Chadwick & Chadwick - [2023] FedCFamC2F 312

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Chadwick & Chadwick [2023] FedCFamC2F 312

File number(s): CAC 2063 of 2020

Judgment of: JUDGE W J NEVILLE

Date of judgment: 4 April 2023

Catchwords: FAMILY LAW – Parenting – residence – both parties sought the residence of two female children – Mother made allegations the Father had sexually abused the younger child and groomed the older child – repeated interviews with police and care and protection where authorities consistently found no substantiation of the allegations of sexual abuse – where child protection found a risk of psychological abuse in the Mother’s care – where the Mother asked the child leading questions - Mother amended position at the commencement of the trial for the children to begin to commence supervised time with the Father building up – Father proposed the children live with him and spend a moratorium of 6 months without spending time with the Mother, building up to supervised then non-supervised time – where the evidence does not support the Mother’s allegations of the risk of the children in the Father’s care – where the Mother raises a psychological risk of systems abuse to the children – the children’s best interests require them initially not to spend any face-to-face-time with the Mother for a short period, and to live primarily with their Father and spend somewhat limited but regular time with the Mother.

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC

Cases cited:
AMS v AIF (1999) 199 CLR 160

B & B [2006] FamCA 1207

Collu & Rinaldo [2010] FamCAFC 53

Fox v Percy (2003) 214 CLR 118

Franklyn & Franklyn (2021) FLC 94-031

Isles & Nelissen (2022) 65 Fam LR 288

M v M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC 93-375

Pilot & Silver (No.2) [2022] FedCfamC1F 538

Sigley v Evor (2011) 44 Fam LR 439

U v U (2002) 211 CLR 238

Vontek v Vontek [2017] FamCAFC 28

C.W. Goff, K.R. Burke, C. Rickenback, D.P. Buebendorf, “Vaginal opening measurement in prepubertal girls,” American Journal of Diseases of Children (1989) November 143(11) 1366-8

Division: Division 2 Family Law

Number of paragraphs: 201

Date of last submissions: 20 January 2023

Date of hearing: 31 August 2022 – 2 September 2022; 25 October 2022

Place: Canberra

Counsel for the Applicant Mr J Haddock

Solicitor for the Applicant Parker Coles Curtis

Counsel for the Respondent Dr J Behrens

Solicitor for the Respondent Neilan Stramandinoli Family Law

Counsel for the Independent Children’s Lawyer Ms J Treherne

Independent Children’s Lawyer Jeanine Lloyd & Associates

ORDERS

CAC 2063 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR CHADWICK
Applicant

AND:
MS CHADWICK
Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

4 April 2023

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Father have sole parental responsibility for the children X, born in 2012 and Y, born in 2016 ("the children"), with the Father to keep the Mother informed, via the Parenting App Our Family Wizard, of any major long-term issues regarding the children.
2.In making a major long-term decision in the exercise of sole parental responsibility, the Father shall:
(a)Inform the Mother, in writing, of any decision to be taken at least 14 days before the decision is required;
(b)Invite the Mother’s views regarding the decision to be made, to be provided in writing;
(c)Give proper consideration to the Mother’s views; and
(d)Inform the Mother, in writing, of the decision within 48 hours of it having been made.

3.The children shall live with the Father.
4.Both parents are restrained from discussing the Orders of the Court with the children, or doing so in their presence, or allowing any person to do so, except to inform them that, for a time:
(a)The children are to live with the Father;
(b)The children will be in regular contact with the Mother; and
(c)The Mother will be undertaking some support treatment.

5.By no later than 5:00pm on 5 April 2023, the children will go into the care of the Father.
(a)In lieu of the usual procedure of change of residence taking place at the Court, for the purpose of Order 5, by no later than 4:00pm on 4 April 2023, the parties and the Independent Children’s Lawyer are to inform the Court what arrangements have been made to transition the children into their Father’s primary care.

6.On 6 April 2023 at 10:00am, the Father is to bring the children to the Registry for the purpose of having a Child Court Expert undertake a general discussion with the children about their general living situation and the “spend-time-with” arrangements with the Mother.
7.The children shall spend time with and communicate with their Mother as follows:
(a)For a period of 1 month from the date of these Orders, the Mother may call the children once per week, with the day and time to be agreed in writing between the parties, and the children may call the Mother for a maximum of two additional times per week at their request, with such calls to be facilitated by the Father;
(b)Following the expiry of the period set out in 7(a) above, for a period of 1 month, the Mother may spend up to 6 hours with the children one day each weekend, with the day and time to be agreed in writing between the parties, but such time must be supervised by an independent person (or organisation) and a brief report is to be provided to the Independent Children’s Lawyer and the Court by the supervisor after each session;
(c)Following the expiry of the period set out in 7(b) above, for a period of 6 months month, the children are to spend time with the Mother one overnight each alternate weekend, with the day and time to be agreed in writing between the parties;
(d)Following the expiry of the period set out in 7(c) above, for a period of 3 months, the children are to spend each alternate weekend with the Mother from after school Friday until 4pm on Sunday; and
(e)Following the expiry of the period set out in 7(d) above, the children are to spend each alternate weekend with the Mother from after school Friday until before school Monday (or Tuesday when a public holiday occurs), and half of the school holidays.

8.The Father shall arrange and facilitate, at his expense, therapeutic counselling and assistance for himself and the children to help them cope with the transition of the children into his care for such period of time as the counsellor recommends.
9.The Mother shall arrange, at her expense, and participate in psychological counselling for herself for a period of no less than 12 months with sessions not less than once per fortnight or as recommended by the treating psychologist. Within 1 month of the date of these Orders, the Mother is to provide details regarding the relevant arrangements she has made to the Independent Children’s Lawyer and the Court.
10.The Father shall keep the Mother advised by the Parenting App Our Family Wizard as to any significant developments in the children as and when such developments occur.
11.The Mother is restrained from attempting to make contact with either of the children, save as provided by these Orders, or unless the Mother has the prior written consent of the Father.
12.The Father is permitted to suspend the Mother’s time for up to 3 weeks for the purpose of taking the children away on a holiday on more than 2 times in each calendar year and will provide the Mother with no less than 14 days prior to the time taking place written notice of his intention to do this.
13.Each parent is free to be fully engaged in the school, sporting and extracurricular lives and activities of the children, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.
14.By this Order all schools, medical or dental practitioners and organisers of extracurricular activities are authorised to discuss all matters relating to the children with both parents and release all information concerning the children to both parties as may be requested by either parent from time to time.
15.The parents shall notify the other of any significant illness or medical emergency in relation to the children as soon as practicable by telephone call and will provide any necessary authority to the children's treating medical practitioners to enable the other to obtain written oral information about any treatment, consultation, diagnosis or prognosis in relation to the children.
16.Neither parent shall say any unkind or uncomplimentary things about the other parent, or the other parent's family members or the other parent's partner, to or in the presence of the children and shall do all necessary things to ensure that no third party makes any disparaging remarks to the children or in their presence about the other parent, their family or their partner.
17.The parents shall keep the other informed as to their current contact number, residential address and email address and will advise the other in writing within 48 hours of any change.
18.Neither parent shall harass, threaten or intimidate the other parent, the children or any partner of either parent and will use their best endeavours to ensure that no third party engages in any behaviour that harasses, threatens or intimidates either parent, the children of any partner of either parent.
19.The Independent Children’s Lawyer is to remain in the matter for a period of 12 months from the date of these Orders and to notify Chambers every 3 months as to how matters with the children are progressing.
20.For a period of 12 months from the date of these Orders, liberty is granted to the Independent Children’s Lawyer to relist these proceedings on short notice to each other party and to the Court.

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 a pseudonym Chadwick & Chadwick has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

This matter involved very serious allegations of sexual abuse said to have been perpetrated by the Father against one of his daughters, then 4 now 6½ year old Y (born in 2016). Allegations of “grooming” were also levelled against the Father regarding his older daughter, now 13 year old X (born in 2012). The details of the alleged abuse of Y were extensive and graphic. The allegations in relation to X were much more subtle and more inferred in circumstances which, at the time, were quite febrile and obviously extremely tense and disturbing for all concerned. Relevant detail regarding the allegations is set out below.
The Respondent Mother has made multiple reports to authorities – including the police, Care and Protection, among others – over a significant period of time, regarding the alleged abuse. Despite multiple investigations, no authority found anything to substantiate the disturbing allegations. In her final submissions, Counsel for the Independent Children’s Lawyer (“the ICL”), in my view, fairly summarised and observed the following (pars.2 – 7):
2. Up until 30 August 2022, one day before the final hearing of this matter, the mother maintained the father had sexually abused their daughter [Y] and behaved inappropriately in a sexual manner toward [X].
3. The mother’s Further Amended Response filed 15 August 2022 sought orders that the father spend no time with the children, she have sole parental responsibility for the children and that the father be restrained from contacting his children by any means whatsoever.
4. At the time of the hearing, the father had not spent any time with his daughters and had no contact with them since August 2021.
5. On 30 August 2022, the mother filed and served an Amended Minute of Order wherein she no longer asserted the father was an unacceptable risk of harm to the children and sought orders progressing the father’s time with the children to unsupervised time.
6. The catalyst for the significant change in the position of the mother was – she says – the letter from CYPS recording the outcome of appraisal of a Child Protection Report dated 29 August 2022 (29 August Report).
7. The outcome of the 29 August Report was not materially different to any of the other numerous reports delivered by CYPS during the course of the investigations, with reports being delivered in October 2021 and December 2021. The mother accepted it was the same conclusion on each occasion CYPS investigated the allegations, although she was at pains to qualify that answer with her own speculations as to the adequacy of those investigations.
At the outset of the trial, the Mother’s Counsel noted in particular that “the Mother does not [now] contend for a finding [against the Father] of unacceptable risk.” Indeed, in the same discussion with the Bench, Counsel confirmed that she would not be asking the Court “to make any findings in relation to those disclosures [by Y],” but added that the Mother held fast to the fact that Y made them to her.[1]
[1] Transcript (31^st August 2022) p.7. Hereafter “T” followed by page number.
A little later in the same submissions, at pars.10 – 13, the ICL outlined the alleged risk, or risks, said to be posed by the Father (emphasis added):
10. On the first day of hearing, the mother no longer contended for a finding about the very serious allegations of sexual abuse against the father, and nor did she contend for a finding the father presented an unacceptable risk of harm to the children.
11. In a perplexing contradiction to her propounded orders, the mother steadfastly maintained that she believed the father was a paedophile, that he had sexually assaulted their four-year-old daughter with a doll by pushing the doll in and out of her vagina violently, had carried out the paedophilic acts with the assistance, complicity and/or acquiescence of his fiancé, father and step-mother and had nefariously watched [X] and [Y] undress, which she deemed as “grooming” behaviours.
12. Even though the mother made certain concessions vis-à-vis her legal position as to the conclusions which the Court may come to, the underlying factual contentions for her former position remained. They are grave matters of asserted fact which need to form part of any assessment of what orders are in the children’s best interests.
13. The father has legitimate concerns about the mother’s functioning. The concern flows from the 29 August letter which suggests the children have been subjected to emotional abuse, and as he astutely pointed out, that finding had not been made in the previous reports, and he had no contact with the children since the last report.
As noted in more detail later in these reasons (and recorded in the ICL’s submissions above), in the course of her oral evidence, the Mother confirmed that, while she accepted the latest Report from the regional Child, Youth and Protection Services (“CYPS”), which found there to be no relevant risk to either of the children in the care of the Father, and similarly that there was no evidence of the abuse alleged, she maintained her firm belief that the Father was, and is, a paedophile, and in consequence, he poses a risk to both of the children during any time they spend with him.
Further, Counsel for the ICL noted at the outset of the trial a range of concerns in relation to the Mother and the children as follows:[2]
MS TREHERNE: Your Honour, the only – taking it one step at a time, the three layers, as your Honour put it, that the court was considering, the – it might fall into the first layer, but it’s about the psychological harm that may have been caused to these two young girls with, as your Honour said, systems abuse. It is a concern that the ICL has. There has been many, many interviews and, in fact, my recollection of the subpoena material shows that the second interview was at the mother’s behest. She said, “You didn’t ask them direct questions. You need to”, and there’s a concern that [X], who from what I can gather from the evidence, has said, “Dad stares at my vagina”, is in trauma counselling and has had almost 12 sessions. It is extraordinary.
There is no good way to look at this with the mother’s late change because whether the mother has changed her mind doesn’t change the children’s experience. It’s a very difficult question for your Honour. I think in a large part it depends on whether the mother has actually changed her view or whether this is a token exercise. As my learned friend Mr Haddock pointed out, there are concerns about the wider group that the children – the people not – and not just, might I say, on the mother’s side, but also given the gravity of the allegations, not just against the father but against [Ms B], against his father and her – and his partner. It’s about whether they can put that behind them as well. Now, the expert says that she has more faith in the father’s side perhaps coming around than she does perhaps with the mother, but that – again, it is difficult to see how one resolves that without some testing of the evidence, which is the concern that the ICL has at this point.
[2] T 13.
Among other grave matters before the Court, in framing Orders that are in the best interests of the children pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”), notably having proper regard to the Court’s protective responsibilities under s.60CC(2)(b) and s.60CC(2A), the Mother’s implacable belief in the risk to the children spending any time with their Father, in the light of the range of exculpatory expert Reports and investigations, has posed a significant difficulty. Indeed, the depth of the Mother’s adverse view of the Father is so great and so intense, which must pose a different and significant risk to the children (discussed further later in these reasons), that the only course available to the Court is effectively, for a period of time, formally to quarantine the children from the potentially corrosive views of the Mother by placing them in the Father’s care and for them to spend no time with the Mother until certain protective measures have been complied with by her. Only after such protective steps have been taken and completed can the Mother start spending regular time with the children.
In the light of all the evidence examined in depth at the trial, with some light amendment, the Orders proposed by the Father and supported by the ICL, in my view, are in the best interests of the children.
Applicant’s Orders sought
The Applicant Father’s Orders sought were set out in the Amended Application for Final Orders filed 31^st January 2022; they were as follows (emphasis in original):
~~1.That the parties have equal shared parental responsibility for the children~~ [X]~~, born in 2012 and Y, born in 2016~~ ~~("the children").~~
~~2.That the children shall live with their parents as agreed in writing and failing agreement on a week about basis~~
~~3.That for the purposes of Order 2 changeover shall occur as follows:~~
~~3.1Until~~ [Y] ~~commences school in 2021 each Sunday at 5pm at the Town C McDonalds, or such other location as agreed in writing between the parties; and thereafter~~
~~3.2At [D School] each Friday.~~
~~4. That notwithstanding the above the children shall spend:~~
~~4.1Fathers' Day with their father from 9am to 5pm and Mothers' Day with their mother from 9am to 5pm or as otherwise agreed in writing;~~
~~4.2From 5pm Christmas Eve to 5pm Boxing Day with the father in even numbered years and with the mother in odd numbered years or as otherwise agreed in writing.~~
~~5.That [X] shall continue to attend at [D School] and [Y] shall commence at [D School] at the beginning of 2021.~~
~~6.That the parties shall participate in a post separation parenting course.~~
7.Each parent is free to be fully engaged in the school, sporting and extracurricular lives and activities of the children, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.
8. That the children shall communicate with their parents in accordance with their wishes and the parent that has the children in their care shall facilitate any communication taking place between the children and the other parent.
9. Each parent shall advise the other in advance if they intend to take the children away from the […]region for more than 48 hours and shall indicate where the children are going and when they will be back.
That the parties shall communicate via email in relation to matters concerning the children, unless there is a medical emergency involving the children or either parent when the children are in their care it will be via telephone.
11.By this Order all schools, medical or dental practitioners and organisers of extracurricular activities are authorised to discuss all matters relating to the children with both parents and release all information concerning the children to both parties as may be requested by either parent from time to time.
12.That the parents shall notify the other of any significant illness or medical emergency in relation to the children as soon as practicable by telephone call and will provide any necessary authority to the children's treating medical practitioners to enable the other to obtain written oral information about any treatment, consultation, diagnosis or prognosis in relation to the children.
13.That neither parent shall say any unkind or uncomplimentary things about the other parent, or the other parent's family members or the other parent's partner, to or in the presence of the children and shall do all necessary things to ensure that no third party makes any disparaging remarks to the children or in their presence about the other parent, their family or their partner.
14.That the parents shall keep the other informed as to their current contact number, residential address and email address and will advise the other in writing within 48 hours of any change.
15.That neither parent shall harass, threaten or intimidate the other parent, the children or any partner of either parent and will use their best endeavours to ensure that no third party engages in any behaviour that harasses, threatens or intimidates either parent, the children of any partner of either parent.
16.That the father have sole parental responsibility for the children [X], born [in] 2012 and [Y], born [in] 2016 ("the children").
17.That the children shall live with their father.
18.That the children shall spend time with and communicate with their mother as follows:
18.1Following a moratorium of 6 months after the transition of the children into their father’s care, during which time the mother shall spend no time nor communicate with the children, then:
18.2For a period of 6 months from the expiry of 18.1 above:
18.2.1Supervised time each alternate weekend from 9am to 5pm on Saturday and Sunday
18.2.2By telephone or video call for up to 30 minutes each Wednesday
18.3Following the expiry of the period set out in 18.2 above:
18.3.1From the conclusion of school Friday to the commencement of school Monday, or 9am Monday if Monday is not a school day each alternate weekend; and
18.3.2By telephone or video call for up to 30 minutes each Wednesday
19.The father shall arrange and facilitate, at his expense, therapeutic counselling and assistance for himself and the children to help them cope with the transition into his care for such period of time as the counsellor recommends.
20.The mother shall arrange at her expense and participate in psychological counselling for herself for a period of no less than 12 months with sessions not less than once per fortnight or as recommended by the treating psychologist
21.The father shall keep the mother advised by the Parenting App Our Family Wizard as to any significant developments in the children as and when such developments occur.
22.The mother is restrained from attempting to make contact with either of the children, save as provided by these Orders or unless the mother has the prior written consent of the father.
23.The father is permitted to suspend the mother’s time for up to 3 weeks for the purpose of taking the children away on a holiday on more than 2 times in each calendar year and will provide the mother with no less than 14 days prior to the time taking place written notice of his intention to do this.
Respondent’s Orders sought

The Respondent Mother’s Orders sought were amended on the day before the trial commenced in a Case Outline document filed on 30^th August 2022; they were as follows (emphasis in original):
RECITALS:
A.On Monday 29 August 2022, the parties received a Child and Youth Protection Services (“CYPS”) Appraisal Outcome Advice.
B.CYPS were unable to determine if sexual abuse has or has not occurred.
C.CYPS have recommended that the parties “focus of recovery of relationships within the family unit to provide stability and sense of identify for the children”.
D.The Mother acknowledges this recommendation, accordingly:
AMENDED FINAL ORDERS SOUGHT BY THE RESPONDENT MOTHER
The Respondent Mother (“the Mother”) seeks the following final orders, that:
1.The Mother has sole parental responsibility for the children [X] born [in] 2012 and [Y] born [in] 2016 (collectively known as “the children”).
2.Notwithstanding Order 1 above, the Mother will:
a.provide the Father with as much notice as possible of any major long-term decision which she is planning to make for the children or either of them;
b.give the Father the opportunity to comment;
c.take account of any views which the Father expresses within a reasonable timeframe; and
d.notify him of the decision she has made.
3.The children live with the Mother.
4.The parties will forthwith take steps to agree on an appropriate psychologist “the psychologist” to meet with the children for the purposes of explaining these orders to them and assisting them to transition back to spending time with the Father. In the event agreement cannot be reached in this regard within 14 days of the date of these Orders, the psychologist shall be the person nominated by the Independent Children’s Lawyer. The Mother and Father shall equally pay the costs of the psychologist.
5.The Father will forthwith enrol in the [E Course] and [F Course] and will complete these programs and provide evidence of completion to the Mother AND IT IS NOTED that the Mother has completed both of these programs.
6.The parties will forthwith take steps to register with [G Contact Centre] for the purposes of the Father spending supervised time with the children.
Spend time with Orders
Stage 1-
7.Upon the psychologist confirming to the parties that she or he has done such work with the children as is necessary to prepare them to recommence spending time with the Father, the children will spend time with the Father supervised by [G Contact Centre], for a period 6 months, for up to two hours on a Saturday or Sunday each alternate week, with the Father to pay the costs of the supervision and to obtain and pay for a report and provide it to the Mother.
Stage 2-
8.For a period of a further 3 months, the children will spend time with the Father each alternate Saturday from 10am until 4pm.
Stage 3-
9.For a period of a further 3 months, the children will spend time with the Father each alternate weekend from Saturday at 10am until Sunday at 4pm.
Stage 4 (final stage)-
10.Thereafter the children will spend time with the Father:
a.during school terms each alternate week from Friday after school until Sunday at 4pm;
b.during the Term 1, 2 and 3 school holidays for the first half in even-numbered years and for the second half in odd-numbered years;
c.during the Summer school holidays on a week about basis, commencing with the parent who has not had the children the previous weekend on the last Friday of the school term, with changeover occurring each subsequent Friday at 4pm.
11.Notwithstanding anything else in these Orders the children shall spend time with their parents as follows:
a.Commencing Father’s Day 2023, on Father’s Day with their Father from 9am to 5pm and Mother’s Day with their Mother from 9am to 5pm;
b.Commencing Christmas Eve 2023:
i.In odd numbered years, the children spend time with the Father from 2pm Christmas Eve to 2pm Christmas Day and with the Mother from 2pm Christmas Day until 2pm Boxing Day;
ii.In even numbered years, the children spend time with the Mother from 2pm Christmas Eve to 2pm Christmas Day and with the Father from 2pm Christmas Day until 2pm Boxing Day;
12.For the purposes of changeover:
a.On school days they shall take place at [D School] if applicable;
b.On non-school days from [Town C] McDonalds and in this regard, the parent who is to receive the children will remain inside McDonalds in view of the children and the other parent shall farewell the children at the entrance.
13.For the purposes of order 10(b) above, the first half of the school holidays commences from after school on the last Friday of the school term and ends at 5pm on the second Saturday of the school term and the second half of the school holidays commences from 5pm on the second Saturday and ends at 5pm on the last Sunday.
14.The parties shall only contact each other about matters concerning the children and such contact shall be concise, respectful and business-like. In this regard, the parties shall limit written communication between themselves to no more than one message a fortnight through the Our Family Wizard parenting app, except in the event of an emergency.
15.Each parent is free to be fully engaged in the school, sporting and extracurricular lives and activities of the children, to receive copies of school reports, newsletters and the like and to attend all events and functions to which parents are invited.
16.The children shall communicate with their parents in accordance with their wishes and the parent that has the children in their care shall facilitate any communication taking place between the children and the other parent.
17.Each parent shall advise the other in advance if they intend to take the children away from the […]region for more than 48 hours and shall indicate where the children are going and when they will be back.
18.By this Order all schools, medical or dental practitioners and organisers activities are authorised to discuss all matters relating to the children with each parent and release all information concerning the children to both parties as may be requested by either parent from time to time.
19.The parents shall notify the other of any significant illness or medical emergency in relation to the children as soon as practicable through the parenting app and will provide any necessary authority to the children's treating medical practitioners to enable the other to obtain written oral information about any treatment, consultation, diagnosis or prognosis in relation to the children.
20.Neither parent shall say any unkind or uncomplimentary things about the other parent, or the other parent's family members or the other parent's partner, to or in the presence of the children and shall do all necessary things to ensure that no third party makes any disparaging remarks to the children or in their presence about the other parent, their family or their partner.
21.The parents shall keep the other informed as to their current contact number, residential address and email address and will advise the other in writing within 48 hours of any change. The Father provide the Mother with his current residential address within 7 days of the making of these Orders.
22.Neither parent shall harass, threaten or intimidate the other parent, the children or any partner of either parent and will use their best endeavours to ensure that no third party engages in any behaviour that harasses, threatens or intimidates either parent, the children of any partner of either parent.
23.Unless otherwise agreed the Father shall not attend at [H Street, Suburb J] where the Mother lives and the Mother shall not attend the Father’s residence.
24.On a without admissions basis, the parties shall refrain from viewing, sharing or exposing the children (directly or indirectly) to pornographic or sexually explicit images and shall use their best endeavours to ensure that no third party exposes the children directly or indirectly to a pornographic or sexually explicit images.
25.The Mother have liberty to suspend the time arrangements between the Father and the children under these Orders for a period of up to 2 weeks each year upon one month’s notice to enable the Mother to have an extended holiday with the children.
26.The Mother and Father can vary the terms of these orders by agreement in writing.
Independent Children’s Lawyers Orders sought
The Independent Children’s Lawyer’s Orders sought were contained the Case Outline emailed to Chambers on 9^th January 2023 and later filed 20^th January 2023; they were as follows (emphasis in original):
A.MINUTE OF ORDER SOUGHT
1The ICL supports the orders sought by the father and contends those orders are in the best interests of the children, [X] born [in] 2012 (10 years) and [Y] born [in] 2016 (6 years) (children).
The Father’s Evidence
Summarised, the Father’s evidence was as follows.
The early part of the Father’s cross-examination related to the Father’s knowledge of the Mother’s changed position (from originally running a “no contact” case up until the commencement of the Final Hearing, to proposing that there be a progression in the Father’s time with the children starting with supervised time; all this predicated upon a final report from CYPS that there was no evidence to support any abuse of Y by the Father, and implicitly by Ms B). In consequence of the Mother’s changed position, it was proposed by her Counsel that the focus would or should move to questions of “recovery of relationships within the family unit”. The Father simply stated, somewhat “matter of factly”, as he regularly did, that he had never held any view other than that he needed and sought “a co-parenting arrangement for the children to foster a good life for Y and X.”[3]
[3] T 29.
The Father said that he became aware of the Mother’s revised position, which provided for a graduated increase in his time with the girls, late on the afternoon prior to the commencement of the trial. The Father said that he was also aware that the Mother’s revised position provided for an alternate weekend arrangement during school terms and a week-about arrangement during school holidays. However, he also confirmed that he was not now prepared to agree to a transition for example to an 8/6 arrangement. His brief response was simply that “not now. I have concerns.”[4] He said that the order that he was now seeking was for a change in residence of the children but otherwise he said he was content to abide by the Court’s decision of what orders were in the best interests of X and Y.[5] The Father confirmed that his main concerns in relation to any orders revolved around doubts about the Mother’s “mental health.” He said he was confident that he could work with the children but the concerns related to the Mother and being able to ensure that the girls had a good and close relationship with their Mother. He said he was not seeking to undermine any of that, or in fact to get rid of it.
[4] T 30.
[5] T 30.
The Father also confirmed that he would get and take professional advice to help him, and the girls (i.e., the children) adjust to the significant change of living primarily with the Father, if the Court so ordered. He agreed with the proposition that he had not included anything in his Affidavit material regarding what he would do regarding the management of any transition of the girls coming into his primary care. He said he did not put any of this information before the Court because previously he had been able to adjust his work commitments in order to accommodate whatever was necessary for the children. Moreover, he confirmed that because he had not seen the girls for 12 months or so he wasn’t in a position to comment on what would be best for them in the current circumstances.[6]
[6] T 32 – 33.
The Father stated that the girls had a good and close relationship with both he and the Mother but also acknowledged that, because he has not seen them for the last 12 months, it was more likely that they would have developed a closer relationship with the Mother in the current circumstances.[7]
[7] T 33. There was further discussion about the children’s “closeness” with their Mother, among other things, based upon comments from various school reports as well as in the comments from Ms K’s expert report (discussed further below). As noted at the time, there was no issue at all about the closeness of the girls with their Mother. See T 34 – 36.
Some of the questions regarding the closeness of the relationship between the children and their Mother were very much to set the basis for later questions regarding the “risks” to the children, for example, regarding their emotional wellbeing and otherwise in the event that the Court made orders for a change in residence for them to live with their Father. Some of the related matters that flowed from this discussion may perhaps firstly be noted in the following exchange:[8]
And that can be avoided, can’t it, by a proposal like [Ms Chadwick’s], which would see gradual reintroduction of time with some psychological help for the children initially, and a progression towards something close to an eight/six arrangement. All of that trauma could be avoided?---I – I desperately and strongly disagree with that.
Can you accept that [Y] may have said the things [Ms Chadwick] has reported her as saying. Can you accept she may have said them?---I don’t accept any of the things that have been said to [Ms Chadwick] by [Y], or alleged to have been said. I will only – I do accept anything that she has said to SACAT and CYPS, individuals who are a third party to this and have no invested interest, and I will believe trained professionals.
…
Right. So is it fair to say that, other than being taken through – line-by-line through this contention – that contention, whatever, you can’t make a general acceptance on what has been said by [Y] to [Ms Chadwick] over the last year?---Correct, because there are some – there are some things where I – these – [Y] and [X] and I need to have, moving forward, faith that if something does happen and it is told to their mother, that it’s the truth and I would believe it, and still moving forward, if anything happens, I’m going to have to work with her and believe those things or – or – or make sure that the kids are looked after. So before these allegations, if [Y], for example, said that her vagina was sore, I’m red/green colour blind, so I can’t see an irritated piece of skin, and I previously, at the start of our breakdown of the relationship, [X] had advised that her vagina was sore and I had contacted [Ms Chadwick] and possibly to get her over to the house to have a look because I genuinely can’t see sunburn until it gets extraordinarily bad. So at that point I want, and I need to, and on those matters the girls need to tell her stuff and I need to believe it. So there are some things when, yes, if [Y] and [X] have said that, then I will believe them, but I do not believe the allegations that [Y] is said to have made to [Ms Chadwick].
[8] T 36 – 37.
One of the contentions that was discussed at length with the Father was the abuse of Y that involved the use of one of her dolls known simply as the “doll”. Although canvassed at some length later in these reasons, it is significant to note the Father’s first response when this particular doll was raised with him:[9]
And if it was – if [Ms Chadwick] was simply making up what [Y] said to her, you would agree with me that they’re very odd things to make up, aren’t they, that you put a doll in her vagina. That would be an odd, surprising accusation to make up?---It would, given that I don’t have that doll and [Ms Chadwick] had the – had the doll and has pictures of it.
[9] T 38.
A constant question throughout the trial related to where and how Y obtained such graphic detail regarding her abuse and other adult sexual matters on the basis that none of the abuse alleged against the Father was substantiated before any relevant authority (e.g., police, CYPS, SACAT). These sorts of questions were first raised with the Father in the following terms:[10]
So at one level – let’s cut to the chase. Where do you think [Y] got all this extraordinary stuff from?---What’s right in front of me or the very extraordinary stuff, as in, like, the recent - - -
No, no, I’m just asking generally. Just for the moment, stick to the stuff that has been stated to what I will call the officials – police, Care and Protection, etcetera. Where did a five-year-old get this level of graphic detail?---I can’t answer that because I don’t know for, (1) I don’t – I don’t shower with either of the children and I haven’t since before [Y] was born. I don’t have that doll at my house. I have never poked her on the vagina. I certainly don’t wee in the shower and wee in the shower in front of the kids and see how high it goes. I don’t - - -
No. Sorry, I’m not asking you to go through a detailed denial of all the things. You have made clear your denial of all – of any and all of these allegations. But I’m just simply asking, doing the best that you can – and you may not have an answer – where do you think she got this – you know, where does a five-year-old get this sort of graphic detail from?---I can’t – I don’t know, your Honour.
[10] T 39.
After noting a number of times that the Father commented on various allegations made by Y, the Father was taken to some propositions that related to him contending that the allegations against him were effectively orchestrated by the Mother to alienate the children from him. For example, there was the following exchange:[11]
[11] T 42.
DR BEHRENS:   You see that. So the first thing you say there is:
Is it my opinion that these allegations are another example of [Ms Chadwick] deliberately, in a calculated manner, seeking to further alienate [Y] and [X] from me.
Can you see that?---Yes. I can.
And that’s something that you still believe notwithstanding your evidence to his Honour this morning, is it?---I still believe that. Yes.
And you go on to talk about [Ms Chadwick] has mental health issues you were worried about?---Yes.
You see that. So this is a statement that you’ve written back in 2021, and I think you said in answer to a question I asked that it’s because of things that have happened today you have concerns about [Ms Chadwick’s] mental health. But here you seem to be saying you had – [Ms Chadwick] had mental health issues back then as well?---It has further entrenched my concerns.
You’ve said on the next page, 137, in the third full paragraph, which starts:
Every one of these matters, [Ms Chadwick] continues to utilise the systems and processes in place to protect persons who do require the valuable time of police and the courts in a manner that demonstrates she is a vexatious litigant.
Can you see that there?---Seen.
Next, the Father was asked a question by the Court as to whether or not, in his view, the accusations/allegations by Y concerning the sexual abuse, perhaps coincided around the time the Father and Ms B’s relationship started to blossom and become known to the children. The Father simply said that he did not recall anything about that in his Affidavit or otherwise.[12]
[12] T 43.
There was a contest between the parties that centred around, in one instance, the last time the parties engaged in sexual intercourse. At this stage of the discussion, I do not need to go into the precise detail of that intimate engagement other than the Father’s account was that he was “pestered” by the Mother into having sex with her. It was put to the Father that he was seeking to make himself out as something of a victim. He denied that this was the case. Questions then moved from this area to the Father saying that the Mother had threatened him that she would “make sure everyone knows you’re a kiddie fiddler.” In a similar vein, the Father went on to say to CYPS in the course of one of their appraisals (about which he was challenged) that “[Ms Chadwick] [the Mother] put some pornographic images on X’s tablet.”[13]
[13] See T 44 & 45. There was a discussion with the Father about a series of letters that were sent to the Father which, he said, were sent to his address with a view to exerting some pressure on him to resolve the property proceedings between the parties. In my view it is unnecessary for me to canvass matters relating to these letters. See T 46 – 47. Likewise, in my view it is unnecessary to canvass issues in relation to the sending of certain party invitations. See T 48 – 49. See further the discussion at T 101 and the references there to paragraph 62 of the Father’s Affidavit regarding the allegations made by the Mother in late September 2019.

The Father confirmed that the Mother had been seeking professional help in relation to her mental health since about 2015; he said it was just after the birth of X. The psychologist the Mother has been seeing since that time is Ms L.[14]
[14] T 49. Ms L filed an Affidavit in these proceedings on behalf of the Mother.
The Father was taken to page 108 of the Mother’s tender bundle. This recorded a message from the Mother to the Father where she advised the Father that X had seen a pornographic image on the tablet; the message between the parents is dated 5^th April 2020. The Father’s response was recorded in the following terms:[15]
I’m not sure how any of these pictures have gotten on there as that tablet has never been used for that. I’d appreciate it if you delete those pictures; do not save them or share them. As you’d appreciate, I’m upset she saw these images. Be mindful that sharing, saving them, or using them without my permission could breach the Act Revenge Porn legislation.
[15] T 51.
Although there was a somewhat detailed discussion about the children’s iPad and what it was, and was not, linked to, the Father’s consistent comments were that (a) the iPad at the time was “shared with the family” and (b) that he regularly got notifications of someone else trying to login to this Netflix account. The Father said he had no idea who was attempting to do so.[16]
[16] T 51 – 52.
The Father confirmed that X had a very creative imagination. The Father said that both girls got their creativity from their Mother, which was, in his view, a wonderful attribute they have from her.[17]
[17] T 59.
It was also put to the Father that both of the girls were regularly frightened of the Father because he yelled at them. The Father’s response was to simply confirm that he was a large man who spoke loudly but who had never yelled at the girls. He accepted however that both or either of the children may have experienced his loud voice as some form of yelling.[18]
[18] T 61.
The last part of the questions for the Father at the conclusion of the first day of the trial related to his interaction and engagement with M Contact Centre especially in relation to various courses. In my view, subject to what is said later in these reasons, at this stage in the proceedings, the questions did not assist me very much at all mainly because they were somewhat dated and did not directly go to any of the more substantive issues regarding parenting. This is not to deny the importance of parents (or children) doing courses as directed by the Court.[19]
[19] T 61 – 64.
As something very much of a side issue, the Father confirmed that he had no immediate plans to move from the region and therefore would be remaining within the region certainly for the significantly foreseeable future.[20]
[20] T 71.
Next, there was an extended discussion about what did or did not happen with the Father’s exchanges with M Contact Centre and the children’s engagement in various programs such as N Program. The issue that was put to him a number of times was that he was “difficult” in his interactions with staff at M Contact Centre. The Father insisted that he was not and, in any event, on the particular occasion in question, the Father said he was not given any reason why he was asked not to continue to attend certain sessions of the particular program. Moreover, much of this discussion, as I said at the time and repeat here, were, at best, of marginal use to the issues the Court was being asked to decide.[21]
[21] See generally T 74 – 80.
Another issue of very marginal significance in the larger scheme of matters before the Court related to correspondence that the Father sent to the maternal Grandparents cautioning them against attending his residence at the time which was to be open for inspection prior to its sale. There is no question that the correspondence was very direct. How it is assisted the Court in the primary issues before the Court in relation to the allegations against the Father and making orders that are in the best interests of the children is difficult to fathom. In any event the Father said that he had the letter checked by a lawyer.[22]
[22] T 81 – 82.
The next issue addressed related to allegations of family violence alleged against the Father by the Mother. He denied that there had been any such violence. It was suggested to him that it was at least implicit in some of the material before the Court that the first time such issues arose was just after the children met his partner, Ms B. The Father said he could not remember if issues surrounding this subject arose around the time of the children meeting Ms B for the first time.[23] There was some further discussion about when the Father first introduced the girls to Ms B and whether or not he had notified the Mother that this either was going to occur, or had occurred. The Father confirmed that he gave no such notice or information to the Mother about the children meeting Ms B. The Father further commented that any issues that were mentioned or alluded to in correspondence in the latter part of the relationship with the Mother were in fact not about his behaviour but rather his “tone in speaking.” Some of this “loudness” the Father confirmed happened in front of X. The Father confirmed that he had seen some more recent correspondence which the Mother referred to her feeling somewhat “unsafe”.[24]
[23] See T 82.
[24] T 84 – 85.
Other instances of alleged significant threats by the Father to the Mother were strongly denied by him.[25] It was also canvassed with the Father that, on a number of occasions, certain situations led, or caused, him to call the Mother multiple times on a single occasion, for example, when he was trying to obtain information regarding X and a COVID test that had taken place a number of days before.[26] In my view, all of these matters really only highlighted consistently of the regularly, very difficult, co-parenting relationship between the parents. This was even more concerning because, for significant periods of time, it was clear that the parties co-parented reasonably well prior to the primary allegations involving Y arose. Events surrounding these matters and the difficult correspondence between the parties also gave rise to it being canvassed with the Father situations where the Mother said she was fearful of the Father attending upon her property. As the Father made plain, why the Mother would be concerned and anxious about such a circumstances where he had never attended upon her property, and in fact, in further correspondence quoted to the Court, he said: “Let me be very clear about this, under no circumstances am I coming to your residence.”[27]
[25] T 85.
[26] T 86 – 87.
[27] T 87.
There was a very brief discussion about the Father retrieving firearms from a secure location and dealing with them appropriately.[28] This was another issue that seemed to be raised more in passing and not really directed to the principal issues before the Court.
[28] T 88.
A matter of more direct relevance that was discussed at a little length related to communication between the parties concerning health issues for the children. The Father stated, for example, that he had never disagreed with the Mother about the treatment and medication for the children regarding asthma and the use of Ventolin. The Father said that despite a request for information concerning X’s diagnosis regarding asthma, because the Mother had not provided him with information concerning it, he simply took X to be tested, and he then continued the medication as previously prescribed. The Father said that he took the course he did of getting X tested because he wanted to double check whether X needed anything different and that he had not received relevant information from the Mother. Likewise, there was a short-lived issue as to whether or not the girls were lactose intolerant. The Father simply said that the girls were tested and the results came back negative in this regard. Other “health issues” related to eczema.
In relation to the three issues mentioned (asthma, lactose intolerance and eczema) the Father did not accept that they were effectively genuine disagreements but really (or simply) more questions of double checking information in circumstances where somewhat frequently he is not provided (in his view) with all relevant information. In his view, there have been “discussions” regarding these matters rather than disagreements.[29]
[29] T 89.
The Father readily agreed to provide to the Mother, in his view for a second time, any and every photograph that he has of the children stored electronically.[30]
[30] T 90.
Another issue in the relatively long list canvassed with the Father, related to X raising with Ms K that they wanted the Father to return certain toys to them which were said to remain with the Father. Some of the contest seemed to relate to the Father being concerned about returning certain toys to the girls from his care might be seen or interpreted by them as indicating that he would never see them again. The Father also expressed concern that this exercise was being done through Ms K; indeed, it seemed to have occupied the care and attention of the parties’ lawyers for some period of time, in my view, needlessly and very unfortunately. Put another way, doubtless what became a somewhat expensive and tedious, time-consuming exercise, was really another storm in a teacup but which in family law litigation takes on something of a life of its own.[31]
[31] Generally, see T 91 – 92.
Among the range of serious allegations made against the Father, was that he had sexually assaulted the Mother during their relationship. While some of the more graphic details were canvassed in the course of the Mother’s cross-examination, it was discussed with the Father as follows. It was suggested to him that in the course of this initially consensual sexual engagement (in or around September 2019 when the parties were separated but living under the one roof) the Father put his hands around the Mother’s neck without her consent. Bluntly, the Father said in response: “I deny that allegation. That sexual interaction never happened.” He denied further allegations in relation to grabbing her by the arms and wrists and further denied that he had “dealt with [the Mother] physically in that way.”[32]
[32] T 92.
The first part of Counsel for the ICL’s cross-examination of the Father focused very much upon the characteristics of the children, such as the great imagination and independence of Y, her dramatic play, her theatricality and that, in the Father’s view,: “she has a wild imagination and dresses up and she’s the boss when she’s around X.”[33]
[33] T 95.
The Father described X as a “people pleaser” who gets more energy from those around her. In short, X is very keen to please her parents.
This discussion about the children then moved quickly to the allegations made against the Father and his responses to them. This first detailed exchange was in the following terms:[34]
[34] T 96.
No?---It’s a kid under a – over a sprinkler.
Yes. Sure. And turning to [Y], before the allegations were made – so I want to be clear about the timeframes. Before August 2021. Did you ever observe [Y] to exhibit any troubling behaviours?---No, and I think [Ms K’s] report really sums Y up well. She’s – she’s – she’s pretty robust, but no troubling behaviours. Only the same thing as [X]. She loves to run around the back yard naked under a sprinkler or whatever.
I think most children have done that at one occasion, [Ms Chadwick], so that’s – that’s not controversial. You never received any report from the school about either [X] or [Y] acting up?---No. No, I think there was a time when [X] had been in a bit of a – like, an issue with some friendship group. I don’t know whether she was acting up or it was just a conflict between a number of girls. I think it was – it could have been 2020 or 2021 when she went back to school and – but [Ms O] looked after it pretty well and looked after [X], but I wouldn’t say it was acting up. It was just in relation to young girls finding their feet with other young friendship groups.
Yes. Now, I take it you were very surprised by the mother’s change in position that came through on Tuesday night?---I was.
Because the allegations that were made against you were extremely serious, weren’t they?---They were. They were the worst.
In fact, you probably couldn’t contemplate a worse allegation being made against you; is that right?---No, it’s the worst.
Yes. And you – at the time you were made aware, you were extremely upset, in August 2021?---Yes, correct.
And, in fact, the records record you during an interview crying and – and sobbing?---Is that with CYPS?
Yes?---Correct.
And no doubt this has been an extremely difficult year for you?---It has been horrible.
And at one point you were considering moving to Queensland and changing your name. That’s right?---That – yes, that was a – yes.
And that was a result of you being made aware of these allegations against you; is that right?---It – yes, but also – it was an overreaction, is the honest answer.
The Father confirmed that he sought professional assistance and support in relation to the allegations against him, for example, through his employment with Employer P. He also said that he has exchanged with a psychologist separate from his EAP through Employer P.[35] The Father also confirmed that his fiancé, Ms B, was a source of great support for him; he also had access to support through the organisation called ‘Q Organisation’. He confirmed that he was not shy or otherwise reticent in seeking professional help as required. Among other things, he said that this was because he had seen his Father struggle in dealing with PTSD.
[35] T 96 – 97 & 98.
The Father confirmed that, if he was successful in his current Application to have the children live primarily with him, in order to help the transition of them into his full-time care he would engage a psychologist who was appropriately qualified in matters likely to be encountered in a change in residence.
The Father said he had no knowledge whether or not X or Y were engaging with their school counsellor.[36] In terms of the period that the Father was seeking in his Orders for there to be a moratorium on the children’s contact with the Mother (being 6 months), he simply said that he was simply relying upon advice from his legal representative. He said, in my view very fairly, that he would simply be guided by the advice that he received. He commented whether it was 6 months, 2 weeks or 10 days, he would be guided by professional advice as to what would be an appropriate period for the children not to see their Mother to enable the transition of their primary residence to their Father to be expertly handled and in the most appropriate way.[37]
[36] T 102.
[37] T 102 – 103.
There was brief discussion with the Father about when he and Ms B began to live together. He said he thought this occurred in December 2021. He confirmed that Ms B was keen to establish a bond with the children; this was obviously something also that had to be managed with a degree of delicacy.[38]
[38] T 105.
The discussion then moved to matters arising from the report of Ms K including, especially, that notwithstanding the parental conflict, the children likely would need to be assisted to learn that they were free to love each parent. This also included Ms B being very cautious not to overstep any boundaries in relation to the children including even the expression of affection and support so that the children would not in any way feel she was seeking to usurp the role and/or place of their Mother. The Father also accepted that it was likely that some sort of co-parenting counselling might be necessary in due course.[39]
[39] T 107.
The Father further confirmed, on a different but crucial point, that if, during any time the children were with him and disclosures were made, he would immediately report any disclosures to CYPS and other authorities. The Father simply and firmly stated: “I’ve got nothing to hide.”[40] He said he thought that in the future, if any disclosures were made to the Mother, “she would not tell me.” He said this was largely based on the current experience where the Mother did not disclose anything to the Father and simply went straight to the police. In particular the following was put to the Father with his responses noted:[41]
Okay. If she had contacted you, sir, what would you – what would you have done?---So if she first said about the initial one about the doll and weeing in the shower and - - -
Yes?---Well, I would have responded with the kids haven’t seen me naked since before [Y] was born. The only time that they could do, see me partially naked is at the swimming pool when we get changed. That I don’t shower with either of them, and that I don’t have [a] doll to push into [Y]’s vagina.
Okay. And you would still expect then the mother to report it if that’s the - - -?---If she – if she believes it, or has doubt, yes, go for it.
[40] T 108.
[41] T 109.
Counsel for the ICL discussed with the Father some aspects of the Mother’s proposed Orders, including that in the reintroduction of the children’s time with the Father that this time be initially supervised. The Father’s unsurprising (in the circumstances) response was in the following terms:[42]
If – what do you say about supervision for that first phase?---Now that we have had our fifth investigation outcome that there’s no risk, that I’m a fit and able parent and that the allegations once again are demonstrated not to have occurred, I don’t see a reason for supervised care.
I see?---But I understand that if it’s because of her own anxiety or if it’s in the best interests of the kids, that these – that it has to occur. It doesn’t mean that I won’t partake in it. I just don’t see why now – I offered it many times in the past and I offered it after the first CYPS investigation. It was denied on every occasion and was never engaged with, so I don’t see why now I should have to partake in supervised care to reintroduce myself when there was no discussion about excluding me for 12 months. I think that the investigations have shown that I’m a fit and able parent and provide a safe and loving family home, so I should be able to go back to being their father.
And the children have never experienced any time with you that has been supervised, have they?---No, they’ve - - -
[42] T110.
The Father also made the following important observation which arose from the most recent investigation by CYPS in circumstances where the Father had had no contact from the children for the previous 12 months. His remarks were as follows:[43]
Do you agree that perhaps a gradual introduction is better for your girls than simply going straight into, you know, bigger periods of time? For example, starting with one day and then building up to two, and – and so on and so forth?---I can’t disagree with that, but I also can’t actually argue against four days – four nights being reinstated again as well. The bigger issue I have is the recent CYPS investigation now points to there being emotional harm caused to the children, which was not reported in – in their finding of 12 October, so that the issue I now have is that they’re in the care – over the last 12 months when this finding has changed and determined that, that they have only been in the care of one parent. How – how can that be ignored, that this now finding of emotional distress has occurred, but questions around my ability to care for them for the same periods of time is brought into question when I have never excluded them from their mother, and I have always had that in mind?
…
Okay. And then your position is that the more time the children spend with you, the better in that – in those circumstances, to ameliorate any risk of the emotional abuse; is that – is that so?---This – yes, and this comes back with the initial period of six months. But, look, I can’t give you an honest answer. I’m not an expert, but I can only draw guidance on someone like [Ms K]. If [Ms K] gets up here and says, “No, absolutely not. This is how it should be done,” then that’s the way it should be done. If [Ms K] gets up here and says another totally different thing and says,
“No, they should have eight months away from their mother,” or, “eight months away from their father,” then that’s what I will accept. I will accept the educated outcome of someone who has looked at the facts of this case and told me what the best treatment plan is. My emotions and my desires are obviously to have the girls back in my life fifty-fifty and to be part of everything, to go to school concerts, to go to [sports], to take them away camping, to see their family, to go ride a bicycle with them, to get an ice cream with them. That’s it.
[43] T111.

Related questions to the Father concerned how Ms B is likely to react or be able to contain her concerns and emotions in circumstances where even she has been accused, disturbingly in my view, noted in the most recent material before the Court, of actually holding Y down while the Father abused her. As an observation only at this stage, such a contention was astounding; many other words are appropriate. One cannot imagine being the subject of such appalling accusations. In any event, the Father’s response was as follows:[44]
When the children are present, sorry, I should say?---Yes. No, I understand. No, we are very much similar people in terms of our emotions and dealing with them, and being able to understand why we feel something, and you’re allowed to feel things even if they’re illogical, but it doesn’t mean you do something because of it. We have quite an open relationship and these proceedings have helped that, and we talk about our feelings and our emotions, and we have already talked about going forward what we will do, and it will be no different to how we acted previously. There were a number of things in the way matters were dealt with previously that annoyed her, but she never treated the children any differently. She actually wanted to meet [Ms Chadwick] before she met the kids, and as a result of the escalation and, for example, accusing [Ms R] of holding [Y] too tight and bruising her, we chose to not introduce, because I thought that that would only inflame matters.
[44] T112.
The Father went further and noted the following in what he described as having already “forgiven Ms Chadwick” notwithstanding that (in the Father’s view) everything that the Mother writes “all the time sees me in the worst light.” He commented that in his view that this is not healthy and that it needed to be “gotten rid of” in the sense that the Mother needed to deal with these things.[45] The Father also made the basic observation that both parents should have moved on and that he was attempting to do so in his life. In the Father’s view, it was imperative just to be able to deal with the children and that, at some stage, the parents were able to put all these terrible allegations and everything that has flowed from them as being matters that are “in the past.”
[45] T112.
In the course of his evidence, the Father said a number of times that he was direct and frank in his manner, not infrequently “loud” in his speech and that he was a “planner” who always sought to effectively look ahead rather than hold onto the past. For my part, I found the Father to be a forthright and direct witness; he was unwavering in his commitment to the children but equally so in protesting his complete innocence in relation to the intense and deeply troubling allegations that were not only levelled against him, but resulted in prolonged and almost continuous investigations by relevant authorities, notwithstanding that on no occasion was any evidence established to support them. In short, I have no reason to doubt the Father’s evidence especially in circumstances where over such a protracted period of time of intense scrutiny by authorities he has emerged from what can only be considered a searing crucible of examination and has done so, certainly from a legal perspective but likely in all other respects, doubtless scarred but formally and in every other way unscathed. The mystery nonetheless remains as to where and how such a young child such as Y obtained, and remembered, such graphic, adult detail that was set out in the allegations against her Father.
The Evidence of the Father’s Partner – Ms B
Ms B’s relatively brief evidence was as follows.
After confirming with Ms B that she was aware of the allegations against the Father and also against her, Ms B was also asked to confirm whether or not she was aware of the Mother’s changed position before the Court, lately advised, that she was no longer seeking any finding that the Father posed any unacceptable risk to the children. Ms B confirmed that she was aware of the Mother’s changed position. She was also aware that the Mother’s changed position essentially came about because of the last CYPS appraisal which found that there was no such relevant risk.
In view of the allegations against the Father not being established, the Court inquired of Counsel for the ICL whether it necessarily followed that any purported or alleged risk that was referrable to Ms B also necessarily went away. Counsel agreed with this general proposition.[46]
[46] T 116.
Ms B was asked about how she might manage the girls’ reaction in the event that the Court made orders as sought by the Father whereby the girls came into Mr Chadwick’s (and consequently also into Ms B’s) primary care. She was also asked about her reaction to working with the Mother in the future in the joint care of the children. Ms B’s responses to these matters were as follows:[47]
MS TREHERNE: And you’re also aware that [Mr Chadwick] proposes that the children come to immediately live with you and him?---Yes, I am.
And you have head those discussions with [Mr Chadwick]?---Yes, I have.
And have you given any thought to how you might manage the girls’ reaction at that time?---Yes. We have given that significant thought. Obviously, it would be a very abrupt change. Having never been in a situation like this, we would seek to have any assistance we could from professionals who could help us understand what they’re going through, how best to manage them, deal with the questions, reassure them, make sure that they know they’re safe and can express how they’re feeling in a safe and loving environment.
[Ms B], your personal viewpoint, if you will, the mother has never met you, has she?---No.
And no doubt, because of the hurtful allegations, do you agree that there will be some work on your behalf to get passed those for the purpose of continuing a relationship with [Ms Chadwick] in the future?---Yes, of course. It would be naïve to think that I wouldn’t need some assistance, I suppose, to understand and move passed those. I – I feel like I haven’t taken on board them so personally because I have been focused on [Mr Chadwick] and his reactions and – and the children as well. My involvement in everything has always been supportive. The allegations that were levelled against me, while, yes, they were very hurtful, they were done by someone who doesn’t know me as a person, and so I didn’t feel like they were personally attacking myself, because how can you accuse someone without knowing them personally and who they are and what they are capable of? I’ve experienced in my previous relationship significant hurt […] I was able to move passed the hurt that caused – was caused by that and support him […] and continue a friendship […], and I feel that those abilities can help me deal with another difficult or different circumstance. I would hope that I would have the skills and the ability necessary to do – do that again in this situation.
[47] T116 – 117.
The Mother’s Counsel had no questions for Ms B.
Although Ms B’s oral evidence was quite brief, it was difficult not to be impressed by her. She was quietly assured but measured. As Mr Chadwick acknowledged, Ms B has been a source of significant strength and support to him. Again accepting the relative brevity of Ms B’s evidence, her comments concerning, and refutation of, those allegations that were levelled at her, notably of assisting Mr Chadwick to abuse Y, were firmly rejected. A number of times she noted in her Affidavit material and in her oral evidence that certain things alleged by Y simply could not have happened as described by the child, not least because Ms B was present when certain things were alleged to involve only Mr Chadwick. Further still, Ms B gave the strong impression not only of being appalled at the allegations against her and her fiancé, but also that if anything even approximating such conduct was witnessed or experienced by her she would not tolerate it and would be likely simply to leave the relationship. In short, as also noted by Ms K, Ms B was an impressive witness. I accept her evidence without reservation.
The Mother’s Evidence
It is my usual practice to summarise the oral evidence of parties and others who give evidence at a trial. However, because the Mother’s cross examination was so extensive (this is not a criticism), and having regard to the gravity of the matters addressed, what follows is a more compendious account of the Mother’s evidence. To state the obvious: it was clearly an ordeal, indeed a most arduous one, for both parties and their families. I should add here that, because the Mother had changed her position just prior to the trial commencing and was no longer pressing, among other things, any issue of unacceptable risk arising from the girls spending time with their Father, the focus of the longer extracts from the Transcript set out below is essentially to record the Mother’s evidence, less in relation to the allegations against the Father (as important as they are), but more so to assist in the fundamental assessment of matters relevant to the considerations under s.60CC(2) and (3) of the Act relating to, for example, the Mother’s capacity (among other things) to co-parent in the extremely difficult circumstances that now exist between the parents (and Ms B). The Mother’s evidence was as follows.
At the outset of the Mother’s evidence she explained why she had changed her position regarding the Orders sought, thus:[48]
Can you tell his Honour why you instructed the filing of that minute?‑‑‑Yes. The – the CYPS outcome had only been received the day before. And I acknowledge that the CYPS outcome determines – said they were unable to determine whether sexual abuse had or had not occurred and was recommending resolving relationships in the family. And I would like to support that and, you know, allow the children to have the ability to have a relationship with both parents in a supported and careful, you know, transition in a way that will allow them to feel comfortable.
[48] T 120.
Then followed a series of questions which the Mother found difficult to answer directly. Unfortunately, this was something of a feature of her evidence, namely, answering questions directly. This said, I readily acknowledge the extraordinarily difficult position in which the Mother found herself (which she stated many times despite me noting to her that I needed no such reminding, still less regular reminding by the Mother), on her evidence, where Y made a number of unprompted, highly detailed, and very disturbing allegations of abuse against the Father. The discursive exchanges, this being the first of many, was as follows:[49]
HIS HONOUR: Do you accept or acknowledge that, effectively, the same conclusion was reached in earlier CYPS reports, reviews, etcetera?‑‑‑It’s a very difficult question, because [Ms S], who – from CYPS, who acknowledged the many flaws in that investigation ‑ ‑ ‑
Yes. No, no, I understand that. You know, whatever the alleged flaws, whatever else, but the conclusions along the way have been, speaking in very general terms, consistent. Do you accept that or not?‑‑‑It’s a very difficult question, because [Ms S] herself had said she was on the cusp of substantiating the abuse. So it’s ‑ ‑ ‑
Yes. No. Sorry, we can’t deal with, you know, what so and so may or may not have said. The court has got these formal documents from CYPS and the conclusions are what’s in those documents. That’s what I’m really asking about?‑‑‑I accept that that is the conclusion they came to. However, the – the information behind it, contained in the 69ZW ‑ ‑ ‑
Well, be careful. No. Be careful. Be careful. Just – I’m just asking a simple question about those documents, that’s all?‑‑‑Sorry, your Honour.
We will get to all of the other stuff, I’m sure.
[49] T 120 – 121.
The Mother was quite at pains to ensure that the Court knew that Y had made “disclosures”, which clearly were not, in her view, simply or only “allegations.”[50] Then, some further “elaboration”, in a manner of speaking, by the Mother (emphasis added):[51]
HIS HONOUR: Would you accept that [Mr Chadwick] and [Ms B] have also suffered very significant stress as a result of the allegations?‑‑‑Yes, I accept that. But I would like to point out that the allegations are not allegations; they are disclosures from [Y] that she made to me.
Yes. That was not my question?‑‑‑I’m sorry, your Honour. It was whether or not you recognise – and this is slightly different, but it’s only qualified in one small respect – that the father and [Ms B] have suffered extreme distress over the last 12 months-plus since August last year. Would you accept that; acknowledge that?‑‑‑I would acknowledge that. And so have I.
Well, yes, but the allegations are not made against you. I’m just asking about your acknowledgment of them?‑‑‑I understand.
[50] T 122.
[51] T 122 – 123.
The first of many difficult questions and answers followed regarding Y’s disclosures or allegations against the Father. The nature and extent of the discussion is longer and more extensive than one might like. However, given the gravity of the disclosures, rather than summarise the questions and answers, here and extensively below, in my view it is best to let the exchanges speak for themselves albeit that it necessarily extends the length of these reasons to quite a significant degree (emphasis added):[52]
[52] T 123 – 124.
MR HADDOCK: Do you think maybe that one of your weaknesses as a parent is your anxieties? Do you think maybe that’s one of your weaknesses as a parent?‑‑‑I – I love and care for my children and I – I think I have an appropriate level of anxiety about things for them and I think I manage that.
So is that a no?‑‑‑I don’t have anxiety, though.
Okay. So you say you don’t have anxiety?‑‑‑Everybody feels anxious at some point. But I have not been diagnosed with anxiety.
Right. Do you think maybe sometimes the way you react to what you call disclosures – and I will use your word for the moment – do you think maybe that sometimes the way you choose to react to those disclosures might be a weakness on your part when it comes to your parenting, or do you not agree with that?‑‑‑I would say that is possible. But there is no rulebook when a child makes a disclosure to you and you’re faced with having to – it’s gut-wrenching to listen to a child talk to you about something that they’re telling you has happened from their own father, no doubt, and try to process that while I’m also my first ‑ ‑ ‑
“No doubt”, madam? That really your position, isn’t it. You believe these things have happened, don’t you?‑‑‑I hoped there was another explanation and I do believe that [Y] is telling me what she believes has happened.
Well, let’s get right to the point. Let’s not try to work around it. You believe that what [Y] has said to you on each and every occasion about her father’s behaviour, sexual or otherwise, is true and correct, don’t you?‑‑‑I accept that there are times that children can become confused or mixed up and I do understand that that is a part of young children understanding their world. However, I do believe what she has told me. But I also don’t – I – I just – I hoped there was another explanation and it is ‑ ‑ ‑
Sure. Well, I will ask you the question more directly, because you’re not answering it. You believe he sexually abused [Y], don’t you?‑‑‑I – I really hope that that’s not the case. I’m – I – I still have concerns.
Sure. Well, you can hope all you want. I’m asking what you believe. You really believe that he has done that to [Y], don’t you? Sitting there today in the witness box, that’s what you really believe; correct?‑‑‑Yes, that’s correct.
So when I read your minute of order that you’ve brought on and it says that you make these acknowledgments at the start of the minute, which is what they call recitals; you make a serious of acknowledgments – one of the things that you don’t acknowledge is that you consider that he hasn’t sexually abused the children. You don’t say he hasn’t sexually abused [Y] or [X], do you?‑‑‑Not in those orders, no.
No. Because you believe he has, don’t you?‑‑‑Yes.
Yes. You believe that he’s a man that has taken [a] doll and he has put it inside [Y]’s vagina. You believe that happened, don’t you?‑‑‑Yes, because she has disclosed that to me and others.
I didn’t ask you the because, madam. Listen to the question. You believe that has happened, don’t you?‑‑‑I do. I have ‑ ‑ ‑
Thank you?‑‑‑ ‑ ‑ ‑ genuine concerns.
Okay. Well – thank you – I will get to the genuineness of them in a moment with you. All right. It means that you think he has groomed [X] sexually; you think he has done that, don’t you?‑‑‑Those are the things [X] told me, yes.
[X] may have told you those things, madam. I’m asking you a different question. You believe he has groomed [X], don’t you?‑‑‑I believe what [X] has told me, yes. And I have concerns that that happened.
Okay. Well, if you believe it, it follows you must have concerns; correct?‑‑‑Yes, that’s correct.
Right. So whether [X] has told you it or not, that belief resides with you, doesn’t it, if you take some responsibility and ownership for the belief you have as a person? Do you accept that?‑‑‑Yes.
Right. And so that must also mean that you believe that [Ms B] has been, to use your words, complicit in abusing the children?‑‑‑That’s not entirely correct. In my affidavit, I explained that, yes, [Y] mentioned things about [Ms B] and I – I feel as though it seems like it was unlikely to have happened exactly the way that [Y] said it. But I do have concerns about the way [Ms B] had complied with [Mr Chadwick]’s behaviour.
The Mother noted that the girls (the children, X and Y) had raised with her that they do not feel safe with Ms B. In the light of what I have already said, I need only note that (a) such a proposition is astonishing bordering on the preposterous, (b) regrettably, it showed a certain lack of appreciation about what insight an 11 year old has (or might reasonably have) about allegedly being “groomed” generally, and by her Father in particular, and (c) presumably also there must have been an almost febrile atmosphere in the Mother’s household (much of it understandable while investigations were going on) which very likely fed into an anxious, ongoing suspicion, especially towards the Father and anyone associated with him.
In her most recent Minute of Orders Sought, the Mother proposed that, among other things, the children should meet with a psychologist for the purposes of explaining “these Orders” to them to assist them to transition back to spending time with their Father. Further questions followed regarding the necessary supports for the children, but in circumstances where the Mother still firmly holds the view that Y was sexually abused by the Father, and that X was “being groomed” by him. The ineluctable and irreconcilable tension between the Mother’s conflicted positions of, on the one hand, accepting that no evidence of abuse was ever established against the Father (in multiple reports, on multiple occasions over a significant period of time, expressly or impliedly, by multiple authorities – police, Care and Protection [CYPS], AT Health Unit at T Hospital), and on the other hand, her unshakeable belief that the abuse and grooming had happened, and that the Father was, and remains, a paedophile, and therefore a risk to the children, is canvassed at length in the course of these reasons. It was against this completely conflicted position of the Mother that her latest set of Orders (complete with concessionary recitals in the Father’s favour) proposing the children re-commence spending time with the Father, must be viewed.
The Mother had earlier noted that the girls were receiving “trauma counselling”, but acknowledged that such counselling was predicated upon the trauma in question having taken place. In answers to related questions, the Mother said (emphasis added):[53]
Now, when I look at your order 4, which I’ve just read out to you, and I will go through that again, you say:
The purpose of the psychologist is to explain the orders to the children and assist them to transition back to spending time with their father.
So that’s obviously not to explain to them that you formed the view that their father hasn’t abused them. That’s not the purpose of it, is it?‑‑‑That could be part of it if it ‑ ‑ ‑
Because you’re not going to communicate to the children yourself that you think their father hasn’t abused them, because that’s not what you believe, is it?‑‑‑In light of the CYPS outcome, I am prepared to do whatever is needed to support my children to have a relationship with their father.
Right. So if they come to you and say, “Dad stuck his penis against me,” what are you going to do?‑‑‑I have thought about that and ‑ ‑ ‑
I’m glad. Can you answer my question, please?‑‑‑Yes. May I have a moment? I think that what I would do differently is to speak with [Mr Chadwick] about it, something – if something had come up and advise him that that’s something that had been said, so that we could work out where that may have come from and decide if we were – as a co-parenting team.
[53] T 126.

Respectfully, I agree with Warnick J, and the earlier statements of the High Court to which I have referred.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[134]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[134] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93].
It might be noted more summarily that Austin J (sitting as the Full Court) said in Franklyn & Franklyn, at [41]:[135]
… [a] primary judge [is] obliged to give sufficient reasons to explain the overall result: not to explain every forensic step in reaching that result.
[135] Franklyn & Franklyn (2021) FLC 94-031.
One other preliminary comment should be noted here. In U v U, Kirby J emphasised the importance of considering the long-term interests of the child rather than just focusing on their short-term interests.[136]
[136] U v U (2002) 211 CLR 238 at 283 [164].
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have proper regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[137]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[137] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[138]
[138] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. The Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] 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”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Further, I should note that in Sigley v Evor, at [136], the Full Court commented as follows (emphasis added):
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994) (emphasis in original).
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Principles regarding “risk”
As noted above, relevant principle regarding matters of “risk” were recently outlined by the Full Court in Isles. I note the following from that decision.
At [1] – [7], the Full Court stated, particularly from the High Court judgment in M v M:[139]
[139] M v M (1988) 166 CLR 69.
[1] Long ago, in parenting proceedings characterised by one parent’s allegation that the other had sexually abused their child, the High Court of Australia (“the High Court”) emphasised the distinction between two very different things: on the one hand, proving alleged sexual abuse according to the civil standard of proof and, on the other, establishing the risk of the feared sexual abuse occurring in the future: (M v M (1988) 166 CLR 69
[2] In respect of the first issue, the High Court said (at 76):
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.(Footnote omitted)
[3] The reference to Briginshaw v Briginshaw (1938) 60 CLR 336 was the endorsement of an earlier enunciation of the common law principle of the civil standard of proof, now enshrined within s.140 of the Evidence Act 1995 (Cth) (“the Evidence Act”).
[4] In relation to the second question pertaining to risk, the High Court said (at 77–78):
... [T]he court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. ... [T]he 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.
[5] But the High Court did not elaborate how the alleged risk of abuse would be established on the evidence before the Court.
[6] In the years which have since elapsed, this Court has on occasions posited that the risk of such abuse (and hence the risk of consequent harm to the child) must be proven on the balance of probabilities according to the civil standard of proof, in just the same way as facts are proven. We consider that statement of principle to be incorrect and now state it to be so, fully recognising the caution which should attend any departure from earlier authoritative decisions (Nguyen v Nguyen (1990) 169 CLR 245 at 269).
[7] M v M put beyond doubt the proposition that courts exercising jurisdiction under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) must protect children from credible risks of harm due to sexual abuse. Such risks, like all prospective events, are capable of classification in only one of three mutually exclusive categories: possibilities, probabilities, or certainties. Once it is accepted courts should (and do) react to dangers in the form of risks of harm which may merely be possibilities, it is an oxymoron to expect such possibilities to then be forensically proven on the balance of probabilities according to the civil standard of proof. By definition, possibilities are not, and could never be, probabilities. Risks of harm are not susceptible of scientific demonstration or proof (CDJ v VAJ (1998) 197 CLR 172 at [151]), but are instead postulated from known historical facts and present circumstances.
As summarised in the Headnote to the judgment, at [50] the Court further stated (emphasis added):
The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before. Risks of harm must be heeded even if they are improbable eventualities.
In the same place, the Court held (at [50]) further (emphasis added):
The law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities.
Then at [85], also as summarised in the Headnote to the judgment, the Full Court stated (emphasis added):
The assessment of risk is an evidence-based conclusion and is not discretionary. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion: That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.
Consideration and disposition
Issues of Risk
In addition to generally accepting and adopting the submissions on behalf of the ICL, and those on behalf of the Father (regarding matters of “risk” and parenting more generally), and preferring them to those on behalf of the Mother, in the light of all the evidence (especially from CYPS), the following matters are central to the Court finding that there is no unacceptable risk of the children spending time with the Father, and likewise with his partner, Ms B.
Earlier in these reasons I commented, in various and varying degrees of detail, on the evidence of the parties, their respective “support” witnesses, and the detailed oral and written evidence of the expert, Ms K. The Court also has before it the various Reports from CYPS and other relevant authorities (among other places, noted in the list of documents tendered recorded earlier in these reasons), which inform what follows. Individually and collectively, the evidence of Ms K, and the Father and Ms B, are all congruent with the multiple assessments by CYPS, the police and the AT Health Unit at the T Hospital. This is to say that none of the evidence credibly, or on any other measure, relevantly points to any unacceptable risk of the children spending time with the Father (or Ms B).
On the other hand, the evidence of the Mother and her Father consistently was seen through the prism of the allegations and contentions raised by Y. It even involved, as Ms K suggested (at par.6.17) regarding the Grandfather’s evidence, that there had been a certain re-writing of history in the light of the sexual abuse allegations. The maternal Grandfather, in particular, was patently hostile to the Father. His evidence was clearly heavily coloured by the breakdown of the marriage between his daughter and the Father, and subsequently by the disclosures by Y. His, and the Mother’s, unyielding conviction of the alleged criminal conduct of the Father towards the children, even though it was acknowledged that there had been nothing untoward in the Father’s conduct toward them while the parties were married, was troubling. There was barely a hint of any doubt about the veracity and alarming detail that the then 4 year old Y regularly disgorged about her Father.
It was no less concerning that, notwithstanding the multiple Reports by CYPS (and other experts in dealing with such delicate and difficult matters where allegations of sexual abuse are made), which found nothing to support the contentions against the Father, the Mother’s certitude in the accuracy and truthfulness of Y, over against the word of the Father (and Ms B), remained unyielding and devoid of doubt. I understand the Mother’s regularly repeated contention that she was acting protectively towards Y. However, unchallenged belief in the astonishing accounts of abuse by a 4 year old, with no “double-checking” of so-called facts, and not the slightest doubt about the accuracy and detail of them, was deeply unfortunate for all concerned. Had some medical or physiological “reality check” been undertaken (some parts of which are set out below), among other things, it could have led to a significant shortening of this litigation and a reduction of the trauma for all involved in it, perhaps most particularly Y, not to mention her parents.
A crucial part of the objective evidence which, in my view, tells strongly against the veracity and reliability of Y’s accounts against her Father, surround the range of allegations involving the Father’s abuse of his daughter using the doll. Having regard to (a) the size and general dimensions of the doll (clearly shown in the photograph annexed to these reasons [annexure removed], measured against rulers – 40mm wide at the tail x 90mm in height), (b) its sharp and angular protrusions, (c) the general size of a young girl’s vagina (as recorded from medical literature noted below: diameter of approximately 4mm)[140], and (d) the lack of evidence of any injury (let alone serious injury) to Y by any medical practitioner or by AT Health Unit (apart from the Mother’s evidence of Y complaining of some general “soreness” in the area), it is inconceivable that the claims/disclosures by Y against her Father involving the doll ever took place.
¹³⁸ “VAGINAL OPENING MEASUREMENT IN PREPUBERTAL GIRLS” C.W. GOFF, K.R. BURKE, C. RICKENBACK, D.P. BUEBENDORF, AMERICAN JOURNAL OF DISEASES OF CHILDREN (1989) NOVEMBER 143(11) 1366 – 8: ABSTRACT:

Put another way: having regard to the same matters set out in the previous paragraph, had any of the claims by Y involving the doll actually happened, in my view it is impossible that there would not have been very serious injury to the child. Further still, if any of the claims by Y involving the doll had taken place, it would be next to astonishing that she would readily and willingly thereafter play with the doll (and permitted by her Mother to continue to do so), as she did on uncontested evidence, the hitherto instrument of her sexual abuse by the Father.
Further still, the Court must have relevant regard to the fact that, in the light of the evidence from CYPS (and other experts), immediately prior to the trial, the Mother confirmed that she no longer pressed for the Court to make adverse findings in relation to “risk” against the Father regarding the disclosures by Y. The Mother acknowledged that the latest Report from CYPS was no different to/from the multiple earlier Reports from the same authorities, which found no relevant risk against the Father. The Mother also sought Orders whereby the children would re-commence spending time with the Father, and which would increase.
The Mother, somewhat diffidently, acknowledged that her Orders sought in favour of the children spending time with the Father (and his fiancé, Ms B), on the one hand, and on the other, her sincere belief in the truth and accuracy of Y’s disclosures (and that the Father was a risk to the children and that he was a paedophile) were contradictory and mutually inconsistent.
In the light of the outline of principle in relation to “risk” in Isles set out above, in the light of all the evidence, I find no relevant unacceptable risk in the children spending time with their Father (or with Ms B).
Parenting Matters
Clearly what follows must be seen and appreciated in the context where the Father, at the time of trial, had not spent any time with the children for approximately 18 months as a result of Y’s disclosures. It follows that, because of the recent history between the parties, and between the children and their parents, there are significant gaps regarding the current state of evidence on many of the “considerations” in Part VII of the Act. This also necessarily means that much of what follows is heavily dependent upon the evidence of the Mother, the Father, Ms B, and Ms K in relation to the same considerations – plus such historical record as there is.
It is also significant to note that in the preparation of these reasons, the Court inquired of the parties (and the ICL) regarding the earlier agreed interim Orders, which directed that the children should commence spending time with the Father. The parties jointly advised the Court on 15^th March 2023 that the Father was now spending unsupervised time with the children.
Perhaps crucially, precisely because of the scope, detail and gravity of the allegations against the Father, and the fact that there had been no recent contact between him and the girls, there is a significant difficulty in assessing the current status of the children’s relationship with the Father, as well as assessing their “views” at the time of the trial. To put it somewhat bluntly, or at least indelicately, such (and similar considerations) have all been quite tainted. Everything was seen at trial, and for quite a while beforehand (and since), through the narrow lens of the allegations, the multiple inquiries and Reports, and the emotionally-charged impact upon everyone involved.
Historically, it appears that the children had a close and affectionate relationship with both parents. Importantly, the Father’s general comments and assessments of the girls (e.g. their attributes, character-traits, and the like) were not really disputed by the Mother, thus suggesting some levels of congruence of views between the parties, and insight of the Father into the children and their well-being – among other things.
These comments apply similarly to the considerations set out in sub-paragraphs (c), (ca), (f) and (i) in s.60CC(3) of the Act. The remarkable allegations impacted upon everything and everyone. Plainly, the impact was acutely felt by the children, not least for the purposes of sub-paragraph (g). While difficult to finely evaluate the different impact upon each child having regard to their respective ages, from the observations and comments of Ms K, Y still seems to be of an age where she has a significant degree of resilience and, to some degree, seems to be capable of getting on with her life, so to speak.
X is, seemingly, of more delicate disposition and character. Her much briefer and much less florid comments concerning alleged grooming of her by the Father were indeed troubling. This is to be balanced against the insightful and prudent comments by Ms B recorded by Ms K at par.6.1 – 6.7 of her Report, which are quite reassuring for the future care of the girls in the Father’s household. The comments about the last weekend the girls spent with their Father (par.6.4 of the Report), which note X’s need for constant reassurance from her Father, in my view, suggest both a close relationship, and again undercut the claims of abuse and “grooming.” Put another way, rhetorically of course: how or why would a child who claims to have been abused, or be “groomed” by her Father, constantly seek reassurance and comfort, including physical comfort, from him?
There is no question, for the purposes of sub-paragraphs (b) and to some extent (e), that any change in the primary residence of the children will be unsettling (to a greater or lesser degree) on the children and no less so on the Mother. The crucial issue here, noted above and in the course of the trial, is the risk to the children remaining primarily in the Mother’s care while she still holds the firm conviction that the Father is effectively, and actually, a predator of his own children. While perhaps theoretically not impossible, in my view it is inconceivable that the Mother would be able to conceal her views of, and hostile disposition towards, the Father from the children. Given what everyone has been through, in my view, it would be tantamount to negligence to leave the children in the Mother’s care in these circumstances.
In my view, it would be next to impossible to quarantine the children from imbibing the poisonous views of the Mother about the Father, accepting, up to a point, that she would try (as she said) to keep her deep anxieties and strongly held views, under some control. The same problems would arise regarding the maternal Grandfather spending time with the girls. To put it in somewhat dramatic, but nonetheless appropriate, terms: the well of relationships has been heavily poisoned. It will take considerable time and professional assistance to clean it thoroughly – assuming that this is possible.
The Mother’s allegations of domestic violence during the tail-end of the marriage were firmly disputed. It was very much a “she said – he said” situation. Again, however, the Father had the benefit of the measured evidence of Ms B. Summarily, albeit in one particular context but, in my view, of wider application, Ms B seemed to intimate that if any of the things alleged against the Father were true, or there was any hint of them, she would not “stay around.” At par.6.1 of her Report, Ms K said: “Ms B impressed me as an intelligent, level-headed person who did not seem to be given to hyperbole.” Although earlier recorded, I accept Ms K’s assessment of Ms B. I found her to be likewise in her, albeit brief, evidence before the Court.
The Orders proposed by each party are very difficult, for reasons explained at some length here. The Orders now made by the Court are also necessarily difficult. This is in keeping with the multiple hurdles, and other wide and deep difficulties, in the litigation more generally. In my view, they are in the girls’ best interests. The children need a period of some type of quarantine and respite to help them to recover from the various ordeals they have endured in the course of multiple investigations. So too does the Mother. The Orders are not a punishment of the Mother. They are designed to protect the children generally, and to allow a time of healing for all, albeit that there is no doubt that the Mother believes that (a) she has always and only acted to protect the children, notably Y, (notwithstanding the multiple examinations and engagements over a long period with various authorities – hence submissions by the ICL, based on comments by authorities, of likely “systems abuse”, as well as earlier comments in reports by authorities of possible “coaching” [noted in submissions by the ICL by reference to her Tender Bundle of documents from CYPS]) and (b) she would be able to quarantine the girls from her very strong, completely negative views of the Father. One can hope that over time, and with expert assistance for each member of the family, a measure of recovery and healing can be achieved.
For the reasons given, I make the Orders proposed by the Father and supported by the ICL, but with some delicate adjustment. This necessary “tweaking” is as follows (all of which is predicated upon a Child Court Expert explaining the Orders to the children, including to stress to them that, in the Court’s view, there are no risks with them spending time with their Father). Further, the Orders are not only in the children’s best interests, they are also in the parents’ best interests, especially the Mother. In my strong view, and with no criticism at all, she needs very particular assistance. She needs to use the time that will now become available to her to obtain the relevant and important help to commence a period and process of healing, which will not only help her but equally so the children. The Orders are:
(i)Neither parent is to discuss the Orders of the Court with the children, except to inform them that, for a time, (a) they are to live with the Father, (b) they will be in regular contact with the Mother, and (c) among other things, the Mother will be undertaking some support treatment;
(ii)By 4pm on 4^th April 2023, the parties and the ICL are to inform the Court what arrangements have been made to transition the children, X and Y, into their Father’s primary care. That transition is to take place by no later than 5pm on 5^th April 2023;
(iii)On 6^th April 2023, the Father is to arrange for the children to attend at the Registry of the Court so that the head of the Family Consultants may have a general discussion with the children about their general living situation and the “spend-time-with” arrangements with the Mother;
(iv)Within 1 month from the date of these Orders, the Mother is to inform the ICL and the Court what arrangements she has put in place regarding psychological counselling to deal with the matters addressed in the reasons of the Court;
(v)For a period of one month after the date of these Orders, the Mother may call the children once per week (day and time to be agreed in writing between the parties), and the children may call the Mother for a maximum additional two times per week;
(vi)For the second month after the date of these Orders, the Mother may spend up to six hours with the children, one day each weekend (for a period of 4 weeks; day and times to be agreed in writing), but such time-with the Mother must be supervised by an independent person (or organisation) and a brief report provided to the ICL and to the Court after each session;
(vii)Assuming that there are no relevant issues with the Mother’s time with the children according to the reports of the supervisor (set out in the previous paragraph), then the children are to spend time with the Mother, for a period of six months, one overnight each alternate weekend (day and times to be agreed in writing);
(viii)After that six month period, for a further period of 3 months the children are to spend each alternate weekend with the Mother from after school Friday until 4 pm Sunday;
(ix)After the conclusion of that period of 3 months the children are to spend each alternate weekend with the Mother from after school Friday until before school on the Monday (or Tuesday when a public holiday occurs), and half school holidays.
(x)It is requested the ICL remain in the matter for the next 12 months and provide a note to the Court every 3 months as to how matters are progressing with the children on all relevant fronts.
(xi)The ICL is granted liberty to relist the matter on short notice to the parties and to the Court should the need to do so arise.
Otherwise, the Orders proposed by the Father are to be made, including an Order for him to have sole parental responsibility.
In my view, notwithstanding the difficulties that will doubtless ensue for a time, on all the evidence, the Orders of the Court are plainly in the children’s best interests.
It is requested that the Orders be explained to the children by a Child Court Expert of the Registry, with stress being placed on the regime by which the children’s time with the Mother will recommence and increase.
In the Wisdom tradition of the Old Testament, notably in the Book of Ecclesiastes (Ch 3) there are sayings about there being a season for everything under heaven, a time for healing, a time for building, a time for embracing, and a time to refrain from embracing. Everyone in this matter needs support and healing. It will take quite some time. The Orders provide a framework to enable this healing and recovery process to happen. To state the obvious: there are no easy solutions, and many difficult questions remain unanswered. Nevertheless, the Orders now made are, in my view, plainly in the children’s best interests.

I certify that the preceding two hundred and one (201) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 4 April 2023

Normative, age-indexed data regarding the size of the vaginal opening in prepubertal girls have not been previously reported, to our knowledge. Measurement of the apparent transverse diameter of the vaginal opening was done in 273 prepubertal girls as part of their routine health assessment. Vaginal opening diameter tended to enlarge with age and to be larger in the supine knee-chest position than in the supine frog-leg position. An opening greater than 4 mm was distinctly rare.

With the consent of the parties, relevant information from medical literature was proposed as objective criteria regarding the physiological characteristics of young girls relevant to the current matter. The Abstract above, citation, and relevant link to the National Institutes of Health “Med Line” site were provided to the parties with the opportunity for them to comment. All chose not to comment.

File number(s):	CAC 2063 of 2020
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	4 April 2023
Catchwords:	FAMILY LAW – Parenting – residence – both parties sought the residence of two female children – Mother made allegations the Father had sexually abused the younger child and groomed the older child – repeated interviews with police and care and protection where authorities consistently found no substantiation of the allegations of sexual abuse – where child protection found a risk of psychological abuse in the Mother’s care – where the Mother asked the child leading questions - Mother amended position at the commencement of the trial for the children to begin to commence supervised time with the Father building up – Father proposed the children live with him and spend a moratorium of 6 months without spending time with the Mother, building up to supervised then non-supervised time – where the evidence does not support the Mother’s allegations of the risk of the children in the Father’s care – where the Mother raises a psychological risk of systems abuse to the children – the children’s best interests require them initially not to spend any face-to-face-time with the Mother for a short period, and to live primarily with their Father and spend somewhat limited but regular time with the Mother.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC
Cases cited:	AMS v AIF (1999) 199 CLR 160 B & B [2006] FamCA 1207 Collu & Rinaldo [2010] FamCAFC 53 Fox v Percy (2003) 214 CLR 118 Franklyn & Franklyn (2021) FLC 94-031 Isles & Nelissen (2022) 65 Fam LR 288 M v M (1988) 166 CLR 69 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 Pilot & Silver (No.2) [2022] FedCfamC1F 538 Sigley v Evor (2011) 44 Fam LR 439 U v U (2002) 211 CLR 238 Vontek v Vontek [2017] FamCAFC 28 C.W. Goff, K.R. Burke, C. Rickenback, D.P. Buebendorf, “Vaginal opening measurement in prepubertal girls,” American Journal of Diseases of Children (1989) November 143(11) 1366-8
Division:	Division 2 Family Law
Number of paragraphs:	201
Date of last submissions:	20 January 2023
Date of hearing:	31 August 2022 – 2 September 2022; 25 October 2022
Place:	Canberra
Counsel for the Applicant	Mr J Haddock
Solicitor for the Applicant	Parker Coles Curtis
Counsel for the Respondent	Dr J Behrens
Solicitor for the Respondent	Neilan Stramandinoli Family Law
Counsel for the Independent Children’s Lawyer	Ms J Treherne
Independent Children’s Lawyer	Jeanine Lloyd & Associates

CAC 2063 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR CHADWICK Applicant
AND:	MS CHADWICK Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE W J NEVILLE
DATE OF ORDER:	4 April 2023