Brown and Sidebottom

FAMILY COURT OF AUSTRALIA

BROWN & SIDEBOTTOM

[2011] FamCA 47

FAMILY LAW – CHILDREN – Best interests
FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility
FAMILY LAW – CHILDREN – Equal time

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

M & M (1988) FLC 91-979

APPLICANT:

Ms Brown

RESPONDENT:

Mr Sidebottom

INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

FILE NUMBER:

MLC

3166

2008

DATE DELIVERED:

10 FEBRUARY 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

DESSAU J

HEARING DATE:

27 JULY 2010, 8 OCTOBER 2010, 24, 24 & 27 JANUARY 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS HARRIS

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

VICTORIA LEGAL AID

Orders

That all prior orders relating to the children Y born … May 1997 and A born … June 2000 shall be and are hereby discharged.
That the father shall have sole parental responsibility for the children.
That the children shall live with the father.
That the children shall spend time with the mother if agreed between each child in consultation with the father on the one hand, and the mother on the other hand.
That the father shall authorise any school attended by the children to supply school reports and school photograph order forms to the mother, at … or any other address notified by her, with the mother to meet any expenses relating to such reports or photographs, save that the mother shall not be at liberty to obtain any school group photographs.
That the father shall facilitate the attendance of Y and A or either of them upon Ms M, or such other therapist as Ms M suggests, for counselling and therapy.
That the mother is hereby restrained from commencing any new application for parenting orders in relation to Y and A or either of them without first obtaining leave from a court having jurisdiction under the Family Law Act, and in support of such leave application the mother shall provide to the court a report from her treating psychiatrist setting out:
(a)The dates that the mother has attended the psychiatrist prior to the preparation of the psychiatrist’s report;
(b)The treatment the mother has received from the treating psychiatrist;
(c)The history the mother has provided to the psychiatrist including any history of the allegations that the mother has made to this Court alleging the sexual abuse of each child by the father and others; and
(d)The clinical diagnosis of the treating psychiatrist.
That the appointment of the Independent Children’s Lawyer shall be discharged.
That all applications shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.
That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.
That the mother forward the father a bank cheque in the sum of $1,085 being her share of Ms M’s fees pursuant to the previous order of 4 August 2008 with a stay of one month.
That there shall be no order for costs.

IT IS NOTED that publication of this judgment under the pseudonym Brown & Sidebottom is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3166 of 2008

MS BROWN

Applicant

And

MR SIDEBOTTOM

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Y is 13½. A is 10½. They lived mostly in a week-about arrangement with their mother and father for about six years, until December 2009. Since then, they have lived with their father and not seen their mother except for once early in 2010.
The mother wants the girls to live with her and have only supervised time with their father. She alleges a very serious risk to their welfare from his life-long sexual abuse of them, abuse that she says includes cunnilingus, fellatio, sodomy, rape and pornography.
The expert psychiatric evidence, disputed by the mother, is that she suffers from a paranoid delusional disorder. The father wants the children to continue living with him, and not to spend time with their mother until she receives the psychiatric care and treatment that she needs. That accords with the children’s strongly-held views. It is also supported by the ICL.

BACKGROUND

The children’s father is Mr Sidebottom, aged 47. He has his own business, installing signage. He lives in the peninsula area with his partner Ms T. They have a 3½-year-old daughter, L.
The children’s mother is Ms Brown. She is aged 48 and works part-time as a nurse. She lives in the south eastern suburbs.
The parents started to live together in 1992. They married in 1996, separated in mid-2003, reconciled, and then separated again in early 2004.
Y was born in May 1997. A was born in June 2000. In 2009 they moved from school in the south eastern suburbs to school in the peninsula area after their father moved suburbs. Y is about to start Year 8, A Year 5.
There has been a long history of litigation. The mother filed the first application in 2003. In the course of that round of litigation, she asserted that the children had been sexually abused by their father. The litigation ended with final consent orders providing for shared care in September 2004.
Within a short period, there was further litigation. The mother made more allegations of sexual abuse in relation to both children, but again the litigation ended with final consent orders providing for shared care, in March 2006.
In April 2008 the father started what was the third lot of proceedings. Similar concerns about sexual abuse were raised by the mother. This time, in August 2008, final consent orders provided for the children to live with their father and spend time with their mother.
Within some months of those orders, the parents returned to a week-about arrangement. The father said that was because the mother’s mental health appeared to be stable and she was complying with treatment. However, by December 2009, based on her behaviour and the children’s concerns, he believed she was no longer complying with treatment. Since then the girls have stayed full-time with him and have refused to spend time with their mother.
The mother started these proceedings on 1 February 2010.
On 23 August 2010 the father obtained an intervention order, precluding the mother from approaching him, Y and A, and his other daughter L, effective until 23 August 2011.

MATERIAL RELIED UPON AND ORDERS SOUGHT

The mother relied upon:
·Her Amended Initiating Application filed 26 November 2010
·Her Case Information document (Exhibit ICL 1)
·Her affidavit filed 26 November 2010
·Affidavit of LD sworn 9 February 2010 filed 10 February 2010 (she was not required for cross-examination).
The father relied upon:
·His Amended Response to Initiating Application filed 15 December 2010
·His affidavit sworn and filed 13 December 2010
·The affidavits of his partner Ms T filed 18 February 2010 and 4 May 2010.
The ICL relied upon:
·Affidavit of family consultant Ms W sworn 31 August 2010 annexing Family Report dated 30 August 2010
·Affidavit of Dr K sworn 1 October 2010 filed 6 October 2010 annexing supplementary psychiatric report in relation to the mother dated 14 September 2010
·Affidavit of Dr K sworn 9 April 2010 filed 21 April 2010 annexing psychiatric report of the mother dated 8 April 2010.
Neither parent was legally represented. Each is intelligent and articulate and was co-operative in the hearing, and each had familiarised themselves with the factors in the Family Law Act relevant to the girls’ best interests.
Ms Harris for the ICL was helpful. She agreed to go first in the cross-examination of each party so that she could cover some of the material, and they could collect their thoughts as to any remaining questions. In addition, they could experience how questions were properly framed.

RELEVANT LEGAL PRINCIPLES

Section 60B(1) of the Family Law Act 1975 sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I shall return to the detail below. Section 60CC(4) provides that the court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibilities as a parent, and the court must have regard in particular to events that have happened and circumstances that have existed since separation (see s 60CC(4A)).
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). In certain circumstances, the presumption can be rebutted, or not applied. In any event, the presumption relates to the allocation of parental responsibility, not the time the child spends with each parent.
If there is an order for equal shared parental responsibility, the court is then obliged to consider whether the child spending equal time with each parent would be in the child’s best interests (s 65DAA (1)(a)), and if not, whether the child spending substantial and significant time with each parent would be in the child’s best interests (s 65DAA (2)(c)).
A central issue in this case is the mother’s allegation of sexual abuse. The correct approach in considering such allegations was considered in M and M (1988) FLC 91-979. The High Court made it clear that when the proceedings involve an allegation that a child has been sexually abused by a parent, it does not alter the paramount and ultimate issue for the court, of the child’s best interests, although the findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive impact on the resolution of that issue.
The High Court considered (at p 77,081) that there would be very many cases in which a judge could not make a positive finding that sexual abuse had actually taken place, but it would then need to determine whether there is a risk of sexual abuse, and assess the magnitude of that risk.
The High Court went on to consider how to define the magnitude of the risk with greater precision, and concluded that the test was best expressed by saying that a court will not grant custody or access [as it then was] to a parent, if it would expose the child to “an unacceptable risk of sexual abuse.”
The relevant standard of proof in relation to allegations of sexual abuse is the balance of probabilities. Without limiting the matters that the court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the court must take into account the nature of the cause of action or defence, the nature of the subject matter of the proceeding, and the gravity of the matters alleged.
Finally, as noted, there is an intervention order in existence. Section 68P of the Family Law Act applies if the court proposes any order inconsistent with the intervention order. I shall return to it as relevant below.

THE ISSUES

It is convenient to consider the issues under the umbrella of the s 60CC(2) and (3) considerations. I will first deal with the primary considerations under s 60CC (2).
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents;
From the mother’s perspective, it is implicit that it is not in the girls’ best interests for a meaningful relationship with their father when it is inherently such a physically and emotionally damaging one, and has been throughout their lives.
From the father’s perspective, he has consistently maintained throughout the years of litigation that the girls do need and should have a meaningful relationship with their mother. His actions support that view. He settled the previous litigation when he was comfortable that the mother was complying with treatment and therefore capable of shared care of the children. He simply says that when the mother is without the medical treatment that she needs for good mental health, her unpredictable behaviour, her paranoia, and her delusion that the children have been the victims of the most terrible sexual abuse by him, and many other men – when the girls themselves refute that – simply prohibits her capacity to care well for the children or to have any relationship with them. He says the children are distressed by the prospect of a relationship with their mother at present, and their views need to be supported.
The ICL put it succinctly that whilst it is generally in the interest of children to have a good relationship with both parents, it is not always possible. The ICL concluded that these children should not be having an on-going relationship with their mother until she fully addresses issues regarding her mental health.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
This consideration is at the heart of the case, but again from two entirely different perspectives.
From the mother’s perspective, the need is to protect the children from vile sexual abuse perpetrated and permitted by the father.
From the father’s perspective, the need is to protect the children from the mother’s abusive behaviour, first from her fixed view that they are victims of sexual abuse that has simply never occurred, and secondly from what has escalated to some physical abuse of the girls by her.
I shall deal first with the mother’s firm and unwavering view that the girls have been sexually abused by their father.
The girls, although sufficiently mature and articulate, themselves deny that their father has abused them in any way. There is no objective or expert evidence to suggest that they are incapable of an honest and accurate account of their lives, nor that they are frightened of or have been coerced by their father, so as to adhere to a version of events to please or defend him. They have been interviewed a number of times over the years by different experts, but the experts have provided no evidence that the girls have given any indication of sexual abuse, nor that they have concealed it. To the contrary, the Family Report writer’s report has made the girls’ level of comfort with, and confidence in their father quite clear. Otherwise, there has been no hint of sexual abuse concerns from their schools, medical practitioners, counsellors, or other adults close to them.
The mother is the only source of these allegations. Curiously, even she offers very little evidence of direct disclosures by the girls. Her concerns are based for the most part on her own inferences drawn from the girls’ behaviour, or from her understanding of the behaviour and propensity of men in general. She says that she knows the girls are not able to disclose, because a disclosure would make them “unravel”. Moreover, she knows that they know they do not need to disclose, because they are sure that she is protecting them by doing it on their behalves. She knows these things, although the girls have not expressed them to her.
Throughout the many years of litigation, the mother has given many accounts of the sexual abuse she believes the girls have endured. Her concerns are summarised clearly in her trial affidavit, and in the Case Outline (which she has called Case Information and which she adopted on oath), and were expanded upon in a logical and helpful sequence of questioning by counsel for the ICL.
In her trial affidavit (at para 41), the mother set out the sexual abuse about which she is concerned, as follows:
So, I’ll tell you, Family Court, why my children should be returned to me and their father should only be allowed supervised access, if the children wish to see him at all, and I will put it in point form so it is very easy for you to understand.
(i)He has performed cunnilingus on both [Y] and [A] and his third child, [L], since they were babies.
(ii)He has forced [Y] and [A] to perform fellatio on him over the course of their lives.
(iii)He has sodomized [Y] and [A] over the course of their lives.
(iv)He has forced [Y] and [A] to pose for pornographic images and then sold these images on the internet.
(v)He has, with full knowledge, allowed [Y] and [A] to be sexually abused by many other men.
(vi)He has raped my12 year old daughter, [Y].
·I wondered what he could possible have done to [Y] that made her throw up bile all day, after all, he had done everything he could possibly do and she still managed to stay afloat.
·So I got on the internet and read about sexual abuse and my guess is that he raped her violently. Up until then, he had been just dear old dad, having sexual intercourse with his 12 year old daughter.
·But not the night of her Grade 6 graduation.
(vii)He raped [Y], aged 12 years, violently, so that she was vomiting bile all day long as a result.
Counsel for the ICL took the mother through each major aspect of those allegations. She started with the allegation that the father had committed oral sex on the girls. The mother said she did not know when it started in relation to each of the girls. She said it “could have been from birth”, but A only told her from the age of 2½, and Y from the age of five.
When she referred to the girls “telling her”, she was referring to an occasion when she says Y and A, in the absence of their father, were running around the house calling “The licking monster. The licking monster”. She said that a day or so later she noticed they had sore, red vulvas and vaginal thrush. She said that happened whenever she worked. She agreed that she never took them to a doctor about it. She said that was “probably” because she was “frightened of the reality” of what had occurred.

Apart from that one occasion when the children said “The licking monster. The licking monster”, there was no other verbal disclosure about it, and certainly no direct disclosure. Still, the mother is certain that it meant only one thing: that they had been the victims of cunnilingus performed by their father.
The mother is certain that the father’s little three-year-old daughter L is also a victim. In her trial affidavit (at para 39) she swore that the father’s partner Ms T had told her, when L was about six months old, that:
She [L] gets so upset when [Y] and [A] go to your place, it’s like she wants to crawl out of her own skin.
Although Ms T said she only meant that L missed the girls when they were away, in the mother’s view it clearly indicated that L too had been abused by her father. In the next paragraph of her trial affidavit the mother said:
Can you think of anything more abusive than a six foot four inch man, who must weight at least 120kg, performing cunnilingus on a six-month-old baby, whom, to make matters worse, just happens to be his own child. She can’t even speak yet to tell anyone what he is doing.
When the mother was pressed as to the precise nature of the children’s disclosures in relation to performing oral sex on their father, again there was no specific direct disclosure as such. She referred to one occasion when A held her hands in front of her groin, and Y was screaming “Eat my doodle”. She thought that was in about 2004. Y was about seven, A four. She said “That was enough for me”, meaning enough to know that the father had made the girls perform oral sex on him. (I note that later in her evidence she could not recall if A held her hands, or an empty toilet roll in front of her groin. Either way, she was satisfied it was to emulate a penis.)
In passing, the mother referred to an occasion, (without being time-specific), when Y made a gesture as if to put a penis in her mouth, and “went yuk”. She also asked her mother something to the effect of “If you eat semen do you die?” The mother thought Y was aged about nine or 10 years old at the time. Although apparently a very serious indication of oral sex in the mother’s mind, she agreed it was not in affidavit material. Nor apparently did she ask Y anything further, and Y never added anything to that limited statement and gesture.
When asked an open question by the ICL as to whether there was any other occasion or action that enabled her to conclude that the father was forcing the children to perform oral sex on him, the mother replied that once, at the dinner table, the children were calling themselves “Hurricane [Y]” and “Hurricane [A]” respectively. She said she was so upset that she pushed A’s food onto her lap. (In December 2009 A complained to her father that the mother had thrown hot food over her at the table. It is most likely the same incident.)
The mother was emphatic that calling themselves by hurricane names was a clear indication that those names were used to signify that they could “do such a good job on oral sex”. Any innocent explanation, for example that the children may have watched TV news of hurricanes with female names, drew a blank from her. The mother said that she was a mother and her “intuition” told her that her interpretation was correct.
When questioned as to how she concluded that the father had sodomised the girls, she said she formed that view because the girls were constipated from time to time. She agreed there was “nothing else” to suggest sodomy. However, she was absolutely strident about it. She gave me a ready insight into her more generalised concerns about the sexual abuse of girls by men when she said that in her view it was “very fishy” for any child with a reasonable diet to be constipated. She said she knew many women whose children were constipated, and many children were presented at hospitals that way. She was clear in her view that the likely cause of any healthy child’s constipation was that they had been sodomised.
Otherwise, the only other possible link with sodomy was the mother’s assertion that when A was 2½ years’ old, she told her mother that “Daddy sticks his fingers in my bottom.” That was the only direct disclosure the mother gave from A. She never suggested any further conversation about it, any distress, any potential confusion or misunderstanding, or any possible innocent explanation. I need to assess the mother’s claim of that disclosure in the context of all the evidence about the sexual abuse allegations.
As to the mother’s view that the children had been forced to pose for pornographic images for the father to sell on the internet “for all men to feast upon”, her thought process was as follows.
When A was about four she was on the monkey bars at the primary school and asked her father to take a photograph. He had no camera with him, and took a “pretend photograph”. In the mother’s mind, it was such an odd request by the child, she could see no possible innocent explanation for it, that she had the immediate concern that the father had been having the children pose for pornographic images.
That night, the children were pretending to take photographs of each other at home. A struck a pose that was “not natural” for a four-year-old “unless coached”.
The mother produced two photographs. She described the one of A as like a “centrefold”, and the one of Y as quite clearly “distressed”. The photographs are Exhibits ICL 4 and ICL 5. The sexuality in A’s photo, and the distress in Y’s photo, so clearly perceived by the mother, are not at all clear on the face of what appear to be unremarkable photographs of children with their mother.
In Exhibit ICL 5, A is lounging against her mother on the couch with one leg curled up, the other stretched out. She looks relaxed. In Exhibit ICL 6, Y looks potentially a little weary, but there is nothing that would enable the objective viewer to find proof of distress, let alone from sexual abuse. They were viewed by the forensic psychiatrist Dr K. They were part of the material which helped him diagnose that the mother suffers delusions.
I note that the mother had added the words “Lest we forget” across the top of each photo. She said it was “like the Jews in the concentration camps.” It was mainly so she did not forget what her children had been through, being sexually abused by their father for years, and by other men as permitted by him.
The only other evidence in relation to pornographic images and any sale of them, was a claim by the mother that she had seen a photograph of A (Exhibit ICL 3) in two contexts that had persuaded her as to what the father had been doing in relation to these photographs.
First, her daughter brought home the photo of herself in a frame, and put it in her bedroom. That was “abnormal”, because usually she only kept photographs taken by her mother. Secondly, on an unspecified date, when the mother was dealing with a clerical officer in the Family Court Registry, she claimed to have seen that image on his computer. She was thus absolutely certain that the father had sold pornographic photos of the children for internet use, and the Court officer was a party to viewing it.
My first observation is that this photograph too appears to be unremarkable. It is a photograph of A. She is a sweet-looking child in a pink dress. The father denied any memory of taking the photograph. There was no evidence of him having done so, let alone with any pornographic intent, and no evidence that he had sold it to anyone or posted it on any internet site.
The circumstances in which the mother suggested she saw the photograph also warrant consideration. She said she saw it at the counter in the registry of this Court in Melbourne, although the computer screen was on an angle, and behind the counter. It is possible she was mistaken as to what she saw, or, as an exhibit to her affidavit (as it was) it may have been scanned as part of the court file. I cannot speculate. I can observe though that it is highly improbable that a clerical officer would choose to view a pornographic website at the Court registry counter, at a computer terminal visible to many others, and either deliberately or as chance would have it, in front of the subject’s mother.
One of the most serious allegations made by the mother is that Y has been raped by her father. This is the only instance when she said that Y made a direct disclosure to her. As she put it, it was near the fridge in her kitchen, in December 2009, when Y said “I have been raped”. The mother offered no context to that statement, nor suggested any subsequent discussion. She simply said that they then went to watch the television news. There was a report of a rape referred to on the news, and she and Y “looked at each other.”
In her trial affidavit the mother swore that “He raped [Y], aged 12 years, violently, so that she was vomiting bile all day long as a result.” She set out a scenario clearly suggesting it had been on the night of the Year 6 graduation in December 2009. It is not clear how she understood the details that it was the father, when it occurred, or that it had been violent, from the several words only that she said Y had uttered.
It is incredible that the mother would not have pursued Y’s purported statement with her, or followed up in any way, given her hyper-vigilance in relation to sexual abuse. It is also incredible that although the mother referred to the incident on the first day of the LAT hearing before me on 27 July 2010, she had not referred to it in some six affidavits filed by her before then but after the purported statement.
Moreover, I do not accept the mother’s version of the Year 6 graduation night. At paragraph 82 of her case outline, the mother set out:
The night of [Y’s] Grade 6 graduation she looked beautiful, so happy, so radiant, bubbling with excitement and full of hope. She travelled home that night to [the peninsula area] alone with her father. The next day she was desperately unwell and unable to attend the third last day of Grade 6, she was vomiting bile.
The mother went on to swear that she went to the father’s home in the peninsula area the next day to spend several hours with Y, watching her “throw up bile into a bucket”. She said she was not allowed to stay with her 12-year-old daughter or take her home. “The Family Court decreed that she must stay with her father and cop it sweet.”
I fully accept the evidence of the father and Ms T as to what occurred that Friday evening and on the following days. They were both sound and reasonable witnesses. They made various fair concessions in favour of the mother, although sorely provoked by her over the years. Their evidence on this topic was measured and logical.
I accept that the mother had not seen Y on the night of her graduation. I accept too that Y did travel home alone with her father, but that she arrived home happy and excited about the evening. She had won a sports award and readily shared all her news with Ms T. I accept that she woke up in their home the next day and spent a happy and uneventful day with Ms T and her sisters, while the father was at work. The mother did not visit. I accept their evidence that Y was perfectly well on the Monday morning and went to school. And I accept their evidence that there was in fact another occasion when Y had “a tummy bug” and they had permitted her mother to visit while she was recovering at home, but it was not the day after her graduation.
The mother also claimed that the father had allowed the children to be sexually abused by many other men.
She referred to a child-care centre in the south eastern suburbs, attached to A’s primary school, suggesting that the father sent the girls there “knowing what was occurring”. She said that at one point A refused to go to child-care, saying that she “did not like it”. That led to her belief that the children were sexually abused there, and that the father was condoning the abuse of his daughters.
At paragraph 62 of her Case Outline she wrote of that child-care centre:
The Victorian government facility was run by a man who has never married and has no children of his own, his name is [O]. [O] appears particularly ‘fond’ of [Y].
In the mother’s mind, her suspicion that the girls were sexually abused at the Centre was confirmed when, having made alternative arrangements for a woman to care for them at home, both girls left a loving drawing and note on the fridge for her. She interpreted that as the girls indirectly thanking her for protecting them from O.
The mother also believed Y was sexually abused by the Deputy Principal of her primary school at a school camp, in 2009. In her Case Outline, she wrote (at para 65):
The Deputy Principal […], who was always so rude to me when I would approach him about issues regarding my daughters, was the only male to accompany [Y’s] Grade 6 class on an overnight camp, a camp I did not want her to attend. After the camp [Y] showed me a photograph that she had taken of herself (just her face), she told me she had woken up in the middle of the night at camp and decided to take a photograph of herself – she looked traumatised in the photograph.
When questioned, the mother could see no possible innocent explanation for a young girl taking a photograph of herself.
The mother also believed her brother N sexually abused the girls. She referred to him (at para 40 of her Case Outline) as her “very helpful oldest brother, [N] …”. At that point she referred to him in the context that in 2003 he travelled down from Sydney to be with her. During an interview with DHS he had apparently told the worker “[The father] wouldn’t be abusing the children”. She observed that he had obviously not heard the saying “If you can’t say something helpful, don’t say anything at all!”
The mother referred to her brother N again a little later in that same document. She said (at para 64):
In fact, after moving out of the marital home in 2004, the only male I invite to stay is my brother, [N]. Occasionally, when he would visit from Sydney, I would leave my daughters in his care whilst I went to the supermarket to buy a few items. Surely, my daughters would be safe with my brother? No such luck!
In answer to the ICL, the mother said that her suspicions about her brother probably dated back to before the family’s move from Sydney to Melbourne. Thinking back, she did notice that her brother would sometimes ask Y (aged under 2½ at the time) to take him up to her bedroom. The mother now suspects that her brother wanted to get Y alone. She looks back at photographs and can see the children leaning away from her brother rather than towards him, as if scared or uncomfortable.
She named a friend of the father as another perpetrator. She said that he cared for Y when the mother went into labour with A. She said he gave Y a bath late in the day, and she thought that Y shied away from him after that.
The mother also named a neighbour who lived opposite the father. She said that at little L’s birthday party the year before last, she looked at the neighbour as if to say “I know what you’ve been up to”. She said he had a look of guilt and shame, and that he died of a heart-attack the next day. She drew a possible link between his look of guilt and his dying.
Otherwise, the mother named the husbands of four of her friends (described by her as “ex-friends now”), whom she suspected had sexually abused her daughters.
The mother was quite open that she suspects all men of paedophilia. In her Outline, she put that succinctly when she said, “Life is not easy when the enemy is everywhere!”
Although she may also have more sophisticated accounts of it, at several times she expressed a base theory that if men were not getting sex from an adult partner, they would turn to girls. Her additional concern was that once any man knew that the girls were victims of incest they would think they were “free to go”, to get away with abuse. She perceives her girls now as “fair game” to all men.
In line with this view, she referred in her trial affidavit (at para 35) to life for her children being “superficially restored for the time being” when the father was “forced” [by going back to court again] to “re-partner with someone more ‘age-appropriate’ and preferably not one of his daughters,” referring to Ms T. However, she swore (at para 37) that the “superficial peace and freedom was short-lived”. Her children had been safe “whilst ever their father was getting his sexual needs met”, but as she put it:
…Unfortunately, when his new partner, [Ms T], insisted on having a baby of her own and becoming a mother … his sexual needs were no longer being fulfilled.
She said that although over the years there were times when she doubted the sexual abuse, because lawyers, courts, family and friends told her that it could not be true, she now has no doubts at all. She says the fact of this sexual abuse is “crystal clear” to her. She is now “fully enlightened”. That enlightenment was assisted by a recent relationship she had been in. She said that 12 months ago she fell in love with a man. In the course of that relationship, she realised how important oral sex is to men. And again she expounded upon her theory that if a man is not getting oral sex from his wife, he will turn to his daughters instead.
The mother went so far as to say that two male judges in the Family Court, who had previously “sent the children back” to their father, knew that the children were being sexually abused by him, but their response was an example of how men support other men’s behaviour. She asserted that those male judges knowingly supported the abuse. She said their attitude would have been “Well, he’s a bloke. Let it ride”, and in her opinion the judges would “probably do the same” as the father. In her view, a female judge would probably not “know the truth”. A female judge would, as she put it, “probably think I’m a nut”, because women do not have the information about males that men have.
The mother was very clear about the vigilance that she sincerely believes she must show towards her daughters around all men and boys. It is extreme. I shall return to that when considering her capacity to care for the girls. I shall also return to the steps she has taken and the authorities she has pursued, to disseminate accounts of the sexual abuse suffered by her daughters and the role of this Court and other organisations in condoning that and on-going sexual abuse.
The father strenuously denies all the allegations of abuse. He has consistently denied them in the past. He has also maintained that the allegations have arisen at times when the mother has not been taking the medication she requires to stay calm and rational. I shall return to a detailed analysis of her mental health, but for current purposes note that her insistence that she is well, and that she needs no treatment or medication, runs contrary to the expert evidence about her mental health, and the experience of the father and children.
The father now has the strong view that the children face an unacceptable risk of psychological and emotional abuse in their mother’s care. Long-term, the girls have certainly had to deal with the fact that their mother is at times, as they put it, “weird”, and they have experienced the ebb and flow in her behaviour.
By late-December 2009, the father feared for their physical well-being as well. Not only were the girls finding their mother’s behaviour untenable for reasons that I shall describe further below, but there were also several incidents where the mother and Y engaged in physical altercations, and according to A, there was one occasion when her mother threw pots and pans at her.
I am satisfied that the children are not at risk of sexual abuse or any other abuse in their father’s home. I am satisfied that they are at risk of very serious abuse in their mother’s home, given her mental health and her constant reinforcement to them that they have been sexually abused by their father, and now by other men too, when the girls otherwise have no concerns that it is the case. There is also an emerging physical risk. The Family Report writer strongly supported the girls’ need to be protected from these risks. I shall deal with her evidence in more detail below.

I must now consider the additional considerations.
(a)any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views;
Y and A, described by the Family Report writer Ms W as “intelligent, good-natured girls”, are happy with their lives, living with their father and Ms T.
Ms W described Y as impressing in some respects as “somewhat more mature than her age”, and having clearly developed “a sense of self-sufficiency” in order to cope with the stresses she has experienced over the years due to her complex and often distressing family situation. Although she was not happy about yet again having to be interviewed, she was very co-operative and pleasant.
Y had a “very positive self-image”, talking happily about having settled well into her new high school, and progressing well academically and in sport. She perceived herself as popular. She perceived her life as “extremely enjoyable” at present. When speaking of her relationship with her father and Ms T, Y made it clear that she had “the normal disputes with them as would be expected of an adolescent in the throes of developing her identity separate from the adults caring for her”. However, Ms W was satisfied that it was clear that Y felt “comfortable and safe in turning to them when needed.”
A appeared to the Family Consultant to be “progressing well socially, academically and in the sporting arena”. Although she had taken more time to settle into her new school than her sister, she is now “extremely happy”, with a strong network of friends. Although she also seemed to be a less-outgoing child than her sister, she was “equally delightful”. She was very clear and confident in speaking with the Family Consultant.
Ms W said that when she observed A with her father and Ms T, and when she was speaking about them, it was evident that A “felt relaxed and secure in their presence”. Ms W said there was “nothing to indicate that there was anything other than a normal healthy relationship between them.”
The girls’ respective views about their mother were poignant. The hurt and distress that they feel as a result of her conduct, and as a result of her refusal of medical treatment to be well enough to allow them to safely spend time with her, was palpable.
Y was described by Ms W as “very firm” in her position about her mother. She described her feelings as “angry” towards the “point of hatred.”
Ms W noted (at para 53 of her report):
…Whilst [Y] is prepared to accept that the behaviour of her mother that upsets, embarrasses and frightens her might be a consequence of her having a mental illness, she insists that their mother ‘only gets so many chances’ and that ‘if she would take her pills’ the situation would never have reached this point.
Ms W then noted (at para 54):
[Y] described the hurt she has experienced as a consequence of her mother stalking her and her friends and placing her friends’ parents in invidious situations. She stated that ‘she ruined my primary school friendships.’ [Y] spoke of being punched and pushed by her mother and having to hit her back and said that at times her ‘weird’ behaviour frightened her. She stated ‘I have cut all my emotional ties with her.’
Y refused to see her mother in the course of the Family Report process. She refused to talk to her mother about how she felt. She told the Family Consultant that if a judge orders her to spend time with her mother she “would get on a train and go straight back to her father.” The Family Consultant believed that the strength of Y’s feelings at present is such that she is “genuinely unable to contemplate spending time with her mother either alone, with her sister or in a supervised situation.”
Ms W noted that A was clear that she missed her mother but found her behaviour “weird”. In particular, she found her mother’s emotional and at times physical violence to her older sister, and her violence towards her on one occasion, to be frightening.
Ms W noted (at para 59):
…Because of the unpredictability of her mother’s behaviour when she was unwell, as she perceives her to be at present, [A] explained she felt too anxious to spend time with her. She showed some willingness to spend time with her mother eventually with someone else was [sic] present, but wanted nothing to do with her until she started to take her medication again…
Ms W referred to A’s hurt and sadness, reporting:
…[A] appeared somewhat hurt that her mother would not see her with supervision. She impressed as not being angry and judgmental about her mother but rather sad about the situation but no longer willing to compromise her own needs for safety and security both emotionally and physically, until her mother’s health improved.
The Family Report writer specifically raised the issue with A of whether she was influenced by loyalty to her father and older sister. A was clear that it was her own and her sister’s well-being that led her to her current position.
In her evidence in court, Ms W emphasised she was satisfied that the girls were giving their own views, free from any outside influence or pressure.
(b)        the nature of the relationship of the child with:
(i)     each of the child’s parents; and
(ii)   other persons (including any grandparent or other relative of the child);
(f)the capacity of:
(i)     each of the child’s parents; and
(ii)   any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
I am satisfied that the father is a perfectly capable parent. He is caring well for the children. They are both succeeding at school, despite the mother’s assertions that they have not done well since they changed schools. They impressed Ms W as happy, nice, articulate girls.
The girls seem quite grounded in an understanding of their mother’s illness. Although Y is angry at present, that is understandable in the context of what she has endured. Although A does not want to see her mother at present, she clearly feels free to express sadness about that, and that she does miss her mother.
The father impressed as showing good insight into the girls’ needs. Over the many years of these proceedings, whenever he saw that the mother was back on her medication and treatment and progressing well, he ensured that the children spent half their time with her. He was readily able to concede that she was a very good mother when well. That is a particularly impressive concession, given what he too has endured as a result of her very ugly allegations.
Ms T was also impressive. Although she is a young woman who entered a relationship that brought with it all the complexities of this litigation, she seems to have an even temperament that has been of benefit to the girls. There was no indication that she has tried to turn the father against the mother. She has been respectful of the mother’s relationship with the girls, but at the same time a very good support for the girls. It seems that they are fond of her and communicate easily with her.
The impressive aspect of the father and Ms T’s care of the girls is evident from the history. They have, for example, included the mother in celebrations for little L. They have held discussions with her in a calm and caring manner when they believe she has been becoming unwell again. There was also the evidence of them allowing her to come to their home on one occasion when Y was unwell, to sit with and comfort her.
The expert evidence persuades me that sadly, at present, the mother does not have the capacity to meet the children’s emotional and intellectual needs, nor even to provide for their physical safety.
In 2003, Dr K, an experienced psychiatrist, diagnosed her with a schizo-affective illness, that is a psychotic illness. In April 2010 he was of the view that she was a “woman with personality weaknesses which include heightened paranoid features in someone of rigid, and forceful temperament”. His opinion at that point was that she may have had a paranoid personality disorder type, but not a psychotic illness.
By the time of this hearing, Dr K had the opportunity to review up to date court documents, the Family Report, and the mother’s evidence of the sexual abuse allegations and her basis for those allegations. His professional opinion was absolutely clear that her behaviour is consistent with a paranoid delusional disorder. His evidence was that although medication could not eradicate her delusions, her response to them could be substantially calmer if she adhered to a treatment regime.
Dr K explained his past vacillation in relation to the diagnosis. He explained that patients can present in a charming and well-ordered manner. It is once the totality of the material is known that there is a better capacity for diagnosis. He now has absolutely no doubt about his diagnosis, and he indicated the risks to the children in being cared for by a delusional parent, especially given the nature of the delusions. He emphasised that it is the impact on the children that matters.
In that respect, it was because of the impact on the children in the latter part of 2009, that they stopped seeing their mother.
There were several incidents whereby the children were embarrassed and uncomfortable when their mother, in a state of hyper-vigilance about potential sexual abuse from men or boys, followed them in her car or followed them while playing. Once, late in 2009, she followed Y to the nearby park. Y and a female friend were with two of the boys from their Grade 6 year, (one of whom – the father emphasised – was Vice-Captain of the school). They were in the open, innocently walking along the street. Y was very embarrassed by her mother’s behaviour in front of her school friends.
There was another incident in December 2009, at Y’s Year 6 break-up barbeque party. The mother said that the party continued into the dark part of the evening in the school park area. She said once it was dark, she was naturally concerned to know where Y was. She was looking for her. Y and her friends were very upset and embarrassed by the mother’s behaviour. They called the father, who returned to the park. His evidence was impressive. He handled the matter very calmly. He ensured first that Y’s friends went back to their parents so they were not involved. He then suggested that they go home to the mother’s house to discuss things quietly. Although he was critical of the mother for her complete over-reaction, (he said it was still daylight), he also very fairly noted that Y, as a 12-year-old girl, seemed to be enjoying some of the drama on that particular occasion.
Two other incidents cast light on some of the distress experienced by the children. One incident occurred early in 2010, on the first day of school for A at her new primary school in the peninsula area. When Ms T went to collect A from school, the mother was unexpectedly there. In front of other parents and children, she followed Ms T around to where A was being collected, yelling that Ms T was “spineless”, and that she “did what [the father] said”, and that she “made the girls do things”.
I accept Ms T’s evidence as truthful that A was crying and very distressed after she saw her mother there. She was fearful that the people at her new school would know “everything that had been happening”. Ms T comforted her and told her that no-one had heard.
There was another incident, it seems in the latter part of 2009, when the mother telephoned A while the family was shopping at Ikea. The mother apparently accused A of lying when she said where she was. The mother called the police, who attended the home, and made enquiries of neighbours. Although they left once they understood that the children were fine and that there was no problem at all, the children were upset to have returned home to find the police waiting for them, and felt embarrassed that neighbours had been involved. A in particular was extremely upset and crying.
On Christmas Day 2009, there was a huge fight between Y and her mother. Y telephoned the father to come and collect her. Y was very upset and has refused to spend time with her mother since then. A stayed with her mother that night but was distressed when she came home the next day and has also not visited her mother since then.
It was clear on all the evidence that the mother’s capacity to care for the children would be extremely hampered by her view that, to protect them, she must severely restrict their movements. She said she would be concerned if the girls were with any boys. She would restrict their ability to socialise with boys. It would have to be in daylight and preferably in her house. Otherwise, it would at least have to be in the open, in the street. Although she said that she would not be comfortable with the children going to a mixed party in someone’s home unless she met the parents, and that sounds reasonable enough on its face, the sorts of questions she may want to ask the parents, and the sort of information she may convey to them is likely to be less reasonable, and particularly embarrassing for the girls, given her views on the predatory nature of all men and boys. It is hard to imagine that the simple fun of “play dates” or “sleep-overs” would be open to the girls if any male relatives could be present at a friend’s home.
The mother has an extremely negative view of the Family Court and the fact that the Court and other authorities have let her children down by failing to accept and act on her allegations of sexual abuse. She is entitled to her own views. I emphasise that I am not critical of her for that reason. It is the manner in which those views are expressed, and most particularly the actions that she has subsequently taken, that give insight into the impact on the children of her strongly held views, and the fact that she is incapable of respecting any boundaries when it comes to their privacy.
In her Case Outline she described “the Australian Family Law Court and its affiliates” as “ruining” the children’s lives. She asks rhetorically “…how proud must all those males be who work within its framework. I wonder what their wives would think of them if they knew what they really do for a living?”
In her trial affidavit, she referred to the Court as her “daughters’ enemy”. She described a barrister who had previously acted for the father, and the two Family Court judges who had dealt with the case as, “immoral men” who had made “an immoral choice”. At paragraph 81 of her affidavit she wrote:
The problem with the Australian Family Law Court is that it is run by immoral men and ignorant women who are void of any common sense. Women who are completely alienated from their feminine side.
The mother has reported her grievances to several Prime Ministers, Attorneys-General and others, sending papers, including court papers, divulging the personal details of the children. She has taken her complaints to the United Nations. That is, she has travelled to Switzerland, to personally deliver the various documents to the United Nations Commissioner for Human Rights. She has given documents to the newspapers, including her affidavits. She says it is important for these people and organisations to know the plight of children in the Family Court of Australia.
The mother’s trial affidavit otherwise contained a substantial amount of material not related directly to her daughters, but instead to other children whom she perceived to be at risk of sexual abuse. Some parts were simply not relevant. The language was intemperate. The train of thought was coherent only in its consistency as to the potential risks to children. It gave an insight into what the children have endured when they describe it in child-like terms as “Mum being weird again”.
One random illustration of how the affidavit dealt with children well beyond these two girls was that following her description of various little girls whom it seems she thought were being ill-treated, the mother continued:
74.I left the beach to go to Southland for a Chai Latte and there it was again. This time, another well groomed, slightly overweight man with his again, 2-3 year old daughter, boy is this one obsessed with taking photos with his mobile phone. It’s so obvious to me now, I can’t believe I hadn’t noticed before. He lavishes the little girl with gingerbread men and a baby cino, all the things he knows her strict mother will never allow her to have.
75.I couldn’t stop observing this man, busily snapping away with his mobile phone. I looked at the little girl, whilst the gingerbread man looked appealing, she knew exactly what her dear daddy was up to, so a lot of her enthusiasm for the gingerbread soon disappeared.
76. I understand the meaning of the saying.
‘Ignorance is bliss’.
It was such generalised concerns on her part that contributed to Dr K’s diagnosis of her paranoid delusional disorder.
Y and A are old enough to know and to explain persuasively to the Family Report writer that they cannot cope with their mother’s behaviour.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
For the reasons I have given, I am satisfied that the father and Ms T have shown the willingness and ability to facilitate and encourage the relationship between the girls and their mother. The history is clear. The father has only ever stepped in to stop the relationship when there has been a genuine concern about the mother’s mental health. There is no question that concern has existed since December 2009. That is very obvious from what the children have said to the independent Family Report writer.
The mother for her part does not have the capacity, due to her ill-health, to facilitate the relationship between the father and children. That is an important consideration. Were the children to live with or spend any time with her, there is no question that in her current condition she would be trying to undermine their relationship with their father, a relationship that is dear to both girls.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The children would be very distressed to change from their father’s household. They have strong views that are easily supported on the evidence. They would be very distressed too to be away from their little half-sister L. For more than a year now they have not been seeing their mother. Overall, they feel safer.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This is not the issue in this case, in terms of impeding the children’s opportunity to spend time with their mother. There is no suggestion that supervised time would be suitable at this point, and the mother made it clear she would not accept supervision in any event.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In Ms W’s professional opinion the children need respite from these issues, their mother’s behaviour, and court proceedings. They have been litigated over since 2003, with only short breaks in between the four rounds of litigation. They are old enough to understand that there is litigation, and to understand that as part of it they have had to talk to the Family Consultant. They need now to have their voices heard. They need the assurance that their father is not going to have the stress of further proceedings, and that they are not going to have the stress of being drawn into further proceedings.

In that respect the ICL has proposed orders to restrain the mother from bringing the matter back to court unless certain pre-conditions are met. I shall return to that in a moment.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)   the likely impact any proposed parenting order under this Part will have on that right;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)     the order is a final order; or
(ii)   the making of the order was contested by a person;
(m)any other fact or circumstance that the court thinks is relevant.
These factors are either not relevant in this case, or have already been dealt with.

CONCLUSION

The ICL proposed that the father have sole parental responsibility for the children. In my view that is, sadly, the inevitable outcome in this case. I say “sadly”, because it is clear that when the mother’s mental health issues are controlled by treatment, she is able to contribute to the decision-making for the children. However, in her current state of health, and with her current behaviour, the presumption of equal shared parental responsibility in s 61DA of the Family Law Act is rebutted in light of the emotional abuse that the children have suffered in her care. On any view, it is not in the children’s current best interests for her to be involved in decision-making for them.
As the mother’s case was based on her strongly expressed view that she is well, and that she will not accept any treatment, including medication, then for the foreseeable future, or until she genuinely no longer holds that view, the father needs to be free to make the relevant decisions for the children.
For those reasons too, the children should live with him and not see their mother. Not only has she refused to see them on a supervised basis, and her evidence was clear that she would not see them in the future on that basis, it is apparent from the Family Report writer’s evidence that the children now yearn for a break from the problems that come with spending any time with her.
I am satisfied that an order proposed by the ICL, and agreed by the father, for the mother to spend time with the children if it is agreed by the children in consultation with their father on the one hand, and the mother on the other hand, is appropriate. It enables the father to ensure that he is satisfied on the children’s behalves that their mother is in a calm and safe condition to see them, before he will permit that to happen.
The father and children’s intervention order will expire in August this year. On current indications, it is unlikely that the mother will be accepting of treatment to enable her to satisfy the father that she is well enough to spend time with the children before then. If in fact she is well enough, he can agree to contact and make his own arrangements in relation to the intervention order. For s 68P purposes, I am satisfied that these orders are appropriate.
There has been an issue with on-going telephone calls to the girls. Neither the father nor the ICL asked me to make any orders about that. The intervention order already covers it.
The ICL proposed that the children continue counselling with Ms M, who has counselled them in the past. The father was amenable to that and I shall make that order.
Otherwise, the ICL asked for an order restraining the mother from commencing any new application without first obtaining leave of a court. The ICL proposed that in support of such leave, the mother must provide to the court a report from her treating psychiatrist setting out the dates upon which she attended the psychiatrist, the treatment she has received, the history she provided, and the clinical diagnosis of the treating psychiatrist.
I am satisfied that is a practical way to ensure that the mother is not locked out of the opportunity to resurrect her relationship with the children in the future. At the same time, the father will not face the financial and emotional expense of being brought back to court needlessly, nor will the children endure litigation without any basis.
The mother sought an order for her to receive the children’s school reports and school photographs. She agreed that if there is any expense, she will meet it. The father did not want those documents forwarded to her, saying that the girls do not want her to have that level of involvement in their lives.
The ICL supported the mother’s application. I agree. Although the girls are currently hurt and angry, and feel negatively disposed towards their mother, the hope is that their relationship will resume at some time in the future, and in that event it is important that their mother have a continuity of understanding of their progress at school and how they are developing. She has been a good and caring mother when she has been able, and should be able to maintain this interest in the children’s lives, for their future well-being.
I note that the ICL proposed a notation to these orders in the following form:
The father acknowledges that the mother loves the children [Y] and [A] and wishes to spend time with and communicate with them.
I understand the sentiment of the notation. It accords with the evidence. I do not propose making it a notation to the orders as such. It carries with it some mixed messages for anyone reading the orders. It has been made clear in numerous places in the course of this judgment that there is no doubt at all that the mother loves both her daughters.
I hope that with these court proceedings behind her, the mother may be able to reconsider her current decision not to seek treatment. It is apparent that treatment in the past has enabled the children to enjoy time with her, feeling safe and secure as they should be permitted to feel, and that she has had the joy of participating in and contributing to their lives. It would be to their benefit if she is well enough for that in the future.

THE ORDERS

The orders I propose, subject to any submissions as to form, are as follows:
1.That all prior orders relating to the children Y born … May 1997 and A born … June 2000 shall be and are hereby discharged.
2.That the father shall have sole parental responsibility for the children.
3.That the children shall live with the father.
4.That the children shall spend time with the mother if agreed between each child in consultation with the father on the one hand, and the mother on the other hand.
5.That the father shall authorise any school attended by Y or A to supply school reports and school photograph order forms to the mother, with the mother to meet any expenses relating to such reports or photographs.
6.That the father shall facilitate the attendance of Y and A or either of them upon Ms M, or such other therapist as Ms M suggests, for counselling and therapy.
7.That the mother is hereby restrained from commencing any new application for parenting orders in relation to Y and A or either of them without first obtaining leave from a court having jurisdiction under the Family Law Act, and in support of such leave application the mother shall provide to the court a report from her treating psychiatrist setting out:
(a)The dates that the mother has attended the psychiatrist prior to the preparation of the psychiatrist’s report;
(b)The treatment the mother has received from the treating psychiatrist;
(c)The history the mother has provided to the psychiatrist including a history of the allegations that the mother has made to this Court alleging the sexual abuse of each child by the father and others; and
(d)The clinical diagnosis of the treating psychiatrist.
8.That the appointment of the Independent Children’s Lawyer shall be discharged.
9.That all applications shall otherwise be dismissed and the case removed from the list of cases awaiting finalisation.
10.That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
11.That pursuant to the Family Law Rules this matter reasonably required the attendance of counsel.

I certify that the preceding one hundred & fifty-three paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dessau delivered on 10 February 2011.

Associate:

Date: 10 February 2011

[2011] FamCA 47

10 FEBRUARY 2011

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