Bilyk & Bilyk (No 4)
[2024] FedCFamC1F 563
•26 August 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bilyk & Bilyk (No 4) [2024] FedCFamC1F 563
File number(s): ADC 2479 of 2022 Judgment of: BERMAN J Date of judgment: 26 August 2024 Catchwords: FAMILY LAW – CHILDREN – With whom a child lives with and spends time with – Where the children currently live with the respondent mother and spend supervised time with the applicant father – Consideration of risk – Where the respondent alleges that the applicant sexually abused the child – Where the evidence of sexual abuse is confined to the respondent’s allegations that the child made disclosures to her – Where there is no corroborating evidence – Where the Court finds the applicant does not present as a risk – Consideration of whether the respondent is a psychological risk of harm to the children – Where the child kept a journal – Consideration of the respondent’s involvement in the journal – Where the child brought journal notes to multiple interviews – Consideration of whether the respondent attempted to manipulate the investigations – Best interests – Where the ICL submits the children should have a relationship with the applicant – Consideration of what time the children should spend with the applicant – Where the single expert considers a gradual increase in time with the applicant should be adopted – Orders made for a graduated increase in time with the respondent. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Div 12A, ss 4AB, 60CA, 60B, 60CC, 61C, 61CA, 61D, 67ZT, 69ZV
Cases cited: Andrew & Delaine [2009] FamCAFC 182
Baglio & Baglio [2013] FamCA 105
Briginshaw v Briginshaw [1938] HCA 34
Fitzwater v Fitzwater (2019) 60 Fam LR 212
Harridge & Harridge [2010] FamCA 445
Isles & Nelissen (2022) FLC 94-092
M v M [1988] HCA 68
Maluka & Maluka [2012] 47 Fam LR 272
N & S & The Separate Representative (1996) FLC 92-655
S v R (1999) FLC 92-834
S v S [1993] NZ FLR 657
Vasser v Taylor-Black (2007) FLC 93-329
VJ v CJ (1997) FLC 92-772
Division: Division 1 First Instance Number of paragraphs: 311 Date of hearing: 17, 18, 19 & 21 June 2024 Place: Heard in Adelaide – delivered in Darwin Counsel for the Applicant: Ms Betro Solicitor for the Applicant: Denise M Rieniets & Associates Pty Ltd Counsel for the Respondent: Ms Boyle Solicitor for the Respondent: CG Family Law Counsel for the Independent Children's Lawyer: Mr Hemsley Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia ORDERS
ADC 2479 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BILYK
Applicant
AND: MS BILYK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
26 AUGUST 2024
THE COURT ORDERS THAT:
1.X born in 2015 and Y born in 2018 (collectively “the children”) shall live with Ms Bilyk (“the respondent”).
2.The children spend time with Mr Bilyk (“the applicant”) as follows:
(a)Commencing 1 September 2024, each Sunday from 9.00 am until 4.00 pm under the supervision of the paternal grandmother;
(b)As and from 29 September 2024, each Sunday from 9.00 am until 4.00 pm, unsupervised;
(c)As and from 7 December 2024, each Saturday and Sunday from 9.00 am until 4.00 pm;
(d)As and from 25 January 2025, each alternate weekend from 10.00 am on Saturday until 4.00 pm on Sunday;
(e)As and from 4 April 2025, from the conclusion of school on Friday (or 3.00 pm if a non-school day) to 4.00 pm on Sunday and each alternate weekend thereafter;
(f)As and from 5 June 2025, from the conclusion of school on Thursday (or 3.00 pm if a non-school day) to 5.00 pm on Sunday and each alternate weekend thereafter;
(g)As and from 23 July 2025, from the conclusion of school Thursday (or 3.00 pm if a non-school day) to the commencement of school on the following Tuesday (or 9.00 am if a non-school day) and each alternate weekend thereafter; and
(h)As and from the end of the third school term in 2025, for one half of each of the school holidays as may be agreed between the parties but in the absence of agreement then:
(i)for the first half of each school holiday period from the conclusion of school on the last day of term to 6.00 pm on the middle day of the school holidays in even numbered years and each alternate year thereafter; and
(ii)from 6.00 pm on the middle day of the school holidays to 6.00 pm on the Sunday before the commencement of the new school term in odd numbered years.
3.Notwithstanding any other order herein, the children shall spend time with the parties on special occasions as follows:
(a)For Christmas in 2024 and each alternate year thereafter:
(i)With the respondent from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day; and
(ii)With the applicant from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day.
(b)For Christmas in 2025 and each alternate year thereafter:
(i)With the applicant from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day; and
(ii)With the respondent from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day.
(c)For Easter in 2024 and each alternate year thereafter, with the applicant from the conclusion of school (or 4.00 pm if a non-school day) on Maundy Thursday until 4.00 pm on Easter Monday.
(d)For Easter in 2025 and each alternate year thereafter, with the respondent from the conclusion of school (or 4.00 pm if a non-school day on Maundy Thursday until 4.00 pm on Easter Monday.
(e)For Mother’s Day with the respondent from 4.00 pm on Mother’s Day Eve until 4.00 pm on Mother’s Day.
(f)For Father’s Day with the applicant from 4.00 pm on Father’s Day Eve until 4.00 pm on Father’s Day.
(g)For the children’s birthdays with the non-resident party as follows:
(i)If a school day, from the conclusion of school until 6.00 pm on the child’s birthday; and
(ii)If a non-school day, from 11.00 am until 3.00 pm on the child’s birthday.
(h)For the respondent’s birthday with the respondent as follows:
(i)If a school day, from the conclusion of school the day before (5 November) until 9.00 am the day after the respondent’s birthday; and
(ii)If a non-school day from 4.00 pm the day before (5 November) until 9.00 am the day after the respondent’s birthday.
(i)For the applicant’s birthday with the applicant as follows:
(i)If a school day, from the conclusion of school the day before (16 December) until 9.00 am the day after the applicant’s birthday (18 December); and
(ii)If a non-school day from 4.00 pm the day before (16 December) until 9.00 am the day after the applicant’s birthday.
(j)At such other times as may be agreed between the parties.
4.Handovers that do not otherwise occur at the children’s school shall take place as may be agreed between the parties but in the absence of agreement, initially outside the City B Police Station but as and from 1 July 2025, at the parent’s place of residence with the parent who is to spend time with the children to collect the children from the other parent’s residence.
5.The parties do communicate by way of a parenting app unless otherwise agreed between the parties in writing and only by telephone in the event of an emergency.
6.The parties be at liberty to communicate with the children by telephone and/or FaceTime when the children are not otherwise in their separate care and the party with the care will use their best endeavours to facilitate such communication taking place.
7.The parties notify each other of any change to their contact details including residential address, telephone number or email address seven (7) days prior to such change.
8.The parties are given leave to provide a copy of this order to any school or extra‑curricular organisation at which the children may attend and the parties provide their express and irrevocable authority for each party to be listed as an emergency contact and to liaise with and obtain any information including copies of all school reports, notices and photographs (at that party’s sole expense).
9.Both parties be at liberty to attend at all school functions, sporting activities, extra‑curricular activities and other activities and events to which parents are normally invited to participate and to attend provided that the parties are restrained and an injunction is granted restraining them from coming within the close proximity of the other party and from attempting to communicate unless invited to do so.
10.The parties are restrained and an injunction is granted restraining each of them from taking X to any counselling or undertaking any therapeutic process without the agreement of each of them.
11.Each party shall be entitled to communicate with and obtain any information concerning the children’s physical, mental health and welfare from any medical practitioner, medical specialist, psychologist, counsellor, social worker or other person providing treatment to the children.
12.In the event of a medical emergency resulting in a hospital admission or serious illness relating to the children, the party in whose care the children are in at the time of the emergency shall inform the other party as soon as possible but no later than two (2) hours of the emergency including the details and particulars of the hospital to which the child has been admitted and to allow the other party to spend time with the child whilst he or she is being treated and whilst he or she recovering.
13.In the event either party seeks to travel outside of the State of South Australia with the children for a period not exceeding two (2) weeks, the travelling party shall provide fourteen (14) days written notice to the other party with a proposed itinerary of such travel including addresses and telephone contact details and a mobile telephone number upon which the children can be contacted.
14.Both parents be restrained and an injunction granted restraining each of them from discussing or showing any documents relating to the within proceedings to either of the said children.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Bilyk (“the applicant”) and Ms Bilyk (“the respondent”) are unable to reach agreement in respect of final parenting orders.
There are two children of the relationship namely, X born in 2015 and Y born in 2018 (collectively “the children”).
The children currently remain in the primary care of the respondent and spend time with the applicant pursuant to orders made 14 November 2022 which in summary provide:
(1)That the children spend time with the applicant:
(a)Under the supervision of the paternal grandmother;
(b)Each Sunday from 9.00 am until 4.00 pm; and
(c)For which purpose the parties shall cause the children to be exchanged outside the City B Police Station, South Australia.
(2)The parties shall take all reasonable steps to ensure the children communicate privately by telephone with the applicant each Wednesday at 6.30 pm and for that purpose, the applicant shall telephone the children on the number provided to him by the respondent and the respondent shall ensure the children are available to receive the applicant’s call on that number at that time.
In addition, following contested interim proceedings on 31 August 2023 orders were made on 30 November 2023 by Kari J as follows:
1.That by consent there be an immediate cessation of all counselling of the child [X], within a framework of sexual abuse therapy allegedly inflicted by the applicant father.
2.That until further order, the parties are restrained and an injunction is granted restraining each of them from taking the child [X] to any counselling or therapy without an order of the court.
Whatever may be the misgivings of each of the parties in respect of the suite of interim orders made, it appears that there has been compliance.
The respondent alleges that the applicant had minimal involvement with the children both prior to and following separation. When X was a toddler the respondent states that she noticed X being upset and unsettled at a time that tended to coincide with a change in the applicant’s morning routine wherein he became more focussed on X by getting her dressed and fed.
Following separation, the respondent’s observations were that X seemed to settle down and there was a marked improvement in intellectual and physical development.
From early 2021, the respondent records that X began to make allegations that suggested she had been sexually abused and assaulted by the applicant. X’s behaviour deteriorated and by mid-2022 she became highly resistant to spending time with the applicant and made further allegations that the respondent interpreted as confirming that X had been the subject of digital penetration.
The respondent ceased X spending time with the applicant however, a resumption of time arose consequent upon interim orders made which reinstated the children’s time with the applicant subject to the supervision of the paternal grandmother.
Further allegations were made by X which were interpreted by the respondent as being consistent and corroborative of sexual abuse having occurred.
Arrangements were made for X to be the subject of therapeutic intervention with at least in part, the therapeutic focus being upon an assumption that X had been the subject of sexual abuse by the applicant.
The orders made on 30 November 2023 caused the ongoing therapeutic intervention to be terminated.
The respondent’s allegations that the applicant perpetrated sexual abuse have been the subject of detailed and rigorous examination without substantiation. The respondent accepts that there is scant cogent evidence in support of her belief that the applicant has perpetrated sexual abuse but she still considers that he presents as an unacceptable risk to X and by necessary extrapolation, to Y.
For his part, the applicant has been consistent in his denial that he has sexually abused X or has engaged in conduct which might be considered prurient. Whilst remaining uncertain as to the motive of the respondent in promoting false allegations, he seeks a finding that the respondent’s position is fully entrenched and irrespective of any finding that would exonerate him, the respondent remains steadfast in her belief that he is a sexual perpetrator. As such, the risk to X of a false belief that the applicant has perpetrated sexual abuse is such that he seeks a finding the respondent presents as an unacceptable risk and as such, he seeks the primary care of the children.
The parties are unable to agree or reach a consensus of any common ground and there is little likelihood that even consequent upon the conclusion of the litigation they will be able to effectively reconcile their differences despite that they present as high functioning.
BACKGROUND
The parties commenced cohabitation and were married in 2010 with a final separation occurring on 7 December 2020.
X was born in 2015 and is 8 years of age. Y was born in 2018 and is 6 years of age.
Following the birth of X, the respondent did not return to paid employment however, in 2017 she commenced study whereas the applicant, in addition to his employment as a public servant with a government department, also commenced study.
Whilst the parties are not agreed as to the care arrangements for the children during the relationship, even though after the birth of Y the applicant reduced his hours of employment from full-time to part-time work, it is likely that the primary care of the children was undertaken by the respondent.
The applicant’s interest in another field of employment prompted him in 2019 to take a separation package from the government department. It is common ground that financial pressures resulted in the respondent returning to the government department in his former role in 2022.
An important aspect of the respondent’s case is her purported observation that during her pregnancy and then the subsequent period of breastfeeding of Y, the applicant changed his normal practice and began to rise early in order to assist with X in terms of her breakfast and her preparation for the day. Whilst not agreed, the respondent recollects that X did not relate well to the applicant and such was her distress that the respondent would have to attend to X’s needs.
The parties are diametrically opposed in their recollection of the children’s care arrangements. The respondent contends that the applicant did little to assist the children and that in respect of X and certainly Y, his relationship did not properly form but rather was still emerging. The respondent pointedly states that the applicant did not have a relationship with the children and moreover, did not express any interest in wishing to do so.
To the extent that the respondent’s concerns were able to be quantified, she says that the applicant could only cope with the children up to a maximum of two hours.
It is apparent from the respondent’s trial affidavit that she became vigilant of the applicant’s engagement with X during the early morning preparations. The respondent alleges that often X would scream and when she went to investigate, she would often see X distressed, upset and sometimes naked.
Without there being any detail or particularity, the respondent says that she often observed X lying on the lounge with her pants down and the applicant crouched over her but upon realising that the respondent was present, he would attempt to distract her attention or behave in a manner that led her to believe he was hiding something.
On occasion, the respondent alleges that even though the applicant was fully dressed whilst in the presence of X, she observed the applicant exposing his erect penis in the child’s presence.
The respondent’s concerns were exacerbated by what she says was deteriorating behaviour by X in terms of nightmares, bedwetting and a refusal to answer her questions.
In mid-2018 the respondent questioned X concerning a drawing that highlighted her head, her body and her “hole”.
In late 2018 the respondent observed X licking Y’s face.
In late 2018 X painted a picture and when asked to explain the pictorial dynamics, the respondent alleges that X again referred to a person with a “hole” and indicated that it was intended to represent a vagina.
Thereafter the respondent’s evidence is that from around two years of age, X’s behaviour and presentation deteriorated from a friendly and happy toddler who was articulate and loving, to a child displaying significant developmental regression at kindergarten in 2020.
In 2020, the respondent recalled going into the lounge room and finding what she describes as the equivalent of a spoonful of blood on the lounge. She alleges that the applicant had also removed a throw rug which had blood on it and had placed it in the washing machine. The respondent questioned the applicant as to the source of the blood on the lounge and the rug and remembers the applicant’s response as ““[X] had hit her nose on the coffee table” and that [the applicant] had “just spent the half hour mopping it up” and winked at [X]”.[1]
[1] Respondent’s trial affidavit filed 3 June 2024, paragraph 22.
The respondent’s contention is that whilst it was suspicious and raised serious questions as to the applicant’s explanation for the blood-stained lounge and rug, nothing more came of the matter until mid-2022 when the respondent says that X disclosed to her that the applicant had “broken her hymen on one morning before kindergarten and there was blood on the couch”.[2]
[2] Respondent’s trial affidavit filed 3 June 2024, paragraph 82.
The subsequent conversation with X concerning a book entitled “Birds & Bees” and X’s reference to an illustration of a vagina confirmed the respondent’s long held suspicion that the applicant had sexually abused X. The respondent further records that X then alleged that when she was three and four years of age, the respondent had touched her genitals and then had wanted her to touch the applicant’s genitals.
For his part, the applicant denies the respondent’s allegations and in particular, that he engaged in any sexual abuse or inappropriate conduct with X.
Following separation, the applicant says that he attempted to maintain a civil and appropriate relationship with the respondent and whilst at mediation they were not able to reach agreement as to the future parenting arrangements for the children, they were able to participate in family therapy in early 2022 and then mid-2023.
The applicant’s perception of his relationship with the children is different to that of the respondent. The applicant contends that he had a good relationship with X and certainly not one that featured sexual abuse or assault.
The respondent commenced reporting to SAPOL and DCP from 2021 and following initial investigations, a DCP safety plan was implemented later in 2021.
As considered, from mid-2022 X’s disclosures became more detailed and frequent leading to the respondent deciding that she would cease the applicant’s time with the children.
The applicant commenced proceedings on 9 June 2022 with the matter being transferred to Division 1 of this Court on 17 August 2022.
As discussed, a judicial review hearing before Austin J on 14 November 2022 set aside an order made on 23 September 2022 which reinstated the applicant’s time with the children subject to the supervision of the paternal grandmother.
DOCUMENTS RELIED UPON
The applicant relies upon the following documents:-
(1)Third Amended Initiating Application filed 23 February 2024.
(2)Applicant’s trial affidavit filed 23 February 2024.
(3)Affidavit in reply filed 14 June 2024.
(4)Case Outline document filed 14 June 2024.
The respondent relies upon the following documents:-
(1)Response to Initiating Application filed 10 August 2022.
(2)Respondent’s trial affidavit filed 3 June 2022.
(3)Case Outline document filed 14 June 2024.
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:-
(1)Affidavit of Ms E filed 11 June 2024 annexing the Family Assessment Report dated 6 July 2023 (“the FAR”).
(2)Case Outline document filed 14 June 2024.
The orders sought by the applicant are summarised as follows:[3]
(1)In the event that the Court finds the respondent poses an unacceptable risk to the children and that the applicant does not pose a risk then:
(a)The applicant shall have sole parental responsibility for the children;
(b)The children live with him;
(c)The children spend time with the respondent as may be determined by the Court.
(2)If neither party poses an unacceptable risk to the children then they shall live with the parties in a week about arrangement from the conclusion of school (or 4.00 pm Friday if a non-school day) to the conclusion of school (or 4.00 pm if a non-school day) the following week and each alternate week thereafter and with the respondent at all other times.
[3] Third Amended Initiating Application filed 23 February 2024.
The applicant also promotes orders as to the children spending time with the parties during Christmas and Easter periods and on other special occasions including Mother’s Day, Father’s Day, the birthdays of each of the parties and the children.
The applicant also proposes that there be communication between the parties by the use of an appropriate Parenting App and a requirement that there be a proper exchange of information concerning the children’s health and wellbeing.
The orders sought by the respondent are summarised as follows:[4]
(1)The respondent have sole parental responsibility for the children.
(2)The children live with the respondent.
(3)The children spend no time with the applicant.
[4] Response to Initiating Application filed 10 August 2022.
At the commencement of the proceedings, the ICL considered that they were not in a position to provide a draft Minute of Order given the full range of factual matters that required judicial determination. The factual issues for determination were summarised by the ICL as follows:
(1)Whether X has been sexually or otherwise abused by the applicant
(2)In the alternative, whether the applicant represents an unacceptable risk to either or both of the children; or
(3)Whether the respondent represents an unacceptable risk to either or both of the children.
The ICL initially considered that the opinion of Ms E suggested that there was a lack of clarity around X’s experiences.
The position of the ICL at the conclusion of the proceedings is that the evidence supports a finding that the applicant does not present as an unacceptable risk to the children and that the applicant ought not to be prevented from having a relationship with the children.
THE TREATMENT OF THE EVIDENCE
At the commencement of trial, the Court highlighted the provisions of Division 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
The respondent’s contention is that the applicant has perpetrated family violence and has sexually assaulted X and presents as a manifest risk of continuing to do so if the children spend time with the applicant unsupervised.
The allegations of the respondent, whilst general in nature, nonetheless, are comprised of certain specific events that underpin her application that the children spend no time with the applicant. In particular, the respondent places significant emphasis on her observations of X and highlights distressing behaviour involving nightmares, bedwetting and the child’s presentation as having a focus on genitals. Specifically, the observations of the respondent in 2020 as to blood stains on the lounge and a rug combined with X’s allegation allegedly recorded by the respondent in 2022 that the applicant had “broken her hymen on one morning before kindergarten” is a significant and pivotal allegation.
In M v M [1988] HCA 68 (“M v M”) the High Court gave consideration to the treatment of allegations of sexual abuse. The Court considered that treating an allegation of sexual abuse as the paramount issue was an error.
In Vasser v Taylor-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind. Their Honours quoted at [51] with approval, the following passages from M v M (supra) at pages 77,080-82:-
19.…In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court's findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
20.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(1973) 47 ALJR 499; McKee v. McKee(1951) AC 352, at pp 364-365. 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 (1987) 162 CLR 447, at pp 450, 458, 462, 463; 69 ALR 647.
21.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.
22.In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336, at 362. There Dixon J said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
The allegations of sexual abuse perpetrated by the applicant were raised at various trial management stages. The Court foreshadowed that given the nature of the allegations and the consequential orders sought by the respondent namely, that the children should spend no time with the applicant and that there should not thereafter be any relationship, was likely to require a consideration as to whether s 69ZT of the Act should be dispensed with in favour of the application of the relevant provisions of the Evidence Act.
Initially, counsel for the respondent did not press to dispense with s 69ZT in respect of the evidence likely to be given, however after some discussion, counsel for the applicant made a submission regarding the application of s 69ZT of the Act.
In determining whether the provisions of Evidence Act should apply, consideration must be given to s 69ZT(3) of the Act namely, I must be satisfied that the circumstances are exceptional and I have had regard to the following matters:
(1)The importance of the evidence in proceedings;
(2)The nature of the subject matter of the proceedings;
(3)The probative value of the evidence; and
(4)The power of the Court (if any) to adjourn the hearing to make another order or to give a direction in relation to the evidence.
In the decision of Maluka & Maluka [2012] 47 Fam LR 272, Coleman J said:
28.As is not surprising, the High Court has made clear that serious findings such as sexual abuse and, by extension, domestic or family violence are not matters which can or should be lightly made. To proceed in reliance upon evidence which would not be admissible but for section 69ZT(1) is, in the Court’s view, likely to be mischievous, and not just for one party.
…
32.It is a matter of significance within section 69ZT(3)(a)(i) that the evidence in relation to domestic or family violence will impact very significantly upon the Court’s determination of these proceedings. It may even be, as the High Court discussed in M v M (supra), that the findings will be decisive or almost decisive, but whatever their ultimate significance the findings will have a major impact on the determination of the parenting proceedings.
…
37.Perhaps for present purposes the short and simple answer is that particularly in the context of determining disputed issues of fact or belief with respect to domestic or family violence or apprehension thereof it would appear unsafe to afford inadmissible evidence any significant weight in the exercise of the Court’s fact-finding functions.
It could not be said that the respondent’s evidence had been prepared in a manner consistent with the more stringent application of the rules of evidence than would ordinarily be the case pursuant to s 69ZT(1) of the Act.
Substantial time was given to a consideration of the objections to the evidence of each of the parties. A substantial proportion of the evidence contained in the trial affidavits was struck out.
I am not satisfied that the primary trial affidavits had been the subject of appropriate scrutiny by counsel.
THE EVIDENCE
The applicant
The applicant is employed by a government department during the week between 8.00 am and 4.00 pm. One day a week the applicant works from home. He is able to adjust and manage his time to fall in with the children’s requirements.
Whilst not immediately of apparent relevance, the applicant set out his employment duties and work history with the government department both before he left the Department and then following his return.
His role within the government department was as to policy development and the running of programs to highlight and consider internal evaluation of performance within the Department.
The parties separated in December 2020. The applicant’s time with the children resumed in 2021 with the children spending time with him at the respondent’s home and generally with the respondent remaining in close proximity to the children.
In response to the concerns of the respondent, the applicant agreed that his relationship was better with X than with Y although it is likely that it is a function of X being the older sibling.
The applicant agreed that there were occasions that X would call out to him when she was using the toilet. He denied that X had ever asked him to remove his clothing and to show her his “willy” and at no stage did the applicant agree that X had spoken of putting “a lollipop in your bot bot”.
The allegation of the respondent is that in 2021 X said “I want to lick your willy”. Whilst the applicant agreed that X has said something about “licking you” at no stage had she made any reference to genitalia.
The applicant readily agreed that on a call X would sometimes kiss the phone. He was asked to consider whether X had done more namely, had licked the phone screen. The implication of the inquiry was premised upon the licking action attributed to X being demonstrative of sexualised behaviour. The applicant’s response was a clear denial.
Similarly, the applicant rejected that in late 2021 X had practised her extra-curricular activity for him which involved overtly sexual behaviour. The applicant’s denial also extended to an allegation that in 2022 X had put her face in his lap, started to lick him in the groin area and said “I just want to see you naked”.
Much is made of the suggestion that the applicant had groomed X in preparation of sexual abuse and that they shared a code or secret word. The allegation coalesced in a purported incident at a school event in 2024. It was put to the applicant that he called out to X “you are my good girl”. Whilst the applicant denied that he had said anything to X like that, it was put to him that this was a phrase understood by the applicant and X that they had a secret between them and it needed to be kept.
The matters raised in evidence enable a finding that the secret was alleged to be sexual abuse of the child.
It transpired that after the respondent ceased the children’s time with the applicant, that she also spoke to X’s school teacher concerning her fears that the applicant was sexually abusive to X. The applicant did not know that the respondent had spoken to X’s teacher and when he wanted to communicate independently with the teacher, he was prevented from doing so.
The applicant’s primary position is that the respondent’s trenchant belief that the children, but in particular X, were at risk in his care and that it was unlikely the respondent would alter her position, and therefore she presented as an unacceptable risk. Whilst the applicant was hopeful that at some point the parties might be able to reach agreement, he conceded that on present indications, it was unlikely to occur.
The applicant was asked to consider the respondent’s allegations concerning her observations upon walking into the lounge room in 2020 and finding blood on the lounge.
The applicant denied that the occasion as described by the respondent had ever taken place and in particular that there was blood on the lounge and that he had tried to wash blood off the rug.
The applicant agreed that he had not dealt with the matter comprehensively in his trial affidavit however, he had previously denied that the occasion as described by the respondent had occurred in previous affidavit material.
The applicant further denied that there was ever an occasion when he displayed an erect penis in the presence of X and denied any suggestion that he had experienced prurient interest and any form of sexual gratification in the child’s presence.
The applicant referred to the respondent’s affidavit filed 10 August 2022 which contained the following allegations:
29.I recall going to the lounge on this occasion and finding a spoonful of blood on the lounge. The [applicant] had removed the throw rug and placed it in the washing machine without the machine turned on. After I questioned the [applicant] about the blood I saw on the couch and the throw rug he placed inside the washing machine, the [applicant] said to me “[X] had hit her nose on the coffee table” and that he had “just spent the past half hour mopping it up” and winked at [X]. There was no bruising, marks or scratches anywhere on [X] nor external blood stain on [X]’s nose or face. When I asked [X] what happened, she would not tell me where the blood had come from but she was jittery all morning.
30.[…] [She] again told me that she felt “sad about the lies Dad told me, lies about sex. I didn't know about sex or that I had a choice. He said I didn’t and it was my fault. He would touch me and sometimes lick me. I feel like I can't stop the anger”.
The applicant denied the respondent’s allegations in paragraphs 114 and 115 of his affidavit filed 26 August 2022.
Under questioning by counsel for the ICL, the respondent denied that he watched material that involved the sexual exploitation of children or that he had a predilection towards pornography in general and paedophilia in particular.
The applicant denied that he had any tendencies to self-harm and referred to his involvement in 2017/2018 in setting up a community help group.
The family were regular church attendees, and the applicant was heavily involved in church activities, for which he attended regular meetings.
The applicant conceded that the communication between the parties was poor and at best limited to text and email communication.
Of particular concern to the applicant was an occasion when the respondent did not tell him that one of the children had sustained an injury. He complains that he is given scant information concerning the children’s curricular and extra-curricular activities.
At present, and in addition to him spending supervised time with the children, he speaks to them by telephone on one occasion in each week.
When asked to consider the likely impact on the children of his parenting proposal, the applicant considered that whilst the transition would be more difficult for X, he believed that Y would readily come into his care.
Despite the concerns expressed by the respondent as to X exhibiting upset and distress manifesting itself in developmental regression, the applicant denied that he had witnessed anything consistent with the respondent’s concerns but rather he accepted that whilst X showed some reluctance at transition from the care of the respondent to him, in the absence of the respondent, X readily settled into his care without incident or distress.
An issue in the proceedings is if there is not a finding of unacceptable risk in respect of the applicant, but there is still difficulty or direct opposition by X in spending time with the applicant then should Y and X be separated?
The applicant considered that the siblings should not be split and that both children should spend time with him together.
The applicant appeared to make credible denials in respect of the specific allegations put to him and subject to any other evidence that might arise, I consider the applicant to be reliable.
The respondent
Exhibit “10” in the proceedings is a copy of diary notes apparently written by X which she took to the family assessment undertaken by Ms E. The respondent disavows any knowledge of the notes and only became aware of them when X showed them to her after meeting with Ms E.
When asked to reflect on the chronology, the respondent considered that X showed the notes to her after the family assessment in 2023.
The respondent agreed that she may have recorded in her own diary that X had shown her the diary notes but did not make contact with the Child Abuse Referral Line (CARL) given that it was not new information, she had been told to stop making reports and that repetition was unnecessary.
Doing the best that she could, the respondent considered that X showed her the notes because she was upset and in particular, because Ms E had declined to look at them.
The respondent described how she prepared the children but in particular X, for the upcoming family assessment. The respondent did not see the journal notes nor did she observe X reading her notes in the car on the way to the family assessment.
Other than packing snacks and drinks for the children, the respondent asserts that X packed her own bag in terms of activities. It was anticipated that there might be some extended periods when X was not actively engaged in the family assessment process.
The respondent conceded that when X talks to her about the applicant, she tells X that she is being brave and that she should tell the truth.
Whilst denying that she was aware of the diary notes that were shown to Ms E, she agreed that she promoted X writing down her thoughts based upon advice she had received during the therapeutic process.
The involvement of diary notes written by X for the family assessment had some history. In 2023 the respondent stated that she had reported to police that X had made a disclosure in her writing journal. Presumably, by reference to subpoenaed or other material, it was put to the respondent that she had assisted X in writing in her diary or journal in particular, where the substance concerned a potential disclosure of sexual abuse or inappropriate behaviour by the applicant.
It would appear that the respondent was at least sufficiently aware of X writing in a journal because from time-to-time X would ask her how to spell a word. As far as the respondent was concerned, it could have been creative writing or homework and not necessarily an addition to her journal.
The respondent was questioned as to whether she had read X’s record of interview with the police in 2023. The respondent said that she had not done so and did not know that it was available.
There was then some discussion between counsel as to the status of the records of interview and it was revealed that the ICL had given careful consideration to the records of interview and had prepared a transcript.
In the context of the discussion as to the content of the records of interview, irrespective of whether X had given an answer that the diary notes were known to her, the respondent continues to deny any knowledge of their contents.
The following exchange assumes some importance as to the weight that may be given to X’s diary notes:[5]
[5] Transcript 18 June 2024, p.16 line 1 – 12.
[Counsel]:If [X] is independently preparing these journals, why is it that they appear referred to in your trial affidavit?
[Respondent]: Sometimes she will give them to me. Sometimes she will hand them the writing journal that you referred to. She handed to my mother and father, who showed me. She also wrote them to her therapist. So she showed me those ones, because she wanted to take them to the therapist. There have been a few notes that I have just found in her bedroom.
[Counsel]: Tell me more about you finding them in her bedroom?
[Respondent]: She will leave them on the floor, or as I’m picking up her clothes, and they will be there.
[Counsel]: And what do you do with them?
[Respondent]: I put them in my journal, and I will try and report them to the CARL hotline.
The respondent agreed that she had read X’s journal notes and that the tenor of the notes was that she did not want to see the applicant and as a result, she was angry at the respondent and Y presumably for facilitating her time with the applicant.
There was then some focus on the content of the notes which revealed that X was upset because the applicant apparently did not take her to church. Whilst there is some contention as to the frequency and regularity of the applicant’s attendance at church with the children, it is uncontroversial that church going is of significant importance to each of the parties.
A continuing theme through the warp and weft of the respondent’s evidence referred to X reporting that the applicant had lied.
The topic is taken up in the following exchange:[6]
[6] Transcript 18 June 2024, p.17 line 12 – 40.
[Counsel]:And [X] is referring – when [X] says that her father lies, that’s something you’ve told the children, isn’t it – told [X] that the father is a liar?
[Respondent]: No. The children are aware of the lies that [Mr Bilyk] says, themselves. When [Y] reported that [Ms P] was napping, instead of supervising, and that [Mr Bilyk] was showering during those times, [Y] put that back to [Mr Bilyk] several times on a phone call, and [Mr Bilyk] said, “No, that didn’t happen. No, no, that didn’t happen”. And that really upset [Y]. And [Y] saw that [Mr Bilyk] was lying about that. And that’s the same with the [restricted items]. When [Mr Bilyk] took them down to the beach in October […] and helped them collect a whole heap of [restricted items], and bring them back to my home, so that I was in possession of these [restricted items] ---
[His Honour]: Sorry ---?---the kids --- Sorry? What are we talking about? [Items]?
[Counsel]:I asked the witness whether or not the – that she had told [X] that her dad was a liar.
[His Honour]: Yes, I appreciate that. Sorry, I may have missed something about the [items]?
[Respondent]: Sorry, I was giving examples of when the kids have said, and seen themselves, that their father called them a liar, and put it back on them, making them the liar.
[His Honour]: Sorry, were you trying to – was your evidence that the father took the children [to collect items], they collected a number of [items], the [items] were brought back to your home, but that they were [restricted] – whatever that means, but they were [restricted]. And did you – and was it that this was some deliberate act by the father to put you in a difficult position, because you were in possession of [restricted items]?
[Respondent]: Yes, that’s correct.
The respondent conceded that but for the applicant’s plan that she should be in possession of restricted items and therefore at risk of a significant fine, there was nothing inappropriate about the general activity of attending the beach for the purposes of collecting items.
As a surprising postscript, the respondent said that she threw the restricted items away and called a government department for advice.
The respondent agreed that it was not really the issue of restricted items that was important but rather it demonstrated the ongoing and heightened mistrust between the parties.
As matters transpired, the respondent reported that her contact with the government department was to the effect that because the children had collected the restricted items, they were not going to be penalised and when they contacted the applicant, he allegedly blamed the children for collecting restricted items.
The respondent’s evidence concerning her misgivings as to the applicant’s strategy of attempting to foist restricted items on her, thereby putting her at risk of a fine, was unconvincing and nonsensical. Even were it to be that the applicant was in possession of restricted items, there was no suggestion that the government department were aware of the incident and were independently conducting any investigation.
The ICL put to the respondent that she had raised with C Organisation that she had concerns about the applicant watching “documentaries about paedophiles” because he was “interested in knowing how their brains work”.[7]
[7] Transcript 19 June 2024, p.66 line 18 – 19.
When questioned about what documentaries the applicant was watching that gave rise to her concern, the respondent gave evidence that the applicant watched “Behind Criminal Minds”, “Louis Theroux” and “that sort of thing”.
In 2022, Y was interviewed by DCP at the respondent’s home. Whilst she was not present for the interview, she has seen the departmental case notes which revealed that Y had said “[the applicant]’s a liar”. The notes also recorded that when Y was questioned as to what it was that the applicant had lied about, Y was not able to give any example.
Y was also recorded as saying that the applicant was mean, but when further pressed it was recorded that Y said, “well he doesn’t really say anything mean”. The notes record that the government department worker said “well, if [the applicant] doesn’t say anything mean and doesn’t do anything mean, how do you know that he is mean”. Y then said, “because [the respondent] said”.
The respondent denied that she had prompted or promoted Y to say anything derogatory about the applicant.
The respondent agreed that a theme in X’s diary notes was that she was concerned to keep her brother and the respondent safe. The respondent conceded that X was worried about the impact on the respondent when she sees the applicant. She was fearful about a lot of things when she sees the applicant with one concern being as to the obvious impact it has on the respondent.
The respondent agreed that she told X that the applicant made some bad choices but was certain that she had not explained to X that it was a reason for the children not seeing him often.
The theme of X being concerned to keep the respondent safe was highlighted in the following evidence:[8]
[8] Transcript 18 June 2024, p.22 line 15 – 45.
[Counsel]:So I will clarify that. [X] says that she’s worried that something might happen to you?
[Respondent]: Yes.
[Counsel]:And she would pick up if you’re worried as you drop the children off at handover, for example?
[Respondent]: She would. We put a lot of time and effort and extra cuddles into getting [X] ready for each day. Each handover. She has a lot of refusal on Sunday mornings, and it – it takes a lot of cuddles. And a lot of braving up to get her to those drop-offs each week, and to hand her over in a – a calm state.
[Counsel]: [X] goes with her father every Sunday, doesn’t she?
[Respondent]: Apart from when she has been really sick, she has really refused to get out of the car.
[Counsel]:There has been no occasion where [X] has not been sick – so she has been well – that she hasn’t gone with her father, in accordance with the orders of the court, on a Sunday?
[Respondent]: Correct. I’ve managed to get her to comply with those orders every week.
[Counsel]:And other than [X] putting on a brave face, in your trial affidavit you don’t talk about [X]’s resistance on a Sunday morning to going to hand over, do you?
[Respondent]: It was definitely in my draft. I think it is in there, somewhere. Thank
[Counsel]:[X] talks about that she’s tried to talk to other people, but that didn’t work. You read that in her notes?
[Respondent]: Yes.
[Counsel]:And did you tell [X] that her – have you told [X] that she needs to tell other people about what has happened to her dad?
[Respondent]: I listen to her, but I don’t really say anything. I don’t feel able, under the current court orders, to say anything to [X], and she keeps telling me these things each week.
[Counsel]:Before the order was put in place restraining you from discussing those things with [X], you did ask [X] questions about what had happened in her dad’s care?
[Respondent]: I did.
The respondent agreed that in addition to diary notes kept by X, she also maintained her own diary to record what she considered to be concerning behaviours and other comments. The purpose of her diary was to assist the respondent in reporting accurately allegations made by X.
The respondent denied that the notes were made contemporaneously with any utterance by X, but rather that she would collate her thoughts and complete her notes at an appropriately quiet time.
The respondent was asked to consider the respondent’s description of the applicant’s morning routine with X as set out in paragraph 14 of her trial affidavit:
…Over the next 2 years the father’s morning time with [X] continued. He called it his “getting dressed time with [X]” despite the fact that when I did get up about 30 minutes later often neither would be dressed. Several times I walked in to find [X] laying on the lounge with her pants down and the father crouched over her who would quickly lift her knickers up and say something like “There! Knickers on!”
The respondent agreed that in making her reference to neither the applicant nor X being dressed, was a reference to them being in pyjamas or partly dressed but not naked.
The importance to the respondent of her recollection and observations of the applicant assisting X to get dressed is underlined by the following exchange:[9]
[9] Transcript 18 June 2024, p.33 line 1 – 21.
[His Honour]: Yes, but it’s an observation that, obviously, has given you some pause for concern, otherwise it would be ignored. I mean, absent the sexual connotation, do I care whether [Mr Bilyk] dressed the children in the morning for half an hour or an hour? Probably not. It is not going to make a difference, taking into account their current age. That is not why it’s there. Is it? It’s not there because you want me to understand that you are the primary carer. And that even though [Mr Bilyk] may have done the best he could, he was fairly inadequate in respect of parenting issues. That is not why paragraph 14 is included in your affidavit. Is it?
[Respondent]: The reason I have included it, is because there was things that I was unaware – or that I was, perhaps, confused of or unsure of in our relationship, that didn’t make sense. That I would ask [the applicant] about, and not get clarification on. Or not get any ---
[His Honour]: Yes
[Respondent]: direct answer. That then when, later, [X] did disclose to me, it was like she filled in all these blanks of my memories that I hadn’t shared with anyone else. And she put time and place around what had happened.
[His Honour]: Well, again, I am not asking you about that. I am asking you why you want me to understand this. When I read it, the only reason I can think that it’s there is because you want me to understand that there were occasions when you caught [Mr Bilyk] involved with a compromising – a sexually compromising engagement with your daughter, even to the extent where he had an exposed erection?
[Respondent]: Yes, that’s correct.
In summary, the respondent placed importance on her observations of the morning time with X and the applicant because she considered there was a sexual aspect to his engagement.
A significant component of the respondent’s concern was her observation of the applicant displaying an erect penis during his alleged engagement with X.
The respondent agreed that the observation of an erect penis was a significant matter but conceded that there was no reference to a display by the respondent of an erect penis in the CPS Report. The respondent was certain that she had told the clinician but could not explain why there was no reference other than it may have been considered as one of a number of concerning behaviours which did not make sense early in the history but became more important when X made explicit disclosures of what was happening in the lounge room in those mornings.
The respondent also agreed that in her affidavit of 10 August 2022, whilst there was a heavy focus on her observations of X being distressed during the period that the applicant assisted X in the morning with breakfast and getting dressed, there was no reference to the respondent exposing an erect penis.
The respondent was asked to provide better detail and context to her allegation that the applicant’s grooming and sexual abuse of the child likely occurred whilst his time was being generally supervised.
The respondent was vigilant for any interaction between the applicant and X that she considered was concerning. Whilst there were no examples of any explicit sexual assault whilst under supervision, the respondent considered that the applicant had persuaded X to engage in language consistent with having a secret code. Words like “you’re my good girl” and the father being present for X napping and showering in the afternoon were apparently sufficient to convince the respondent of the applicant’s malintent.
It is also a relevant consideration that there was no reference in the respondent’s diary notes to the applicant displaying an erect penis.
The respondent clarified some uncertainty as to the chronology of events. Whilst detail was lacking, it is the respondent’s contention that the applicant commenced to groom X and also gained sexual gratification from his morning interactions with her as a toddler.
The respondent’s concerns were not limited to the applicant’s interaction with X but also extended to Y. When the applicant’s visits recommenced in 2022, the respondent’s evidence is that Y became clingy and experienced nightmares and bedwetting, all behaviours that were unusual for him at that time.
The respondent also recorded that Y had told her someone had licked his willy. Whilst the date of the allegation was 2023, the respondent agreed that there was no reference to it in her trial affidavit.
The respondent was taken to page 65 of her tender book which records the following:
[Y] was giving […] our new puppy a belly rub and out of nowhere held [the puppy] down and put his face down to [the puppy]’s genitals.
The respondent then contends that she intervened and questioned Y as to what he was doing noting his response was “I’m going to lick his willy”.
Whilst it was apparent from the respondent’s evidence that she considered the applicant may have engaged in inappropriate conduct with Y, she conceded that notwithstanding her questioning, Y did not identify the applicant as being involved and responsible. Under some further questioning, the respondent conceded that Y may have been talking nonsense and even if something had happened, there was nothing to link the applicant.
Whilst the respondent had become vigilant as to the applicant’s conduct involving his care of X from as early as 2017, her suspicions were heightened following her observation in 2021 when X said “I will stick a lollipop up your bot bot” to the applicant.
The respondent agreed that it was the applicant who suggested that the parties ought to speak to X’s teacher about the comment and appeared proactive in discussing the issue with her.
The following exchange provided some better understanding and context:[10]
[10] Transcript 18 June 2024, p.52 line 30 – 44.
[His Honour]: So [Ms Bilyk], what was sinister about the “lollipop up my bot-bot”?
[Respondent]: [The applicant] had made comment, from his work […] that that was a very specific comment.
[His Honour]: I see. But other than that, it could just have been nonsense words?
[Respondent]: It was on his advice that I spoke to the teacher.
[His Honour]: I appreciate that. But absent that, it could have been nonsense words. Could it not?
[Respondent]: It could.
[His Honour]: You’re reacting to [the applicant], who said, “No, no. There is something here that we may need to investigate”?
[Respondent]: Yes. That and ---
[His Honour]: And the investigation was to speak to the teacher?
[Respondent]: That’s right. To see if she was picking up the build-up of these comments.
The respondent agreed that it was the applicant that alerted her to the potential for there to be something more serious than just a silly remark by the child.
The respondent appeared to have taken X’s comments seriously and later engaged in a discussion with her about genitals.
The apparent response from X’s teacher was that it was not part of school talk and whilst the respondent was not entirely sure, it is her recollection that by 2022, X was already talking about pulling her pants down, licking fannies and licking willies.
The respondent’s concern was also heightened by the apparent insistence on the part of the applicant to bathe and take showers with X. The allegation was not raised in the respondent’s trial affidavit.
The respondent set out a short chronology of comments made by X that gave her cause for concern which were as follows:[11]
(1)In 2021, X said to the applicant “take off your pants and show me your willy”.
(2)In 2021, X said to the applicant “come here, and I will smack your bot-bot”. On the same day X made the further remark “I will get a lollipop and put it up your bot-bot”.
(3)In 2021, X said to the respondent “can I lick your fanny” and to the father “can I lick your willy”.
[11] Respondent’s affidavit filed 4 June 2024 at paragraphs 40 – 41.
The respondent was asked whether in 2021 she held a view that X had been abused by the applicant. She denied that she held any adverse view but rather that she had reported the comments to the police, and it was the view of the police and of X’s teachers that focussed attention on the applicant. When challenged, the respondent clarified her position and indicated that she held high concern that it was worrying behaviour on the part of the applicant but that she wanted to maintain an open mind.
The respondent agreed that following some initial consideration by police in 2021 she was told that the matter was not to be taken any further and that the police did not consider that what had been reported as having been said by X could be considered as an actual disclosure.
The respondent maintained her concern and contacted CAHMS for the purpose of engaging therapeutic intervention for X.
The respondent remained concerned that X continued to exhibit sexualised behaviours but also at times remained angry.
Whilst not agreeing that she promoted X to make allegations concerning the applicant, she conceded that she was vigilant to matters raised by X and would make a record and report what was said to the police and DCP.
The respondent had formed a clear view that the propensity of X to lick people and objects was consistent with sexualised behaviour rather than childlike behaviour or an indication of X having fun.
The respondent observed X to lick both the applicant and the respondent and when licking her, the applicant considers it to be sexualised. The respondent described X’s conduct by stating “I say that her licking actions appeared sexual in nature and as though she was licking around the father’s penis”.[12]
[12] Applicant’s affidavit dated 4 June 2024 at paragraph 54.
The respondent considered it a possibility that X had licked the applicant’s penis and that this fitted in with what she had observed, in particular, that X did not lick the same as other children might do but rather that “she licks compulsively and impulsively”.[13]
[13] Transcript 18 June 2024 p. 68 line 39.
The respondent was asked questions which related to X’s extracurricular activity. She agreed that X enjoyed her extracurricular activity and that she often practices at home and in front of the respondent.
The respondent was then asked to consider paragraph 59 of her trial affidavit wherein she alleges that in 2021, during an occasion that the applicant spent time with the children at the respondent’s home, X practised her extracurricular activity for the applicant and displayed overtly sexual behaviour. In cross examination, the respondent gave evidence that she considered X was directing her overtly sexual behaviour towards the applicant.
The respondent was emphatic in her evidence that it was not possible that X was merely practising her extracurricular activity the applicant.
Following the CPS assessment on 13 August 2021, the respondent was advised that X had not made any statement to suggest she had experienced sexual abuse. The respondent conceded that she had found such an outcome hard to accept because when discussing the matter with the clinician she was told that oral sex roll play was not within the normal range of experience.
Paragraph 75 of the respondent’s trial affidavit has relevance to the proceedings:
[X] was really engaged but seemed to know more than what I was telling her. She then asked “what does sex feel like?” We discussed the role of her hymen in protecting from germs before having sex. When I educated her about pain and small amount of blood the first time a hymen is broken for sex, [X] then said, “Oh! Is that why that happened that day.” She told me that the penis needs to be erected and “hard” to be able to enter a vagina. She then said she felt “worried that she can’t have babies because she was already broken”. She said she felt “scared” of germs and that it often hurt when she urinated. We then discussed how sex has a place for married couples and children do not understand what it is and it is not for them because they do not know what it is. We then discussed marriage vows to which [X] said, “did Dad promise that to you? Dad has broken that promise” She then calmly said that she did not want to see the father again.
The respondent agreed that she had shown X some pictures of a naked body and a hymen. She told DCP that she had shown pictures and agreed that in answer to a question by X, she explained how the hymen would break when having sex. She also had shown X a picture of a male with a flaccid penis.
The respondent did not accept that the detail and nature of the sex education discussed with X was beyond her years.
The respondent recorded that X told her the applicant had ruptured her hymen by placing his fingers in her vagina whilst on the couch in the living room.
There is no medical evidence that establishes that X sustained a rupture to her hymen.
The evidence presented a confusing picture as to the chronology of relevant events but in particular, the principal allegation that whilst the respondent was attempting to get X dressed, he sexually assaulted her by digital penetration, had ruptured X’s hymen resulting in blood on the couch and on a rug.
There is some doubt as to the accuracy of the respondent’s chronology and it is conceivable that X may have referred to a period prior to the birth of Y namely, 2017 or 2018.
The respondent’s response was in the following terms:[14]
[Counsel]: That is the case. Isn’t it?
[Respondent]: No. She is talking about different incidents. She has got the blood on the couch, where she says she was [older]. And then there Is the – when did – it first started happening. And I said, “Is [Y] there?”, “No, she wasn’t – he wasn’t in your belly yet”. That was after when it started happening, the – the pattern of it happening, getting dressed in the morning. Which correlates with what [the applicant] said yesterday, when he used to get up with her […].
[14] Transcript 18 June 2024, p.82 line 5 – 10.
The respondent denied that when interviewed by DCP in 2022 she advised that X had made her first verbal disclosure in 2021. She considered that the first verbal disclosures were made two months earlier.
The history of X undergoing assessment and interview is a relevant consideration in the proceedings. Following the initial matters raised by X, she was seen by a school counsellor called Ms Q then a second counsellor named Ms R, a third counsellor named Ms S, then Ms Q returned.
At present X is not currently seeing any counsellor, psychologist or social worker. X does not undergo any therapeutic intervention or assessment consequent upon orders made 30 November 2023.
X has also been seen at CAHMS and a police record of interview in 2023. The respondent confirmed that the Senior Case Manager for DCP had advised her that there was a risk continuing interview and assessment of X as it may well be traumatising. The respondent conceded that she had heated words with the Senior Case Manager including the following:[15]
[Counsel]: You said to [Mr T], the senior case manager:
You’re not protecting anyone. You are allowing my daughter to be raped by her father, and you are doing nothing about it.
[15] Transcript 19 June 2024, p.16 line 6 – 9.
The respondent gave consideration to the possibility that the Court may not find that the applicant presents as an unacceptable risk and in that circumstance, the respondent considered that whilst she would not agree with that finding, she would comply with court orders. She remained concerned if orders were made that did not involve supervision of the applicant’s time with the children.
X was interviewed by the police in 2023. It is common ground that the respondent took her to the interview and that in her pencil case, she had rolled up notes. Initially, the respondent prevaricated as to her knowledge of the notes and their content but then agreed that she thought it was likely that X would bring the notes because the instruction from police was that she could bring what she wanted to the interview and given the lack of parameter, notes made by X may well have been included.
The police expressed concern that X had brought notes to the record of interview and when interviewed, the respondent said that she was aware X had written the notes and that she had brought them with her in order to help her remember. The notes are identified as exhibit “2”.
The respondent was prepared to accept that given that none of the various enquiries by DCP, police and counsellors were able to elicit anything useful in support of her belief that the applicant had sexually abused X and continued to engage her in grooming activities, the high water mark of the evidence is that the Court should trust that the respondent is accurately reporting material from X, that it is being collected in an appropriate fashion and is consistent with the broad allegations.
The extent of the respondent’s distrust of the applicant is further exemplified by what appeared at first instance to be an innocuous incident. Following the departmental intervention in 2021, all contact between the applicant and the children was ceased for five days. The respondent states that the applicant sent his mother to bring the children a gift which she interpreted as being an attempt to bribe the children or buy their love.
When asked to reflect upon the incident, the respondent conceded that there was no evidence that would necessarily lead to the paternal grandmother’s attendance being considered as either a bribe or an attempt to buy love. Whilst the respondent considered that the timing was odd, she accepted that she could not know the basis for the gift but nonetheless, she considered that it was a bribe and was an attempt by the applicant to cover up his misdeed involving sexual abuse.
There is a reference in the SAPOL material put to the respondent that the enquiries in 2022 did not reveal new information and that the assessment of the respondent’s presentation was that she appeared fixated. The respondent denied that she was fixated but remained convinced that nuanced language by the applicant, such as the difference between “I love you” which contained no negative connotation was quite different to “you’re my little girl” which should be considered as grooming behaviour.
It is likely that the respondent acknowledges that she could well be the only person that believes that the applicant has sexually abused the children, but in particular X. The respondent believes that X has been sexually abused and the effect on her is reinforced each time X is required to spend time with the applicant. The respondent manages her anxiety and distress with prayer.
The respondent presented as an unreliable witness. Whilst it is difficult to determine whether the respondent holds a genuine, albeit misguided, belief that the applicant has engaged in inappropriate sexual conduct with X, it is not able to be readily determined. The respondent’s evidence was such that she attempted to justify her actions as being the presentation of relevant information seeking that others process it appropriately.
I find that the respondent was aware of X taking notes with her both to the interview with Ms E and also the record of interview with the police. The evidence also supports a finding that X was encouraged to do so by the respondent.
The various investigations as to whether the applicant had conducted himself inappropriately with X did not find any substantiation of the respondent’s allegations and were not able to be corroborated or supported by any aspect of the respondent’s evidence.
Ms E
Ms E is a practicing clinical psychologist having obtained multiple degrees. Ms E is registered with the Australian Health Practitioners Regulation Agency.
Consequent upon an order made on 25 November 2022, Ms E was requested to prepare a Family Assessment Report in her capacity as a single expert witness. Ms E had the assistance of the ICL in terms of arranging and facilitating the appointments of the parties and the children in 2023 but also was given a letter of instruction by the applicant’s solicitors together with a comprehensive suite of relevant documents filed to date.
Consequently, Ms E produced a Family Assessment Report dated 6 July 2024 (“the report”) which was annexed to an affidavit filed on her behalf on 11 June 2024.
As is consistent with purpose for her appointment, even though the SAPOL records of interview were read, Ms E emphasises that the assessment is not a forensic assessment of allegations of child protection or criminal matters. The assessment undertaken cannot establish the truth of specific matters nor the credibility of the parties. Ms E correctly summarises the distinction between the assistance that can be rendered by a single expert witness and the task of the Court in bringing together the threads of the evidence. (see Andrew & Delaine [2009] FamCAFC 182).
In interview Ms E recorded X as presenting as unsettled and summarised her position towards her father as follows:[16]
In her first interview, brought by her mother, [X] thought she was present to see the writer because she sees her father, but was otherwise unsure. [X] described living at home with her mother and many pets, and said she enjoys sitting with and cuddling her mother, who she described as patient, loving, kind and gentle. [X] said she does not have very much alone time, but when she does she enjoys painting. She spoke of getting into trouble at home a lot, for being annoying, and for lashing out at [Y] and her mother. [X] indicated she gets angry because of her father. [X] described receiving daily assistance from her mother in getting ready for school. On a heart strings diagram used to talk about close relationships, [X] placed everyone chosen in close to her - her mother and brother, maternal family, friends and family friends. She did not include her father. When asked how she would use a magic wand, [X] wanted to not see her father again, and to have a nice life, which she said she does not have because her father has ruined it. [X] thought her mother does not like her seeing her father either, and that [Y] sometimes enjoys seeing him and sometimes does not.
[16] Family Assessment Report dated 6 July 2023 at page 9.
Noting that the first interview with X occurred in 2023, in her second interview in the same month of 2023, X was brought in to see Ms E by the applicant rather than the respondent. In that interview X said that it was sometimes fun seeing him but sometimes she did not like it. She knew that her parents were not friends and that they do not speak to each other. It is apparent that whilst the applicant says hello to the respondent, she does not reciprocate.
Ms E reported that Y presented differently to X. He enjoyed seeing the applicant and likes to play with him. When asked to complete a heart strings diagram, in contrast to X, Y included the applicant.
Ms E observed the applicant with X and Y and recorded the following:[17]
Upon entering the writer's room [X] settled into drawing quietly and [Y] began building with small Lego blocks. [X] was quiet and focused, while [Y] talked steadily and calmly with his father. [X] moved to playing with blocks and animals, then to a board game with [Mr Bilyk], speaking with him calmly and confidently, making eye contact, engaging in play appropriately. She did not present as anxious or guarded. Both children's play presented as settled and calm, with [Mr Bilyk] engaging appropriately with both [X] and [Y] throughout. When asked to pack up a second time by [Mr Bilyk] both children assisted doing so helpfully. [Mr Bilyk] later indicated that both children's behaviour had been typical of how they engage when they are with him on weekends.
[17] Family Assessment Report dated 6 July 2023 at page 12.
Ms E considered the relationship of each of the children with the parties and noted that when X attended with the respondent she was clear in stating that she did not want to spend time with the applicant however when brought in by the applicant she was ambivalent but was prepared to concede that whilst at times she did not like being with the applicant, at other times she had fun. Ms E assessed Y’s relationship with the applicant as follows:[18]
[Y] impressed as having well established relationships with both parents, and of being confident in himself. [Mr Bilyk] reports positively upon [Y]’s behaviour when with him. [Ms Bilyk] generally does also while raising concern that [Y] is being impacted by [X]’s behaviour and attitude towards him, and reporting that [Y] has himself made comments of concern regarding [Mr Bilyk], (which have reinforced to her that while sexual abuse might not be occurring now, things are being said that are inappropriate and the relationship remains unhealthy).
[18] Family Assessment Report dated 6 July 2023 at page 17.
The expressed concern of the respondent that in some way the applicant had left petrol at her home with the implication that it might be used in an arson attack is without any credible basis.
The idea that the applicant would ask the paternal grandmother to take a gift to the respondent’s home as a bribe for the children’s continued silence is also without support.
I reject the respondent’s concern that the applicant had a secret code that he utilised with X to mask his abuse and to promote his continued grooming of the child reflects on the parenting capacity of the respondent rather than the applicant.
For the avoidance of doubt, the evidence presented does not allow for a finding of unacceptable risk and rather supports a finding that the applicant presents as no risk to the children in terms of sexual abuse or assault. There is however a risk that the inability of the respondent to compartmentalise her belief that the applicant has sexually abused X and to try and facilitate the children’s relationship with the applicant and the observations of Ms E spanning the two observed interactions are positive and supportive of emotional attachment and a developing relationship.
The situation is more opaque in terms of X’s relationship with the applicant. It was notable that when X was taken to see Ms E by the respondent she was disparaging of the applicant and was clear that she did not wish to spend time with him. She considered that he was a liar and that it would be better if she did not see him again. Those observations are to be contrasted with the demeanour of X when accompanied by the applicant. On that occasion, whilst there was a level of ambivalence towards the applicant, X presented as enjoying her time with him and was prepared to contemplate an ongoing relationship.
Ms E opined that X was prepared to conduct herself in a manner that she perceived was what each of the parties wanted.
The developmental, psychological, emotional and cultural needs of the children.
Ms E gave careful consideration to the presentation of each of the children. Her report provides a summary of key factors that would impact upon the children which is informed not simply by the observation and presentation of the children but also taking into account the results of the standardised tests that explore whether a child presents with a behaviour problem in a clinically significant range and also whether the behaviours exists that might be consistent with depression and anxiety which is internalised behaviour and aggression resulting in social problems considered to be external behaviours.
The standardised tests also bring to account the views of the parties highlighting their perception of the children’s development.
Of some importance is the use by Ms E of the ‘DOORS test’ that may inform as to a party presenting risk, a child’s wellbeing and a parent’s ability to manage conflict, communication and parental stress. The revised child’s manifest anxiety scale is designed to provide information and a measure of a child’s anxiety.
The result of the Child Behaviour Checklist revealed that:[20]
… [the respondent]’s results placed [X]’s emotional and behavioural functioning in the clinical range on all scales except the social problems scale, which was within the normal range. [The respondent] noted concerns about [X]’s “rage” at home due to “the sexual abuse from her father” and [X]’s anger at her [the respondent] for not protecting her and because no one is listening to her. …
[20] Family Assessment Report dated 6 July 2023 at page 8.
By comparison, the applicant assessed X as a “thinker” and as a child who excelled both at an intellectual and academic level but also in terms of her extracurricular activities. Whilst reserved, the applicant considered X was able to make friends and engage at an appropriate social level.
The applicant did not consider that X presented with anxiety and placed her emotional and behavioural functioning within the normal range.
Ms E brought a comprehensive report from X’s school which revealed that she was reserved and timid, but she was an overly compliant and high achieving student. She had friends with whom she played with happily and was sufficiently confident to be able to approach her teachers if there was a problem.
The respondent described Y as a joyful child but again, the results of the Child Behaviour Checklist placed Y’s emotional and behavioural functioning in the clinical range on the somatic complaints and sleep problems scales, but in the borderline range for anxiety and depression.
The applicant considered that Y was functioning both emotionally and behaviourally in the normal range. He considered that Y was a child that was able to exhibit compassion, kindness and empathy.
In what might be considered an insightful assessment of his sister, Y referred to X’s anger which at times was directed towards him. On a heart strings diagram Y placed the respondent and his sister as being his closest relationships followed by his father, maternal and paternal grandparents and family friends.
Ms E explored with Y the circumstances which he observed X to be angry. Y reported as follows:[21]
… [X] does not get angry with [Y] at [the applicant]’s place, but does at [the respondent]’s place. According to [Y], [X] sometimes gets angry because of [the applicant]. He went on to say that sometimes there is no reason, such as he enters a room she is in to get a toy and she gets angry with him. He continued on however, stating that even then (i.e. when there is no reason), [X]’s anger is because of [the applicant].
[21] Family Assessment Report dated 6 July 2023 at page 11.
Whilst X may well present as ambivalent in terms of spending time with the applicant, Y has no reluctance.
Ms E highlights that if her assessment as to the underlying cause of X’s reticence is correct, then absent any finding of significant risk or that the applicant perpetrated sexual abuse, there is significant advantage to X in resuming a relationship with the applicant, but it must be undertaken cautiously.
A difficulty is the uncertainty of the respondent’s ability to compartmentalise her distrust of the applicant fuelled by a belief that he has sexually abused X which may well contribute to an environment in her home that would not facilitate or support X maintaining a relationship with the applicant that does not result in X being angry.
Some assistance can be gained from the observations of the interaction between X and the applicant which were beneficial to X and in significant contrast to her presentation when brought to the assessment by the respondent.
The children appear to be functioning well at school and whilst X presents as more reserved with a propensity to an initial level of anxiety when placed in a new circumstance or environment, Y is able to make the transition to the applicant’s care without difficulty.
There is no reason to doubt the evidence of the applicant that when the children are in his care, albeit under the supervision of the maternal grandmother, their time together is both normal in appearance and enjoyable as to outcome.
It is an interesting observation that X makes no mention of her relationship with the paternal grandmother whereas Y considers that she is a significant adult in his life.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s needs.
The evidence easily supports a finding that the needs of the children are appropriately supported in the respondent’s household. Both of the parties are high functioning individuals and but for the mistrust that has arisen as part of the proceedings, I consider that the applicant also has the relevant skill set to attend to the children’s needs.
At present, the applicant contends that the respondent does not have the ability to support the children emotionally in terms of their relationship with him.
Where that to be a matter supported by the evidence, a finding that a party is not prepared to facilitate a child’s relationship with a party, in the absence of any finding as to risk, may well be categorised as family violence pursuant to s 4AB of the Act. As discussed, I consider that the evidence falls short of the Court’s ability to make such a finding but does support a consideration that the respondent, at present, is unlikely to support and possibly facilitate the children’s relationship with the applicant.
Ms E gives consideration to this aspect and if the Court considers that the children should continue a relationship with the applicant, then she suggests that a cautious approach must be adopted to enable X to feel supported. In addition, that the respondent seek some therapeutic assistance to accept that the children will have a relationship with the applicant and that it is safe to do so.
For his part, whilst the applicant seeks a finding that the respondent presents as an unacceptable risk of emotional harm to the children, it is intrinsic to the orders that he seeks that there is a recognition that the children’s best interests are served by maintaining a relationship with the respondent.
The benefit to the child of being able to have a relationship with the child’s parents.
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
The Court is required to focus on the practicality of each of the parties’ proposals giving appropriate consideration to the s 60CC factors.
I do not elevate the consideration of a meaningful relationship to the level of a presumption that needs to be rebutted, but I consider that it is a matter of significance but not a primary consideration.
I have found that each of the parties have much to offer the children. Moreover, I am satisfied that there is no evidence that would support a finding that either the applicant has engaged in sexual abuse, sexual assault, sexually inappropriate conduct and engagement or grooming of the children but in particular, X. The respondent was not able to establish on the balance of probabilities that certain events as described by her as evidence of sexual assault is satisfied. In particular, I do not consider that the respondent’s evidence alleging that the applicant digitally penetrated X whilst changing her clothes in the lounge room should be accepted. The respondent’s evidence lacked detail and particularity and there were areas of manifest inconsistency.
Whilst I do not rely on the outcome of investigations by DCP and SAPOL, it is of some note that after a careful consideration of the evidence, I was not able to find either that there was substantiation for the allegations made by the respondent or even that there was conduct exhibited by the applicant consistent with risk.
Irrespective of those matters, the gravamen of Part VIII of the Act and in particular s 60CC is to reinforce the Court’s obligation to focus on the needs of the children as opposed to the parties.
When that lens is applied, I accept the evidence of Ms E that a cautious approach needs to be adopted. It cannot be ignored that X has been the subject of multiple interview and assessment to such an extent that Ms E did not consider that there could be any proper reliance upon anything said by X.
As is now understood, assessments by all of the relevant agencies including the significant therapeutic intervention for X has provided no corroboration in support of the respondent’s concerns.
PARENTAL RESPONSIBILITY
Effective from 6 May 2024, s 61DA of the Act, which had previously provided for the presumption of equal shared parental responsibility when making parenting orders, was repealed.
Section 61C of the Act provides as follows:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents. It is not affected, for example, by the parents becoming separated or by either or both of them marrying or re-marrying.
(3)Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
Section 61CA provides:
If it is safe to do so, and subject to any court orders, the parents of a child who is not yet 18 are encouraged:
(a)to consult each other about major long-term issues in relation to the child; and
(b)in doing so, to have regard to the best interests of the child as the paramount consideration.
Section 61D provides:
(1)A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2)A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
(3)A parenting order that deals with the allocation of responsibility for making decisions about major long term issues in relation to the child (see subsection 64B(3)) may provide for joint or sole decision making in relation to all or specified major long term issues.
Accordingly, any change or alteration to the parental responsibility that the parties have pursuant to s 61C of the Act is to be determined by what is in the best interests of a child.
I consider that the thrust of the amending legislation that came into effect on 6 May 2024 was intended to focus the Court as to the needs of the children rather than the parties.
I have regard to the interim orders made by Kari J on 30 November 2023 which restrained each of the parties from taking X to any counselling or therapy without order of the Court.
The engagement of X with therapeutic intervention was a matter of significance in the proceedings. It is likely that the interim order made has benefited the children, but in particular, X. It must be remembered that the focus of the intervention was in respect of the respondent’s belief that X had been the subject of sexual abuse perpetrated by the applicant.
I do not suggest that there may not be some value in appropriately targeted counselling or support for the children given that they will embark upon a qualitatively different relationship with the applicant, but it should be left to the parties to determine what level of therapeutic assistance, if any, should be provided.
I propose to put in place an order that the parties are restrained from taking the children to any counselling or therapy without their joint consent. Again, it should be emphasised that the parties are high functioning and responsible adults. Each of them holds significant tertiary qualifications and work history.
There is no challenge to the current and future arrangements for the children’s education and there is no evidence that suggests the children have health needs that would require specific attention. As such, there is no basis for an order to be made that better defines the parental responsibilities of each of the parties.
I propose to make no order as to parental responsibility.
CONCLUSION
The evidence does not support a finding that either of the parties present as an unacceptable risk.
The orders sought by the respondent provide no alternative other than that the children live with her and spend no time with the applicant. Whilst it is somewhat unhelpful, the respondent proposes that the Court is able to make such further and other orders as it deems just and equitable. Whilst I do not consider that it was the intention of the respondent to exercise some open-ended ability to make any order, my discretion must be exercised within the parameters of the evidence.
The applicant seeks that the children live with the parties in a week about arrangement. There is no evidence which would support such an outcome.
The opinion of Ms E that the relationship between the children and the applicant should be taken cautiously is without contest.
When considering the presentation of the parties, and the evidence of Ms E in particular having regard to the outcome of the application of the standardised tests, the basis for a cautious approach is established.
X at present is ambivalent to the time that she spends with the applicant. When in the care of the respondent, X expresses a preference not to see the applicant which is to be contrasted with her presentation when she is in his care.
The children are placed in the invidious position of remaining in the respondent’s household which is not supportive of the children’s relationship with the applicant. X has also been the subject of intensive assessment, interview and investigation.
A secondary consideration is that whilst there is some support for the applicant’s assertion that he would be able to resume a civil relationship with the respondent, I am satisfied that the respondent is either unable, or at least for the foreseeable, future unlikely to reconcile her relationship with the applicant.
The children are conscious of the conflict and were able to express their concerns to Ms E. X may well be at risk of anxiety and depression if the focus is not upon her but rather upon the parties.
The likelihood of the parties being able to communicate and reach consensus is remote at this stage.
There is no evidence that would support a finding that the children and each of them could transition from the current interim arrangements to an outcome representative of shared care.
I propose to put in place orders that will continue the applicant’s time with the children to be extended but initially supervised by the maternal grandmother with a view to there being a gradual increase in time resulting in an order that eventually encompasses the children spending time with the applicant for five nights a fortnight and half school holidays.
There is no magic as to whether a certain number of days is or is not in the best interest of a child. It is not arbitrary but must be based upon the exercise of discretion taking into account the evidence.
Ms E considers that if the evidence did not support a finding that the applicant presented as an unacceptable risk, providing a cautious approach, the children would benefit from spending five nights a fortnight with the applicant.
The respondent has been the children’s primary carer both during the currency of the relationship and post-separation. There is a point, likely to be different in each circumstance, where the inability of the parties to reconcile their differences speaks against an increase in time. I do not consider that this is a case where the children’s interests are served by equal time expressed as a week about basis. Five nights a fortnight will enable the children to gain the benefit of having a relationship with the applicant but not so as to risk placing them in direct conflict between the parties.
Whilst the children have spent regular albeit limited time with applicant, I do not consider that the children would easily transition to extended periods with the applicant. As such, there should be a gradual introduction to extended periods that coincide with school holidays.
Whilst there is no jurisprudence that would assist in a consideration of the children spending time with each of the parties on special occasions, given that the intent of the orders that are to be made is to reinforce and re-establish a proper relationship between the children and each of the parties but in particular, the applicant, the celebration of special occasions is reasonable exercise of discretion.
Similarly, there is no good reason why each of the parties should not engage in curricular and extra-curricular activities of the children, thereby presenting an environment wherein the children are able to accept that their relationship with each of the parties is the subject of full support.
The applicant seeks orders that would enable either party to travel outside the State of South Australia with the children for a period not exceeding two weeks upon the provision of information relating to itinerary and contact details.
Whilst no evidence was presented in respect of the topic, it may be of some assistance in giving each party some certainty as to the whereabouts of the children.
I make orders as appear at the commencement of these reasons.
I certify that the preceding three hundred and eleven (311) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 26 August 2024
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