated that “he had been putting his finger in her vagina”. The mother agreed that at no point in the disclosure the child used the word “vagina” and agreed that is not what the child had told her.
The mother also agreed under cross-examination that she had told the doctor about the milky discharge from the child’s vagina but had never consulted a doctor about this matter.
It appears from the records of the general practitioner that the doctor as a mandatory reporter notified the Department of the information given to her by the mother.
The mother also contacted police for advice in late 2018 and deposes to arrangements being made for two officers to attend her home later that afternoon and interview her. The mother was requested to present the child for an interview with officers of the child sexual abuse task force in late 2018 (“the first police interview”).
The first police interview was recorded and the recording was produced and played in court. However, the recording has not ever been officially transcribed and there was no agreed transcript tendered in the proceedings. The records of the Department contain a summary of this interview which includes the following:
·The child had a sound understanding of the concept of truth and lies and agreed to tell the truth during the interview;
·The child was not aware of why she had come to talk to police;
·When asked whether she sometimes stays at dad’s the child said “she knows my dad and she (mum) hates him”. When asked why, the child said because he is stinky and I also hate him;
·A body chart was completed with the child and no disclosures were made;
·In answer to a leading question “somebody told me your dad touched you on your body that you didn’t like” the child responded “front bottom”. When asked for more information about this the child said she didn’t want to tell them;
·When asked whether it was a secret the child responded “mmmm” and “want to tell my mum”;
·The child was reassured that she wasn’t in any trouble and needed to talk about the truth and things that did happen. The child responded “it did happen”; and
·When asked where she was, the child said “dad’s” “sitting on the couch and he touched my bottom”.
The mother deposes that during the first police interview she sat outside the interview room and the child ran in and out of the room. She also deposes that at the end of the interview one of the police officers told her that the child was inconsistent with her answers and although she had disclosed that the father touched her when they were on the couch the child did not want to continue answering questions. The mother and child left the interview after it was concluded. No further action was taken by police as a result of this interview.
On the same day that the child was interviewed, the proceedings were listed before a judge of the Federal Circuit Court for the purposes of obtaining trial dates. The mother was not present as she was taking the child to the police interview but her lawyer showed the father an email concerning the child’s alleged disclosures and police investigation and also informed the Court of the same. The Federal Circuit Court judge transferred the proceedings to this Court on that day.
Records of the Department in relation to the first interview reveal that the complaint was rejected by JIRT due to a lack of context in the reported information, an inability to establish that an alleged sexual assault had occurred, the mother asking leading questions of the child and as the behaviour described could be a result of bathing, toileting or other parenting responsibilities. It is also recorded that police considered the child’s disclosures as inconsistent with original reports.
The following day, the mother advised the father and ICL through her solicitor that “JIRT will not be taking the matter any further” and that the solicitor advised her that “contact should go ahead as per the orders”. Contact with the father did not however take place for many months.
According to the mother’s affidavit, the next day, during bath time the child pointed to her genitals and said “daddy touched me on the tip”. When asked where she was when this happened, the child answered “on the couch at daddy’s house”.
The mother then deposes to the child engaging in particular behaviour “of a sexual nature” and otherwise continuing to speak negatively about the father. She deposes for example that in late 2018 the child pulled her underwear down and laid down and spread her legs open exposing herself to the mother and a male client (the mother conducts business from a studio at her home). The mother deposes that she told the child to stop engaging in this behaviour and that when she took the child away, the child said “daddy touched me on the front bottom”.
The mother also deposes that on Christmas Eve the child, unprompted, said she wished she “had a different daddy”, and on Christmas Day, when playing with her cousins, said that she had fun with them as “they are safe, not like daddy”. The mother deposes to other occasions where the child referred to the father in negative terms later in 2018 and in early 2019, and to other incidents in which she considered the child behaved in a sexual manner.
In her affidavit the mother deposes to the child having the last session with her psychologist in early 2019. The mother omits from her affidavit that on that day a disclosure was made by the child relating to the alleged sexual abuse as is revealed in notes of the child’s psychologist produced on subpoena.[7]
[7] Exhibit 10, p.218.
According to the record made by the child’s psychologist at this session, the child initially told the psychologist “my daddy touched me on the bottom”. The notes go on to record that “there was some confusion about what was called “vagina”, “bottom” and “front bottom” and that “despite this [the child] was quite clear that she was touched on the vagina (front bottom)”.
It is clear from records of the Department produced on subpoena that the psychologist as a mandatory reporter notified the Department of the child’s disclosures. Under the heading of “reported information” it is recorded that normally the child tells the mother to wait in the waiting room but on this occasion she brought her mother with her and the mother told the child psychologist that the child was attending because she wanted to tell something. It is recorded that the mother raised on numerous occasions that the child wanted reassurance that the father would not be told about what they were talking about, though it is also recorded that the child never asked nor directly requested this herself. According to the Departmental records, the reporter also indicated that [name redacted - though it can be inferred from the entirety of the record that this is a reference to the mother] prompted the child by asking if there was something she wanted to say but the child did not acknowledge the question and continued to play. The records indicates that the mother again asked whether there was something the child wanted to talk about at which stage the child said “my daddy touched me on the bottom” while snuggling into her mother and looking away. The child was described by the psychologist as whispering and talking very quietly without making any eye contact.

Although it is submitted on the mother’s behalf that the father has failed to notify the Child Support Agency of a recent increase in salary, the father, in my view, provided an adequate explanation for information given to that agency.
It is to the mother’s credit that she has unilaterally assumed significant financial responsibility for the child for some matters such as the payment of private school fees.
Likely effect of change in the child’s circumstances
Capacity of each parent and any other person to provide for the child’s needs including emotional and intellectual needs
Attitude to the child and responsibilities of parenthood demonstrated by each parent
Each of these additional considerations which are interrelated are particularly important when considering each of the proposals.
In summary, the evidence of the expert, which I accept, is that the mother has demonstrated some capacity to meet the child’s needs and has demonstrated a commendable attitude towards the child and the responsibilities of parenthood in some respects.
When considering parenting capacity, the expert recorded in her report that the child’s positive attachment with her mother and supportive family network, combined with her attendance at childcare, contributed to the child’s feelings of security while in her mother’s home. The expert reports, however, that the mother had insensitively allowed the child to watch an inappropriate television series with adult themes and had been observed by her childcare provider to be “obsessed with vampires and blood-sucking” which upset other child and their parents. Similar concerns were raised by the child’s school in recent years. The expert described this choice of activity for the child who allegedly has a history of nightmares and sleep and behaviour disturbances as “clearly inappropriate”.
The expert also observed the assessment made by the Department that, although the child was not “in need of care and protection”, concerns were raised that the child may have been instructed or heavily influenced by the mother and “had been exposed to a considerable degree of parental alienation (by her mother)”, which was opined to be “likely to have a negative impact on the child’s perception of and relationship with her father”. The expert opined that a similar finding by the Court would confirm that the mother’s parenting capacity is compromised significantly because she has not supported the child’s relationship with the father. As is clear from these Reasons, the mother’s belief about the father, even if overvalued rather than consciously false, has brought about the result that the child falsely believes that the father abused her and is to be feared. This confirms that the mother’s parenting capacity is significantly compromised as identified by the expert.
When questioned about the mother’s proposition that the care given by the mother is a “known quantity” (with the inference that this care was in some way superior to the father’s care), the expert remained very concerned that the Court may find that there is a lack of care or a very biased way of supporting the child and that the mother had failed to support the child’s relationship with the father. The various findings made by the Court as explained in the foregoing paragraph do amount to the mother undermining the child’s relationship with the father which, even if unintentional, is a significant shortcoming in her parenting capacity.
The father presented to the expert as a committed and concerned parent and that the development of his parenting capacity had undoubtedly been disrupted by his limited time with the child. The expert considered the father’s expressed empathy for the child being caught in the parental conflict was noteworthy.
As noted, the expert’s assessment of the father’s parenting capacity was made in the context of the father then presenting himself as a potential caregiver with his then-partner. When questioned about the change in the father’s circumstances, the expert maintained that the father seemed to have adequate capacity to meet the child’s needs if she were to live with him alone as opposed to in a couple relationship with his former partner.
The expert was cross-examined extensively about the relative risks, advantages and disadvantages to the child if she were to live with the mother or the father. Without venturing to express a firm view and making it clear that both arrangements represented a series of losses for the child, overall it may be observed that the expert identified more risks and disadvantages to the child if she were to remain living with the mother (especially if she were to have no ongoing relationship with the father) than if she were to move as proposed by the father and ICL.[23] This matter is particularly weighty when considering the party’s respective proposals.
[23] See [219]-[220] and [222] of these Reasons.
The expert did not agree that a move to live with the father “would represent for the child spectacularly huge losses in her life” but added that “it would need very sensitive parenting by the father to be able to support the child and help her to adapt and cope”. While the expert generally agreed that the father seemed to have adequate capacity to meet the child’s needs, she appeared to express some concerns as to whether the father the capacity to provide this “very sensitive” parenting and was “greatly concerned” that the father had not provided any evidence of social supports for the child. Notwithstanding her concerns, however, the totality of the expert’s evidence is that she did not consider that the father lacked the capacity to meet the child’s needs if the child were to live with him.
There is no doubt that the child will experience a significant loss if she is to move to live with her father especially given the nature of her relationship with her mother and her limited experience of the father’s care. She is also likely to engage in highly challenging behaviour as discussed. I do not consider, however, that the father’s lack of experience in having the child living with him or the concerns arising from his failure to provide evidence of social supports are so great that the child would be placed at an unacceptable risk of harm as contended by the mother having regard to the entirety of the expert’s evidence.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
If the child is to remain living with the mother, there are no proposed orders for spending time with the father so no concerns about practical difficulty or significant expense will arise if this were to occur.
If the child is to move to live with the father, all of the parties propose that the mother’s time with the child be supervised for some time. There will be some expense in such an arrangement. However, the mother does not suggest that this is an impediment to the maintenance of the child’s relationship with her and such supervision forms part of her proposal (albeit for a period of no more than three months and on an interim basis) if the child is to live with the father.
Maturity, sex, lifestyle and background
Some features of the lifestyle and background of the parents prior to the birth of the child and when she was an infant are concerning. As observed by the expert, the parties’ relationship as a couple remains one of high conflict and it appeared never to have developed into a mature relationship with collaboration, problem-solving and mutual respect as its base.
The expert also identified that the mother’s presentation as a vulnerable single parent arose from her early history which included an absent biological father, disruption to her relationship with her stepfather and child sexual abuse. The mother also self-reported that she was co-dependent due to an early troubled relationship with her mother as well as having “unresolved issues” with a past partner. Although the mother also reported experiencing intimate partner abuse from the father, I am not satisfied that this did occur. The expert explains in her report as previously set out in these Reasons that these experiences have had a marked influenced how the mother perceives others and has parented the child. The expert ultimately recommended that the mother undertake individual therapy to assist her to “reflect on her entire life experiences” (emphasis in original).
The mother’s treating psychologist whom she has attended upon since early 2021 gave evidence in these proceedings. According to the psychologist, throughout her engagement in counselling sessions the mother has maintained various allegations of risk against the father and has shown ambivalence or disbelief towards any involvement she may have in the child’s own experience of him. In addition to exploring the expert’s concerns regarding the enmeshed nature of the relationship between the child and mother, the mother’s treating psychologist said she invited the mother to reflect upon the expert’s opinion on how her life experiences may impact her parenting of the child. It is reported that the mother first appeared uncertain as to what that might mean but ultimately denied that these life experiences, including her experience of her relationship with the father and her childhood trauma, has had any impact on her.
The mother’s treating psychologist also concluded that while the mother was responsive and open towards adaptive strategies to manage the child’s emotional regulation, it was her impression that the mother would likely continue to have difficulty in supporting the child’s relationship with her father and would therefore require psychological support to encourage this relationship.
Under cross-examination the mother’s treating psychologist generally did not resile from her conclusions and overall recommendations. When asked by the father’s counsel about the mother’s denial of an ongoing impact upon her of her childhood trauma, the mother’s treating psychologist gave oral evidence that from her experience of working with child sexual abuse survivors the mother’s presentation suggested to her that the mother is “hyper-vigilant about [the issue of sexual abuse]” and that “it does have an effect on her”. The general tenor of the balance of the mother’s treating psychologist’s cross-examination was that the mother would require individual psychological support in navigating the family situation and managing her mental health regardless of whether orders are made that the child live with her or the father. It is not submitted by any party that I reject the evidence of the mother’s treating psychologist or that little weight be attached to it. Further, both parties rely to some extent on her evidence. In these circumstances, and given the treating psychologist’s relevant expertise and experience, I accept this evidence and attach weight to it.
The expert observed that the father also reported an early history of poor relationships with his parents and struggling due to his adolescence being a time that he reported engagement in self-harming, developing a social phobia and being involved in an incident of vandalism.
The expert also identified ongoing behaviour in each of the parents that did not reflect well upon them such as each attempting to bargain over matters relating to the child (such as Child Support, spending time with the other parent and agreeing to overseas travel) in order to get what they wanted.
Notwithstanding the foregoing matters, the general tenor of the expert’s evidence, particularly in relation to the father, is that he has matured considerably and she reported that at the time of her assessment he presented as a committed and concerned parent.
Neither parent adduced evidence in relation to any particular traditions or culture relating to their respective backgrounds or heritage from which the child might benefit.
As considered at some length earlier in these Reasons, the child has experienced significant challenges throughout her life especially arising from the conflict between her parents, which in the opinion of the expert will be greatly assisted by family therapy as well as individual therapy for each of the parents to address the identified concerns which will have flow-on benefits for the child.
In line with the expert’s recommendations in this regard, each of the parties and the ICL propose that the family engage in family therapy depending on the findings and orders made by the Court. The ICL in particular proposes that in the event the Court does not find that the father poses an unacceptable risk of harm to the child and the child is to live with him, the family engage in family therapy with a named family therapist at such frequency and over such period of time as requested by that therapist.
In the course of final submissions counsel for the father indicated that the father adopts the ICL’s proposal for family therapy but suggests that this therapy be conducted by another nominated family therapist due to the limited availability of the ICL’s proposed therapist. The ICL ultimately agreed to the father’s suggested family therapist.
The mother also proposes interim orders for the parties and the child to attend family therapy and seeks that this arrangement be implemented only in the event the Court is satisfied that, pending further order, it is in the child’s best interests for the child to live with the father and spend defined time with the mother.
The child has also been identified as meeting the criteria for ADHD. The evidence in relation to the child’s diagnosis of ADHD contained in the report of the assessing psychologist dated early 2021 indicates that the results of the child’s cognitive assessment reveal that she demonstrates competency across a broad range of domains mostly above the majority of her age-matched peers. The assessment report also included the following statements:
In the context of [the child’s] general cognitive intelligence there is no reason that she should not be able to keep up academically with her peers and may be at risk of being bored with grade level academic work….
It is likely however that in the future the child will struggle to keep on task particularly when self-directed learning is required in a busy classroom of students…
Based on parental reports, observations and psychometrics the child fulfils DSM5 criteria for attention deficit hyperactivity disorder (ADHD) – predominately impulsive and hyperactive…
What also came out of this assessment was the increasing concern, particularly by [the child’s] teacher for her lack of empathy, persistent defiance and inability to show insight into her choices of behaviour. This was reflected in reports across all environments indicating symptoms of aggression, defiance and oppositional traits. It is likely that these traits are influenced by both separate personality factors, genetics and environmental influences. The child’s defiant outbursts and behavioural choices would also be impacted by her high impulsivity, making it difficult for her to slow down her reaction in order to consciously make better behavioural choices….
[G]iven the familial history, and the presence of impulsive traits over many years and across environments the child’s ADHD diagnosis is highly unlikely to be caused by other external factors (eg parental conflict, ongoing court proceedings or allegations of abuse). I view her ADHD as a parallel and separate condition. In no way should a potential diagnoses of ADHD be utilised as a reason in family law proceedings to influence the time spent with each parent.
The assessing psychologist also made recommendations to assist the child including a behavioural management plan. In this regard it was recommended that the parents may find benefit in consulting with a child psychologist specialising in behaviour. The assessing psychologist also recommended a review with the child’s paediatrician for a second opinion and medical review.
Family violence
For the reasons previously given I am not satisfied that the father was a perpetrator of family violence as alleged by the mother. No other contentions relating to a risk of family violence in the future in the care of either parent were made in the proceedings.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the child
A number of matters relevant to the likelihood of further proceedings in relation to the child were raised. The likelihood of the child making further allegations against the father in the event that she remains living with the mother was considered by the expert to be high. Having regard to the steadfast nature of the mother’s belief and as therapeutic support which may address intensity of this belief has only commenced recently, I have no reason not to accept this evidence of the expert. One of the father’s reasons for not seeking any orders in relation to the child’s time with him if the child were to continue living with the mother, is the likelihood of further such allegations being made and the likely corollary being the institution of further proceedings.
One of the other reasons that the father did not seek orders for the child to spend time with him if she were to remain living with the mother is his lack of confidence in such orders being implemented which would raise the constant prospect of contravention proceedings to ensure that such time occurred. Ultimately, the mother adopted the father’s stance in this regard and did not propose orders for the child’s time with him if she were to live with the mother.
In these circumstances, it seems likely that the orders sought by the mother, if made, are the least likely to lead to the institution of further proceedings in relation to the child. However, I do not consider this to be a weighty matter having regard to the central issues in the proceedings being the question of the risk of harm posed to the child in each of the proposals, parental capacity and the likely effect on the child if the various proposals for the child’s parenting were made.
Any other fact or circumstance that the Court thinks is relevant
The mother seeks an order that the child’s surname be changed. Currently the child has the father’s surname. The mother proposes a change depending upon the Court’s findings. The first alternative is proposed if the Court finds that the father poses an unacceptable risk of harm to the child. As such a finding has not been made this proposal does not need to be considered.
In the event that such a finding is not made the mother proposes a declaration that it is in the child’s best interests that her surname be changed so that it contains both the mother and father’s surname and is hyphenated. Neither the father nor the ICL addressed this matter in their final submissions.
It is clear from the authorities[24] that an application to change a child’s name requires the Court to have regard to the best interests of the child. In relation to a change in surname specifically, the Full Court in Chapman and Palmer[25] has summarised that the factors to which the courts should have regard when making such an order include:
(a) The welfare of the child is the paramount consideration.
(b) The short and long-term effects of any change in the child’s surname.
(c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.
(d) Any confusion of identity which may arise for the child if his or her name is changed or is not changed.
(e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.
(f) The effect of frequent or random changes of name.
[24] Reynolds & Sherman [2016] FamCAFC 240; Flanagan & Handcock (2001) FLC ¶93-074; Fooks & McCarthy (1994) FLC ¶92-450.
[25] (1978) FLC ¶90-510; see also Beach and Stemmler (1979) FLC ¶90-692.

In the circumstances of this case, and applying the paramountcy principle, I am satisfied that a change in the child’s surname as proposed by the mother is in the child’s best interests.
While the expert did not address this issue in her report and was not asked about it under cross-examination, it is generally her evidence, which I accept, that the nature of the child’s relationship with both parents is such that she would benefit from maintaining her relationships with both of them. Accordingly, a surname which combines elements of each part of the child’s heritage is in my view important to the child’s identity formation in the future.
Having regard also to the child’s young age, there appears no real likelihood that any change to her name now would cause her either confusion or embarrassment, or be disruptive for her. In the absence of such negative consequences, I am satisfied that it is in the child’s best interests that her name be changed as proposed by the mother, noting that if orders were made that the child primarily live with the father such a change in name may help promote the child’s identification with her non-residential parent.
The mother also proposes interim orders relating to international travel and the child’s passport arrangements. She seeks these orders depending on the findings of the Court including in the event that the father is found to pose an unacceptable risk of harm to the child which I need not to consider given no such finding has been made.
In the event the father is not found to pose an unacceptable risk of harm to the child and orders are made that the child live with her, the mother proposes that she be permitted to travel overseas with the child and obtain travel documents for her without the father’s consent. Otherwise, no provision for the child’s overseas travel and passport documents is made under the proposal she puts forward in the event the Court is satisfied that the child should live with the father.
The ICL also proposes orders relating to the child’s international travel and related travel documents. Her proposal is that where the Court does not find that the father poses an unacceptable risk of harm to the child and is satisfied that it is in the child’s best interests to live with him, the child should be permitted to travel internationally with the father and the need for the mother to consent to the issuing of the child’s passport be dispensed with. There, however, appears to be an inconsistency contained within the ICL’s proposal in this regard in that one order provides that in relation to the passport or any travel-related document issued to the child “the mother may sign any declaration on the application in the form approved by the relevant Minister”.
In the foregoing circumstances, the word mother appears to be a typographical error.
In considering whether to make orders relating to the child’s overseas travel and passport arrangements, I attach weight to the nature of the co-parenting relationship between the parties that may invite further conflict between them should they be required to deliberate about these matters.
While I consider the obtaining of a passport for the child and travelling internationally with her are natural extensions of an order that sole parental responsibility be exercised for the child, an order explicitly excluding one parent’s permission for and consent to the child’s travel arrangements is in my view necessary to avoid further litigation between the parents in the event the parent who does not hold parental responsibility for the child withholds their consent and requires the other parent to reapply to the Court.[26]
[26] See requirements contained in s 11(1) of the Australian Passports Act 2005 (Cth).
One other matter in the mother’s case that must be addressed relates to her proposal that in the event the Court determines it to be in the best interests of the child to live with the father parenting orders be made as interim orders only and that after six months the proceedings recommence. In my view, this proposal is not proper having regard to the best interests of the child.
Proceedings in relation to the child’s parenting have been on foot for almost the entirety of the child’s life and the high degree of conflict and acrimony between the parents and their incapacity for cooperative parenting have resulted in the child experiencing in the words of the expert a “horrible experience for all of her life”. The proceedings have also been marked by the mother failing to comply with orders from time to time (including in particular a period of over 12 months since early 2021) for the child’s time with the father notwithstanding that such orders were made with her consent. In these circumstances, it is particularly important that the dispute between the parents is resolved and that the child can settle into a normalised life that does not involve exposure to the dynamics of conflict between her parents.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[27] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[27] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In these proceedings neither of the parties proposes an order for equal shared parental responsibility. This sensibly reflects the reality that the parents have demonstrated no capacity for joint decision-making.
Each of the parties and the ICL proposes that sole parental responsibility be held by the parent with whom the child is to live, with the exception of the mother’s proposal if the child is to live with the father in which the case she proposes no orders for parental responsibility but rather proposes interim orders for the child’s parenting otherwise as explained.
For all of the reasons given and attaching particlar weight to the two primary considerations, parental capacity, and the likely effect upon the child of a change in her circumstances, I am satisfied that it is in the child’s best interests to live with the father and that the orders as proposed by the ICL are proper in the circumstances.
So far as parental responsibility is concerned, the ICL’s proposal includes a requirement that in exercising sole parental responsibility the father advise the mother as soon as practicable of a relevant decision to be made, invite and consider the mother’s views and input and advise her within seven days of making the decision. In my view, this proposal provides for the child to receive some greater benefit of her mother’s involvement in her life than under the father’s proposal which does not include such additional provisions.
So far as the balance of the orders proposed by the ICL are concerned, there are some small differences between that proposal and the father’s proposal. In particular, the ICL’s proposed orders do not make provision for the child to spend time school holiday time with the mother, but they do provide for an end point of that time during the school term which is more lengthy than the father’s proposal being three nights per fortnight and additional time on special days. I accept the submission of the ICL that this proposal is proper and in the child’s best interests as the expert was firm in recommending that any unsupervised time with the mother only commence after at least six months of therapeutic engagement and in her opinion that the therapy to date had a long way to go. There are questions about the success of the mother’s engagement in that therapy, having regard to the steadfast nature of her beliefs.
In these circumstances, I agree with the ICL’s submission that the risk to the child that would be raised if she were to make further disclosures and/or experience difficulties in the father’s care, are heightened if there were to be lengthy periods of overnight time with the mother, such as in the school holiday period as proposed by the father.
It is not the intention of the ICL to preclude any increase in the child’s time with the mother. Such an increase could occur under the ICL’s proposal which provides for the child to spend time with the mother after the completion of the six month period of time and therapy “as agreed in writing between the parties”, and sets out a regime if no such agreement can be reached.
The ICL’s proposed orders incorporate all of the recommendations of the expert in the event the child is to live with the father including that six months of the child’s time with the mother be supervised and that thereafter the time increase only if the mother complies with orders for therapeutic counselling with her psychologist and that she engages in family therapy. The ICL’s proposal also provides, as recommended by the expert, that the father receive therapeutic assistance including in relation to supporting the child’s re-integration into his household and responding to her behaviour and emotional regulation.
The proposed orders also include restraints upon the parents denigrating the other parent or family members, discussing the proceedings or allegations raised in the proceedings or posting information on social media. The proposed orders also restrain the mother from presenting or causing the child to be presented for interview or examination in relation to allegations of sexual assault or abuse unless with the written consent of the father, and photographing, videoing or recording the child for the primary purpose of alleged disclosures of abuse or allowing any third party to do the same and associated orders. Some other minor amendments to the ICL’s proposal have been made to clarify some minor potential ambiguity in the proposed orders.
Given the history of the parties and the mother in particular to date, these restraints are appropriate for the protection of the child.
For all of the foregoing reasons, I make the orders set out at the forefront of this Judgment.

I certify that the preceding four hundred and sixty-five (465) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 25 March 2022

File number(s):	PAC 643 of 2016
Judgment of:	HANNAM J
Date of judgment:	25 March 2022
Catchwords:	FAMILY LAW – PARENTING – Where the mother makes serious allegations against the father including in relation to sexual abuse of the child and family violence – Where the mother also alleges that the child’s mental health difficulties arise from the child’s fear of the father and her experience of being sexually abused by him – Where the father alleges that the mother maliciously and intentionally constructed a false allegation that he sexually abused the child – Where the parties otherwise make competing contentions about the risk of psychological harm posed to the child – Where differing suites of orders are proposed depending on the findings of the Court – Where the Court is not satisfied that the father poses an unacceptable risk of harm to the child on any basis – Where in light of expert evidence the Court considers that the mother holds an overvalued belief that the father had abused the child rather than maliciously constructed a false allegation – Where the Court considers the psychological difficulties experienced by the child most likely arise from her exposure to the parental dispute and dynamics – Where significant weight is attached to the expert’s opinion about the steadfast nature of the mother’s beliefs in finding that the child would be at an unacceptable risk of psychological abuse if she were to continue to live in the mother’s primary care – Orders made in the terms proposed by the ICL providing in summary that the father hold sole parental responsibility for the child and that the child live with the father and spend defined time with the mother conditional upon the mother continuing to engage in psychological treatment and the family attending family therapy – Orders otherwise made as proposed by the mother that the child’s surname be changed to include the mother’s surname and be hyphenated.
Legislation:	Australian Passports Act 2005 (Cth) s 11(1) Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC Births, Deaths and Marriages Registration Act 1995 (NSW) s 28
Cases cited:	Beach and Stemmler (1979) FLC 90-692 Chapman and Palmer (1978) FLC 90-510 Flanagan & Handcock (2001) FLC 93-074 Fooks & McCarthy (1994) FLC 92-450 Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Johnson & Page (2007) FLC 93-344 Langmeil & Grange (2010) FLC 93-427 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; Napier & Hepburn (2006) FLC 93-303, (2007) 36 Fam LR 395 Reynolds & Sherman [2016] FamCAFC 240
Division:	Division 1 First Instance
Number of paragraphs:	465
Date of hearing:	6-10 September 2021, 22 October 2021
Place:	Parramatta (via videolink)
Counsel for the Applicant	Mr Blank
Solicitor for the Applicant	Litigant in person
Counsel for the Respondent	Ms Kennedy
Solicitor for the Respondent	Broun Abrahams Burreket
Counsel for the Independent Children’s Lawyer	Ms Lioumis
Solicitor for the Independent Children’s Lawyer	Legal Aid Blacktown

PAC 643 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ALLUM Applicant
AND:	MS ERVIN Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	25 MARCH 2022