Ashford & Gladstone
[2024] FedCFamC1F 737
•6 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ashford & Gladstone [2024] FedCFamC1F 737
File number: MLC 7475 of 2018 Judgment of: WILLIAMS J Date of judgment: 6 November 2024 Catchwords: FAMILY LAW – PARENTING – Allegations of child sexual abuse and family violence perpetrated by the father – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk to the children – Where the mother nevertheless maintains her belief that the child was sexually abused by the father – Finding that the father has not sexually abused the child and the mother’s allegations are groundless – Finding that the mother poses an emotional and psychological risk to the children emanating from her fervent belief the father has sexually abused the child absent any objective evidence – Where the father seeks the children live with him and spend substantial and significant time with the mother – Where the mother seeks a week about arrangement – Best interests of the children – Where the father is best placed to ensure an ongoing relationship between the children and both parents – Change of residence – Order for sole parental decision making to be vested in the father and for the children to spend significant and substantial time with the mother Legislation: Evidence Act 1995 (Cth) s 140
Family Law Amendment Act 2023 (Cth)
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG
Cases cited: Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36
Isles & Nelissen (2022) FLC 94-092; [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski v Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division: Division 1 First Instance Number of paragraphs: 238 Date of hearing: 16–19 July 2024 and 26 August 2024 Place: Melbourne Counsel for the Applicant: Mr McLeod Solicitor for the Applicant: Roubos & Associates Counsel for the Respondent: Mr Howe Solicitor for the Respondent: Creative Family Law Solutions Counsel for the Independent Children's Lawyer: Ms O’Connell Solicitor for the Independent Children's Lawyer: Southern Family Law ORDERS
MLC 7475 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GLADSTONE
Applicant
AND: MR ASHFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
6 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.For the purpose of s 61D of the Family Law Act 1975 the father be allocated sole responsibility for the long-term parenting decisions for X born 2013, and Y born 2017, (collectively “the children”).
3.For the purpose of paragraph 2 above:
(a)The father will notify the mother of any long-term decision affecting the children through the parenting app as in paragraph 18 below;
(b)The mother provide details of any input she seeks to put in response to the Father’s proposal within 14 days of receiving such notification;
(c)The Father will consider the mother’s input and thereafter notify her of the decision made within 14 days.
4.The children live with the father.
5.The children be enrolled in B School for secondary schooling.
6.The mother spend time and communicate with the children as follows:
(a)During school terms, each alternate week from the conclusion of school (or 3.30 pm) Friday, until the commencement of school (or 9.00 am) Monday, commencing on the Friday immediately following the making of these orders;
(b)During school terms, each alternate week from the conclusion of school (or 3.30 pm) Wednesday, until the commencement of school (or 9.00 am) Friday;
(c)From 4.00 pm Christmas Eve to 4.00 pm Christmas Day in the year 2025 and each alternate year thereafter, and the time that the mother spends with the children shall be suspended from 4.00 pm Christmas Day to 4.00 pm Boxing Day in the year 2025 and each alternate year thereafter;
(d)From 4:00pm Christmas Day to 4.00 pm Boxing Day in the year 2024 and each alternate year thereafter and the time that the mother spends with the children shall be suspended from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in the year 2024 and each alternate year thereafter;
(e)From 5.00 pm on the eve of Mother’s Day until the commencement of school (or 9.00 am Monday) and the time the mother spends with the children shall be suspended each year from 5.00 pm on the eve of Father’s Day until 9.00 am Monday;
(f)On each of the children’s birthdays for a phone call between 6.00 pm and 6.30 pm; and
(g)Such further and other times as may be agreed between the parents in writing from time to time.
School holidays and special occasion time
7.Each parent spend time with the children for one half of each of the school term holidays as may be agreed between the parents in writing, and failing agreement the mother to have the first half which is to commence upon the conclusion of the last day of the school term until 12.00noon on the middle Saturday;
8.Each parent spend time with the children for one half of the long summer holidays as may be agreed between the parents in writing and failing agreement:
(a)In the year 2024/2025 with the mother on a week about basis with time to occur in weeks 1, 3 and 5 and each alternate year thereafter;
(b)In the year 2025/2026 with the mother on a week about basis in the weeks 2, 4 and 6 and each alternate year thereafter;
(c)For the purpose of paragraphs (a) and (b) above time is to commence at 12:00noon on the Saturday immediately following the conclusion of the school term, with each changeover to occur at 12:00 noon Saturday;
(d)Time in accordance with paragraphs 6(a) and (b) is suspended for all of the school holiday periods and to give effect to the Christmas time with arrangements.
(e)the children are to be returned to the father no later than two (2) days before the first term school term commences in each year, at 10.00 am on that day.
Recovery order
9.That in the event that the children are not returned to the care of the father or removed from the father’s care contrary to these orders without prior agreement in writing or an Order of this Court, a Recovery Order will issue for the return of the children. The Recovery Order is to lie in the Registry to be uplifted upon the Father filing an Affidavit deposing to the failure of the mother to provide or return the children to his care and directed to the attention of the chambers of the Hon. Justice Williams.
10.That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary, by force:
(a)To find and recover the children X born 2013, and Y born 2017 and to deliver the said children to the father or such other place as the father and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel, or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
11.All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
12.The Recovery Order set out in Orders 9 to 10 remain in force for five years from the date of these orders.
Changeover
13.All changeovers which occur on a school attendance day are to occur at school, with all other changeovers at to occur at the Suburb C Police Station.
14.The parent who does not have the care of the children is otherwise specifically prohibited from being present at the school at changeover times.
Communication
15.The mother is at liberty to contact the children via FaceTime on each Tuesday between 6.00 pm and 6.30 pm with the father to facilitate such calls and the mother to initiate such calls to a device or number nominated by the father.
16.The father is at liberty to contact the children on each Saturday via Facetime between 6.00 pm and 6.30 pm with the mother to facilitate such calls and the father to initiate such calls to a device or number nominated by the mother.
17.That the children are at liberty to contact either parent in accordance with their specific wishes, with each parent to facilitate such communications.
18.That for the purpose of communication between the parents as to the implementation and operation of these orders such communications are to be undertaken via the AppClose parenting app and via the SMS in the case of an emergency including a delay in attending for changeover.
19.That each parent must keep the other advised as to any changes to their residential address, landline and mobile telephone numbers, and email addresses, and notify the other of any change to such details within 24 hours of such change.
Children’s health and wellbeing
20.The parents are at liberty to take the children to D Medical Centre and E Medical Centre for their general medical care and treatment, with any/all copies of treatment reports to be provided and shared between treating practitioners and parents.
21.That each parent to do all acts and things to enable the children to continue to attend upon their current counsellors, namely Ms F (Y) and Mr G (X), or such other allied health profession as may be nominated by either of them, as is recommended.
22.That both parents will keep the other advised as to:
(a)the name and address of any health professionals of the children; and
(b)any medication prescribed for the children, and required by the children during the other parent’s time period, with any such mediation to be provided by way of exchange at changeover; and
(c)except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any medical appointments for the children and the purpose of such appointments; and
(d)authorise and direct any and all health and allied health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time;
(e)each party is at liberty to individually attend upon health and allied health professionals.
23.In addition to attending upon their allied health practitioners, the children are at liberty to attend upon their respective school Chaplains or other wellbeing officers in accordance with their respective wishes and otherwise as may be agreed to between the school and the father.
24.That the mother and father each advise the other as soon as practicable and within upon becoming aware of:-
(a)any significant injury or illness affecting the children or either of them;
(b)any required referral upon a medical specialist including details of such referral;
(c)any illness requiring the provision of any medication prescribed by a Medical Practitioner; and
(d)any hospital attendance or proposed hospital attendance by the children or either of them.
Mother – psychologist
25.That the time the mother spends with the children is conditional on the mother attending counselling, and the mother;
(a)Forthwith engage with a psychologist at her sole expense for the purpose of supporting her in promoting a relationship between the Father and the children, and to otherwise assist her with respect to the findings made by this Court, Victoria Police and the Department of Families, Fairness and Housing (DFFH).
(b)Will attend for initial fortnightly sessions, and then otherwise as recommended by her psychologist;
(c)To assist the psychologist as to paragraph (a) above the mother is to provide and prior to the psychologist attending upon her copies of the following:-
(i)a copy of the final parenting orders and Reasons for Judgment;
(ii)DFFH Section 67Z Response released 24 August 2022
(iii)DFFH Magellan Report released 28 September 2022;
(iv)DFFH Section 69ZW Report dated August 2023;
(v)DFFH Section 69ZW Report dated January 2024;
(vi)DFFH Section 67ZBE Response dated July 2024;
(vii)Magellan Report – Consultant Ms H dated March 2023;
(viii)Psychological Assessment of the mother – Dr J;
(ix)Psychosexual Assessment of the father – Dr J;
(d)will provide a letter to the father confirming her attendance and compliance with her treatment plan on a three-monthly basis and otherwise at the cessation of engagement.
Education and extra circular activities
26.The parents do all things necessary to authorise each other and keep each other authorised to receive information at their respective expense copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent.
27.Both parents are be permitted to attend the children’s schools or extra-curricular events for sports days, concerts, and otherwise usual activities affiliated with the school or extra-curricular activity providers to which parents are invited or welcomed to attend.
28.For the purpose of paragraph 27 above, neither parent in attending such event to in in anyway inhibit or hinder the children leaving the event with the parent who has the care of the children pursuant to these orders.
29.That both parents will keep the other advised as to any school absence days for the children including the reason for such absence, noting that if a child is unwell on a day of changeover, changeover of care is still to occur.
30.Both parents are permitted to each have access to all communication portals operated by any school, subject to any formal school policy.
Travel
31.Both parents are at liberty to travel interstate with the children provided that such travel is undertaken during their respective live with/spend times periods pursuant to these orders and the other parent is advised of travel dates, location, and contact details for the children for the duration of such travel.
32.Both parents are at liberty to travel overseas with the children provided that:
(a)Such travel is undertaken during their respective time with periods or such other time with the express written agreement of the other parent;
(b)That the travelling parent provided to the other parent a copy of a return airline flight, itinerary, location and contact details for the children for the duration of the travel period, at least 45 days prior to departure.
33.Both parents do all acts and things within 28 days of any request to the other to obtain an Australian passport for each of the children and equally pay one half of any costs associated with obtaining or renewing a passport.
34.The father retain the passports in his possession, save that he is to make passports available to the mother for the purpose of any overseas travel. The children’s passports are to be returned to the father within seven (7) days of the children’s arrival back in Australia.
Restraints
35.Save as is necessary for the parents to explain these orders, the mother and father and their servants and agents be and are hereby restrained by injunction from:
(a)Discussing these proceedings or the contents of any documents filed in these proceedings with or in the hearing or presence of the children or either of them;
(b)Denigrating, rebuking, or speaking negatively about the other parent or each parent’s extended family to or in the hearing or presence of the children or either of them; and
(c)Discussing any of the allegations raised against the other to or in the hearing or presence of the children or either of them.
Further orders
36.Both parents will facilitate the return of all items required for the children’s attendance at school or participation in extracurricular activities, including but not limited to school uniforms, school bags and books, which are to move with the children at changeovers.
37.Both parents will facilitate children transitioning to the other parent’s home with any comfort items with such items to be returned with the children at changeover.
38.That to the extent that any orders are inconsistent with any intervention order, these orders will prevail pursuant to s 68P of the Family Law Act 1975 (Cth).
39.Each party may supply a copy of these orders to the Magistrates Court of Victoria, the children’s schools, carers and treating health and allied health professionals.
40.The father facilitate the children attending upon the Independent Children’s Lawyer for the purpose of explaining these orders, following which the Independent Children’s Lawyer is hereby discharged.
NOTATIONS
A.The parents understand that the child, Y, is not to be given any antibiotics and any other medication that a doctor from one of Y’s treating medical practices (E Medical Centre or D Medical Centre) has not prescribed other than medication prescribed by the K Hospital.
B.That term times pursuant to orders 6(a) and (b) shall resume each term in the same continuous pattern as though there were no interruption of time during school holiday periods.
41.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parents adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Ashford & Gladstone has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J
INTRODUCTION
The applicant is the mother, and the respondent is the father of X born 2013, and Y born 2017 (“the children”).
The current application before the court is an Initiating Application seeking parenting orders filed by the mother on 8 August 2022. The children currently live with the mother and spend time with the father in accordance with the orders of 16 November 2022.
The mother alleges the father has sexually abused Y, however, does not assert the father is an unacceptable risk of harm, and indeed at the conclusion of trial proposed the children live week about between parents. The father vehemently denies these allegations and submits the mother has exposed the children to the parental acrimony in addition to emotional and psychological harm and has a protracted history of overholding the children and non-compliance with court orders.
The mothers’ allegations have been extensively investigated by child protection authorities, and none have been substantiated.
The trial commenced before me on 16 July 2024, and concluded on 26 August 2024.
For the reasons that follow, I have determined the father is not an unacceptable risk of harm, and the mother’s allegations regarding sexual abuse are groundless. I have found that the father is the parent with superior parental capacity, who is best placed to ensure an ongoing relationship between the children and both parents. The father will have sole responsibility for long-term decision-making, subject to notification provisions. I will also make positive findings that Y was not sexually abused by her father.
ISSUES IN DISPUTE
The following issues were the subject of dispute between the parents:
(a)With whom the children should live;
(b)Parental responsibility;
(c)The risks identified as to each parents’ proposals, in particular noting the following;
(i)The mother’s serious allegations and the purported disclosures made by the child Y with respect to sexual abuse;
(ii)Family violence allegations
(iii)The mother’s ability to foster and promote a relationship between the father and the children, nothing particularly the unilateral suspensions of time imposed by the mother;
(iv)Whether either parent poses an unacceptable risk to the children;
(v)What, if any, safeguards are required to protect the children;
(vi)The risk of emotional and psychological harm to each of the children given the continued high conflict and high level of parental acrimony and the exposure of the children to same.
These issues will be considered in the framework of the required statutory considerations.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
The mother is aged 40, and the father is aged 49. The parties commenced a relationship in early 2004, and never married. The relationship ended in October 2017 when the parties separated under the same roof. There are two children of the relationship.
On 3 July 2018, the father filed an Initiating Application seeking parenting and property orders.
On 12 February 2019, the police attended the family home due to an incident in which the father deposes the mother was “berating” him about an affidavit.
In early 2019, the mother made an application to the Magistrates Court of Victoria (“the Magistrates Court”) for an interim Family Violence Intervention Order (“IVO”) against the father, naming her and the children as protected persons. This application was granted.
The parents ceased living under the same roof in early 2019, due to the IVO made the day prior.
By consent, final parenting and property orders were made on 5 December 2019 by Carter J ordering equal shared parental responsibility, the children to live with the mother, and spend time with the father each Wednesday, and every alternate weekend with provisions for special occasion time. The father deposes that throughout 2020, the mother contravened the Final Orders on multiple occasions.
The father filed a Contravention Application on 5 February 2021 following the mother suspending the children’s phone time with the father including their Wednesday overnight stay. On 15 April 2021, consent orders were made by a Registrar for the children to spend make up time with the father, and the orders of 5 December 2019 were varied slightly. It was the father’s evidence that the mother’s pattern of occasionally withholding the children nevertheless continued.
In early 2022, there was an incident at the children’s school when both parents attended changeover (“the early 2022 school incident”). The police were called to mediate the situation, which led to an investigation by the Department of Families Fairness and Housing (“DFFH”). This incident is detailed in greater detail below.
As a result of the early 2022 school incident, the mother applied for an interim IVO against the father the following month. In early 2022, the father applied for a cross interim IVO against the mother. An ex parte interim IVO was made against the father in early 2022, listing the mother and children as protected persons, thus suspending the fathers time with the children.
In mid-2022, the mother first accused the father of sexually assaulting Y. This commenced a chain of events spanning more than two years, including numerous alleged disclosures made by Y, multiple investigations by the Department of Families, Fairness and Housing (“DFFH”), the Sexual Offences and Child Abuse Investigation Team (“SOCIT”), and Video and Audio Recorded Evidence (“VARE”) interviews. The mothers’ allegations of sexual abuse are discussed in depth under the heading ‘Allegations of sexual abuse of [Y] and the father’s allegations that the mother is influencing or coaching [Y] with respect of same’.
In mid-2022, a further interim IVO was obtained by the mother against the father.
In mid-2022, a Magistrate revoked the interim IVO against the father based on false and/or misleading evidence presented to Magistrate Parsons in early 2022 by the mother.
On 8 August 2022, the mother filed an Initiating Application in this Court seeking suspension of the parenting orders made 5 December 2019, and for the father to obtain a psychosexual assessment and report, including an assessment of the children’s risk of harm in the father’s care. In her corresponding affidavit, the mother deposed to disclosures made by Y of sexual abuse by the father, and her belief that X had been psychologically abused by the father. She asserted that the children were at risk of harm in the father’s care and sought an urgent hearing.
The father filed a Response to Initiating Application on 23 August 2022 in which he vehemently denied the allegations levelled against him by the mother, describing her application as “vexatious”. He sought the existing parenting orders be upheld, with an order for make-up time.
On 25 October 2022, the father filed an Application in a Proceeding in which he sought the children to reside with him and spend supervised time with the mother pending final hearing of the matter. Subsequently, the mother suspended the children’s Wednesday overnight stay with the father.
On 16 November 2022, interim parenting orders were made by Senior Judicial Registrar Conlan such that the children spend time with the father four nights per fortnight, and an equal division of school holiday time. As at the date of trial, these were the operative orders.
The matter came before me for final hearing on 16 July 2024, and concluded on 16 August 2024.
THE PROPOSALS OF THE PARTIES
The mother’s proposal
Prior to the commencement of the trial, the mother filed an Initiating Application on 8 August 2022 which set out the interlocutory orders sought, with a request to be excused from particularising final parenting orders until such time as the father’s psychosexual report and Family Report are available to the parties. Prior to the commencement of trial, the mother filed an Outline of Case document which set out with precision her proposed Minute of Final Orders which sought sole parental responsibility to be vested in the mother, the children live with her, and spend supervised time with the father.
At the end of the trial, the mothers proposed orders dramatically changed, and she provided a revised Minute of Final Orders, which sought joint parental responsibility, and for the children to live week about between the parties. A copy of the final orders sought are Annexure A to these reasons.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Initiating Application of the mother filed 8 August 2022;
(b)Affidavit of the mother filed 15 July 2024;
(c)Affidavit of the father filed 10 July 2024;
(d)DFFH s 67Z Responses filed 9 July 2024 and 24 August 2022;
(e)DFFH Magellan Report filed 28 September 2022;
(f)Outline of Case document filed 15 July 2024;
(g)DFFH Magellan Report filed 28 September 2022;
(h)Psychological Assessment of the mother, authored by Dr J filed 9 November 2022; and
(i)Documents tendered by counsel, including documents produced pursuant to subpoena.
The father’s proposal
Prior to the commencement of the trial, the father filed an Amended Response to an Initiating Application which set out with precision the final orders he sought, which inter alia included sole parental responsibility to be vested in the father, a change of residence, and moratorium on the mother’s time with the children.
Prior to the conclusion of trial, the father provided a revised Minute of Final Orders which sought joint parental responsibility, the children to live with the father, and for 18 months following the orders spend four nights with the mother, before implementing a week about arrangement. A copy of the final orders sought are Annexure B to these reasons. However during the final submissions of the father’s counsel, he adopted the proposal of the Independent Children’s Lawyer, except for a few minor differences, which are referred to below.
Documents relied upon by the father
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 10 July 2024;
(b)Affidavit of the father filed 10 July 2024;
(c)Affidavit of Mr L filed 12 July 2024;
(d)Affidavit of Dr J filed 9 November 2022;
(e)Notice of Child Abuse and Family Violence filed 23 August 2022;
(f)Subpoena of M Health Service filed 27 October 2022;
(g)Subpoena of N School filed 27 October 2022;
(h)Subpoena of Victoria Police filed 20 June 2023;
(i)Subpoena of E Medical Centre filed 29 June 2023;
(j)Victoria Police subpoena material filed 18 August 2023, 23 August 2023 and 17 June 2024;
(k)Magellan Family Report by Ms H filed 2 March 2023;
(l)Section 69ZW order filed 20 December 2023;
(m)DFFH s 69ZW Response filed 18 January 2024;
(n)Outline of Case document filed 15 July 2024; and
(o)Documents tendered by counsel, including documents produced pursuant to subpoena.
The Independent Children’s Lawyers proposal
Prior to the commencement of the trial, the Independent Children’s Lawyer filed an Outline of Case which set out the preliminary position, which is summarised as follows:
(a)If the Court determines that the father presents as an unacceptable risk to the children, the court will need to make orders which promote safety and ameliorate risk.
(b)In the event the Court does not find that the father presents as an unacceptable risk, and that the mother presents as a risk to the emotional and psychological wellbeing of the children the court may consider:
(i)Immediately implementing a week about live with arrangement for the children which would allow greater time with the father and the implementation of parallel parenting; or
(ii)Consider a live with order in favour of the father and that the mother’s time be reduced with risk amelioration.
The Independent Children’s Lawyer provided a final Minute of Proposed Orders to my Chambers on 26 August 2024 which sets out with precision the final orders sought and is Annexure C herein. Amongst other things, the orders proposed the father be allocated sole responsibility for the long-term parenting decisions of the children with notification provisions, and for the children live with the father and spend five nights a fortnight with the mother.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
(a)Family Report - Consultant Ms O dated May 2019;
(b)DFFH s 67Z Response released August 2022;
(c)Documents produced by Victoria Police in support of DFFH s 69ZW Report released August 2022;
(d)DFFH Magellan Report released September 2022l
(e)DFFH s 69ZW Report dated August 2023;
(f)DFFH s 69ZA Report dated January 2024;
(g)DFFH s 67ZBE Report dated January 2024;
(h)DFFH s 67ZBE Response dated July 2024;
(i)Magellan Report – Consultant Ms H dated March 2023;
(j)Psychological assessment of the mother and father – Dr J filed 9 November 2022;
(k)Outline of Case document filed 15 July 2024; and
(l)Documents tendered by counsel, including documents produced pursuant to subpoena.
CREDIBILITY OF WITNESSES
The mother’s witnesses
The mother was the sole witness to give evidence in her case. She was cross-examined by counsel for both the father and Independent Children’s Lawyer. She frequently refused to directly answer questions, was sometimes evasive, and matters that she purported to being unable to recall, despite happening relatively recently, stretched the limits of credibility. Her evidence seemed insincere and given through the prism of what would most assist her case. Such an example is her revised Minute of Orders which proposes the children spend unsupervised and overnight time with the father, despite her unwavering belief that the father has sexually abused Y. Her recollection of the alleged sexual abuse was also inconsistent, and I do not accept her to be a reliable historian. Further, the mother did not tell the truth to the Magistrate’s Court during the hearing of an application for an intervention order, as is apparent from the transcript of the proceedings (Exhibit F-1), wherein the Magistrate stated:
HIS HONOUR: I’m afraid there is a misstatement. Maybe I shouldn’t say “lie” but it appears to be a lie, that [Ms Gladstone] repeatedly told his Honour that he wasn’t supposed to be at the school, he was just turning up to harass her. He was there to pick up the children on his court-appointed time. It was a lie. There’s no other way around it.
(Emphasis added)
I do not accept the mother to be a credible witness, and where her evidence differs from the father or other witnesses, I prefer the evidence of the father and other witnesses.
The father’s witnesses
The father was the sole witness to give evidence in his case. He gave evidence and was cross‑examined by counsel for both the mother and the Independent Children’s Lawyer. He impressed as a truthful witness who provided level responses to questions and made appropriate concessions against his own interests. He clearly possesses a capacity to reflect on his own deficiencies and genuinely wants what is best for the children.
The Independent Children’s Lawyers witnesses
The Court Child Expert and Family Report writer, Ms H, gave evidence and was cross‑examined by all counsel. She was the sole witness called by the Independent Children’s Lawyer. She gave evidence about the children’s relationship with both parents, in particular the impact of the parental dynamic on the children and how the children may respond to a change in living arrangements. She presented as a highly competent professional witness, and I accept her evidence.
Tendered exhibits
The following documents were tendered during the course of the trial:
Exhibit Number
Description
M-1
Document detailing mothers position as of 16 July 2024.
F-1
Transcript of IVO hearing, page 116 of father’s trial affidavit line 20.
ICL-1
Note of the conversation between mother and X’s teacher dated May 2024. Produced via subpoena to N School, page 36.
ICL-2
Notes of M Health Service, Ms F, sessions 1 dated August 2022.
ICL-3
School records of May 2024 produced via subpoena to N School, page 35.
ICL-4
Y’s counselling notes with Ms F, dated September 2022.
ICL-5
Session notes of Y at M Health Service August 2022 (session 2).
ICL-6
Notes of GP visit in May 2023. Y, the mother, and Dr P present.
ICL-7
Ms F session notes of June 2023, session 17.
ICL-8
Notes of session Y and Ms F, October 2023.
ICL-9
Notes of consultation between Y and Ms F, dated April 2024 session 34.
ICL-10
The notes of Y’s interview with SOCIT in May 2022.
ICL-11
Page 12 of VIC police bundle (with 47 pages).
ICL-12
Pages 22 and 23 of VIC police bundle (with 47 pages). Mothers’ complaint for extension of IVO dated mid-2022.
ICL-13
MA-7 to father’s trial affidavit, email from the Independent Children’s Lawyer dated 31 May 2024 to both solicitors. Page 130 of father’s trial affidavit.
THE APPLICABLE LAW
This case was heard after the enactment of the Family Law Amendment Act 2023 (Cth). The legislative changes therefore apply to this case and the consideration of best interest factors below reflects the relevant legislation as at the date of final hearing.
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The mother and father relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the court must regard the best interests of the child as the paramount consideration when making parenting orders.
Section 60CC of the Act sets out how the court is to determine what is in a child’s best interest by reference to general considerations (s 60CC(2)). Section 60CC(2) sets out a non-hierarchical list of considerations which I must take into account. These include arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child; and each person who has care of the child, any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child, the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs and the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
When considering those matters, the court must include consideration of any history of family violence abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and any family violence order that applies or has applied to the child or a member of the child’s family.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
Abuse in relation to a child is defined in s 4 of the Act and includes an assault, including a sexual assault, of the child; or involving the child in a sexual activity in which the child is used directly or indirectly as a sexual object or causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or serious neglect of the child
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
How the Court approaches allegations of sexual abuse
One of the focuses of this dispute, was the mothers’ allegations the father has sexually abused Y, although she conceded that the evidence does not support a finding that the father is an unacceptable risk due to sexual abuse. Notwithstanding these allegations of sexual abuse, the court’s obligation is to determine what orders are in the children’s best interest.
The High Court in M v M (1988) 166 CLR 69 (“M v M”), at 76 said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interest of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abuse by the parent whom seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive impact, on the resolution of that issue.
In M v M, at 76, the High Court also said it is not necessary to resolve in a definite way the disputed allegations of abuse, although in appropriate cases the court can and should make such findings.
…But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
(Citations omitted)
Turning now to the general considerations.
GENERAL CONSIDERATIONS
What arrangements would promote the safety of the children
Both parents allege safety concerns for the children in the other parents’ care. The main issues identified in these proceedings relevant to this consideration are:
(a)Incidents of family violence and family violence proceedings as deposed to by both parents.
(b)The mother’s contention the father has engaged in coercive and controlling behaviour, including following her and pressuring X to monitor her conduct;
(c)The mothers’ concerns regarding Y’s disclosures of sexual abuse perpetrated by the father, noting that she concedes the father does not pose an unacceptable risk of harm to the children, but maintains her allegations against him are not groundless and continues to believe the father has sexually abused Y;
(d)The father’s allegation the mother is influencing or coaching Y with respect to her disclosures, in which Y has been exposed to a plethora of interviews including numerous attendances upon SOCIT and DFFH who report concerns regarding possible coaching by the mother in circumstances where the disclosures have been fully investigated and not substantiated.
(e)The mother’s unilateral suspension of the father’s time with the children on multiple occasions and her inability to promote a relationship between the father and the children, which poses a risk of psychological and emotional harm to the children;
(f)The emotional harm to both children due to the ongoing and unrelenting parental conflict.
I will now consider the above safety concerns.
Allegations of family violence
In early 2022, DFFH investigated protective concerns about the children, following the early 2022 school incident, in which both parents attended changeover, and the police were called to mediate between them.
The DFFH substantiated harm on the basis of emotional and psychological harm to the children being exposed to “the high levels of parental acrimony”, and safety planning was completed to prevent further conflict at the childrens school. The case was closed in April 2022.
Subsequently, three further reports were received by DFFH relating to the risk of parental conflict and allegations of family violence, which were pursued by the parents in the Magistrates Court in the context of IVO proceedings.
In March 2022, the parents sought cross interim Intervention Orders. The allegations pertained to each parents’ inappropriate behaviour at changeovers, the fathers allegedly controlling behaviour which also included allegations of him monitoring the mothers’ movements via X, and the fathers alleged sexually inappropriate behaviour towards Y.
In mid-2022, a further interim IVO was obtained by the mother against the father.
Exhibit ICL-12 is the Victoria Police Sub-Incident Summary Report dated August 2022. The document summarises the basis of an application for an IVO brought by the mother against the father. The mother alleges numerous serious acts of family violence perpetrated by the father. These include, amongst other things, the father allegedly pushing her to the ground in 2019, manipulating X, controlling all financials including child support payments, threatening, and bulling her via text message, keeping her under surveillance, cutting off an animal’s head, beating dogs, and controlling and dominating her movements.
The IVO was contested in mid-2022, and subsequently revoked by the Magistrate due to false and/or misleading evidence presented to another Magistrate in early 2022 by the mother. The Family Report of Ms H at paragraph [15] indicates that at the time of writing, the parents had no intention of applying for another intervention order.
Regarding the mother’s allegation the father was cruel to animals, had chopped off an animal’s head, and hit their dogs, during cross-examination the father admitted that he “wacked [the dogs] on the butt”, but vehemently denied ever cutting off an animal’s head. He explained that he had “knocked [an animal] on the head” on behalf of a friend as it was unwell and he had done so to do put it out of its misery. Whilst the father’s conduct was highly unpalatable, I accept his explanation.
The mother also alleged the father had drawn pictures of her house being crushed by a car. This picture was called for, but unable to be produced. When asked by counsel for the mother about these drawings during cross-examination, the father gave evidence that during his telephone time with the children he would draw pictures, and as X was interested in monster trucks, had drawn pictures of a car and house being crushed. I prefer the evidence of the father to the mother on this issue, because of the above identified issues impacting the mother’s credibility.
The mother also sought to attribute blame to the father for the early 2022 school incident. As identified by the Family Report writer, the mother purported to be a passive bystander while the maternal grandmother and father verbally abused each other. The mother’s account of the incident is in stark contrast with the school notes, which referred to the mother and maternal grandmother recording the incident on their mobile phones, shouting at the father, and accusing him of stalking the mother. Despite the mother actively deciding to attend school on a day on which the father was due to collect the children, she told the Family Report writer that she felt uncomfortable in the father’s presence. Because of the mother’s lack of candour about this incident in the IVO proceedings, the objective evidence of the school records and the finding of the presiding Magistrate in mid-2022, I accept the father’s version of events and reject the mothers. Her alleged discomfort and fear of the father is entirely inconsistent with her voluntary attendance at school on a day when she knew the father would be attending to collect the children.
The recent allegations of family violence have arisen primarily in the context of disputes around the interpretation of orders for the children to spend time with the father, the mother’s unilateral withholding of the children for extended periods, and disputes at changeovers.
The orders which I propose to make will address problematic changeovers and will clearly and comprehensively define the time the children are to spend with each parent which will reduce the opportunity for conflict and disputes about interpretation of orders.
I turn now to the mothers’ allegations about the fathers alleged coercive and controlling behaviour.
The mother’s allegations about the father’s coercive and controlling behaviour
The mother asserts the father had engaged in coercive and controlling behaviour, which include monitoring her movements, filming her with a dashcam, and adversely influencing X to monitor her alcohol consumption.
The mother’s complaints stem from 2022, when she alleged the father followed her by knowingly attending venues she frequented, including a fish and chip shop. She also complained the father engaged in antagonistic behaviour when he saw maternal family members at local venues, monitored her movements, and filmed her with a body camera attached to him.
The father was cross-examined about these allegations. His evidence was that the fish and chip shop is about one and a half kilometres from his house, and six kilometres from the mother’s house. He denied following the mother but conceded on the way home from dropping off the children on a Sunday, he may have called in at the fish and chip shop. He expressed surprise as to why the mother would have been there, because it was in the opposite direction from her home. He denied asking X to report about his activities and his mother’s home, other than neutral comments about whether he had a good time and what he did. According to the father, the children raised the issue of the mother’s alcohol consumption because the children told him that they frequently go to the bottle shop with their mother. He also vehemently denied any suggestion of wearing a body camera, stating he “would not even know where to buy one from”.
The mother also considers X has been influenced by his father, and that since about late 2021, she has noticed X became aggressive with her upon return from spending time with his father. She alleges X became more withdrawn, would refuse to hug or be affectionate with her, defensive if she asked about time with his father, and defiant and withdrawn from his maternal family.
In February 2022, the mother looked at X’s diary, in which she said there was a floorplan of her home including living areas and bedrooms and that the book was titled “[X] planning book. No mum. No [Y]”. As outlined above, she also said the father had drawn pictures of her house being crushed by a truck.
According to the father’s evidence during cross examination, the alleged floorplan drawing of the mother’s home in X’s diary was discovered by the mother in February 2022, during a period when the father had no contact with the children, and it would been impossible for him to have influenced the child at that time. The father also expressed surprise as to why the mother had not mentioned finding the diary in February 2022, at an earlier stage in the proceedings. The father’s evidence about the children’s time being suspended in February 2022 was incorrect, as time was suspended at a later time when the mother obtained an ex parte interim IVO against the father, and in May 2022.
Counsel for the mother put to father that she had suspended his time with the children in May 2022, and according to the mother the diary was discovered by her in February 2022, prior to suspension of time. The father’s response was he did not believe the diary was discovered in February 2022, as asserted by the mother, because it was not raised by anyone in the proceedings until August 2022. I prefer the father’s evidence about the date of the mother’s discovery of the diary, because it is inconceivable that she would not have raised it in the IVO proceedings prior to August 2022, some six months after she allegedly found the diary.
Notwithstanding the date on which the mother discovered X’s diary, I agree with Ms H’s opinion that the contents of the diary “seem beyond what would be expected of a child of his age and developmental understanding. The list of tasks of what and how to monitor his mother’s movements seem only to have been influenced by an adult, rather than an eight or nine-year-child’s own thought processes and beliefs”.
The father’s response to cross-examination about his alleged recording of the mother was credible. He agreed he had produced audio recordings of the mother to the Magistrates Court in 2019, because nobody seemed to believe that the mother became very aggressive at changeovers, and he did so to protect himself. He said every time the mother began to be aggressive, which was on about ten or fifteen occasions, he recorded the mother. He agreed in the seven years since separation he had probably recorded changeovers with his dashcam for this reason on about 30 to 40 occasions, and on his phone a further ten to fifteen occasions. He said he installed a dashcam in his car when he moved to a more remote location and began driving longer distances.
I do not consider the father’s recording of his interactions with the mother could be considered coercive, and I accept his evidence about the necessity for same in the face of the mother’s aggressive behaviour. The mother’s behaviour at the early 2022 school incident, was clearly aggressive, and she was the instigator, contrary to her version of events. There are also recorded incidents of aggression and unacceptable conduct between the mother and X’s class teacher, which are referred to below.
I now turn to the mother’s allegations that the father has sexually abused Y.
Allegations of sexual abuse of Y, and the father’s allegation that the mother is influencing or coaching Y with respect of same
The mother gave evidence during cross-examination that she believes the father has been sexually abusing Y since she was in daycare, however, has not wanted to jump to conclusions because “it’s a scary thing”. These allegations are vehemently denied by the father and have been investigated by both SOCIT and DFFHS and have not been substantiated.
In her affidavit filed 15 July 2024, the mother provides a narrative of the alleged disclosures.
The first alleged disclosure occurred in May 2022. According to the mother, at around 10.00 pm Y woke up and the mother took her to the toilet. As she tucked her back into bed Y said words to the effect “I have a sore bum, mum”. She then went on to say words to the effect of “daddy hurts me in the shower”. The mother then asked Y if the father was wiping her too hard with a towel, whereupon Y put her fingers down near her vagina and wiggled them prior to saying “daddy put his fingers at my bum… Front and back”.
The following day, after informing the maternal grandparents of the alleged disclosure, the mother and maternal grandmother reported the disclosures to police at the Suburb C Police Station. The children were scheduled to spend time with the father in May 2022, however the mother suspended the father’s time with Y.
In May 2022, the mother received a telephone call from SOCIT to arrange an appointment for Y to be interviewed. That interview occurred in May 2022, and Y did not make any disclosures. The interview and the mother’s (RP) reaction is referred to in the police case progress narrative (Exhibit ICL-11) as follows:
Disclosure interview conducted at the Suburb Q SOCIT [in May] 21. AFM did not disclose any sexual offending and spoke highly of the Resp. AFM and RP already engaged with EDVOS and appropriate counselling services. When advised that AFM did not make disclosures of sexual offending the RP appeared disappointed.
According to the mother, on 13 May 2022 Y woke in the early hours of the morning screaming, and when asked by the mother what was wrong:
… she pointed to her vulval area and said words to the effect of “dad put his fingers down there and twinkles under my leg. Daddy wants to keep secrets from me, and [X] wants to keep a secret. Daddy always plays with my bum at the back and the front. He sticks his finger in, not inside but in.
When the mother asked Y how that made her feel, the mother asserted Y said words to the effect of:
Daddy sticks his finger in my bum. I tell daddy to stop, and I can’t remember what he says.
On 15 May 2022 Y again woke during the night and the mother’s evidence was “she was half awake and talking about the father touching her bottom”.
On 16 May 2022 Y again woke around 1.00 am and was wide-awake when she said to her mother words to the effect of “Daddy puts his fingers there” and pointed towards her vulva while wriggling her fingers. She then proceeded to stick her fingers up her vagina and said, “daddy goes boom, boom, boom”. Y was apparently thrusting her hips and making a grunting noise prior to saying, “Daddy put his doodle on me, it only happens in the night”.
The mother then attended SOCIT in May 2022 to provide an update about Y’s disclosures. She was informed by a police officer that Y could be interviewed once again, but that the mother should be mindful of the effect on Y of repeated interviews. The mother apparently decided that it was in Y’s best interest not to be further interviewed by the police at that stage.
The mother’s attendance at SOCIT in May 2022 is also referred to in Exhibit ICL-11.
The concluding remarks of the case progress narrative are:
Given the recorded history of the RP and Resp and that the initial allegation on this occasion have not been disclosed by the AFM there is no concerns for the welfare of the AFM.
Existing active cross order IVO is in place which are suitable. Nil requirement for amendment.
Subsequently, the mother arranged for Y to consult a counsellor, Ms F. The first session was in August 2022. The notes of the session are Exhibit ICL-2.
The notes refer to Y’s alleged disclosures of 7 May 2022. The notes record that when asked by Ms F if there was any penetration, the mother told Ms F that there was “no insertion”. That version of events is contradictory to paragraph [29] of the mother’s affidavit filed 15 July 2024, which Y allegedly said:
Daddy put his fingers up my bum… Front and back.
During cross-examination, the mother attempted to explain the inconsistency by saying she did not think it was appropriate to talk to Y’s counsellor about this, and she did not want to give Ms F too much information, in case she hindered the process for Y, and she was told “not to say too much”. The mother was unable to provide an explanation why she had not told the “truth” to the child’s counsellor, when she had been specifically advised not to hinder the process for her daughter.
In August 2022, DFFH investigated allegations that Y was sexually abused by her father in May 2022. The sexual abuse allegations pertained to the father allegedly sticking his fingers in Y’s bottom and rubbing her vagina. SOCIT confirmed to DFFH practitioners, that no disclosure of sexual abuse had been made by Y during her interview in May 2022. Y had reported her bottom was sore after having been constipated, and she stated that no one had touched her inappropriately, and that she wanted to spend overnight time with her father. During interviews conducted by DFFH practitioners, X and Y did not raise any concerns about their time or relationship with their father, both wanted to see him again, and did not understand why that was not occurring. DFFH closed its investigation in September 2022 and again reiterated its concern about the potential of cumulative chronic emotional harm, and the subsequent harm this has on the children from being exposed to parental acrimony. Recommendations were made for the children to resume spending time with their father.
Y attended further sessions with Ms F during 2022.
The notes of the second session with Ms F in August 2022 are Exhibit ICL-5. The notes refer to a conversation between Ms F and Y about bath routines and body safety education. When asked by Ms F if there were any times that anybody had touched her looked or taken photos of her private parts, Y responded none of the things mentioned had happened to her.
During Y’s seventh session with Ms F in December 2022 (Exhibit ICL-4), the notes record:
The client stated that her and her [mother] have private conversations about the [father] hurting her and that her brother never gives them private time to talk together.
During the same session, Y also told Ms F she had injured her knee on the trampoline when her father accidentally kicked her in the leg whilst playing “the jump game”, before stating that her mother would be “really proud of her for sharing that information”. Y said she didn’t want Ms F to tell anyone because she didn’t want to get her father into trouble for accidentally hurting her.
In May 2023, Y allegedly made another disclosure to her mother that her father had put his fingers in her “bum or front bum”. Y was interviewed by SOCIT in May 2023, and the case was closed the following day.
In May 2023, the mother took Y to a consultation with her GP, Dr P. The notes of the consultation are Exhibit ICL-6. The reason for the consultation was that Y experiencing burning when she passed urine, and she was itchy in her genital region. The notes state that a history of worms had been reported at her school. During the consultation, the mother went with Y to do a urine sample and Y apparently returned to the consultation happy and smiling.
The notes record the mother asked Y if she had something else to tell Dr P, whereupon Y said “yes” and “my dad put his fingers down there” and then pointed to her underwear. Y said, “he put it inside at night when she is in her bed” and she was awake. When asked how that makes her feel, she answered it hurt. She pointed to her right index finger as the finger used by her father. Y said he did not do anything else, and she asked him to stop, although she did not know what he answered to her request. Y said it happened a lot, and when asked whether anyone had asked her to say that, or if it had actually happened, Y said it had actually happened. The mother was present during the conversation and was listening. Dr P advised the mother that DHHS would be contacted.
Dr P then recorded:
[Y] mentioned at the end that she will be staying today with grandmother as mother has meeting and mother said that she will go to Kmart to get present for been [sic] brave enough today to tell me.
When cross-examined about buying a present for Y as a “reward” for making a disclosure, the mother denied that had occurred and said the reward was for Y urinating in a cup to provide a sample.
In June 2023, during the 17th session with Ms F, Y allegedly made another disclosure to Ms F, which was reported to child protection. The notes of Y’s consultation with Ms F on that day is Exhibit ICL-7.
The notes state as follows:
Client stated that she wanted to talk about something that happened at her dad’s house. Client reported that her dad stuck his finger in her bum in the shower. Writer asked the client when this occurred? Client replied saying “I don’t know I forgot”. Writer asked the client if any place on her body hurt when it happened? Client responded yes. Writer asked if there was anything she could recall her or her father saying during the incident? Client responded “I don’t know”. Writer asked what happened before the incident occurred? Client responded “I don’t know”. Writer asked what happened after the incident? Client replied that her dad got her dressed and brushed her hair. Writer asked if anything happens after the shower? Client responded no. Writer asked the client if there was anyone else in the home at the time? Client reported that her brother [X]was in the home but stated that he didn’t know.
…
Writer asked the client when she was seeing her Dad next and the client responded today. Writer asked the client how she was feeling about going to her dad’s tonight and the client replied saying “kind of good”. Writer followed up and asked the client to tell her more and the client responded that she still wants to go to her dad’s house. Writer asked what she enjoys about her dad’s house? Client stated that she enjoys playing board games, going to the lolly store, playing on the trampoline, and kicking the footy with her dad and brother [X].
Subsequent to the alleged disclosure to Ms F, DHHF received a report (June 2023) and the report was closed at the intake phase without investigation.
In May 2023 a VARE interview was conducted at Suburb Q SOCIT with Y, which was attended by DFFH practitioners. According to the s 69ZW report dated August 2023, Y disclosed she had experienced sexual harm by her father, with him reportedly inserting his finger inside her anus when she was in the shower and bedroom, which hurt her. Y disclosed that the incident occurred “last Wednesday”, however she was not able to provide any additional information or context. After two hours of interviewing, Y’s engagement with the VARE ended, and a supplementary interview was organised for June 2023.
In June 2023 during the second VARE interview, Y stated her father had inserted his finger into her vagina and then appeared to shut down. When asked clarifying questions, she was unable to provide any context surrounding her disclosures.
It was noted there were inconsistencies in Y’s original disclosures, changing from her father digitally inserting his finger into her anus, and then to her vagina. Y was unable to state whether she meant the incidents happened during the one reported incident, or on different occasions. Y had previously demonstrated she was able to articulate the anatomy and physiology of the vagina and anus, as evinced by the notes of Ms F.
In June 2023, the father was interviewed by DFFH and denied the allegations made by Y.
In June 2023, both Y and X were interviewed at school by DFFH and Y repeated that she had been sexually harmed in the bedroom by her father and that he “puts his finger in my bum”. Y was unable to outline any further context or details to the disclosure.
In October 2023, Y made a further alleged disclosure to Ms F, during their 26th session. The notes of the session are Exhibit ICL-8 and state as follows:
Client stated that she wanted to tell the writer something that happened at her dad’s house on the weekend. Client reported that her dad rubbed her body hard in the shower. Writer asked the client to point to the area where dad was rubbing? Client pointed to her thighs/leg area. Writer asked the client if dad was using a sponge or soap to wash her? Client responded “I don’t know” and proceeded to tell the writer that dad also came into her bedroom and put his fingers in her front bum. Client reported that she was asleep when this happened. Without prompting, client reported that she didn’t know the time of day/or what day the incident occurred. Explored body parts. Client was able to identify and label the different body parts and referred to the vagina as “front bum” and “vagina”.
Client reported that she didn’t see the person’s face because she was asleep but stated that “she knows it was her dad and not her brother [X] because he wouldn’t do that”. Writer asked the client if she heard anything around her at the time? Client reported hearing “thumping and walking” noises outside of her room. Writer asked the client of any place in her body hurt when it happened? Client responded that she didn’t feel anything because she “was asleep and didn’t wake up” but remembers that she felt “scared”. Writer asked if there was anything she could recall her or her father saying during the incident? Client responded, “no one said anything”.
The notes conclude by stating Y appeared to have a positive affect during the duration of the session, and a neutral affect when making a disclosure. She also seemed upset when discussing the possibility of having time apart from her father.
In April 2024, Y again attended a session with Ms F. The notes of the session are Exhibit ICL‑9. The notes state:
Client reported at the end of session that she felt scared about something that happened at her dad’s. Client reported that she was in her room sleeping and looked at the front of her door and saw her dad walking. Client reported feeling scared and asking her dad “why you at my front door” and stated that dad replied “it was a ghost”. Client reported that dad did not enter the room and stated that she forgot what else she was meant to tell me.
(Emphasis added)
In May 2024, the mother again took Y to the Suburb Q SOCIT, because Y had allegedly disclosed her father had digitally penetrated her. Y was interviewed by VARE and did not disclose any offences. According to the mother, Y was interviewed for about an hour. The mother denied Y was supposed to make that disclosure to Ms F in April 2024, but had failed to do so. In May 2024, child protection received a secondary report raising concerns after it was alleged that the mother messaged the father informing him that Y made a disclosure that she was raped by him. The s 67ZBE response dated July 2024 states that “there were concerns about the emotional impact on [Y] and further, that allegations were made that [the mother] may be coaching [Y]”.
The mother was cross-examined about Y’s alleged disclosures of sexual abuse. In relation to the alleged disclosure in May 2023, she professed to be unable to recall what Y said to her and was unable to recall whether Y was able to provide any context. She was also unable to recall whether a further interview of Y by SOCIT, which occurred in June 2023, was about the May 2023 disclosure or a subsequent disclosure. I find it to be highly implausible, that the mother would be unable to recall germane details about relatively recent conversations with her daughter, about such serious alleged sexual abuse.
The mother denied encouraging Y to make disclosures to Ms F, or that she was making up the sexual abuse allegations. When asked why she had not told the truth to the Magistrates Court during the IVO proceedings, which was subsequently described by a Magistrate as lying, her only explanation was she was under duress and had a lot going on.
I do not accept the mother’s denials about discussing the sexual abuse allegations with Y or that she did not encourage the child to make disclosures. The notes of Y’s numerous consultations with Ms F and the notes of the consultation with Dr P, clearly demonstrate Y was prompted and rewarded to make disclosures to these professionals. The mother did not require either professional to be available for cross-examination, and I therefore accept the notes of the consultations, which are exhibits in the proceeding, as unchallenged evidence. I find the mother did discuss the allegations with Y and encouraged her to make the allegations to various professionals.
The mother was also cross-examined by counsel for the Independent Children’s Lawyer about her actions or rather lack thereof, after Y’s alleged disclosure of 16 May 2022, where Y said her father “put his doodle on her”. The mother could not provide any explanation why she had not pursued this allegation with the police, when she attended SOCIT in May 2022, given the gravity of the allegation and that it was the first time Y had mentioned her father’s doodle. The mother attempted to say the police told her to be mindful of trauma, and not expose Y to further interviews. I find the mother’s explanation completely implausible
In September 2022, the father underwent a psychosexual assessment by Dr J. A copy of his report is annexed to his affidavit filed 9 November 2022. Dr J was not required for cross‑examination, and I accept his evidence as unchallenged. He is an expert well known to the court and is highly professional.
In his report, Dr J concluded at [118] and [119];
The evaluation assessed psychosexual risk factors in relation to the father. Taking into account the lack of clarification of the allegations, the RSVP estimated [Mr Ashford] at low risk for sexual offending in general, and at low risk for sexual offending against his children, and specifically [Y], taking into account that the RSVP does not categorise individuals as “no risk”.
Parenting risk was also assessed via the FSNA and [Mr Ashford] was found to be at low parental risk for abuse or neglect.
After carefully and extensively considering the chronology of the alleged disclosures, the surrounding circumstances and all other relevant evidence, I conclude and find that the father has not sexually abused Y, and the mother’s allegations are groundless. The following factors inform my finding:
·Both SOCIT and DFFH have investigated the many allegations, and the allegations of sexual abuse have not been substantiated;
·In the s 69ZW report dated January 2024, DFFH stated it did not hold concerns for the children in the care of either parent;
·Y’s alleged disclosures have been made to her mother and to professionals, at other times, in the presence of her mother;
·the mother has attempted to reward Y for making disclosures to Dr P;
·Y’s discordant presentation to Ms F when making alleged disclosures;
·Y’s comments to the Family Report writer in February 2023, that no one had touched her inappropriately or in her “privacy” areas;
·There are significant inconsistencies in the alleged disclosures;
·Y has been unable to articulate any context to the alleged abuse;
·The mother’s insincere and unconvincing denials during cross-examination, that she has not discussed with Y the sexual abuse or has encouraged or coached Y to make the alleged disclosures;
·The mother’s failure to explain inconsistencies in her past descriptions of the alleged abuse, including the mother’s account to Ms F that there was no penetration, and her evidence in her affidavit of 15 July 2024 at paragraph [29] that there was penetration;
·Y’s statements made to Ms F about wanting to spend time with her father;
·Ms F confirmation to DFFH that Y has no concerning or inappropriate sexualised behaviours or indications of trauma caused by sexual abuse;
·The observations of the Family Report writer of the positive and obvious relationship between Y and her father;
·The school’s advice to child protection in 2024 that there were no concerns, no noted change in the children’s behaviour, and the children presented as happy and settled in class;
·The psychosexual report completed by Dr J in 2022, concluded the father was at low risk of sexual offending in general and at low risk for sexual offending against his children, specifically Y;
·The mother’s obvious desire to limit and suspend the father’s time with the children and to impede the children’s relationship with the father, as referred to when considering the mother’s parental capacity;
·The mother’s concession that there is no evidence to support her allegations the father poses an unacceptable risk to the children;
·The mother’s final proposal for the children to live week about with each parent, is inconsistent with allegations the father has sexually abused Y.
The mother’s unilateral suspension of the childrens time with the father and her inability to promote and facilitate a relationship between the children and the father
I consider below, in the context of the mother’s parental capacity, the unilateral and prolonged suspension of the children’s time with the father. As identified in the Family Report and in Ms H’s oral evidence, the suspension of time has had a deleterious effect on the children, and in particular X, and may be viewed as posing an emotional and psychological risk to the children. I also refer to the mother’s inability to promote and facilitate a relationship, in my consideration of parental capacity and the benefit to the children of a meaningful relationship with both parents.
The parental conflict
As identified by Ms H, each parent blames the other as the instigator of all family conflict. Neither parent demonstrated significant insight or was really prepared to accept responsibility about their own actions and behaviours in the parenting dispute.
Ms H stated the mother was reluctant to share information about her own actions and behaviours in the parenting dispute, and deflected questions put to her about her reported and alleged past behaviour, whilst placing all blame on the father.
Notwithstanding her failure to accept responsibility, the mother said to the Family Report writer that it would be “traumatic and upsetting” for the children to be exposed to high parental conflict and to spend no time with their father for six months in 2022. When questioned, the mother was unable or unwilling to reflect on her parenting behaviours and responses and how they have contributed to the parental conflict and to identify what impact that may have had on the children at their ages and stages of development.
Ms H concluded at paragraph [82] of the Family Report that the mother would need to learn to separate her own needs from the children’s needs, and to develop insight into the effects of her behaviours and responses on the children. That would include an understanding about how children’s exposure to parental conflict manifests in children and particularly in the emotional and behavioural visitations and development, as well as their relationship with each of their parents, siblings and peers.
Similarly, according to Ms H, the father feigned ignorance about any aspects of his parenting and behaviour that may have contributed to the parental conflict. He placed all blame on the mother for withholding the children for a total of 97 days (up until the date of the Family Report). He considered the mother was solely to blame for the children’s exposure to parental conflict, and that the conflict mainly related to her resistance to allow the children to spend time with him for reasons unknown to him. He considered the parental conflict was “hard” for the children and expressed concern about their emotional development in the future, such as whether they would develop “hatred” for one of their parents, and what affect the current situation may have on the children’s future ability to enter intimate relationships.
Ms H stated that the father was also unable or unwilling to reflect on his own contributions to the parental conflict, however subtle they may be. She noted that he appeared to be more considerate than the mother of the children’s developmental needs and of identifying the positive aspects of the children’s relationship with their mother.
Because I intend to make orders providing for the children to primarily live with their father and spend five nights a fortnight with their mother, as proposed by counsel for the Independent Children’s Lawyer, I consider in the circumstances of this case, that the father should have sole responsibility for long-term decision-making, subject to the notification provisions, as proposed by the Independent Children’s Lawyer.
In the context of the parental conflict, and the mother’s fervent belief that the father has sexually abused Y consistently and over a protracted period, it is inconceivable that the father should have to communicate and enter discussions with the mother, while she still holds those fervent beliefs. To make orders providing for joint decision-making would invite further conflict, disagreement, and disharmony which would undermine the children and have an adverse effect on their emotional and psychological well-being.
I will therefore make an order for decision-making in accordance with the proposal of the Independent Children’s Lawyer. The father should advise the mother in advance of any such decisions he proposes to make and take into consideration her response because the children will be in her care for five nights a fortnight. I note the father adopted the proposal of the Independent Children’s Lawyer.
Orders to be made
I will make orders in accordance with the proposal of the Independent Children’s Lawyer so that the children will live primarily with their father and spend five nights a fortnight with their mother during term time. Provision will also be made for special occasions and for shared holiday time in accordance with that proposal. The parties also agreed to the children attending B School for their high school education, changeover at a police station, if not effected at school, to communicate via a parenting app, for the children to attend an agreed GP medical clinic and to obtain a passport for the children. I will make orders accordingly.
Both counsel for the father and the mother did not substantially quibble with the ancillary proposals of the Independent Children’s Lawyer other than in a minor fashion.
The areas of disagreement are as follows:
(a)Proposed Order 5(f), where the mother seeks orders for time between the children and each of their parents on everybody’s birthdays, for two hours on a school day and for hours on a non-school day. The father did not object to that amendment which I consider appropriate.
(b)Proposed Order 31, where the father seeks to limit the mother’s travel with the children so that she is not entitled to travel overseas with them. There were no submissions by the father that the mother posed a flight risk via overseas travel, and I do not intend to amend the order is sought by the father.
(c)Proposed Order 31(b), the mother proposed that each parent would provide the information specified at least 45 days prior to departure. The father agreed with the amendment;
(d)Proposed Order 38, the father proposed that each party also be at liberty to provide a copy of the orders to the child support agency and Centrelink, and there was no objection by either the mother or the Independent Children’s Lawyer;
All parties agreed that a standing recovery order be made in respect of the children in the event the mother is in breach of an order to return the children to the father’s care, with the order to remain in the registry until activated. As foreshadowed above, there may be difficulties in ensuring the transition of the children from their mother’s care to their father’s care and compliance with court orders, which would require a recovery order. I will make this order.
The mother also agreed to attend upon a psychologist, as proposed by the Independent Children’s Lawyer. The purpose of her attendance is to assist her to with the findings of this court and that the father has not sexually abused Y. The order has been expressed as a precondition to the children spending time with her, so as not to render the order ultra vires.
Both parties agreed with the proposal of the Independent Children’s: Lawyer to engage a parenting coordinator but were concerned about the expense. I have therefore amended the order proposed by the Independent Children’s Lawyer to include a provision which takes into account the financial impost.
For all of the foregoing reasons, I made the orders as are set out at the commencement of these reasons.
I certify that the preceding two hundred and thirty-eight (238) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 6 November 2024
ANNEXURE A
Mothers Final Minute of Proposed Orders
THE COURT ORDERS THAT:
1.ESPR
2.The children live week about between the parents, changeover Friday to and from school.
3.Both children be enrolled in B School for Secondary schooling.
4.The children both attend upon an agreed GP - other than Dr P.
5.Holidays be equally shared with specific times and dates for changeovers.
6.The children attend for counselling and the counsellor have a copy of these orders and the Family report and the ICL’s case outline.
7.Y continue to attend upon Ms F
8.Then parents utilise APP Close for all parental communication,
9.The parties engage a parting co-ordinator nominated by the ICL at equal shared cost.
10.The ICL explain these orders to the children.
11.Standing recovery order for the children to be returned to the Father’s care should the mother overhold.
12.The Father have liberty to apply at short notice to Justice Williams in the event of overholding by the Mother.
ANNEXURE B
Fathers Final Minute of Proposed Orders
THE COURT ORDERS THAT:
1.That the parent’s have joint responsibility for long term decision making for the children X, born 2013 and Y, born 2017.
2.That the children live with the Father for 18 months from the date of these orders.
3.That for 18 months from the date of these orders the children spend time and communicate with the Mother:
(a)Every alternate weekend from Friday at the conclusion of school until the commencement of school the following Monday, commencing 19/07/24;
(b)Every alternate Thursday from the conclusion of school until the commencement of school Friday or 9am if Friday is a non-school day;
(c)For half of all term school holidays as agreed but in default of agreement the first half in odd numbered years and the second half in even numbered years and the holidays are deemed to commence at 10 am the first Saturday, the first half is deemed to end at 10am the second Saturday and the holidays are deemed to end at 10am on the third Saturday.
(d)For alternate weeks over the long summer school holidays commencing as agreed but in default of agreement the first week in odd numbered years and the second week in even numbered years and the holidays are deemed to commence at the conclusion of school on the last day of term and conclude at 10am on the day before students attend school in the new year.
(e)On the Mother’s and children’s birthdays for 3hours if on a school day as agreed but in default of agreement from the conclusion of school until 6.30pm and for 5 hours if on a non-school day as agreed but in default of agreement from 10am until 3pm;
(f)From 5pm the day prior to Mothers’ Day until 5pm on Mothers’ Day;
(g)From 2pm 25/12/24 until 2pm 26/12/24 and similarly every alternate year thereafter;
(h)From 2pm 24/12/25 until 2pm 25/12/25 and similarly every alternate years thereafter;
(i)From conclusion of school Maundy Thursday 2025 until 10am Easter Saturday and similarly every alternate year thereafter;
(j)From 5pm Easter Saturday 2026 until 5pm Easter Monday and similarly every alternate year thereafter;
(k)By telephone at 5pm every Saturday the children are not in her care;
(l)Otherwise as agreed in writing between the parents from time to time.
4.That the children’s time with the mother in 3(a), (b), (c) and (d) above be suspended:
(a)On the Father’s and children’s birthdays for 3hours if on a school day as agreed but in default of agreement from the conclusion of school until 6.30pm and for 5 hours if on a non-school day as agreed but in default of agreement from 10am until 3pm;
(b)From 5pm the day prior to Fathers’ Day until 5pm on Fathers’ Day;
(c)From 2pm 24/12/24 until 2pm 25/12/24 and similarly every alternate year thereafter;
(d)From 2pm 25/12/25 until 2pm 26/12/25 and similarly every alternate year thereafter;
(e)From conclusion of school Maundy Thursday 2026 until 10am Easter Saturday and similarly every alternate year thereafter;
(f)From 5pm Easter Saturday 2025 until 5pm Easter Monday and similarly every alternate year thereafter;
(g)For telephone calls every Saturday at 5pm;
(h)Otherwise as agreed in writing between the parents from time to time.
5.That changeover when not occurring at school shall be in the foyer of the Suburb C Police Station.
6.That at the expiration of the 18-month period in order 2 above:
(a)The children shall live with each parent on a week about basis with changeover to occur on Fridays at the conclusion of school;
(b)Orders 3(c) to (k) inclusive and orders 4(a) to (g) inclusive shall continue in full force and effect as if the children were still living primarily with the Father.
7.That the children continue to enrolled in their current school and from 2025 X be enrolled in B School.
8.That the children attend D Medical Centre while living the Father and Dr P when living with the Mother.
9.That the parents communicate by text message in respect of parenting matters.
10.That the parents engage a parenting co-ordinator nominated by the ICL at their joint expense, if they are able to afford to do so.
11.That the ICL explain these orders to the children.
12.That a recovery order lie in the Melbourne Registry of the FCFCOA and that in the event the Mother overholds the children:
(a)The children be returned to the Father’s care; and
(b)The Mother’s time with the children is suspended until further order of the Court.
13.That the Father have liberty to apply to Justice Williams with an abridgement of time in the event that the Mother:
(a)Overholds the children; or
(b)Permits Y to be interviewed by any authority, in particular SOCIT and DFFH in respect of any disclosures made by the child of sexual abuse perpetrated by the Father.
14.That orders 3 and 6 above are conditional upon the Mother attending upon a psychologist at least fortnightly for 2 years to assist her with dealing with her fixed belief that the Father has sexually abused Y.
15.That each parent notify the other as soon as practicable of any serious injury or serious illness suffered by the children or either of them and notify the other parent of the names and contact details of any treating health practitioners and authorise such practitioners to liaise with the other parent and this order is deemed to constitute such authority.
16.That each parent shall notify the other of the names and contact details of any of the children’s regular treating health practitioners and authorise such practitioners to liaise with the other parent and this order is deemed to constitute such authority.
17.That the parents ensure that the children continue with their current counsellors until directed otherwise by the counsellors.
18.That each parent be at liberty to attend all school, sporting and other extracurricular events to which parents are invited.
19.That each parent receive all school notices, reports and similar documents from the children’s schools.
20.That the Mother ensure that the maternal grandparents are not present at changeover.
21.That the Mother shall ensure that the maternal grandfather does not approach within 5 metres of the Father at any school or extracurricular event or at any other time.
22.That the parents provide to the children’s counsellors:
(a)A copy of these orders; and
(b)The Magellan Report.
(c)A copy of the ICL’s Outline of Case
23.That the parents provide to the children’s school and treating medical practitioners a copy of these orders.
24.That both parents be and are hereby restrained by injunction from:
(a)Denigrating, rebuking or belittling the other parent to or in the presence or hearing of the children or either of them nor causing nor suffering any other person to do so;
(b)Physically chastising the children or either of them;
(c)Discussing these proceedings with the children or either of them.
(d)Smoking cigarettes indoors in the presence of the children or either of them;
(e)Consuming alcohol in the presence of the children.
25.That pursuant to s 65DA(2) and s 62B of the Family Law Act, 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in the annexure and these particulars are included in these Orders.
ANNEXURE C
ICL’s Final Minute of Proposed Orders
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.That for the purpose of s 61D of the Family Law Act 1975 (Cth) the Father be allocated sole responsibility for the long-term parenting decisions for X born 2013, and Y born 2017, (collectively “the children”).
3.That for the purpose of paragraph 2 above: -
(a)That the Father will notify the Mother of any long term decision affecting the children through the parenting App as in paragraph 18 below;
(b)That the Mother provide details of any input she seeks to put in response to the Father’s proposal within 14 days of receiving such notification;
(c)That the Father will consider the Mother’s input and thereafter notify her of the decision made within 14 days.
4.The children live with the Father.
5.The Mother spend time and communicate with the children as follows:-
(a)During school terms, each alternate week from the conclusion of school (or 3.30 pm) Friday until the commencement of school (or 9.00 am) Monday commencing on the Friday immediately following the making of these orders;
(b)During school terms, each alternate week from the conclusion of school (or 3.30 pm) Wednesday until the commencement of school (or 9.00 am) Friday;
(c)From 4:00pm Christmas Eve to 4:00pm Christmas Day in the year 2025 and each alternate year thereafter and the time that the Mother spends with the children shall be suspended from 4.00 pm Christmas Day to 4.00 pm Boxing Day in the year 2025 and each alternate year thereafter ;
(d)From 4:00pm Christmas Day to 4:00pm Boxing Day in the year 2024 and each alternate year thereafter and the time that the Mother spends with the children shall be suspended from 4.00 pm Christmas Eve until 4.00 pm Christmas Day in the year 2024 and each alternate year thereafter ;
(e)From 5.00 pm on the eve of Mother’s Day until the commencement of school (or 9.00 am Monday) and the time the Mother spends with the children shall be suspended each year from 5.00 pm on the eve of Father’s Day until 9.00 am Monday;
(f)On each of the children’s birthdays for a phone call between 6:00pm and 6:30pm; and
(g)Such further and other times as may be agreed between the parents in writing from time to time.
School holidays and special occasion time:-
6.Each parent spend time with the children for one half of each of the school term holidays as may be agreed between the parties in writing, and failing agreement the Mother to have the first half which is to commence upon the conclusion of the last day of the school term until 12:00noon on the middle Saturday;
7.Each parent spend time with the children for one half of the long summer holidays as may be agreed between the parents in writing and failing agreement:-
(a)In the year 2024/2025 with the Mother on a week about basis with time to occur in weeks 1, 3 and 5 and each alternate year thereafter;
(b)In the year 2025/2026 with the Mother on a week about basis in the weeks 2, 4 and 6 and each alternate year thereafter;
(c)For the purpose of paragraphs (a) and (b) above time is to commence at 12:00noon on the Saturday immediately following the conclusion of the school term, with each changeover to occur at 12:00 noon Saturday;
(d)Time in accordance with paragraphs 5(a) and (b) is suspended for all of the school holiday periods and to give effect to the Christmas time with arrangements.
(e)the children are to be returned to the Father no later than two (2) days before the first term school term commences in each year, at 10.00 am on that day.
Recovery Order:
8.That in the event that the children are not returned to the care of the Father or removed from the Father’s care contrary to these orders without prior agreement in writing or an Order of this Court, a Recovery Order will issue for the return of the children. The Recovery Order is to lie in the Registry to be uplifted upon the Father filing an Affidavit deposing to the failure of the Mother to provide or return the children to his care, and directed to the attention of the chambers of her Honour Justice Williams.
9.That a Recovery Order do issue authorising/directing the Marshal, all officers of the Australian Federal Police and all officers of the police forces of the States and Territories of the Commonwealth of Australia, with such assistance as may be required, and if necessary by force:
(a)To find and recover the children X born 2013, and Y born 2017 and to deliver the said children to the Father or such other place as the Father and the person effecting such recovery agree to be appropriate; and
(b)To stop and search any vehicle, vessel or aircraft and to enter and search any premises or place in which there is at any time reasonable cause to believe that the said children may be found.
10.All Police Officers and agents referred to in this Order be at liberty to proceed on an email copy of this Order.
11.The Recovery Order set out in Orders 8 to 9 remain in force for 5 years from the date of these orders.
Changeover:-
12.All changeovers which occur on a school attendance day are to occur at school, with all other changeovers at to occur at the Suburb D Police Station.
13.The parent who does not have the care of the children is otherwise specifically prohibited from being present at the school at changeover times.
Communication:-
14.The Mother is at liberty to contact the children via Facetime on each Tuesday (unless such day is a spend time day for the Father) between 6:00pm and 6:30pm with the Father to facilitate such calls and the Mother to initiate such calls to a device or number nominated by the Father.
15.The Father is at liberty to contact the children on each Saturday via Facetime between 6:00pm and 6:30pm with the Mother to facilitate such calls and the Father to initiate such calls to a device or number nominated by the Mother.
16.That the children are at liberty to contact either parent in accordance with their specific wishes, with each parent to facilitate such communications.
17.That for the purpose of communication between the parents as to the implementation and operation of these orders such communications are to be undertaken via the AppClose parenting app and via the SMS in the case of an emergency including a delay in attending for changeover.
18.That each parent must keep the other advised as to any changes to their residential address, landline and mobile telephone numbers, and email addresses, and notify the other of any change to such details within 24 hours of such change.
Children’s health and wellbeing:-
19.That each parent to do all acts and things to enable the children to continue to attend upon their current counsellors, namely Ms F (Y) and Mr G (X), or such other allied health profession as may be nominated by either of them, as is recommended.
20.That both parties will keep the other advised as to:-
(a)the name and address of any health professionals of the children; and
(b)Any medication prescribed for the children, and required by the children during the other parent’s time period, with any such mediation to be provided by way of exchange at changeover; and
(c)except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any medical appointments for the children and the purpose of such appointments; and
(d)authorise and direct any and all health and allied health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time;
(e)Each party is at liberty to individually attend upon health and allied health professionals.
21.In addition to attending upon their allied health practitioners, the children are at liberty to attend upon their respective school Chaplains or other wellbeing officers in accordance with their respective wishes and otherwise as may be agreed to between the school and the Father.
22.That the Mother and Father each advise the other as soon as practicable and within upon becoming aware of:-
(a)any significant injury or illness affecting the children or either of them;
(b)any required referral upon a medical specialist including details of such referral;
(c)any illness requiring the provision of any medication prescribed by a Medical Practitioner; and
(d)any hospital attendance or proposed hospital attendance by the children or either of them.
Mother – Psychologist:-
23.That the time the Mother spends with the children is conditional on the Mother attending counselling, and the Mother :-
(a)Forthwith engage with a psychologist at her sole expense for the purpose of supporting her in promoting a relationship between the Father and the children, and to otherwise assist her with respect to the findings made by this Court, Victoria Police and the Department of Families, Fairness and Housing (DFFH).
(b)Will attend for initial fortnightly sessions, and then otherwise as recommended by her psychologist;
(c)To assist the psychologist as to paragraph (a) above the Mother is to provide and prior to the psychologist attending upon her copies of the following:-
(i)a copy of the final parenting orders and Reasons for Judgment;
(ii)DFFH Section 67Z Response released August 2022
(iii)DFFH Magellan Report released September 2022;
(iv)DFFH Section 69ZW Report dated August 2023;
(v)DFFH Section 69ZW Report dated January 2024;
(vi)DFFH Section 67ZBE Response dated July 2024;
(vii)Magellan Report – Consultant Ms H dated March 2023;
(viii)Psychological Assessment of the Mother – Dr J
(ix)Psychosexual Assessment of the Father – Dr J
(d)will provide a letter to the Father confirming her attendance and compliance with her treatment plan on a three monthly basis and otherwise at the cessation of engagement.
Education and extra circular activities:-
24.That the parties do all things necessary to authorise each other and keep each other authorised to receive information at their respective expense copies of school reports, newsletters, school photographs and all such other information that would normally be received by a parent.
25.Both parents are be permitted to attend the children’s schools or extra curricular events for sports days, concerts, and otherwise usual activities affiliated with the school or extra curricular activity providers to which parents are invited or welcomed to attend.
26.For the purpose of paragraph 26 above, neither parent in attending such event to in in anyway inhibit or hinder the children leaving the event with the parent who has the care of the children pursuant to these orders.
27.That both parents will keep the other advised as to any school absence days for the children including the reason for such absence, noting that if a child is unwell on a day of changeover, changeover of care is still to occur.
28.Both parents are permitted to each have access to all communication portals operated by any school, subject to any formal school policy.
Travel:-
29.Both parties are at liberty to travel interstate with the children provided that such travel is undertaken during their respective live with/spend times periods pursuant to these orders and the other parent is advised of travel dates, location and contact details for the children for the duration of such travel.
30.Both parties are at liberty to travel overseas with the children provided that:-
(a)Such travel is undertaken during their respective time with periods or such other time with the express written agreement of the other parent;
(b)That the travelling parent provided to the other parent a copy of a return airline flight, itinerary, location and contact details for the children for the duration of the travel period.
31.That both parties do all acts and things within 28 days of any request to the other to obtain an Australian passport for each of the children and equally pay one half of any costs associated with obtaining or renewing a passport.
32.That the Father retain the passports in his possession, save that he is to make passports available to the Mother for the purpose of any overseas travel. The children’s passports are to be returned to the Father within 7 days of the children’s arrival back in Australia.
Restraints:-
33.Save as is necessary for the parents to explain these the Mother and Father and their servants and agents be and are hereby restrained by injunction from:
(a)Discussing these proceedings or the contents of any documents filed in these proceedings with or in the hearing or presence of the children or either of them;
(b)Denigrating, rebuking or speaking negatively about the other parent or each parent’s extended family to or in the hearing or presence of the children or either of them; and
(c)Discussing any of the allegations raised against the other to or in the hearing or presence of the children or either of them.
Further orders:-
34.Both parents will facilitate the return of all items required for the children’s attendance at school or participation in extracurricular activities, including but not limited to school uniforms, school bags and books, which are to move with the children at changeovers.
35.Both parents will facilitate children transitioning to the other parent’s home with any comfort items with such items to be returned with the children at changeover.
36.That to the extent that any orders are inconsistent with any intervention order, these orders will prevail pursuant to section 68P of the Family Law Act 1975.
37.Each party may supply a copy of these orders to the Magistrates Court of Victoria, the children’s schools, carers and treating health and allied health professionals.
38.The Father facilitate the children intending upon the Independent Children’s Lawyer for the purpose of explaining these orders, following which the Independent Children’s Lawyer is hereby discharged.
NOTATIONS:-
C.The parents understand that the child Y is not to be given any antibiotics and any other medication that a doctor from Y’s treating medical practice (E Medical Centre) has not prescribed other than medication prescribed by the K Hospital.
D.That term times pursuant to orders 5 (a) and (b) shall resume each term in the same continuous pattern as though there were no interruption of time during school holiday periods.
E.Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
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