Carlyon & Graham - [2022] FedCFamC1F 228

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Carlyon & Graham [2022] FedCFamC1F 228

File number(s):

SYC 6554 of 2019

Judgment of:

CAMPTON J

Date of judgment:

8 April 2022

Catchwords:

FAMILY LAW – CHILDREN – Unacceptable risk of sexual and emotional harm – Where the mother alleges the father has sexually interfered with the child – Where the father specifically denies ever behaving in a sexually inappropriate way with the child – Where the mother does not present sufficient evidentiary foundation for her beliefs – Where it is found that the father does not pose an unacceptable risk of harm to the child – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the child.

Legislation:

Evidence Act 1995 (Cth) s 140(2)

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

Cases cited:

B & B (1993) FLC 92-357

Blann & Kenny [2021] FamCAFC 161

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Deiter & Deiter [2011] FamCAFC 82

G & C [2006] FamCA 994

Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9

Langmeil & Grange (2010) FLC 93-427; [2010] FamCAFC 12

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

Mazorski & Albright (2007) Fam LR 518; [2008] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Napier & Hepburn (2006) FLC 93-303 [2006] FamCA 1316

Stott & Holgar and Anor [2017] FamCAFC 152

Number of paragraphs:

379

Date of hearing:

15 March 2022

Place:

Sydney

Counsel for the Applicant:

Mr MacPherson

Solicitor for the Applicant:

Bridges Lawyers

Counsel for the Respondent:

Mr Schroder

Solicitor for the Respondent:

Metta Legal

Counsel for the Independent Children’s Lawyer:

Ms Carr

Solicitor for the Independent Children’s Lawyer:

Legal Aid NSW

ORDERS

SYC 6554 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CARLYON
Applicant

AND:
MS GRAHAM
Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

8 APRIL 2022

THE COURT ORDERS THAT:
1.All previous parenting orders in relation to the child, X, born 2013 are discharged.

Parental Responsibility
2.The father shall have sole parental responsibility for X, subject to the following:
(a)In the event the father intends to make a decision in accordance with this Order, the father shall advise the mother as soon as practicable of the decision and invite and consider the mother’s views and input in relation to the decision;
(b)The father shall advise the mother of the outcome of his decision within seven (7) days of making the decision.

Living Arrangements
3.X shall live with the father from the date of these orders.

Moratorium of Time with the Mother
4.From the date of these orders for a period of three consecutive months, X shall have no time or contact with the mother and during this period the mother is restrained from:
(a)Contacting X, including by way of telephone, text message, email, social media, in person or by attending at X’s school or extra-curricular activities or place where X may be present; or
(b)Causing any other person to contact X on her behalf; and
(c)Responding to any contact from X.

5.For the purpose of facilitating Order 4, within 24 hours of the date of these orders the father’s nominee shall collect from the mother’s nominee, at a location nominated in writing by the mother’s lawyers to the father’s lawyers, the following items:
(a)Any ‘comfort toys’ (for example, teddies, blankets...) that X may have; and
(b)Such other items which in the opinion of the mother will be required by X.

Supervised Time
6.After the conclusion of three months from the date of these orders, being from 8 July 2022, X shall spend time with the mother each alternate Saturday on a supervised basis at D Contact Service in City KK, or such other supervised contact service as may be agreed between the parties in writing (“the Contact Service”).
7.For the purpose of Order 6:
(a)X’s time with the mother shall occur at such times, and for the maximum period of time period, that can be accommodated by the service on each alternate Saturday.
(b)The parties shall forthwith do all such things that are necessary to complete any intake process required by the Contact Service for supervised time to commence pursuant to this Order; and
(c)The parties shall equally meet the cost of the supervision of such time.

X's Regular Time with the Mother
8.Upon the completion of the mother exercising supervised time at the Contact Service pursuant to Order 6 for a period of six months, X shall spend time with the mother as follows:
(a)During school terms, on each alternate weekend from the conclusion of school on Friday (or 3.00 pm in the event of a non-school day) until 6.00 pm on Sunday; and
(b)During the school holiday periods (as applicable to the school attended by X):
(i)For the first half of each school holiday period in odd numbered years; and
(ii)In the second half of each school holiday period in even numbered years.

(c)On Mother’s Day, in the event that X is not already spending time with his mother pursuant to these orders, from the conclusion of school on Friday immediately prior to Mother’s Day (or 3.00 pm in the event of a non-school day) until 6.00 pm on Mother’s Day.

9.Notwithstanding Order 8(b) above, X shall spend time with his parents during the Christmas period as agreed between them in writing but failing agreement as follows:
(a)With his father from 3.00 pm on Christmas Eve until 6.00 pm on Boxing Day in odd numbered years;
(b)With his mother from 3.00 pm on Christmas Eve until 6.00 pm on Boxing Day in even numbered years.

10.For the purpose of Order 8(b):
(a)The school holiday period commences at the conclusion of school on the last required day of attendance in that term;
(b)The school holiday period concludes at the commencement of the first day of school for the next term; and
(c)The halfway point of the school holiday periods shall be 12.00 pm on the middle Saturday of the period.

Changeovers
11.For the purpose of these orders, changeovers are to occur at school where changeover coincides with the commencement or conclusion of a school day.
12.Changeover that do not coincide with the commencement or conclusion of a school day shall occur at D Contact Service in City KK until 30 June 2023 and thereafter shall occur at McDonald's Suburb E unless otherwise agreed between the parties in writing.

Communication
13.From commencing after the expiration of three months from the date of these orders, being from 8 July 2022, the father shall do all things to facilitate X’s communication with the mother by telephone or by way of FaceTime on not less than two occasions each week, on days and times to be agreed but failing agreement, between 6.00 pm and 7.00 pm on Tuesday and Thursday.

Restraints
14.That each party be restrained from changing X’s name.
15.The parents are restrained from:
(a)Denigrating the other parent, members of the other parent’s family or household in the presence or hearing of X and shall remove X from the presence or hearing of any third party who does so;
(b)Discussing these proceedings, allegations raised in these proceedings or documents prepared or produced for the primarily purpose of these proceedings with or in presence or hearing of X unless:
(i)In accordance with the direction or recommendation of any therapeutic practitioner engaged by the parties pursuant to these Orders;
(ii)To facilitate Court ordered appointments or meetings with the Independent Children’s Lawyer;
(iii)As is reasonably necessary to facilitate compliance with these orders.

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

Therapy
16.The father provide a copy of these reasons for judgment to X’s therapist, Dr F, and any other psychologist, psychiatrist or mental health practitioner that X may attend.
17.The father shall do all things to ensure X continues to attend upon that therapist at such times and dates as recommended by that therapist.
18.The father is to do all things necessary to comply with the treatment recommendations of the therapist and in the event the therapist becomes unavailable to provide treatment, he shall do all things reasonably necessary to facilitate X’s attendance upon an alternate therapist.

Information Sharing
19.The father provide to the mother in writing with particulars of any religious, cultural, or sporting event to be attended by X commencing from 8 July 2022, and the father shall do all such things as are necessary to authorise the mother to receive a copy directly from the school X attends of all information and documents (at her own expense) ordinarily made available to parents of children attending the school, including but not limited to school reports, newsletters, photo order forms, invitations to events and functions, test results, invitations to parent teacher interviews, and notification in the event X is removed from the school for the purpose of emergency medical care or assessment such that the mother have the opportunity to attend such school religious, cultural, or sporting event and from that date
20.Within 72 hours from the date of these orders, each party provide to the other in writing particulars as to their mobile telephone number and email address and advise the other party of any change to that address within 24 hours of such change.
21.Within two months of the date of these orders, each party shall advise the other in writing of their current residential address and shall thereafter advise the other in writing within 24 hours of any change to that residential address, including particulars of any new residential address.
22.In the event X suffers an illness or medical emergency that requires medical attention whilst in either parent’s care, that parent will as soon as practicable:
(a)Advise the other parent of the nature of X’s condition including any diagnosis, treatment and prognosis;
(b)Advise the other parent of the full name and contact details for any health care practitioner or facility X may attend upon for assessment or treatment;
(c)Authorise the health care practitioner or facility to contact the other parent in relation to X’s diagnosis, treatment and prognosis and provide to the practitioner or facility with the other parent’s contact telephone number and email address to facilitate the same.

23.In the event X should be admitted to hospital, each parent shall be at liberty to visit with X in hospital regardless of whether X would ordinarily live with the other parent at that time.
24.A copy of these orders be provided to the principal of any school attended by X.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Carlyon & Graham has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAMPTON J:
INTRODUCTION

Mr Carlyon (“the father”) and Ms Graham (“the mother”) have one child, X born in 2013, who is currently eight and a half years old. X resides with his mother and maternal grandmother.
X did not spend time with his father from the end of October 2018 until after consent orders were made in the Federal Circuit Court (as it was then known) on 24 April 2020. The orders provided for a mechanism of time to occur between the father and X on each alternate Saturday for a period of two hours, supervised by G Contact Service. Supervised time first occurred in May 2020. Time was scheduled to be spent on 21 occasions between 27 May 2020 and 5 March 2022. It occurred on eight occasions.
The mother sought that a positive finding be made as to the father occasioning sexual abuse upon, or that he engaged in inappropriate sexualised conduct with, X. She contends that X will be exposed to an unacceptable risk should he spend any time, including on a supervised basis, with the father.
During the course of her oral evidence the mother said with conviction that:
(a)She had “no doubt” that the father was a paedophile; and that
(b)The father is a “very sick and perverted human being”; and that
(c)The father “preys on his own son”; and that
(d)She believed X had been “anally penetrated” but did not say that it was necessarily the father who had done this; and that
(e)The father was a member of a paedophile ring who took X to a sports club introducing him to men who befriended X and that X was “groomed into performing sexual behaviours”.
The mother sought orders that she have sole parental responsibility for X, that X live with her, and “should the Court find that X has been sexually abused or otherwise to an unacceptable risk spending time with the father” that he spend no time with the father. She sought that injunctive orders be made preventing the father from approaching the mother, X or X’s school, or contacting the mother or X.
The mother said in her affidavit that:
233.If the Court finds that there is no risk in [X] spending time with [the father], then I would accept the Court's decision.
I will return to this evidence later in these reasons.
The mother sought a series of alternative orders should such a finding be made, being that:
(a)In the event X remains living with the mother, he spend time with the father on each alternate week from Saturday at 10.00 am to Sunday at 3.00 pm, the first half of each term school holidays, and from 9.00 am to 5.00 pm on Father’s Day. She also sought that the father have telephone communication with X from 6.30 pm to 7.30 pm every Tuesday evening; and in the further alternative
(b)In the event X is ordered to live with the father, he spend time with the mother on each alternate week from Saturday at 10.00 am to Sunday at 3.00 pm, the first half of each term school holidays, and from 9.00 am to 5.00 pm on Mother’s Day. She also sought orders that she have ‘liberal telephone communication’ with X, including from 6.30 pm to 7.30 pm every Tuesday.
On either of the two above alternatives, the mother proposed that X continue to attend therapy with Dr F, that changeover occur at school or at D Contact Service in City KK, that the parties communicate in writing about X, and that the parties attend upon a family therapist to improve communication between them, to improve the father’s relationship with X and to “work through the issues identified by [Mr H] in his Single Expert Report”.
The drafting of the mother’s Response document read that she sought to have sole parental responsibility for X regardless of any findings as to sexual abuse by the father or whom X lives with. She did not prosecute that case at trial and in submissions it was conceded by the mother that the parent with whom X lives should have sole parental responsibility for him.
The father categorically denies all of the mother’s allegations. He maintains there is no evidence to support the mother’s claims. His view, as expressed to the single parenting expert, Mr H, is that the mother:
8.…has made these claims to various agencies, including statements that invite the activation by these services of an immediate response and action devoid of any critical evaluation or consideration of the actual facts. In this regard, [the father] describes [the mother] as well versed in providing hot buttons, that immediately activated a level of concern, invited protective action, and put into motion a range of protective reactions, all of which failed to consider the lack of objective evidence in support of the allegations.
The father says that the mother’s allegations have been investigated and not substantiated. The father contends that X would be exposed to an unacceptable risk of psychological and emotional harm if he continues to live with the mother in that he would grow up believing that he was a victim of child-sexual abuse and would then exhibit all of symptomology of a genuine victim of abuse, and that he would have no meaningful relationship with his father or paternal family. It was his case that the only way X can have a relationship with both parents is if he lives with him.
The father’s primary position is that a finding should be made that he has not sexually abused X, and that orders should be made for him to have sole parental responsibility for X and for X live with him. Should such a finding be made, the father proposed by way of his Amended Minute of Order produced on the last day of trial alternate regimes of time to be spent by X with the mother, being:
(a)That X spend time with the mother on the third and sixth weekend of each school term, and for the beginning of the terms one, two, and three school holidays until the second Wednesday of that holiday, and for half of the term four summer school holiday. He also sought that the mother have telephone communication with X from 6.30 pm to 7.30 pm every Tuesday evening, and orders to facilitate communication between the parties.
(b)In the alternative, that there be a moratorium of time spent between X and the mother of twelve months and that during this time, he have no communication with the mother, and that thereafter he spend time with the mother in accordance with the regime set out in the above paragraph.
During the course of submissions, the father confirmed his final and preferred alternative of time to be spent by X with the mother in the event he was ordered to live with the father, being a period of no time for three months, then supervised time for six months, and thereafter that the he spend time with the mother on each alternate weekend and during school holidays.
The father said at trial that if the Court were to find X has been sexually abused by him, then he should live with the mother. He proposed two alternative regimes in that event, being that:
(a)X spend no time with him; or
(b)X spend time with him on the third and sixth weekend of each school term, and for the beginning of the terms one, two, and three school holidays until the second Wednesday of that holiday, and for half of the term four summer school holiday. He also sought that the mother have telephone communication with X from 6.30 pm to 7.30 pm every Tuesday evening, and orders to facilitate communication between the parties
At the start of the trial that father sought that, notwithstanding any time arrangement, should X live with the mother, the parties should have equal shared parental responsibility for him.
The Independent Children’s Lawyer (ICL) final proposal was contained within a Minute of Order produced on the final day of trial and marked Exhibit ICL-4. In summary it provided for X to live with the mother and spend unsupervised time with the father each alternate weekend and for the entirety of the school holiday period in 2022, and thereafter on each alternate weekend and for about half of each school holiday period. It was the ICL’s position that changeover should occur at D Contact Service in City LL, or if they were not available, then G Contact Service in City LL with the father to meet the costs of that service. They sought orders providing for a regime through which the mother is to engage a mental health expert to “address her beliefs that [X] has been sexually abused or groomed by the father”, together with a series of restraints on each party, including against the mother discussing with or suggesting to X that the father has abused him or that he is not safe in his care.

By the conclusion of the trial each parent and the ICL agreed that the parent with whom X lives or primarily lives ought to have sole parental responsibility for X.
For the reasons which follow I have determined:
(a)The father does not pose an unacceptable risk of harm to X; however,
(b)The mother does pose an unacceptable risk of harm to X.
Accordingly, it is in the best interest of X to live with the father. I propose that after a moratorium of three months X spend supervised time with the mother for six months before commencing unsupervised time. The father will have sole parental responsibility for X.
EVIDENCE
The father relies on the following documents:
(a)Further Amended Initiating Application, filed on 1 February 2022;
(b)Affidavit of Mr Carlyon, filed on 21 February 2022;
(c)Affidavit of Ms K filed 21 February 2022;
(d)Case Outline, filed on 7 March 2022 and marked Exhibit F1; and
(e)Amended Minute of Order, dated 18 March 2022, and marked Exhibit F4.
The mother relies on the following documents:
(a)Amended Response to Initiating Application, filed on 7 February 2022;
(b)Affidavit of Ms Graham, filed on 21 February 2022;
(c)Affidavit of Mr L, filed on 21 February 2022;
(d)Affidavit of Ms M, filed on 21 February 2022;
(e)Affidavit and Report of Dr N, dated 3 March 2022; and
(f)Case Outline and Minute of Final Orders filed 7 March 2022 and marked Exhibit M1.
The ICLrelies on the following documents:
(a)Case Outline filed on 11 March 2022 and marked Exhibit ICL 1;
(b)Joint Tender Bundle marked Exhibit ICL 2;
(c)Minute of Order dated 18 March 2022 and marked Exhibit ICL7.
There have been four expert reports prepared in this matter.
The first was undertaken by the single parenting expert, Mr H (“Mr H”). It was dated 10 December 2020 and marked as Exhibit CRT-1 (“the family report”). It is the substantive report relied on for the purpose of the proceedings. Mr H prepared an addendum report dated 11 January 2021, which was marked Exhibit CRT 2 (“the addendum report”).
The third report was produced by Ms O, a clinic psychologist, on 8 June 2021 (“Ms O’s report”). It was marked as Exhibit CRT-3. Ms O’s report was produced subsequent to consent orders made on 28 April 2021 for the purpose of establishing whether this family would benefit from family therapy.
A final report was produced by Dr N on 3 March 2022 (“the psychiatric report”). It was annexed to an affidavit by Dr N filed on 7 March 2022, and was produced pursuant to consent orders made on 10 February 2022 for the purpose of assessing the mental and psychiatric state of the mother.
THE POLARISED PARENTING DISPUTE
The parents and the ICL defined the parameters of the parenting dispute at trial around the allegations of sexual abuse and family violence exposing X to an unacceptable risk.
The family report writer identified the challenging dichotomies when allegations of sexual abuse are made, being the risk of denying a parent falsely accused of sexual abuse of a relationship with a child and the associated social and emotional stigma attaching to false allegations, with the risk of returning or placing a child in the care of a parent who has sexually abused them thereby exposing them to ongoing, long term deleterious effects of that abuse.
Mr H identified:
114.The challenge in relation to this dispute relates to the binary nature of the conflict. [The mother] believes that [X] has been sexually abused and consequently, should have no contact with his father. [the father] categorically denies the allegations of abuse, and suggests that the allegations reflect a historical pattern. He draws attention to the obvious difficulties associated with [the mother’s] older son [Mr Y], and him having sexually abused his [relatives], [the mother’s] alleged level of denial in relation to the seriousness of [Mr Y's] behaviour and yet, the gratuitous associations made by her that culminate in the spurious claims directed at him.
In his addendum Mr H considered that the dispute can be distilled to two alternate hypothesis being that either X has been abused by his father and should not spend time with him, or that he has not been abused by his father and should spend time with him. He opined:
The ultimate dilemma is complex; inevitably, there is a risk of exposing a child to further abuse, and there is a risk of denying a child a relationship with a loving parent who has been falsely accused… With the passage of time and with greater delays before a determination can be reached, the options and alternatives become all the more polarised, and the outcomes become increasingly blunt.
Mr H in his oral evidence said that the options confronting the Court in respect of X’s care arrangements are “so black and so white, it is uncomfortable...”, and that he saw them as “all being really horrible options”.
BACKGROUND
The father was born in 1964 and is 57 years of age. The mother was born in 1970 and is 52 years of age.
The parties met in May 2008 and engaged in a casual relationship shortly thereafter. Initially the father was living in Sydney and the mother was living in NN Town. There is some dispute, which is not material to these proceedings, as to when the parties commenced a relationship.
X was born in 2013. The parties began living together in rented accommodation immediately after his birth.
The maternal grandmother, Ms M, was born in 1948 and is now 74 years of age (“the maternal grandmother”). She lived with the parties for periods during their relationship, including for twelve months in 2014 and some months in 2018.
A child of the mother’s prior relationship was born in 1999 (“Mr Y”). He is now 23 years of age. His father is Mr P (“Mr P”).
Proceedings between the mother and her former partner as to the parenting of Mr Y commenced in the Brisbane Registry of the Family Court in 2001.
On 28 May 2002 Mr Y’s access to his father was suspended by way of order made in the Family Court in Brisbane. Allegations were made as to Mr Y exhibiting sexualised behaviour. Mr Y was reported to have told his mother that his father hurt his bottom. The mother noted that X’s anus was red. A medical investigation at the time found no conclusive evidence of sexual abuse. A further medical investigation concluded that Mr Y had suffered from a haemorrhoid. As part of the proceedings, on 26 June 2003, Mr Y disclosed to this mother that his father had kissed him on the bottom and on his penis. Mr Y was told to keep this game a secret. The allegations of abuse were investigated and not substantiated.
In 2004 final orders were made for Mr Y to reside with Mr P. The mother appealed that decision. The appeal was upheld. The matter was reheard in November 2005. Further final orders were made that Mr Y reside with Mr P who would have sole parental responsibility for his care, welfare and development and for Mr Y to spend time with his mother each alternate weekend and half school holidays.
Mr H recorded that there were seven family reports completed by family consultants in Brisbane between May 2003 and June of 2013, and that Mr Y had been the subject of a number of child protection notifications.
Further proceedings as to the parenting of Mr Y were initiated in 2011. In January 2012 the mother retained Mr Y after he allegedly said he wanted to live with her. An order was made that Mr Y return to live with Mr P and spend time with his mother in accordance with the final orders of 2005. Two further expert family reports were obtained, each recommending that Mr Y continue to live with Mr P in Queensland. An order was made on 26 February 2014 to that effect, and providing for Mr P to have sole long-term parental responsibility for Mr Y.
The father deposed to supporting the mother spend time with Mr Y from August 2013 onwards, including by meeting the costs of Mr Y travelling from Queensland to Sydney to spend time with the mother each alternate weekend and during the school holidays. He said that in May 2014 the mother raised with him concerns about Mr Y’s wellbeing, including that he was allegedly experiencing depression, anxiety and was self-harming. His evidence was that he supported the mother in bringing Mr Y to Sydney from Queensland in the 2014 mid-year school holidays, and that Mr Y did not return to Queensland.
Orders were made by consent on 27 October 2014 that Mr Y spend time with his parents in accordance with his wishes. Mr Y resided with the mother, the father and X in Sydney from that time.
During cross-examination, the mother said that she believed Mr P had abused Mr Y but that the abuse occasioned was not sexual. She said that she had never contended that Mr P sexually abused Mr Y, including in the proceedings before the Family Court in Queensland.
Her evidence was manifestly untrue. Mr H documented in the family report his review of the file produced by the Family Court (as it was then) for the proceedings between the mother and Mr P, saying:
34.It is inescapable that in part, concerns in relation to [X] must also relate to some of the concerns as they relate to [Mr Y]. Previously, and when [Mr Y] was much younger, [the mother] was concerned that he was being sexually abused by his father. She now knows that [Mr Y] was sexually abused whilst in the care of his father by his stepbrother. From [the mother’s] perspective, this sexual abuse accounts for [Mr Y's] mental health problems and intentions to self-harm. She acknowledges that there were serious incidents of alleged sexual abuse in 2015, after which [Mr Y] continued with counselling.
35.More specifically in relation to [Mr Y], on 28 May 2002, [Mr Y's] access to his father was suspended. There were concerns regarding sexualised behaviour and in particular reference to masturbating. [Mr Y] was reported to have said that his father hurt his bottom and that [the mother] noted that his anus was red. Medical investigation at the time found no conclusive evidence of sexual abuse, and further medical investigation showed that [Mr Y] suffered from haemorrhoid. On 26 June 2003, [Mr Y] allegedly disclosed that his father kissed him on the bottom and on the penis and that [Mr Y] was told to keep this game a secret. This matter was investigated and the allegations of abuse were not substantiated.
The father gave evidence that in 2015, when Mr Y was either 16 or 17 years old, he sexually assaulted his two male relatives who were seven years old and 11 years old at the time.
The father’s evidence was that following Mr Y attending a sleepover at his cousin’s home, the parties had a conversation with the children’s parents, Mr MM and Ms PP, as follows:
24.During the conversation, [Mr MM] said to us words to the following effect: “the boys told me that [Mr Y] interfered with them." [Ms Graham] said words to the following effect: "I can't believe it. Boys of this age make up stories." I saw that [Mr MM] and [Ms PP] did not welcome this response. I could tell by their body language. I did not say anything but I was not surprised. I had my suspicions. [Mr MM] said: "We believe the boys and we believe it to be serious enough to report it to [Suburb R Police]. We are not going to [press] charges. However, we feel that [Mr Y] needs some kind of help. [Suburb R Police Station] will be in contact for an interview." That was the end of that conversation. [Mr MM] and [Ms PP] left.
He told Mr H that he found a handwritten note by Mr Y apologising to Mr MM and Ms PP for what he had done. He also said that subsequent to the allegations being raised, he and the mother agreed not to leave X unsupervised with Mr Y. He was not meaningfully challenged on that evidence. If anything, during his cross-examination of the father, the mother’s counsel implicitly accepted that both the mother and the father “worked very well together” in making a “joint co-operative decision” to protect X from Mr Y.
It was agreed that no charges were brought against Mr Y but that he was interviewed by police shortly after the incident was said to have occurred. The father said both he and the mother were present at the police interview. He deposed to an officer saying to Mr Y during the interview words to the effect of:
25.…I believe the boys (sic) account of the incident where penetration occurred. You’re very lucky you’re not 17 otherwise this would have taken a different course. However, [Mr MM] and [Ms PP] do not want to press charges, but we insist that you get a level of counselling…
The mother agreed that the police advised her that Mr Y should attend therapy. The subpoena material produced by S Clinic and recorded in the family report at paragraph 67, reflect that the mother and Mr Y engaged counsellors at S Clinic in relation to Mr Y’s treatment in the context of the sexual abuse allegations made against him. The mother said that she and Mr Y attended counselling at S Clinic both separately and together for about three years thereafter, until Mr Y left Sydney in 2018. In her interview with Mr H, she acknowledged that there were serious incidents of alleged sexual abuse in 2015.
The mother’s evidence as to this matter was confusing and inconsistent. She initially denied in her affidavit that Mr Y had sexually abused either of his cousins, saying that:
176.[Mr Y] did not have sexual relationships with two of his cousins, nor did he sexually abuse either of his cousins. At no time were both cousins left in [the father’s] and my care, only one of his cousins ever stayed over and was alone with [Mr Y].
In the paragraph immediately following, the mother said:
177.In or around 18 July 2015, I found out that [Mr Y] and his cousin had sexually experimented with each other. I was not aware it had happened and I was shocked it had occurred. [Mr Y] never had a sleepover at his cousin's home.
Then, later in the affidavit the mother retracted again and said:
201. …as stated above [Mr Y] did not sexually abuse either of his cousins. Also, [Mr Y] was seeing these counsellors at [S Clinic] until he left and moved to Adelaide at 18 years old. That would mean that the alleged sexual penetration could not have occurred when he was 17 years old.
Notwithstanding the mother’s sworn evidence above, she then said that:
203.…at no time did I deny the allegations or the incident occurring. I did not suggest the incident with [Mr Y's] [cousin, Mr QQ], was a fabrication.
204.I recall when [Mr Y] came home from school, I sat him down and asked him "Did you touch [Mr QQ]?" He replied, 'Yes" I said "[Mr Y] how could you do this?" He replied, "I'm sorry mum, we both got involved and it just happened."
205.As far as I am aware, [Mr Y] did not have any conversation about this with/in the presence of [Mr Carlyon] due to the way [Mr Carlyon] was treating [Mr Y].
206.[Mr Y] genuinely looked remorseful and was able to acknowledge his actions.
Mr H said at trial that he did not understand what the mother’s position is in relation to Mr Y, being that he did not know whether she accepts that he abused his cousins or that he didn’t abuse his cousins, and that he did not know whether she applies a similar level of concern to Mr Y and his behaviour as she does for the father and his behaviour. The same issue arises in my decision.
The mother at the conclusion of the trial sought a factual finding that “[Mr Y] did not sexually abuse either of his cousins” but that she “did get confirmation that from [Mr Y] that he and his second cousin, [Mr QQ], were involved.” She said she did not suggest ultimately that the incident was fabricated. The mother accepts that Mr Y engaged in sexual acts with at least one of his cousins, but says that such conduct did not amount to “sexual abuse”. At the time of the alleged assault, Mr Y was 16 (on the mother’s evidence) or 17 (on the father’s evidence), and his cousin was 11 years old.
The S Clinic material was not in evidence before me. I do not have access to police records or any other corroborating evidence which would allow me to make a safe finding of fact as to the incident between Mr Y and his younger relatives. I accept, on the evidence of each party, that he was engaged in some inappropriate sexual conduct with them in 2015, for which he was referred by police to undertake therapy.
The father gave evidence of struggling to connect with Mr Y and of their relationship becoming increasingly strained by mid-2016. In his affidavit he said that by 2017, he had “stopped trying to engage with [Mr Y] altogether. [Mr Y] had retreated into his own world… he would fail to acknowledge my presence and vice versa.”
In October 2017 Mr Y completed his Higher School Certificate at T School. After finishing school he visited his maternal uncle and family in Adelaide. Shortly thereafter he made a decision to move to Adelaide for study, which became a source of dispute between the parties.
In August 2018 the maternal grandmother came to stay with the parties to attend X's Christening. She remained living in their home from that time.
X made his first alleged disclosure to the mother in early August 2018 and his second alleged disclosure to his mother later in August 2018. On this timeline, each disclosure was made while before separation while the parties were living together. I will return to the timeline of disclosures later in these reasons.
In late September 2018, the mother and the maternal grandmother sought out a new rental property at C Street, Suburb RR. The father’s case was that the mother represented to him that the family would move into the property together, that he signed an application form for the property, paid the bond on the property and assisted the moving the parties’ furniture and personal affects into the property in early October 2018.
The parties moved into the Suburb RR property on 6 October 2018. They agreed that the mother undertook a significant portion of the move while the father was not home, but that when he returned from work in the afternoon or evening he assisted moving what remained at the former family home using his work vehicle. That evening, after X was put to bed, the parties had a conversation wherein the mother expressed her upset at the lack of support she said she was receiving from the father. It was not disputed that the mother told the father he was to sleep at the former family home that night, and that he agreed to do so.
The parties separated on 7 October 2018. The separation was anticipated by the mother but not by the father. The father deposed to continuing to move the parties’ items, including his clothes, from the former family home to the Suburb RR property on 7 October 2018. His evidence was that after unloading his vehicle for the second time, the mother expressed to him that she needed “time out” and wanted to “re-evaluate” their relationship. The mother in her affidavit describes the father as arriving at the Suburb RR property “unannounced” and records her “surprise” at him attending the property. She agreed that she told the father she needed “time apart to assess where we are and how we are going to move forward” and that the father looked shocked at this.
The father did not spend any time at the Suburb RR property after 7 October 2018.
Between 7 and 13 October 2018, the parties had some communications as to the practicalities of rental payments. The father said he requested to see X and inquire after his wellbeing during that period, although that is denied by the mother.
On 14 October 2018 the parties met in person but without X. They spoke about their relationship. The father said he again requested to see X but that is also denied by the mother. This became the last time the parties met in person.
X was interviewed by JIRT on 16 October and 19 October 2018, following a report of concern for his welfare. It was uncontroversial that the JIRT investigation did not conclude that the father had sexually abused X and it was ultimately withdrawn.

On 19 October 2018, the Suburb Q branch of the NSW Police applied for an Apprehended Domestic Violence Order (“ADVO”) for the protection of X arising from the allegations of sexual abuse. A Provisional ADVO was granted on that date, and was by consent withdrawn and dismissed on 22 January 2019.
On 7 January 2019 the father attended a voluntary interview with Suburb Q Police.
On 15 January 2019, the mother and the maternal grandmother attended upon Suburb Q Police Station to report “an allegation of domestic violence” occasioned by the father against the maternal grandmother. She made a statement to police about the incident on 16 January 2019. The complaint was made greater than three months after the event.
The father was charged with one account of assault arising from the incident between the father and the maternal grandmother on 2 October 2018. He defended that charge to hearing on 27 May 2019. In June 2019, the Local Court dismissed the charge.
On 12 February 2019, the SC Ms DD on behalf of the NSW Police applied for and obtained an interim Apprehended Domestic Violence Order (“ADVO”) for the protection of the mother, maternal grandmother and X arising out of the events of 2 October 2018. By operation of the interim ADVO, the father was prevented from attending the mother’s place of work or residence. On 10 September 2019 the ADVO was withdrawn and dismissed.
The father filed his Initiating Application on 30 September 2019, after the conclusion of the criminal proceedings and the withdrawal of the second ADVO.
On 18 December 2020 the matter was transferred from the Federal Circuit Court (as it was then) to the Family Court of Australia (as it was then). Orders were also made varying the interim parenting orders, extending the period of time the father was to spend with X each alternate weekend from two hours to three hours.
The father repartnered with his now wife, Ms K (“Ms K”) in June 2020. They were married in 2022. Ms K has two young children, TT who is 11 years old and VV who is eight years old.
The father moved in to Ms K’s home shortly after he and Ms K married. At the time of the trial, they had been living together for about one month.
Both parents did not want to disclose their current residential address to the other. The evidence suggests that X lives with his mother and maternal grandmother in or around the UU Region of New South Wales, and the father with Ms K and her children in the WW Region of Sydney.
Ms K’s children attend the U School at Suburb V in Sydney. The mother did not want to disclose the identity or location of X’s current school.
Supervised time
The joint tender bundle being Exhibit ICL-2 comprised 22 reports prepared by G Contact Service rising over the two year period from May 2020 to March 2022.
A reading of those reports reveals X to be a very conflicted young boy, struggling between his obvious love for his father and enjoyment of the time they spend together and an anxiety he holds about his father.
For the most part, the time between X and the father, when it did occur, was recorded to be positive. They reports record an intimacy between them by way of sharing jokes and hugs, and telling the other “I love you”.
The first period of supervised time between the father and X occurred on 31 May 2020. Notwithstanding that X had not seen or spoken with his father for nearly one and a half years, his greeting at arrival was “hi dad” and a hug. The supervisor recorded no apprehension on X’s behalf upon seeing his father and observed them to chat freely about school and family. They reminisced with one another about the games they used to play and places they went together. The father’s interaction with X on this occasion was wholly appropriate. After the visit finished, the supervisor asked X how he felt it went to which he responded that it was “eighty-one per cent OK”, and he was recorded to appear happy in the car on the way home.
There was a gap of about eight months between the first supervised visit and the second, which did not occur until 23 January 2021 subsequent to the mother receiving advice from X’s psychologist, Dr W, that he should not attend supervised time.
Following the second significant gap in time and communication with his father, X again showed little reluctance towards his father upon arrival at the second supervised visit. They each said hello, exchanged a hi-five and the father told X that he and X’s paternal grandmother missed him. X responded that he missed his grandmother too. The father requested a hug from X and he is recorded to have “hugged and squeezed [the father]”. Similarly at the conclusion of the visit X “squeezed [the father]” and told the supervisor that he had enjoyed his visit.
Other significant interactions between the father and X during supervised time include:
(a)On 20 February 2021, X and the father hi-fived and hugged on arrival. They talked about the paternal family, including X’s grandmother and uncles, and X told the father he would like to talk to them some time. When the conversation turned to why X sometimes ends his scheduled phone calls with the father, X said “sometimes his ear touches the button and ends the call and sometimes he has homework to do”. Upon leaving the visit, X said to his father that “it was sad leaving someone you love”.
(b)On 26 June 2021, X asked the father if he remarried “would he still want to see him”, to which the father responded “of course he would” and said he was glad they were talking about the subject because “he would always love [X] no matter what occurred”.
After each visit the supervisor asked X on the way home if he had enjoyed his time with the father, and he confirmed that he had.
The father during each visit presented as adept at navigating X’s complex questions about the breakdown of his parents’ relationship and the circumstances around them not spending significant time with one another. He did not involve X in the conflict between the parties. He consistently gauged how X was coping and asked him if it was “okay” before he gave him a hug or took a picture. He respected when X said that he did not want to kiss or hug because of the COVID situation, and instead greeted X with a fist-bump or hi-five. On each occasion he came to the visit prepared, sometimes with food and almost always with a gift. He presented as a skilful parent.
Notwithstanding X’s positive interactions with his father, he:
(a)On 26 June 2021, X said to his father that “he was sure he had teeth when [the father] scared Grandma and she got burnt”. He said he “heard the whole conversation”. X then said to the father that he “needed to know that he was safe with him” and then fist bumped him. The father “told him not to worry and said he loved him very much”.
(b)After the visit concluded, in the car on the way home to his mother, X said to the supervisor that “he was worried if [the father] got married and had another child he might not have time for him”. The supervisor appropriately reassured him that would not be the case and that his father “had been doing what he could to have time with him” and that “X was his first child and he will always love [him] no matter what”, which appeared to comfort him.
Of significant concern is that X’s awareness of the Court process and the allegations levelled against his father appears to be growing. As recorded later in these reasons, there is no evidence that X observed or heard the exchange between the father and the maternal grandmother in the kitchen on 2 October 2018. Implicitly X had been told something to prompt his exchange with the father on 26 June 2021. On 27 November 2021, X said to the supervisor that “his father did bad things to him when he was smaller and bent his grandmother’s arm at the oven”.
THE EXPERT EVIDENCE
The family report
Mr H conducted interviews with each of the parties by Skype, and met with X individually in person on 27 November 2020. At the time of the interviews, X had spent time with his father on three occasions since separation, being twice in October 2018 and once on 31 May 2020.
Mr H had the benefit of the Court documents for the purposes of preparing his report. Other sources of information relied on by Mr H included material produced under subpoena from the NSW Police, Department of Communities and Justice, the S Clinic, the Federal Circuit Court in Brisbane and X’s psychologists Ms Z and Dr W.
As a starting point upon which he developed his recommendations, Mr H gave evidence that “allegations of sexual abuse present the most challenging of dichotomies”. That contention became a theme of his evidence and reflects the polarised tone of these proceedings. He identified that a determination of these proceedings will pivot on a finding as to sexual abuse and flowing from that finding, whether the father presents an unacceptable risk to X.
The binary nature of the dispute between the parties caused the expert to conclude:
(a)If sexual abuse has occurred, the conclusion would be that X has been harmed as a consequence of maltreatment of him by his father or
(b)If the Court finds that X has not been abused then the allegations reflect a false positive then the risk to X of having no relationship with his father, and growing with the belief he is a victim of sexual abuse by his father and by others is very real.
The expert said on page 49 of his report:
If the Court finds that [X] has not been abused and that the allegations reflect a False- Positive, then the risks to [X] of having no relationship with his father, and growing with the belief that he is a victim of sexual abuse by his father and by others is very real. In those circumstances, [X] should be seeing his father and substantially so. It would be not surprising if, in those circumstances, [X] was directed to reside with his father.
In my view, Mr H correctly adopted “a stance of forensic neutrality” in considering “the possibility that sexual abuse has occurred and the possibility that sexual abuse has not occurred”. Mr H’s consideration of both possibilities, and his consideration of any contradictions in the material before him and of whether X’s behaviour “can be explained in a manner other than just by sexual abuse”, led to his ultimate conclusion being that:
On the basis of the information available, and in particular the historical investigations, suggest that it is less likely, not more likely that [X] has been sexually abused, and less likely than more likely that he has been sexually abused by his father.
It was Mr H’s view on the evidence that, despite him being unable to conclude definitively whether or not sexual abuse has or has not occurred:
113.…the historical material, and the extensive affidavit and subpoenaed material that when viewed objectively, must raise significant doubts as to the integrity of such allegations, and draw attention to the possibility that these are false positive allegations of abuse. Importantly, I refer to police interviews closer to the time of the alleged abuse, the lack of disclosures by [X], and the lack of substantiation.
An assessment of the material to which Mr H refers and my findings as to sexual abuse shall be discussed later in these reasons.
As to the nature of the mother’s relationship with X, Mr H said:
[X] is reliant on his mother and she is his primary care. He also understands that she fears for him and his safety and that his father is perceived as a threat, risk and danger. If [X] remains in the care of his mother and it is found that the allegations of abuse are not substantiated, it is likely that [X] will grow to believe that he has been sexually abused and is likely to manifest all the features of a victim of abuse. The removal of [X] from the care of his mother is likely to have a very significant and substantial impact upon him. It is likely to cause stress and distress. It may not be likely for [X] to have a relationship with his father, even if the allegations of abuse are not substantiated, and if he continues to reside with his mother.
And, as to X’s view of and relationship with the father, he said:
74.[X] confirmed that he presently did not see his father “because people stopped him from doing so”, and then added that he didn't want to go anyway, and that he didn't want to see his father; [X] told me that there was no particular reason for him not wanting to see his father other than that he just didn't want to go. He explained that his parents were not friends, that they used to fight, and that he believed that his father was trying to steal him. When I asked how he came to that understanding, he told me that his mother “went away from him” because he was mean to his mother and grandmother, and that on one occasion, he pushed his grandmother by the arm.
Mr H opined in his report:
112.[The mother] is genuinely concerned for the safety of [X], and has acted in a manner commensurate with these concerns. Ultimately, the question is whether her concerns, real as these might be, are reality based. [X] is clearly aware of his mother's anxiety and distress, and attaches similar anxiety and distress to the prospect of seeing his father.
Mr H further opined:
116.However, if the evidence does not support the contentions made by [the mother], then some consideration needs to be directed to what might be accounting for her concerns and her subsequent actions. Obviously, the allegations raised by her are serious. If the finding is that they have been investigated but not been substantiated, then attention would need to be directed at the origin of loose associations, overvalued beliefs, distorted reality, and underlying personality vulnerabilities directing to the erroneous conclusions of false positive abuse and all the implications that flow from there. If [X] has not been sexually abused, notwithstanding his mother's conviction that he has, it is likely that [X] will grow to believe that he has been abused, and will in turn develop the behaviours and symptoms associated with abuse. It may be that some of the behaviour described of him, dysregulated and uncontained as it has been, might reflect this process. [X] himself is anxious about the prospect of seeing his father, but cannot identify why, has no basis to his concerns, but is nonetheless anxious.
117.The binary nature of the presentation of this dispute leads to unpalatable options. One possible outcome is for [X] to reside with his mother, to change his name, to live anonymously and have no contact with his father. The alternative is that [X] has not been abused, and whilst the strength of the allegations of abuse are great, that there may actually be little if any evidence in support of those allegations, and that consequently, the only way in which [X] might have a relationship with his father is by virtue of Court Order. [the mother] however appears to have such a strong conviction as to what has occurred to [X], even a conclusion by the Court that abuse has not occurred would likely be difficult for her to accept, and I note that historically, she feels she has been poorly treated by the Family Law system, and the professionals involved in her dispute have been biased, misinformed, lacking in expertise, and have failed both her and her family. It is not likely that her position would be different should the Court find not in favour of her beliefs.
Mr H identified the “mental health considerations to this dispute”. He opined that if the allegations represent a false positive of sexual abuse, then the basis upon which the mother has formulated that belief is important to consider. He said that:
There are certainly unusual aspects to her presentation, and in one regard, it is impossible to ignore what might be loose associations, gratuitous assumptions, overvalued beliefs, and the false construction of loose connections in order to formulate her beliefs. It is of course possible that [the father] is part of a paedophile ring, that she has been surveilled, that there has been something of a conspiracy, and that she been the subject of an insidious and protracted campaign orchestrated by [Mr Carlyon]. If however this is not the case, then her personality structure would need to be considered, and the basis of her erroneous conclusions be understood from a psychiatric perspective. In this regard, review of her mental state by an experienced forensic psychiatrist would be highly desirable.
In compliance with the recommendations of Mr H, the mother obtained an expert opinion as to the state of her mental health by Dr N.
Mr H’s oral evidence
Prior to commencing his cross-examination Mr H was provided with the documents relied upon for the purposes of the trial, including recent contact records from G Contact Service.
Mr H’s evidence at trial reinforced his grave concerns about X’s wellbeing. As already recorded in these reasons his plain view was that each option available to me and the parties is blunt and has the potential to cause enormous harm to X.
While Mr H accepted as positive Dr N’s statement that the mother has the capacity to consider and accept findings made by the Court, Mr H cautioned that his view after having met with the mother and assessed all of the relevant material in this matter was that mother was in reality immovable from her belief that the father has abused X, saying:
…with the greatest respect, your Honour, no matter what you say or do is going to change what [the mother] and her family believe. If you formed the belief that abuse has not occurred, that is just going to likely be interpreted as you having gotten it wrong; you, having been biased, you, not having listened to the information, you having made an erroneous conclusion or just making a mistake. I don’t think anything is going to change their beliefs about what’s happened.
He said unequivocally that so long as the mother retains her belief she will be unable contain that belief from X.
Well, that’s one of the possibilities, indeed: that he understands from his mum that there’s a real risk associated with his dad, and those sorts of erroneous suggestions could, in and of themselves, account for why he has become so fearful. See, [X] has no particular reason in and of himself not to believe what people he loves and trusts communicate to him, and if he understands that they are worried, then it is likely that he will be worried. That kind of emotional contagion is overwhelmingly normal.
In that event Mr H opined that X is “quite likely to grow up disturbed”, including believing that he is a victim of child abuse regardless of whether he is or not, saying:
I certainly think that it’s likely that he will grow up believing that his father is a person to be feared and to be avoided and who is dangerous to him. Whether that extends to sexual abuse or not depends on what is told to him, but I think it’s quite a likelihood that he will grow up to believe that. Your Honour, I have had other clinical cases where people have grown up to believe that abuse has occurred and have then become symptomatic in a way that is confirmatory of that, even though retrospective reconstruction of the evidence suggests that maybe the original assault may not have occurred at all, but that doesn’t correlate with them not being symptomatic and being anxious and stressed and having trouble trusting relationships and having problems with self-image and all the other incredible consequences of victims who’ve been abused.
I asked Mr H to opine on the consequences for X in the event that he develops a false belief that he has been sexually abused by his father, to which he confirmed those consequences are not dissimilar and are equally significant to those he would experience had he actually been abused. He said Ms Z in her letter to the mother’s solicitors dated 24 August 2020 accurately described such consequences, including:
long-lasting effects on brain development, psychological and social functioning, self-esteem, mental health, personality, sleep, health risk behaviours including substance use, self-harm and life expectancy. [Child-sexual] often co-occurs with physical and emotional abuse and other negative and stressful childhood experiences that independently predict poor mental and physical health outcomes in adult life...
in addition to an increased likelihood of depression, panic disorder, alcohol abuse/dependence, drug abuse/dependence, eating disorders, posttraumatic stress disorders, sleep disorders suicide attempts and completed suicides.

A particularly disturbing part of Mr H’s evidence was that his “inevitable conclusion” that he believed X to be “really quite damaged now”. In that context, Mr H’s opinion, should it be accepted, necessitates prompt and robust action to change the trajectory of X’s life.
As to X’s views as reflected within the contact reports, including that he “did not like his dad” and that on this “Inside, I do, but on the outside I don’t”, Mr H opined:
It strikes me that this little boy is deeply, deeply conflicted. Whether that reflects the two parts of how he feels, that there’s a part of him that does care for his father and a part of him that does not care for his father, it does seem like he’s struggling to make sense of how his father fits and what to believe and what not to believe – what is and what is not a clear memory. It’s a most unusual thing for him to say. It becomes even more unusual because he then feels he needs to clarify and say, “No, that’s not really the case,” and it is, in my experience, your Honour, common for children who are really caught in very conflicted situations to say things like, “I was just pretending to have that feeling” because they can’t explain it in any other way, that it is as though this – this – this complex of emotions is deposited into them, but they then act as though they belong to them, but they can’t trace the origin of those feelings. So they then grasp for – for explanations that fit within their cognitive frame to make sense of it. I don’t think it is likely that he is pretending. His experience is much more likely to reflect the reality of what it’s like for him in the – the here and now.
His view was that the conflict between X’s opposed emotions put him in an impossible position. He said that:
If you distil this entire matter down and try and take some of the – the understandable emotion away from it – what you see is a very anxious little boy who – who displays behaviour that is certainly anxiety-related, and may be related to having been sexually abused and may not relate to having been sexually abused, but does seem to reflect very high levels of anxiety.
Mr H said it was not likely that X would have a “clear memory trace” of event that had occurred when he was four years old, including by way of example, a memory of the father punching him, had that happened. He said that it was more likely that such memories as expressed by X were likely to be “reconstructions”, observing that memories are “profoundly unreliable”.
He distilled the options facing the court into three, being that X remains with his mother and has no relationship with his father, that he transitions to his father and spends limited time with his mother, or a middle ground, that he spend a block period of time with his father before transitioning to spend time again with his mother:
And during that time, there is work done to help [X] reorganise and recalibrate, and then there’s a reintroduction of his mum into his life, or that he lives with his dad and has very limited time with his mum because her position is so immutable is that her influence is going to be so toxic and negative. I guess, the attraction of the middle option is that it has, at least, a sense of hope about it, that things could maybe recalibrate into the future and that with a lot of input and work for all of them, they can move past and move on. But I think you would be naïve to belief that this is a case that can be assisted therapeutically in that regard.
Dr N’s evidence
Dr N was engaged by the parties pursuant to orders made by consent on 22 February 2022. His report records that Dr N is an accomplished clinical psychiatrist, having practised in this position for two decades and having particular expertise in providing psychiatric reports to the Court for use as expert evidence in family law proceedings. In the preparation of his report Dr N accessed Mr H’s two reports, interim orders of this Court, and reports prepared by G Contact Service in the period 31 May 2020 and 5 February 2022.
It was Dr N’s opinion that the mother did not suffer from an underlying disorder of thought. He said that there was no evidence available to him that the mother experiences a “formal thought disorder, loosening of associations or a disorder of thought possession”. Similarly, he did not form the view that the mother suffers from hallucinations or any other disorder or perception.
He opined that:
Whether there is an element of a disorder of thought content that may be influencing some of [the mother’s] perceptions is very difficult to determine at this stage. I do not have any evidence that requires me to consider whether [the mother’s] beliefs are false or even a misinterpretation of a real-life situation.
Dr N in his report identified a caveat to his opinion being that his qualifications and position gave him expertise to undertake a clinical psychiatric assessment of the mother, but that he was unable to undertake a “neuropsychological assessment, or an assessment of [the mother’s] “personality structure”. For either of those types of assessments Dr N advised that a forensic psychiatrist would be required.
In his oral evidence, Dr N usefully distilled his opinion to say that he did not believe that the mother suffered from any disorder of thought, of perception, of cognition, or of thought form, referencing her ability to link her thoughts together. He said that the remaining question, having dismissed the other possibilities, was whether the mother suffered from a disorder of “thought content”, that is, whether she suffers from a delusion or a preoccupation.
Dr N gave expert evidence that to diagnose the mother with a disorder of thought content, he would need to be satisfied that the mother has false beliefs, not founded in reality, that are firmly held. If that were the case, he said the mother would be said to hold a “delusion” as distinct from a delusional disorder, and that:
… there is a potential for that delusion to interfere with that person’s day to day functioning, their judgment, their decision making, and the how they perceive the rest of the world.
In the context of this case, he said that it was “very likely” that if the mother held a delusion as to the father’s sexual abuse of X, that delusion would impact on her parenting capacity. In cross-examination by counsel of the father, Dr N identified examples of the impact that such a delusion would have on the mother, including that she may become fearful that some harm may come to X. He said that:
If [the mother] firmly believes this to be the case, then a person in the mother’s situation would want to take whatever measures they believe are necessary to protect X from harm.
He accepted that such a delusion, if found, could have mental health consequences for X and make it very hard for the mother to facilitate a relationship between him and the father.
In the circumstances of his diagnoses (or lack thereof), Dr N opined that:
[The mother] has the capacity to accept advice and support. She is also able to weigh the benefits and disadvantages of any support and treatment that is offered to her. [The mother] is able to make informed decisions about treatment and support offered to her… [The mother] has the capacity to consider and accept findings made by the Court.
For reasons that follow I do not accept that opinion.
Dr N was an impressive witness. He answered the questions put to him directly and within the limits of his expertise. Arising from this evidence I can safely find that the mother does not suffer from a delusional disorder but that there is a possibility that she may suffer from a disorder of thought content, being a delusion as to the father sexually abusing X.
Ms J's Report
Ms J's Report was obtained for the purpose of establishing whether family therapy would be suitable for this family. She opined that it would not. Her evidence was not challenged but took on little relevance in the proceedings.
THE ISSUES
The material disputes between the parties by the end of the trial were:
(a)The mother, as expressly identified by her counsel on instructions, seeking a positive finding that the father had occasioned sexual abuse upon X or that he engaged in inappropriate sexualised conduct with X and hence that the father poses an unacceptable risk by reason of sexual abuse to the child. It was conceded that the mother that conscious of binding authority that a Court should refrain from making a positive finding unless compelled by the evidence to do so (M v M (1988) 166 CLR 69 at 76-77).
(b)The mother during submissions conceded that X would not be exposed to an unacceptable risk of family violence spending unsupervised time with the father even if the mother’s allegations of family violence were established;
(c)The ICL and the father contended for a finding that the father does not pose an unacceptable risk to X by reason of sexual abuse.
(d)In the event a finding is made that the sexual abuse did not occur, or there is a finding that the father presents no unacceptable risk to X by reason of sexual abuse or family violence, it was the case of the mother and the ICL’s that the mother would be able to “put it all behind her”, that she would be able to accept the Court’s findings as to an absense sexual abuse and risk, and that notwithstanding that X had not spent supervised time on many occasions with the father pursuant to the existing orders and arrangements for telephone comminucation had failed, that mother would thereafter comply with any spend time with orders (being on all proposals unsupervised) and electronic communication orders. In that sense she said that child would not be exposed to an unacceptable risk of psychological and emotional harm in the event he continues to live with the mother and unsupervised weekend term and school holiday time with the father;
(e)Which parent should hold parental responsibility for X.
THE LAW AND DISCUSSION
The objects of Part VII of the Act and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
In reaching my decision, I have considered all of the relevant sections of the Act, albeit that I am not required as a matter of law to specifically address each such consideration.
Section 65D of the Act compels the Court to make such parenting orders that are considered proper. According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
Best interests considerations
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests.
The primary considerations (under s 60CC(2)) are:-
(a)The benefit to X of having a meaningful relationship with both of X’s parents; and
(b)The need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect X from harm than to the benefit to X of having a meaningful relationship with both parents.
The meaning of the phrase “meaningful relationship” is not defined in the Act. The Full Court in McCall & Clark (2009) FLC 93-405 (“McCall & Clark”) has approved the interpretation of the phrase by Brown J in Mazorski & Albright (2007) Fam LR 518 (“Mazorski & Albright”) and has also agreed with the reasoning of Bennett J in G & C [2006] FamCA 994 (“G & C”). Brown J in Mazorski & Albright said at [26], after setting out the definition of “meaningful” and “meaning”:
What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”.
The word “meaningful” is qualitative rather than quantitative and the phrase has not been interpreted as requiring the Court to craft orders to support an optimal relationship.[1] Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
[1] Godfrey & Sanders [2007] FamCA 102 at 36
The Full Court said in McCall & Clark at [117]:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).
The Full Court in McCall & Clark continued at [122]:
No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a Court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.
Bennett J discussed the terminology in G & C and said “the enquiry was a ‘prospective’ one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child (sic).”
The case presented by each parent focused on an assessment of risk to X in the event he spent time with the other parent. The findings of fact as to X being exposed to an unacceptable risk and the nature of that risk pivot the consideration of the differing alternate proposals of both parents and hence as to whether X will have a meaningful relationship with the other parent.
The single proposal of the ICL, being dependant on the findings of fact being made in the terms sought by the ICL, will ensure that X has a meaningful relationship with both parent. As recorded later in these reasons, the ICL’s single proposal becomes deficient as to ensuring X has a meaningful relationship with each parent if the findings of fact sought by the ICL are not achieved.
The need to protect X from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence
The second of the primary considerations is the need to protect X from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interest of X and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at [21]) and B & B (1993) FLC 92-357).
In M v M (1988) 166 CLR 69 the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a Court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
In M v M, the High Court also said at [18]:
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.
In Johnson & Page [2007] FamCA 1235 (“Johnson & Page”) at [72], the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
Section 140(2) of the Evidence Act 1995 (Cth) provides:
(2)Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject‑matter of the proceeding; and
(c)       the gravity of the matters alleged.
The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof” (see Johnson & Page at [68]).
The consequences that flow to X (and of course the father) from a finding of unacceptable risk are so serious that the Court is required to carefully analyse and give real and substantial consideration to the facts of the case and decide whether or not, and why and why not, those facts could be said to raise an unacceptable risk of harm (see Stott & Holgar and Anor [2017] FamCAFC 152 at [34]-[38].
Attention to the questions of how the existence and magnitude of risk of future sexual abuse is assessed has been given by the Full Court recently (see Blann & Kenny [2021] FamCAFC 161 at [83]-[86]). The assessment of risk involves first the prediction of the likelihood an event will happen, and secondly, consideration of the severity of the impact of that event if it does happen (Deiter & Deiter [2011] FamCAFC 82 at [61]).
Should I find that the father has sexually abused X, or presents a risk that he will sexually abuse X, a finding of unacceptable risk on the case put by the father will inevitably follow. The effect of the finding the mother seeks was conceded by the father to lead to a consequence of no time spent by X with his father and for X to have no contact with his father. Furthermore, such a finding will have a significant effect upon the father’s reputation, standing and relationship with his current wife, Ms K, and her children, TT and UU.
FINDINGS
Mother’s allegations of sexual abuse
The maternal grandmother’s observations in 2014
The first recorded allegation of sexual impropriety by the father against X was made by the maternal grandmother. She said that she observed the father in late 2014 playing with X’s penis as he was changing his nappy. X was just over one year old at that time.
Her evidence in her affidavit was that:
18. (a)In or around end of 2014, when I was living with [the mother], [the father] and [X], one evening as I walked past [X’s] bedroom, I saw [the father] playing with [X’s] penis while he was changing [X’s] nappy. I recall telling [the mother] what I had seen but at the time she replied, “No Mum, he wouldn’t.” I said “okay, I’m just telling you.”
(b)I recall around this time, [X] also consistently had a red and sore anus which required treatment with cream, and it took weeks for this to heal.

I am mindful of the guidance given by the High Court in to trial judges in Jones v Dunkel (1959) 101 CLR 298 as follows:
…where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved contrary had he chosen to give evidence is properly to be taken into account as a circumstances in favour of drawing the inference.
The mother has been represented by skilful solicitors throughout these proceedings. It was put to the mother that she could have called each of the above witnesses in her case but that she did not. I infer that had the mother adduced evidence from these witnesses that evidence would not have assisted her case.
In the circumstances of this case, the entirety of the mother’s allegation that the father sexual abused X depends on an understanding that X did disclose child sexual abuse to the mother and thereafter exhibited sexualised behaviour, and that the mother’s interpretations of what X said and did overtime are reliable.
As set out earlier in these reasons the mother’s reliability and credibility on other important subject matters is relevant in the evaluation of the integrity and credibility of the mother’s evidence.
The mother’s additional assertions as to risk
Cigarette burns
At paragraph 33(vii) of the Family Report, Mr H records the mother’s assertion that on 15 September 2018 she noticed “what looked (sic) like cigarette burns on X’s back”. In her oral evidence she corrected this and said she “clearly remembered” there was only one burn on X’s back together with “a couple of little scars”. The mother contended this mark was another sign of abuse and supported her suspicion that the father was a paedophile. She said she had previously raised the issue with her counsellor and with JIRT, but denied that she attributed the mark to the father.
Notwithstanding the seriousness of this allegation:
(a)The mother did not give evidence it in her affidavit; and
(b)She said in her oral evidence that she had not taken any photographs of the mark on X’s back, nor had she taken him to a doctor despite being concerned that it looked like “it needed to be treated”.
In cross-examination the mother conceded that the father did not smoke and that it was unlikely that if the mark on X’s back was indeed a cigarette burn, it was unlikely to have been caused by the father.
I find this was a serious allegation recklessly made by the mother. It stands absent any corroborative evidence.
Surveillance
The mother in her affidavit evidence and in her reports to Mr H recounts a string of unusual experiences which she perceives as evidence of surveillance undertaken by the father.
The mother deposed at paragraph 147 of her affidavit that on 31 January 2019, the mother while visiting a friend in the regional town of AJ Town, said that she noticed the father’s car parked on the road close to the front gates of the property. Her evidence was that she stood, looking at the car for about two or three minutes before the father slowly drove away. In cross-examination the mother confirmed she did not tell the father of her location or her intention to visit her friend. She later said at paragraph 161 of her affidavit that this event occurred on 31 December 2019, while an AVO was in place. The mother was so frightened by the incident and that the father “had tracked [them] down” that she reported it to police.
Mr H records the mother’s evidence in her affidavit of 11 December 2019 that “two people came to the door of where [the mother] was staying, possible impersonating Police Officers”. The mother in her cross-examination said that these two people identified themselves as “plain clothed police” officers from Suburb AG. She said that nothing came of this incident.
Mr H at paragraph 99 of the family report records the mother’s concerns that the father “has tracked her mobile telephone” and notes that “there is also reference to him having placed tracking devices in X’s toys.” The mother in her affidavit denied that she “ever held the belief or stated that the father has [put] tracking devices into any of [X’s] toys”. I note that Mr H’s record in the family report was constructed of the mother’s evidence contained in her affidavit of 11 December 2019. She said in cross-examination that she had seen a document from police confirming that there was a tracking device on her phone. That document was the subject of a call for production by the father at the trial. It was not produced.
It was the mother’s evidence that the morning after the charges against the father were dropped, being on Wednesday 12 June 2019, she and the maternal grandmother “didn’t know what would happen with [the father], so [they] decided to leave [their] residence for a few days”. The mother did not say she informed the father of this, but said that the next morning the father was waiting outside her uncle’s home where she was staying. The father denied attending the mother’s uncle’s residence. The mother reported the incident to police who facilitated emergency housing for the mother, X and the maternal grandmother. She recorded in her affidavit that:
160.We reported this to the police and they put us in emergency housing. The police also instructed us to not return back to the house as we would be putting [X] in danger if he did, and if we did not act protectively, [X] could be removed from us. The police also advised us to move interstate and change [X's] name.
It was not the mother’s case that after separation the father had behaved in such a way so as to cause her concern for her safety during the relationship. There was no evidence before me that the father had attempted to “remove” [X] from the mother’s care or that he had ever attempted to contact [X] outside of proper processes, including agitating the matter in Court.
It was while in emergency housing that the mother said that she experienced what may have been the most usual incident recorded in her evidence. Mr H at paragraph 49 of the family report records the mother’s description that whilst at the accommodation:
she was approached by a stranger who was overly friendly. This person asked her if she would give to him permission to take a photo of [X], which she refused. When [the mother] went to the reception in order to enquire about a housekeeping issue, she saw this man was watching her through the viewfinder. She recalled how this man tried to engage her in conversation about philosophy and cultural anthropology, both topics that are of interest to her. She now questions how this man could possibly have known this detail unless he had some kind of previous information about her; he also spoke to her about writing some kind of a book and that she was welcome to read the draft in his room on condition that she had sex with him; this man then changed this suggestion to her giving to him oral sex; she declined both invitations. The following morning this same man tried to take photos again, and when he showed to her other photos on the phone, she saw that there was pornography. For reasons that are unclear she accompanied this man to his room where she saw a young girl, possibly as young as 16 years of age, sitting on the bed.
In her interview with Mr H the mother said that she now associates the man she encountered at the accommodation with the father or with the group of paedophiles with whom he associates. She told Mr H in relation to this series of unusual events that she felt:
50.…that she was thrown to the wolves by police so that they could just gather more leads in relation to these people, without concern for their impact on her of their actions.
The mother did not depose to these events in her affidavit, although in cross-examination she broadly accepted Mr H’s record as accurate. She did not explain how she came to connect her encounter with the father, save to say that she was concerned the man “was one of [the father’s] associates”.
I note that the mother reported to Mr H that this incident occurred on 9 February 2019, being before the charge against the father was withdrawn. The maternal grandmother also places the incident in her affidavit as occurring on 8 and 9 February 2019.
Conclusion as to sexual abuse
Having regard to all of the foregoing matters which to me indicate the challenges in accepting X’s disclosures as probative of sexual abuse by the father, I am not satisfied to the requisite standard that the father sexual abused X as alleged by the mother on any occasions.
My preference as to the father’s denial of the event is supported by the further findings in these reasons as to the mother being reckless in making serious allegations absent supporting evidence, such as the father occasioning a cigarette burn to X, and the mother’s propensity to draw conclusions from disparate pieces of evidence which do not appear on their face to logically connect. The mother, in arriving at her conclusion that the father has definitely occasioned sexual abuse on X, relies on “loose associations, gratuitous assumptions, overvalued beliefs, and the false construction of loose connections in order to formulate her beliefs” (family report, page 54). That finding finds support in the mother’s unsubstantiated contentions as to the father’s surveillance and her exchange with an unknown person at a motel.
Does the father pose an unacceptable risk to harm arising from sexual abuse?
As was observed in Napier & Hepburn (2006) FLC 93-303, in order to reach a conclusion that a child is at unacceptable risk of harm where allegations are made of sexual abuse (and a trial judge is not satisfied that that abuse occurred) “the trial judge need[s] to evaluate not only the seriousness of the behaviour if it occurs, that is that the behaviour would be unacceptable, but also the risk that the behaviour is likely to occur”.
It is beyond doubt that if the father touched X as alleged by the mother or penetrated his anus for sexual gratification, such conduct would be extremely detrimental to the child. Both parties and the ICL conducted the trial on the basis that the only matter that could support a finding of unacceptable risk is the allegation the father had sexual abused X in the past.
In the circumstances of these proceedings, where both parties and the ICL clearly based the question of future risk of abuse or past behaviour, I am also satisfied that the father does not pose an unacceptable risk arising from sexual abuse.
The Mother’s allegations of family violence
It is the mother’s case that the father perpetrated family violence against her including by way of emotional and psychological abuse. She seeks a specific findings to this effect.
In her affidavit, the mother deposes to a range of broad ranging but non-specific allegations of family violence.
A significant complaint on the mother’s part was that the father by his actions and open disapproval of them, isolated the mother from her family, including her sister.
She said that:
86.[Mr Carlyon] was openly disapproving of my family and spoke of them with disdain, such as calling them "stupid". He would tell me to not visit them or have them visit our house.
It was uncontroversial that the maternal grandmother lived with the parties for twelve months in 2014 and for two months between August and October 2018.
The microwave-bacon incident – 2 October 2018
The maternal grandmother alleged that on 2 October 2018, the father assaulted her by way of pushing her “really hard on [her] injured shoulder three times”. Her evidence as to the incident was recorded at paragraph 28 of her affidavit as follows:
28.On 2 October 2018, [the father] and [X] were sitting at the table for breakfast. I asked [X] what he wanted for breakfast and he said “bacon”. I said “okay, I’ll cook you some bacon." I then went to get the bacon. [Mr Carlyon] said "No, don't give him that, I am his father." I was already in the process of placing the bacon into the microwave. [Mr Carlyon] came up to me and pushed me really hard on my injured shoulder three times. It was extremely painful as I had hurt my shoulder a couple of days earlier, and my doctors had informed me that "two of the major muscles were only attached by a thread". [Mr Carlyon] knew how injured my shoulder was.
The mother was not present in the kitchen at the time of the alleged assault and her evidence was limited. She said that she came downstairs when she heard “raised voices of her mother [the father]”. Her recollection was that:
107.… When I entered the kitchen area I saw my mother holding her shoulder and looked like she was in pain. I heard her say to [Mr Carlyon] "Don't push me, you shouldn't push me, don't you maul me." I did not hear her make any threats to [Mr Carlyon]. [Mr Carlyon] said "He's my son and he has to learn to do what he is told." [X] was with them and I heard him say to [Mr Carlyon] "Daddy you're a bad man".
In her complaint to police, the maternal grandmother said that “this incident was not common and she was not subject to a history of violence.
The father conceded certain parts of the maternal grandmother’s contentions, including that he had engaged in an argument with her over feeding X bacon for breakfast, and that X had said “Daddy you’re a bad man”. His version of the event was that:
39.As I approached the microwave, [Ms M] was standing adjacent to the microwave . I had a clear line of sight to the microwave without obstruction . As I approached the microwave with my right hand to switch the microwave off, [Ms M] decided to try and prevent me from switching it off. She was standing to the right of me about an arm 's length away from me. She covered the top of my right hand with her right hand, and I moved her hand with my right hand in one action. With my left hand, I then switched the microwave off and stood in front of it. [Ms M] then came closer to me and stood right in front of my face in front of the microwave and aggressively said to me words to the following effect: "Don 't touch me': and " You will pay for this. " My immediate reaction kicked in. I took a step back. I said: "Step back lady. "
The father was charged with assault on the maternal grandmother and defended the charge to hearing.
I had the benefit of hearing each of the father and the maternal grandmother’s oral evidence as to this event and I have considered the transcript of the reasons for judgment delivered in the Local Court in June 2019. I find that each of the parties, on my reading of the evidence, were equally responsible for the dispute but that on this occasion the father did not assault the maternal grandmother. Consistent with the findings of the Local Court, I observe that:
(a)The maternal grandmother delayed in reporting the incident to the police for a period of three months; and
(b)That the maternal grandmother’s evidence as to returning to the microwave three times, the father pushing her on each occasion was not explained; and
(c)There was no evidence before me as to the maternal grandmother’s contended injuries.
I do not accept the maternal grandmother’s version of events. I am not satisfied that the father occasioned violence on her. To my mind, the progression of this matter to a criminal charge was a reaction to the conclusions of the JIRT inquiry. I accept that the father removed the maternal grandmother’s hand from the microwave.
Conclusion as to risk from the father is a perpetrator of family violence
In considering the evidence as to whether the father is a perpetrator of family violence, I prefer the evidence of the father over the mother where it differs having regard to the nature of the allegations.
As set out earlier in these reasons the mother’s evidence on a number of important topics was unreliable. She was prepared to make a broad contention as to the father occasioning physical abuse upon X by way of cigarette burns in a reckless manner. I accept the father’s evidence as to the denials as to family violence. I am not satisfied to the requisite standard that the father committed any acts of family violence as alleged by the mother.
Counsel for the mother conceded at the conclusion of the trial that even if the mother’s allegations of family violence were accepted, those findings would not lead to satisfaction that the father poses an unacceptable risk to X arising from family violence.
For the reasons previously given I am not satisfied that the father was a perpetrator of family violence as alleged by the mother. No other contentions relating to a risk of family violence in the future in the care of either parent were made in the proceedings.
IS THERE A RISK TO X SHOULD HE CONTINUE TO LIVE WITH THE MOTHER
It is the father’s case that the mother presents an unacceptable risk to X arising from psychological abuse occasioned to him, that abuse being the mother’s transfer to X of a belief that he has been sexually abused by the father when he has not.
The father sought a finding that the mother deliberately and maliciously constructed a false allegation that he sexually abused X. It may be that the mother is hypersensitive to allegations of sexual abuse arising from her earlier experience of the family law Courts with Mr Y, as contended by the father to FACS and JIRT early in their investigations. That does not in itself provide foundation for a finding that her conduct is malicious.
For the reasons that follow I find that the mother’s beliefs are genuinely held and find consistent with Mr H’s expert evidence that:
112.[the mother] is genuinely concerned for the safety of [X], and has acted in a manner commensurate with these concerns. Ultimately, the question is whether her concerns, real as these might be, are reality based. [X] is clearly aware of his mother's anxiety and distress, and attaches similar anxiety and distress to the prospect of seeing his father. It is not my view that [the mother] is being malicious or that she is seeking to alienate [X] from his father, but rather that she genuinely believes the narrative that she now presents.
I had the opportunity to observe the mother in the witness box and carefully consider her oral evidence. I do not accept her evidence as recorded in paragraph 6 of these reasons that she will accept the Court’s findings that the father has not occasioned sexual abuse on X. It sat in odds with her oral evidence that she thought there was no chance that she could be wrong about her allegations and that no matter what happens in these proceedings she will always believe X has been abused. It also sits at odds with the mother’s incapacity to compel X to attend supervised time with the father when it has been scheduled, or to speak with his father on the phone, despite she consenting to orders permitting time to occur. The mother in her oral evidence could not say why things would change I found the alleged sexual assault had not occurred, although it was submitted on her behalf that she would take these orders seriously and comply with them because they will be “final orders”. I do not accept that submission. The mother did not comply with final orders in respect of Mr Y. She did not accept the findings of investigations (including JIRT, the local Court, and Mr H) that did not support her perception of the father.
I formed the view that the mother absolutely and unequivocally believes the matters recorded in paragraph 4 of these reasons, being that the father is a perverted man who has sexually abused X. I find that the strength of that conviction, notwithstanding her best endeavours, in reality constrains her ability to facilitate a relationship between the father and X.
I accept the mother is a good parent but that her capacity is infected by her unwavering but false belief that X has been abused by his father.
As recorded in these reasons, the difficulty with the mother’s approach is that because she is so convinced of the allegations, she then interprets X’s behaviour and her own experiences of the world through that lens.

I accept Mr H’s concern that the mother’s hypervigilance and fixation with the idea of X being sexually abused by the father causes him harm in two ways:
(a)That he will grow to see himself as a genuine victim of abuse and experience the symptoms of a victim; and
(b)That he will be deprived of a relationship with his father.
These risks are real and not fanciful. On the evidence it appears that they are already eventuating.
The expert opined, and I accept after carefully listening to and observing the mother give her oral evidence, that there is a real and significant likelihood, if not an inevitability, that the mother will not change her fixed belief as to the father sexually abusing X. I accept Mr H’s oral evidence that:
…the only way, I think, for [X] to have a relationship with both of his parents is some kind of a significant change in the arrangements as they are now. If things stay the way they are, then it’s almost certain he’s not going to have a relationship with one parent.
Given the history of the mother’s belief and the impact on X having regard to the nature of the mother’s and X’s relationship, I find that X will continue to hold the belief that the father has harmed him and is to be feared if he has contact with the father.
I accept Mr H’s evidence as recorded in these reasons that X is likely to become embroiled in a delusional belief that he is a victim of sexual abuse should he continue to live with the mother. I find that that X living with his father gives him a greater prospect of having a relationship with both of his parents.
Having regard to all of the evidence and specifically that of Mr H including the matters identified above I am satisfied that X would be an unacceptable risk of psychological abuse if he were to continue to live with the mother as she proposes.
SECTION 60CC CONSIDERATIONS
Section 60CC(3) sets out additional considerations in determining what is in X’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(1)Issues relating to the children – their views, level of maturity, culture and relationships:
(a)Sub-section (3)(a) – any views expressed by X and any factors (such as X’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to X’s views;
(b)Sub-section (3)(b) – the nature of the relationship of X with each of X’s parents and other persons, including any grandparent or other relative of the child;
(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of X and either of X’s parents and any other characteristics of X that the Court thinks relevant; and
(d)Sub-section (3)(h) – issues pertaining to the culture of X if X is Aboriginal or a Torres Strait Islander.
(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(a)Sub-section (3)(c) – the extent to which each of X’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(b)Sub-section (3)(ca) – the extent to which each of X’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(c)Sub-section (3)(f) – the capacity of each of X’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of X’s parents.
(3)Issues of family violence:
(a)Sub-section (3)(j) – any family violence involving a child or a member of X’s family; and
(b)Sub-section (3)(k) – any family violence order that applies or has applied involving X or a member of X’s family and if applicable, taking into account a number of stated matters.
(4)Practical difficulty of implementation:
(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect X’s right to maintain personal relations and direct contact with both parents on a regular sis.
(5)Avoiding further proceedings:
(a)Sub-section (3)(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.
(6)Other relevant matters:
(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
In reaching my decision, I have considered all of the relevant sections of the Act albeit that I am not required as a matter of law to specifically address each such consideration. I will now address the relevant issues.
There is little doubt that each of the parents love X and that they each believe they have and are acting in his best interests.
The mother is undisputedly X’s primary caregiver. He lived with her for approaching the past four years. The expert clearly identified that X’s primary attachment is with his mother.
Notwithstanding the limited periods of time and its disrupted character spent by the father with X since separation in October 2018 the nature of the father’s relationship can be gleaned from the G Contact Service Reports. The reports record the father and child interacting in an animated and playful manner. They record a natural interaction between them of a thoughtful, warm and loving character. X and the father engaged with familiarity and mutual affection. X’s relationship with his father remains significant.
I accept that X also has a significant relationship with the maternal grandmother with whom he also shares a common household.
The effect of change to X’s current circumstances is an important consideration in this matter when cast against the divergent proposals of the parties and the proposal of the ICL.
The father’s proposal is that X will live with the father and Ms K in the home owned by Ms K. That will give some security of accommodation. Each of the father and Ms K work generating financial security for that household. They are engaged in a local church community.
By way of the father’s proposal X will attend school with Ms K’s children at the U School. X has some memory of Ms K’s children, whom he knew prior to the parties’ separation, as recorded in the G Contact Service reports. They note the father giving X “a box of 3D whale card” from VV, and X said that he remembered VV.
On 26 June 2021, during the course of a supervised visit X asked his father if he could meet Ms K, who was in the area to pick the father up. The contact notes record the father speaking to Ms K over the phone briefly, and at the conclusion of the call saying to X that he and Ms K had “agreed that it was not a good idea yet to meet until after they had sorted the Court stuff first” but that Ms K “was really looking forward to meeting him in the future”.
I accept the evidence of Mr H and find that such a change by way of a removal of X from the care of his mother and his maternal grandmother is likely to have considerable, significant and substantial impact upon him and is likely to cause stress, distress and grief to X and his mother and maternal grandmother.
The father demonstrated notable child focus and capacity when he proactively sought out his own psychological support from Ms JJ prior to commencing spending supervised time with X.
Ms K in her oral evidence presented as having experience communicating with children. She exhibited significant capacity and flexibility. Her children see their father on two weekends each month and for part of each school holidays.
The father and Ms K impressed me as being aware of the significant challenges of X being integrated into a new blended household. The father said that he intended to continue facilitating X’s attendance at Mr F to assist him with the transition. He also said and I accept that he will attend on Ms JJ should X live in his household to help him navigate this transition.
Mr H was clear in his opinion that X’s relationship with his father is beneficial to X and there would be multiple detrimental consequences for X if the father was absent from his life. He similarly said X would suffer multiple detrimental consequences if his mother was absent from his life. I accept the expert’s opinion on each of these matters and so find. This matter attracts particular weight when considering the mother’s fixed views and their likely consequences.
I accept Mr H’s opinion and find that it is not likely X will have a relationship with his father notwithstanding the allegations of abuse are not substantiated if he continues to live with his mother.
I find that the mother failed to consider whether X’s unsettled behaviour following spending time with the father arose because X was missing him or X felt stressed at being separated from the father being a person who he loved. The mother’s fixed belief led her to a conclusion that X’s behaviours in acting out at or around the time he saw his father could only have occurred because of sexual abuse. These matters are indicative of an absence of parenting capacity of the mother.
The mother has unilaterally made most of the decisions relating to X subsequent to separation without giving the father the opportunity to participate in those decisions. The mother’s actions were commensurate to the strength of her belief. They would have, if the allegations were true, been appropriate. I accept that the strength of the mother’s parenting capacity is infected by her fixed belief.
The mother has exhibited and exemplary capacity to meet X’s physical needs and has demonstrated a commendable attitude towards X and the responsibilities of parenthood in ensuring his accommodation and education. The father does not raise any concern as to the mother’s capacity to provide for X’s needs, save for her inability to facilitate a relationship with the father.
The mother thought that the two years of therapy undertaken by X would not damage him. That conclusion of the mother generates concern, in that the mother did not know what was discussed in the therapeutic sessions.
As to X’s views, Mr H recorded that he expressed he didn’t want to see the father but that “there was no particular reason” for that other than “he just didn’t want to go”.
A relevant consideration is that X and the mother identify as First Nations peoples of the AK Nation in the City AL area. The Act acknowledges the importance of Aboriginal children having the opportunity to enjoy their Aboriginal culture, including the right to enjoy that culture with people who share that culture (at s 60CC(3)(h) of the Act). The most significant person who shares X's Aboriginal culture is his mother. The father said he will supplement X’s right to enjoy his culture by way of connecting with a local aboriginal organisation and by way of programs offered at his school. The mother will be able to share her culture with X upon her recommencing time with him.
Notwithstanding the importance of this consideration, I accept and find that X’s right to enjoy his culture is secondary to the welfare issues.
The father has been diligent in taking every opportunity available to him to spend time with X and play a role in X’s life.
The father displayed a child focused approach upon the mother unilaterally ceasing to facilitate supervised time spent pursuant to the orders made. As recorded in these reasons, the mother stopped the time between the father and X for a period of eight months. He did not immediately resort to litigation.
The father made an application to the Child Support Agency but the mother told the agency that she did not want the father to pay child support. It was her evidence that him doing so amounted to “financial abuse”.
It is to the mother’s credit that she has unilaterally assumed significant financial responsibility for X and has arranged for him to attend a private school with a scholarship.
It is clear and I find the parents have little or no capacity to reach agreement about any matters as to X’s parenting. Any agreements as to his parenting or arrangements for X’s time with the father has only occurred after orders have been made and has thereafter not been facilitated by the mother from time to time.
X has a significant history of receiving professional psychological support. On either party’s proposal that current therapeutic scaffold under the oversight of Mr F would continue.
Parental Responsibility
Section 61DA of the Act requires the Court, when making any parenting order in respect to a child, to apply a presumption that is in the best interest of a child for X’s parents to have equal shared parental responsibility for the child. The presumption applies unless there are reasonable grounds for the Court to believe that X concerned has been subjected to abuse of family violence (s 61DA(2) of the Act) or it may be rebutted by evidence which satisfies the Court that it would not be in the best interests of X for his parents to have equal shared parental responsibility (s 61DA(4) of the Act).
The final submissions of the parents and the ICL clearly raised issues about the application of the presumption. This sensibly reflects the reality that the parents have demonstrated no capacity for joint decision-making. They each submitted and I find that the presumption is rebutted by the evidence such that I am satisfied that it would not be in the best interests of X for the parents to have equal shared parental responsibility in circumstances where:
(a)Each of the mother, the maternal grandfather and the ICL specified that whichever parent is to primarily have X live with them ought to be sole parental responsibility, recognising the reality that;
(b)There has been no direct communication has occurred between the mother and the father for in excess of three years; and
(c)The mother, being firm and unequivocal in her view that the father has abused X will present a significant barrier to the parties engaging in future meaningful and fluid communication. Each party accepted and I find that there is a complete absence of trust between them.
As the presumption is rebutted need not consider it is not necessary to consider whether orders should be made to the children to spend equal or substantial and significant time with each parent (s 65DAA of the Act). In any event, the geographical distance between the parents’ households would not make orders for equal or substantial and significant time practical or logistically achievable.
CONCLUSION
After hearing all of the evidence and considering the parties’ proposals I accept Mr H’s view recorded at paragraph 31 of these reasons that the options that confront me in respect of X’s case are uncomfortable. It is imperative that X’s exposure to the unacceptable risk in his mother’s household is mitigated. In doing so I accept that I will likely occasion to X a sense of grief at the temporary loss of his mother’s relationship and of anxiety at living in his father’s home with whom he has not had substantial time for many years and who he may believe presents a harm to him.
I accept and find consistent with Mr H’s opinion given in his oral evidence that:
I’m suggesting that for a period of time, if there’s going to be a change, that he needs to have the experience of living with his dad. And then one of the options, that is, that he lives with his dad and sees his mum or lives with his mum and sees his dad – but I think that unless there is some kind of really substantial change in the immediate circumstances in the circuit break, which is going to be challenging, nothing can possibly happen.
The ICL’s proposal was grounded from an acceptance that the mother could change or relinquish her views as to the father sexually assaulting X. In the circumstances of my findings, adopting the proposal of the ICL will continue to expose X to an unacceptable risk by living in his mother’s home. It is significant that the ICL when proposing that the mother engage in therapy to assist her in modulating or changing her belief as to the father’s sexual abuse, that:
(a)There was no evidence as to an appropriate person with expertise whom she could engage in that process; and
(b)There was no evidence as to how long that process would take to commence and be effective.
I find that the ICL’s proposal failed to take into account the weight of the evidence and specifically, the unchallenged expert opinion of Mr H as accepted by me as to it being almost inevitable that the mother would not change her fixed view as to the father sexually assaulting X.
This finding is supported by the evidence of Dr N, to the effect that the mother did not suffer from any delusional disorder, but that her views, if found to be in unfounded in reality, would amount to a delusion which could impact on her parenting capacity.
A period of three months moratorium from his mother will give X a period of time to settle absent anxiety generated from his mother’s views, as envisaged by Mr H as record in paragraph 115 of these reasons. I find that this short period will appropriately balance X’s sense of loss with knowing that he will see his mother in the not too distant future. By way of the proposed orders set this change will occur just prior to the school holidays and the Easter period which shall allow time for X to settle into the father’s household.
The proposed orders also include restraints upon the parents denigrating the other parent or family members, discussing the proceedings or allegations raised in the proceedings. Some other minor amendments to the father and the ICL’s proposals have been made to clarify some minor potential ambiguity in the proposed orders. Given the history of the parties and the mother in particular to date, these restraints are appropriate for the protection of the X.
The father sought relief as to X’s name anticipating the mother may change it. It is in his best interests that X maintain his name and identity. An order will be made to prevent any change.

I certify that the preceding three hundred and seventy-nine (379) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.

Associate:
Dated: 8 April 2022

File number(s):	SYC 6554 of 2019
Judgment of:	CAMPTON J
Date of judgment:	8 April 2022
Catchwords:	FAMILY LAW – CHILDREN – Unacceptable risk of sexual and emotional harm – Where the mother alleges the father has sexually interfered with the child – Where the father specifically denies ever behaving in a sexually inappropriate way with the child – Where the mother does not present sufficient evidentiary foundation for her beliefs – Where it is found that the father does not pose an unacceptable risk of harm to the child – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the child.
Legislation:	Evidence Act 1995 (Cth) s 140(2) Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65D, s 60B
Cases cited:	B & B (1993) FLC 92-357 Blann & Kenny [2021] FamCAFC 161 Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Deiter & Deiter [2011] FamCAFC 82 G & C [2006] FamCA 994 Johnson & Page (2007) FLC 93-344; [2007] FamCA 1235 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 9 Langmeil & Grange (2010) FLC 93-427; [2010] FamCAFC 12 M v M (1988) 166 CLR 69; [1988] HCA 68 Mazorski & Albright (2007) Fam LR 518; [2008] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Napier & Hepburn (2006) FLC 93-303 [2006] FamCA 1316 Stott & Holgar and Anor [2017] FamCAFC 152
Number of paragraphs:	379
Date of hearing:	15 March 2022
Place:	Sydney
Counsel for the Applicant:	Mr MacPherson
Solicitor for the Applicant:	Bridges Lawyers
Counsel for the Respondent:	Mr Schroder
Solicitor for the Respondent:	Metta Legal
Counsel for the Independent Children’s Lawyer:	Ms Carr
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

SYC 6554 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CARLYON Applicant
AND:	MS GRAHAM Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAMPTON J
DATE OF ORDER:	8 APRIL 2022