Christy & Young (No 2) - [2022] FedCFamC1F 519

FEDERAL CIRCUIT AND Family Court of Australia
(DIVISION 1)
Christy & Young (No 2) [2022] FedCFamC1F 519

File number(s): PAC 5254 of 2019

Judgment of: HANNAM J

Date of judgment: 21 July 2022

Catchwords: FAMILY LAW – CHILDREN – Final parenting – Where expert evidence is given about the increased risk posed by a person who has perpetrated family violence in the past – Consideration of harms which may be experienced by children when their parent is in a relationship with a person who poses a risk of family violence – Where a proposal for limited time with a parent is justified where that parent lacks insight into the potential risks posed to their children by their partner – Where undermining a child’s relationship with a parent is found to constitute emotional abuse – Where evidence adduced in re-opened proceedings amplifies Court’s concerns and strengthens previous findings – Where presumption of equal shared parental responsibility is rebutted by evidence of a high level of mistrust between the parents and a parent’s inability to conduct themselves in a child-focussed manner.

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 61B, 61C, 61DA, 65D, 65DAC

Cases cited:
Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Christy & Young [2022] FedCFamC1F 446

Number of paragraphs: 398

Date of hearing: 21-23 September, 18-19 November 2021, 15 July 2022

Place: Parramatta

Solicitor for the Applicant: Bainbridge Legal

Counsel for the Respondent: Mr Schroder (21-23 September and 18-19 November 2021)
Mr Cairns (15 July 2022)

Solicitor for the Respondent: Pannu Lawyers

Counsel for the Independent Children’s Lawyer: Ms De Vere

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW

ORDERS

PAC 5254 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR CHRISTY
Applicant

AND:
MS YOUNG
Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

hannam j

DATE OF ORDER:

21 july 2022

THE COURT ORDERS THAT:
1.All previous orders in relation to the children X born in 2014 and Y born in 2016 (“the children”) are discharged.
2.The father has sole parental responsibility for the children provided that he consults with the mother about decisions to be made in exercise of his sole parental responsibility as follows:-
(a)The father will advise the mother in writing of the decision to be made and all related information;
(b)Within fourteen (14) days the mother will respond to the father in writing providing her views and input which the father will genuinely consider;
(c)The father will make the decision and provide the mother advice in writing of the decision and the reasoning behind the decision.

3.The children are to live with the father.
4.The children are to spend time with the mother between 10am and 4pm each alternate Sunday.
5.During the Christmas holiday period, commencing Christmas 2022 and thereafter, the children are to spend time with the mother from 10am and 4pm on Christmas Eve in years ending in an even number and from 10am and 4pm on Christmas Day in years ending in an odd number.
6.For the purposes of changeover, the parties are to meet at the McDonald’s Family Restaurant in Suburb D at the commencement and conclusion of time.
7.Pursuant to s 68B(1) of the Family Law Act 1975 (Cth) (“the Act”) the mother is restrained and injuncted from bringing the children or either of them into contact with Mr E born in 1988 (“Mr E”), or permitting the children by any means whatsoever, including through any third parties, to have any form of contact with Mr E.
8.Order (7) above are injunctions to which s 68C of the Act apply.

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

The parties (“the mother” and “the father”) are engaged in a dispute relating to the future parenting of their two sons aged seven and five (“the children”) following the breakdown of their three-year relationship.
It is the father’s case with which the ICL agrees, that a person who has some form of relationship with the mother poses an unacceptable risk of harm to the children. The father also contends that the mother has engaged in conduct in an attempt to undermine the children’s relationships with him including through maintaining a case for many years that his wife posed an unacceptable risk of harm to the children arising from sexual and physical abuse, which was only abandoned in the course of final submissions.
The father adopts the proposal of the Independent Children’s Lawyer (“ICL”) in seeking orders that would see him hold sole parental responsibility for the children, the children live with him and spend quite limited time with the mother as well as an order restraining the mother from bringing the children into contact with the person said to pose the risk to them.
The mother’s proposal changed significantly in the course of the proceedings. Ultimately she proposed orders that would bring about an arrangement in which the parents equally share parental responsibility for the children, the children remain live with her and spend defined time with the father.
A particular order proposed by the ICL has already been made with the consent of the parties restraining the mother from bringing the children or either of them into contact with the named person, which the mother contends will mitigate any risk of harm that may be found to be present if the children continue to live with her.
The question for me to determine is which orders are proper having regard to the children’s best interests as the paramount consideration.
background
On 22 June 2022, I delivered a Judgment (“the June 2022 Judgment”)[1] which explained my reasons for reopening the proceedings which were at that stage adjourned pending reserved judgment and for changing the children’s interim parenting arrangements. These Reasons incorporate some parts of that Judgment and are to be read with it.
[1] Christy & Young [2022] FedCFamC1F 446.
The mother is 32 and the father is 30. They began a relationship in late 2013 and commenced living together a short time later.
In 2014 the parties’ older son now aged seven (“the older child”) was born. In 2016, their younger son, now six years old (“the younger child”) was born.
There is a dispute between the parties about the extent to which each was involved in the parenting of the children when their relationship was intact.
It is not in dispute, however, that following separation in early 2017 the parties agreed to a parenting arrangement that involved the children living with the mother and spending three nights per fortnight with the father (who had moved to live with the paternal grandparents).
This informal care arrangement was followed until about March 2017 when the mother unilaterally decided to suspend the children’s time with the father for two months due to her concerns about his mental health and alleged drug use.
The parties subsequently reached agreement which was formalised into two parenting plans. The first parenting plan was followed by the parties for almost a year until February 2018 when the mother once again refused to facilitate any contact between the children and the father. By this stage, both parties had re-partnered. The parties then agreed to a second parenting plan.
In March 2019, the mother, her then-partner (“the mother’s former partner”) and the maternal grandparents went on a holiday for five days and left the children in the father’s care.
It is the father’s case that when he was caring for the children at this time, the older child reported first to his partner and then to him that the mother’s former partner had choked him. The younger child later reported to the father that the mother’s former partner hurt his back. The father reported the alleged physical abuse to police and the Helpline at the Department then known as Family and Community Services (“the Department”), but according to Departmental records there was no capacity for this complaint to be investigated.
Subsequently, the father and his partner raised their concerns about the children’s alleged disclosures with the mother, but she denied any abuse or wrongdoing by her former partner towards her or the children.
From about this time, it is the mother’s case that she observed both children display aggressive and sexualised behaviour and that each of them became increasingly resistant to spending time with the father.
The mother deposes that on 4 April 2019 the older child disclosed being “touched” by the father’s partner. The following day the mother reported matters related to this child’s conduct to the Department which treated the report as containing “suspicious indicators consistent with sexual abuse”.
Despite the older child’s alleged disclosure, the mother continued to make the children available to father for their time with him for about one month.
On 10 and 11 April 2019 the Department was again notified of suspicious indicators in the older child’s conduct and remarks consistent with sexual abuse.
Reports relating to the older child were subsequently referred to and investigated by the Joint Child Protection Response Program team (JCPRP).[2] In the course of that investigation, this child was interviewed on 12 April 2019. According to Departmental records, the nature of the child’s statements and his presentation when interviewed were such that it was not possible to determine that harm had occurred. The JCPRP subsequently closed the investigation, concluding that the allegations raised were unsubstantiated.
[2] The Joint Child Protection Response Program is an agency made up of officers from Community Services, New South Wales Police and New South Wales Health that investigates complaints of sexual abuse, serious physical abuse, and extreme neglect of children.
The father first became aware of the complaints concerning alleged sexual abuse when Departmental officers attended at his home on 25 April 2019 to interview him.
On 16 May 2019 the Department received another report concerning suspicious indicators consistent with sexual abuse. In that report it was alleged the older child disclosed that the younger child was also inappropriately touched by the father’s partner. Although referred to JCPRP, the report was closed and the JCPRP later confirmed that there was insufficient information to substantiate risk of sexual harm and that the father’s household was assessed as “safe”.
In 2019 the father and his partner married.
It appears to be common ground between the parties that from this time the tension between their respective households intensified. The father’s wife made a complaint about the mother and her allegations and sought an Apprehended Personal Violence Order (“APVO”) for her protection from the mother. A short time later on 25 May 2019, the mother once again ceased allowing the children to spend time with the father and made further complaints about the father’s wife psychologically abusing the children and the children being generally unsafe in the father’s household.
For the latter half of 2019, the father made several attempts to spend time with the children to no avail. At this time, both parties engaged in a number of instances of verbal conflict and other belligerent behaviour between them and other members of their extended families to which the children were sometimes exposed. A series of ill-advised social media posts were also made by each party concerning the parental dispute.
The proceedings
In October 2019 the father commenced proceedings in the Federal Circuit Court (as it was formerly known) seeking orders for the children to live with him and spend time with the mother each alternate weekend.
In 2020 the father’s wife gave birth to a child (“the children’s half-sister”).
On the first return date of the father’s application on 29 January 2020 the proceedings were transferred to this Court due to the allegations raised by the mother concerning the alleged sexual abuse of the children. The proceedings were subsequently allocated into the Magellan Program.^[3]
[3] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
On 27 February 2020, orders were made with the consent of the parties providing that the children spend time with the father for a minimum of two hours per fortnight supervised by a professional supervision agency.
Between March and July 2020, the children’s supervised time with the father generally took place in accordance with court orders but on some occasions the mother either cancelled the time or did not facilitate this occurring.
By mid-2020 orders were made for the preparation of a Family Report. By this stage the mother says she had ended her relationship with her former partner so this partner was not assessed by the family consultant.
On 22 July 2020 the proceedings came before me for an interim hearing. At that hearing, the mother proposed orders that the children’s supervised time with the father be reduced to four hours once a month. She maintained her allegations that the children were at risk of sexual harm in the father’s care on the basis that his wife had sexually assaulted either or both of them. The father denied that the children were unsafe on any basis in his care. He proposed interim orders for the children to spend unsupervised time with him from Sunday to Wednesday each week.
The ICL did not support either party’s proposal relating to the children’s interim time with their father and instead sought orders that this time be increased and supervised by the paternal grandparents (or either of them).
For reasons set out in my judgment[4] dated 26 October 2020 I was satisfied that it was in the children’s best interests for orders to be made as proposed by the ICL (increasing the children’s time with the father pending final hearing to eight hours each alternate Saturday supervised by the paternal grandparents). It was in my view appropriate for the children’s time to be supervised by the paternal grandparents only in order to militate against the mother making further allegations.
[4] Christy & Young [2020] FamCA 911.
In October 2020, the Family Report was released to the parties.
A more detailed summary of the family consultant’s assessment is provided later in these Reasons. It suffices to say at this stage that the family consultant identified, in addition to the question of any risk of harm in the father’s care, that the most salient issues for the family were the impact on the children of ongoing parental conflict and disrupted child/parent relationships, including the impact of a potential change of primary care arrangements, and the willingness of each parent to support the children’s relationships with the other parent.
Following delivery of the judgment in October 2020 in relation to the interim parenting arrangements, the children spent time with the father in accordance with those orders up until the arrangements were changed in June 2022.
The final hearing
The final hearing commenced on 21 September 2021 and proceeded via video link due restrictions then in place relating to the COVID-19 pandemic.
The mother’s partner – Mr C
One significant development in the circumstances of the family by the time of the final hearing was that the mother appeared to have again re-partnered with a person with whom she had previously been in a relationship (“Mr C”) but virtually nothing was known about him. The mother initially took issue with the father’s contention that the relationship between her and Mr C was ongoing but she later agreed that from at least November 2020 Mr C had interacted with the children and members of the extended maternal family quite regularly and she had recently begun a relationship with him.
During cross-examination of the mother it became apparent that Mr C had a history of offending including as a perpetrator of family violence. Orders were then made for a subpoena to issue to NSW police on short notice to obtain documents relating to Mr C’s criminal history and for court records in relation to his criminal proceedings to be obtained. Prior to adjourning the proceedings on the third day of the hearing it was also confirmed on behalf of the mother that Mr C would be available for cross-examination in the proceedings.
On the following day although Mr C was available for cross-examination this did not proceed as the mother’s solicitor was unable to facilitate Mr C giving evidence via video link from her offices. The proceedings were then adjourned part-heard to 18 November 2021.
Prior to the resumption of the proceedings on 18 November 2021, each of the parties filed further affidavits in relation to the mother’s relationship with Mr C. The mother deposed that her romantic relationship with Mr C ended on 1 October 2021 while the father deposed that contrary to the mother’s evidence he had seen the mother and Mr C together in person on three separate occasions after this date.
At the beginning of the resumed hearing on 18 November 2021, there was brief further cross-examination of the mother and cross-examination of Mr C then followed. Of particular significance, Mr C gave inconsistent evidence to that of the mother in relation to their recent communication with one another. Following Mr C’s evidence, the mother was cross-examined further and confirmed that she had misled the Court about her relationship with Mr C and communication with him when giving evidence earlier that day. It also came to light that Mr C had given false evidence about another matter to which I will return.
On 19 November 2021 at the close of the evidence final oral submissions were made on behalf of each of the parties before judgment was reserved.
Proceedings re-opened
On 15 June 2022 the father filed an Application in a Proceeding seeking to re-open the proceedings. He sought to adduce fresh evidence relating to the mother’s relationship with Mr C which he asserted was “ongoing” at that time despite the evidence of the mother and Mr C that their relationship had ended and the concession made by the mother’s counsel in final submissions on November 19 2021 that she accepted Mr C posed an unacceptable risk of harm to the children on the basis that they may be exposed to family violence if they were to come into contact with him.
In an affidavit filed in support of his application to re-open the proceedings the father deposed to concerns he held about Mr C’s continued involvement with the children and his understanding that the mother was pregnant with Mr C’s child.
At a court event before me on 20 June 2022 the ICL and the mother (who was at this stage representing herself) consented to the father’s application to reopen the final hearing in the relation to the questions of the status and nature of the mother’s relationship with Mr C and Mr C’s continued involvement with the children since the date that judgment was reserved in November 2021. Orders were then made setting down the proceedings for a further day of hearing on 15 July 2022.

Prior to adjourning the proceedings on 20 June 2022, the father was given leave to make an oral application for an urgent variation of the interim orders. After hearing from the each of the parties and the ICL orders were made providing in summary that, pending the next hearing date on 15 July 2022:
·The father hold sole parental responsibility for the children;
·The children live with the father;
·The children spend time with the mother for six hours each alternate Sunday with changeover to occur at a nominated public place; and
·Only the father and other members of his household who the father considers appropriate be permitted to collect the children from school.
An order was also made on a final basis with the consent of the parties in the course of the court event on 20 June 2022 that the mother be restrained and injuncted from bringing the children or either of them in contact with Mr C.
On 5 July 2022 both the mother and Mr C filed affidavits confirming the mother’s pregnancy and nominating Mr C as the father but denying that they had rekindled their personal relationship beyond being friends and for the purposes of “co-parenting” their unborn child in the future.
At the resumed hearing on 15 July 2022 the father, mother and Mr C were cross-examined in relation to the affidavits they had filed in the reopened proceedings. The interim orders then in place were continued pending final judgment and each of the legal representatives made further submissions in support of the orders that each of them had proposed when the proceedings were initially completed in November 2021. The proceedings were then again adjourned and judgment reserved.
The matters in dispute
At the commencement of the hearing it could be gleaned from the party’s affidavits and Outlines of Case filed in the proceedings that there were a number of longstanding and significant factual matters in dispute. Of particular significance was the mother’s contention that the father’s wife poses a risk of harm to the children arising from sexual and/or physical abuse. Orders sought by the mother at the commencement of the trial and maintained up until final submissions in November 2021 that would have seen her hold sole parental responsibility for the children and the children’s time with the father occur in the absence of his wife were consistent with these contentions. The father has at all times denied that there is any risk of harm arising in his household and in particular posed by his wife. He (and his wife in her affidavit) have always denied that his wife has abused the children or either of them in the past and maintained that she poses no risk to them in the future should orders be made as he seeks including orders that the children move to live with him.
It became clear however for the first time in final submissions made on her behalf in November 2021 that the mother was not seeking a finding that the father’s wife poses an unacceptable risk of harm to the children arising from sexual or physical abuse. However, it is central to the father’s case (that it is in the best interests of the children to live with him and have fairly limited time with the mother) that one of the significant risks for the children arising in the mother’s household relates to her claims (now abandoned) that the children had been sexually and physically abused by his wife.
The family consultant (whose evidence will be set out in greater detail in these Reasons) gave evidence in November 2021 at a stage when the children were still living with the mother. The family consultant recommended that the children move to live with the father only if the Court considered that it was significantly detrimental to the children’s wellbeing for them to continue to live with the mother. The family consultant opined that if the mother is found to have involved the children unnecessarily in police and child protection investigations, to have coached the children to lie about significant relationships in their lives and to have intentionally undermined the children’s relationship with the father, it may be considered that she has behaved in an emotionally abusive manner towards the children, exposing them to emotional trauma. It is the father’s case, supported by the ICL that the evidence is capable of supporting the foregoing findings against the mother.
Further, in the course of final submissions in November 2021 the Court was also invited on behalf of the father to find that the allegations of sexual abuse made by the mother were “fabricated and designed to estrange the father from the children”. The ICL does not seek a similar finding.
I do not consider it is necessary to determine whether this last mentioned finding is available on the evidence. It is the recommendation of the Family Consultant that if the mother is found to have subjected the children to emotional abuse and to continues to perpetrate such abuse in an ongoing way that the children move to live with the father. Under cross-examination, although the family consultant said that there was a concern that the mother had deliberately fabricated her allegations about sexual abuse (as opposed to holding an honest but reasonable misapprehension about the risks or abuse), her final recommendation as to the final parenting arrangement for the children would not change if this concern were found to be true. She said that the only effect of such a finding would be to “probably cement my recommendations that the children probably need to live with their father”.
The totality of the family consultant’s evidence, is that if the findings are made against the mother as indicated, the best arrangement to both protect the children from ongoing emotional harm and provide them with the greatest likelihood to maintain significant relationships with each parent would be for the children to move to live with the father. In these circumstances, in my view, it is not necessary to turn my mind to the additional finding sought by the father.
The mother’s position in relation to her relationship with Mr C and the risk, if any, that he poses to the children has changed in the course of the proceedings. Her trial affidavit was silent in relation to Mr C and she did not rely on any affidavit sworn by him at the final hearing in 2021. Although the question of her relationship with Mr C was first raised by the father in the interviews with the family consultant for the Family Report, at that stage the father did not know Mr C’s full name or anything further about the current state of that relationship. In summary, when the hearing commenced Mr C was not a proposed witness but further information came to light about him and the role he may play in the mother’s household in the course of the proceedings.
Just prior to giving evidence in September 2021 the mother sought to rely on a further affidavit in which she deposed to having been in a relationship with Mr C for a couple of months. During her cross-examination various concerning matters about Mr C especially in relation to his history of family violence and interactions with the children came to light. When the final hearing resumed part-heard in November 2021 the mother deposed to no longer being in a relationship with Mr C and it was her case that the presence of Mr C in her life, however described, did not give rise to an unacceptable risk of harm to the children in her care. By the close of evidence in November 2021 and in final submissions made on her behalf at that time the mother agreed that Mr C posed an unacceptable risk of harm to the children were he to have contact with them and on this basis she agreed to an order proposed by the ICL restraining her from permitting such contact.
When the proceedings were reopened in June 2022 the mother’s position in relation to Mr C varied. In her affidavit the mother deposed to difficulties that she anticipated encountering if the restraint on contact between Mr C and the children were to remain and appeared to suggest that she would be seeking a variation of the order she had agreed to. This was not pursued however when final submissions were made again on her behalf on July 15, 2022. By this stage the children had already moved to live with the father on an interim basis pursuant to orders made at a court event when the proceedings were reopened on 20 June 2022. Although it is not entirely clear, I understand that the mother contends that the restraint now in place on her bringing the children into contact with Mr C is sufficient to mitigate any harm that the court may find is posed by Mr C and may arise if the children are to continue to live with her.
The father contends and the ICL agrees that the Court should find that Mr C does pose an unacceptable risk of harm to the children arising from exposure to family violence should the children live with the mother as she proposes. Such a finding if made grounds the ICL’s proposal, adopted by the father including in particular an order that the children remain living with the father.
For the foregoing reasons, I must determine the interrelated questions of whether the mother involved the children unnecessarily in police and child protection investigations, coached the children to lie about significant relationships in their lives and intentionally undermined their relationship with the father. I must also make findings about the nature of the mother’s relationship with Mr C and whether that relationship gives rise to an unacceptable risk of harm to the children arising from exposure to family violence if the children were to live with her.
The mother’s allegations of risk posed by the father’s partner/wife
In her trial affidavit the mother deposes to first holding concerns about both children’s more aggressive and sexualised behaviour and resistance to spending time with the father in March 2019. She suggests that this behaviour indicated to her that something untoward was occurring in the father’s care.
Although the mother had previously not facilitated the children’s time with the father on a number of occasions in the previous two years following separation, she does not contend that this was for any reason associated with alleged abuse by the father’s wife (his then partner) at the time.
According to the mother’s affidavit, the particularly aggressive and sexualised behaviour of both children (which she previously connected to allegations of sexual abuse against the father’s wife) commenced after the period of time in which she left the children in the care of the father when she went on a holiday with her previous partner and maternal grandparents in March 2019. The father contends that this timing is a matter of significance as during this period both children reported for the first time that the mother’s former partner had harmed them, matters which the father reported to the Department and subsequently raised with the mother following her return.
It is clear from the tenor of the mother’s affidavit that she did not regard the allegation that her former partner had harmed the older child as truthful and/or reliable. She deposes to the older child denying having made this complaint and alleges that this child was told to make the complaint to the father by the father’s wife. She also deposes that this child confirmed that her former partner had not ever hurt him and to other discrepancies in this child’s alleged account.
It is recorded in the Family Report that when providing information in relation to her relationship with her former partner, the mother said that the children’s relationships with this person were very positive, that the former partner “never laid a hand on those children” and that the children referred to her former partner as “dad”, although they were never instructed to do this. The mother later agreed under cross-examination that the allegation that her former partner had hurt the children made her feel upset and that she considered it had been fabricated by the father and his wife but denied feeling an urge to retaliate against him as a result.
According to the mother’s affidavit, in addition to the children engaging in more aggressive and sexualised behaviour from this time, she also observed a bruise on the older child’s thigh at bath time on the day the children were returned to her following her time away and says that she considered the explanation given by the father’s wife about the bruise to be unconvincing.
The first sexual abuse disclosure
The mother deposes that the first specific disclosure of alleged sexual abuse was made by the older child to her a short time later, on 4 April 2019. Her affidavit account of that conversation is nothing more than that on the night in question the older child “disclosed to me that he had been touched by [the father’s wife]”. The mother deposes to this child being very hesitant in talking about the issue and that at the end of the conversation said he “didn’t want to talk about it anymore”. The mother deposes to observing that the child looked anxious and that the disclosure caused her to feel “physically sick”. She then contacted the Department the following day.
Under cross-examination when asked about the specific terms of what the older child had said to her on 4 April 2019, the mother said:
So [the older child] had just had a shower alongside [the younger child]. He had gotten out of the shower, we went into his bedroom to dry him and get him dressed into his pyjamas ready for bed. [The older child] said to me, “Mummy, I have something to tell you,” I had said to him, “Okay”. [The older child] looked quite anxious and he was quite hesitant in what he wanted to say. I had said to him, “It’s okay, you can tell Mummy anything, like, what do you need to tell me”. He said to me that, “[The father’s wife] has touched me on the doodle and bum,” and I said, “Okay, was this while you were showering, or was this while you were getting dried and getting dressed,” he told me, “No”. [The older child] then become (sic) very hesitant in moving forward with any conversation, and I just said to him, “Okay”. I said, “Can you show me how she may have touched you,” and then [the older child] did an example with his fingers of what had occurred. And then after that I had said to him, you know, “Thank you for telling Mummy, like it’s okay, you did the right thing by telling me,” and then [the older child] did not want to proceed with talking about it anymore.
She was then asked the following question and gave the following answer:
When you say, “He showed me an example with his fingers of how he was touched,” can you describe what he did?---So he used his – like, his pointer finger on one hand, and on the other hand he used his thumb and his other pointer finger and tugged the other pointer back and forth.
The mother denied under cross-examination inventing this allegation in retaliation for the allegation made against her former partner. The mother said she did not consider that the allegation may have been untrue or taken out of context and believed at the time that the older child was being sexually abused by the father’s wife. Although the mother agreed that there are several reasons why a carer might have a reasonable and innocent explanation for touching the private parts of a child, she also agreed that she considered immediately that there was not something innocent and that it was in fact sexual abuse.
According to the Magellan Report, the notification made on 5 April 2019 was as follows:
It was reported that the behaviours of both [children] had changed. [The older child] was reportedly becoming more confident, aggressive and emotional and did not want to go to [the father]’s house. When asked he reportedly said “I don’t like his partner”.
It was reported [the older child] had a bruise on the back of his thigh but did not remember how it happened. [The younger child] reportedly had marks on his bottom and returns to [the mother]’s with a sore bottom. It was reported that [the younger child]’s behaviour is different. He was reportedly rubbing against his maternal grandmother and often comments that his “doodle is very strong”. It was reported that [the younger child] tried to put his doodle into [the older child]’s and his maternal uncle’s bottom….
Under cross-examination concerning the terms of this notification, it was brought to the mother’s attention that she did not report that the older child had disclosed abuse by the father’s partner at all, either along the lines deposed to in her affidavit or expanded upon in oral evidence.
The maternal grandmother’s evidence of sexual and physical abuse disclosures
The maternal grandmother’s affidavit includes several paragraphs under the heading “physical, emotional, sexual abuse at the father’s house”. Without deposing to any timeframe, the maternal grandmother says that “both boys would display unusual behaviour when they would return back from spending the few days a week at their father’s house”. She also deposes that the children seemed quiet and distant when they returned and when asked about time with their father and what they did, “the children would say “can’t tell you, it’s a secret””. The maternal grandmother also deposes that she “commented to [the maternal grandfather and mother] that this was concerning and that something just wasn’t quite right”.
The maternal grandmother also deposes to noticing behaviour that she considered “disturbing” in the younger child when he was two which made her feel uncomfortable. According to her affidavit, this child “would turn his back to me and bend over and part his cheeks of his bottom and sway his bottom from side to side”. She also deposes to this child engaging in the same conduct when he was having his nappy changed and that she told the child that this behaviour was naughty. She says that when she asked him who showed him that, the child replied using the first name of the father’s wife. The maternal grandmother also deposes to another undated occasion when the younger child became “fidgety and moving around when he laid his body on [her] lower leg and was rubbing his doodle on [her] leg and started laughing”. The maternal grandmother deposes this behaviour caused her to feel “sick to [her] stomach” and “extremely uncomfortable” and that she considered it to be “very disturbing”. She deposes to making the mother aware about what had happened on each of these occasions.
The maternal grandmother also deposed that “it’s difficult to know what exactly has taken place with regard to [the younger child] of a sexual abuse nature” but that she is “certain that something has occurred because of his disturbing behaviour as detailed above” and as the child had said to her on several occasions that the father’s wife is “mean and hurts him and that he hates [her]”. The maternal grandmother also deposes that the older child has revealed to her more than once that the father’s wife hurts him but provides no detail as to when the child has made these revelations. She goes on to depose that the child said that the father’s wife “touches him on his doodle and bum and that she comes into his room when he is in there and does that when they are alone in his room”.
When cross-examined about the younger child’s conduct which she found disturbing and from which she had concluded that sexual abuse had occurred, the maternal grandmother agreed that she could not be certain about this matter. She maintained the view that it was possible in the case of the older child and quite a possibility in relation to the younger child that they had been sexually abused. When asked about the particulars about the older child’s disclosures about the abuse by the father’s wife, the maternal grandmother confirmed that about one month prior to swearing her affidavit (15 July 2020) this child reported that the father’s wife “screams at him, hits him and bites him as well as throws toys at him”. She gave contradictory evidence as to when the older child first made an allegation or disclosure about possible sexual abuse, at one point saying that the disclosure was made after the children stopped seeing their father in May 2019 and then almost immediately thereafter said it occurred “somewhere within the months preceding not seeing his father”.

The maternal grandmother gave very vague evidence about the circumstances surrounding the older child’s disclosure of sexual abuse and it is difficult to ascertain any understanding of what this child actually disclosed to her from the following:
Doing your best, can you tell us the words spoken by [the older child]?‑‑‑Well, just that [the father’s wife] hurts him and touches him. [The older child] would say it quite often. I – yes. Pretty much that was – I mean, I didn’t – yes – I didn’t really go into it too much with him because, you know, I didn’t really want to talk about it. He – he – he would offer information, and I would just listen to him really, and I just probably just dismissed what – not dismissed what he was saying, but didn’t want to keep the conversation going with him.
The maternal grandmother also confirmed that she observed bite marks on the older child’s arms which she attributed to abuse this child may have suffered by the father or father’s wife. She then agreed that she had known the older child to have bitten himself previously and that this child had some behavioural or developmental issues (associated with his diagnosed ADHD).
In relation to the younger child’s allegation of sexual abuse against the father’s wife, the maternal grandmother confirmed that this was made around mid-June 2020. When asked to recall the actual words spoken by the younger child the maternal grandmother answered:
He said that she – [the father’s wife] touches him and hurts him. And I said, “What do you mean she hurts you?” And then he said – but he said that she touched – well, she touches him. And I asked him where. And as I said in my affidavit, he pointed to his doodle area.
The maternal grandmother clarified that the “doodle area” is a reference to the child’s penis. She also agreed that this was the first time she heard the younger child make this disclosure and that she did not report it to police but she did tell the mother. The maternal grandmother said that when this child made this disclosure he would have been close to three years old and given that the children had not spent any time with the father or his wife since May 2019, the younger child must have been reporting abuse that had occurred when he was only two.
Events following the sexual abuse allegations
There is no dispute between the parties that following the older child’s alleged disclosure to the mother on 4 April and the mother making a report the following day to the Department, the children were next due to spend time with the father two days later on Sunday 7 April 2019. The mother deposes to informing the father on this occasion “about the accusation made by [the older child] about [the father’s wife]”. She confirmed under cross-examination that she raised the allegation with the father on that weekend.
The mother deposes that on 7 April 2019 the father was very quick to tell her that nothing happens at his house. She said that she explained to the father how shocked she was to hear what this child had disclosed. She also deposes to the older child being highly resistant physically and verbally at changeover and to the father struggling to put him into the car as he was screaming, kicking and hitting the car and became extremely distraught. The mother deposes to trying to calm the child and reassure him and that eventually the father got the child into the car.
According to the father’s affidavit he was unaware of the older child’s disclosure or the suggestion that this child did not wish to come to his house on the basis that he did not like the father’s wife. He denies the mother ever raising any such matters with either himself or his wife at the time. He gives no account of the alleged incident on 7 April in which the mother deposes to the older child’s resistance at spending time with him. Under cross-examination the father confirmed that he was not aware of the older child’s alleged disclosure at the time it was said to have been made. He confirmed meeting with the mother on 7 April 2019 but denied that the mother informed him about the older child’s disclosure of sexual abuse by his partner in his care or a request that the children were not to be left alone with his wife.
Under cross-examination the father agreed that the mother said she was having difficulties getting the older child to come to the his house ( around this time) and that this child was acting out, but said that the mother described the concern at the time being that his partner’s child may be hurting the older child. The father denied that this was happening and said that the two children play together like brother and sister. He then agreed that when the older child was resistant to going to the father’s home on 7 April 2017, saying that the father’s partner’s child “hurts me”. The father denied that he was required to forcibly place the older child into his car and denied all aspects of the mother’s account of this child’s resistance.
The father maintained that the mother’s only complaint about the older child’s concerns about his household at the time related to his partner’s child allegedly hurting the older child.
The father confirmed that the older child did shower at his house each day and that he was there with him, and agreed that about once a month when he got home late from work his partner would have assisted with parenting duties in relation to showering or bathing the children. The father could not think of anything that might have caused the older child to make something quite innocent into a disclosure to the mother and firmly stated that he did not believe that the older child had ever made such a disclosure to the mother at that time in those terms.
The JCPRP investigation
The older child was interview by members of the JCPRP team on 12 April 2019. By this stage further notifications about this child had been made on April 10 and 11 2019 to the Department. Which were considered to contain specific indicators consistent with sexual abuse.
It was reported in these notifications that the older child had disclosed that the father’s wife had hurt him and touched his “doddle and bottom” and that this child’s behaviour had reportedly changed. He had reportedly become more aggressive and defiant, and was showing reluctance at the prospect of spending time at the father’s home, becoming emotional and distraught. Both children, and in particular the younger child, were reported to be displaying sexualised behaviour. It was reportedly noticed that the younger child’s “bumhole” (sic) was red and that this child was regularly touching his penis, “pulls apart his butt-cheeks to show his bumhole (sic)” and rubbed against his maternal grandmother’s leg causing the child to have an erection. This notification also contained a report that there had been a couple of occasions where the younger child had reportedly attempted to stick his penis or finger in the older child’s bottom. It was also reported that at day care the younger child reportedly “touched an educator’s boobs” and on another occasion “prodded the same educator’s bottom cheek with a paint brush”. The Magellan Report records that these reports were referred to the JCPRP for investigation.
The recorded interview between the JCPRP and the older child who was then aged four (“the JCPRP interview”) was tendered in evidence and viewed in the course of the final hearing. Although an exact transcript of the interview was not tendered, there were very detailed interview notes contained within the records of the JCPRP produced on subpoena which contain a generally accurate reflection of the child’s answers to the questions asked.
Having watched the interview, I agree with the assessment by police and Departmental representatives contained in Department records produced on subpoena that the older child had a very basic understanding of truth and lies when asked about these matters during the interview.
So far as any relevant disclosures made by the older child are concerned, it is first to be observed that when first asked by the investigators what he understood was being talked about on that day, the child replied “[first name of the father’s partner’s child] hurts me and I don’t like it”. When further asked about this person who hurts him, the child said “she’s the girl…she’s at my daddy’s” and then said in a non-responsive answer to a question “she also throws toys at me”. When asked when the nominated child hurt him, the child said “umm. hm. And also mum tells me if you don’t want to talk about it that’s ok you don’t have to.” The interviewer then asked “what else did mummy tell you?” to which the child answered “and also [the father’s partner] hurts me too”.
When asked how “they” hurt him, the child answered “I don’t know”. The child was asked further probing questions in relation to how the father’s wife hurt him but was unable to provide any further information. After he was pressed as to this matter with numerous questions about how the father’s wife hurt him, the child finally answered “she hits me”. The child was unable to identify where on his body he was hit. After more questions in a similar vein, the child said “she doesn’t do anything else”.
The interviewer then asked the leading question, “someone’s told me that someone touched you somewhere”, to which the child answered “on the doodle and bum”. When asked to tell the questioner more about that, the child said that he could not do that “now” but could not give a reason why. When pressed with further questions about this matter, the child was unable to give more information including where he was when this touching occurred, whether the father’s wife did anything else or whether he said anything at the time. The child seemed disinterested in answering the questions and was significantly distracted by drawing.
The questioner then moved on to asking questions about the child’s body parts, asking twice “what do you do with your doodle?” to which the child answered that the father’s partner’s child “touches it when I go in the shower too”. In answer to a question about who washes him, the child answered “[the father’s partner] and daddy”. Towards the end of the interview the child clearly indicated that he had heard enough questions and effectively refused to answer the questions in a responsive manner.
Having viewed the video recording I agree with the observations in the Magellan Report that during this interview the older child did not appear distressed when talking about touching on the “doodle and bum”, was colouring in at the time and often appeared more interested in the colouring than in answering the questions.
The JCPR team assessed that as the child was not able to provide any details of any particular incident it could not be determined that harm had occurred or danger substantiated.
According to the mother’s affidavit, she was informed following the interview that there was “not enough evidence to say whether it did or didn’t happen” and she left the appointment feeling “confused and upset”.
Although the mother deposes to leaving the JCPRP office feeling confused and upset as a result of what she was told about the child’s answers to questions, under cross-examination she said that she was relieved to some degree to be advised of these matters. The mother also confirmed under cross-examination that despite what she was told she had no doubts at that time that the older child had been sexually abused by the father’s wife.
The parties agree that the children next saw the father and his wife at an Easter hat parade at the children’s day-care a few days later. The parties give differing accounts of this occasion. The mother deposes that the children were hesitant and uncomfortable with the father and his wife and had little interaction with them and that the younger child refused to acknowledge or say goodbye to them. The father and his wife depose that on this occasion, the mother encouraged the children to embrace the two of them.
According to the father’s evidence he only became aware of the allegations made against his wife on 25 April 2019 when Departmental officers attended his home. He deposes to being shocked to learn of the accusation that his wife had touched the older child’s “bum and doodle” and to this allegation coming as a complete surprise to him as the children had spent extensive periods of time with he and his wife after the mother had made these reports to the Department. In her affidavit the mother also deposes to the children spending time with the father on numerous occasions after the disclosure was made in accordance with the parenting plan then in operation.
The evidence of the father’s wife
In her affidavit the father’s wife deposes to caring deeply for both children and denies that she had ever abused, assaulted or acted in any inappropriate way towards them. She also deposes to having a courteous and civil relationship with the mother until around March 2019 when she and the father first raised concerns with the mother about the conduct of her former partner toward the children.
The father’s wife deposes, consistent with the father’s case, that on 25 April 2019 when Departmental officers attended their home she initially thought that it was in relation to the matters the father had reported about the conduct of the mother’s former partner. The father’s wife deposes that she and the father were shocked to learn of the allegations against her that she had touched the older child on his “doodle and bum”, that she had psychologically abused the children and that the older child did not like her and did not want to come to their home. The father’s wife denies that she sexually assaulted or psychologically abused the children.
Under cross-examination about the reports that she had touched the older child on the “doodle and bum” the father’s wife was asked whether she had ever touched this child’s penis to which she answered yes. She said in answer to further questions that this would have occurred when washing him in a shower or bath and, as she had known the children since they were one or two, also when changing his nappy and wiping him. She could not think of anything quite innocent that would cause the child to say that she had touched him as alleged. The father’s wife denied under cross-examination ever touching the older child’s penis when he was in bed with the light off or moving her fingers backwards and forwards on the child’s penis.
The father’s wife was not challenged on any of her other evidence in relation to the sexual abuse allegations. The main focus of her cross-examination of the father’s wife related to social media posts made by herself or the father from around late May 2019.
Events following the JCPRP investigation
Under cross-examination, the father remained firm that he first knew of the allegation of sexual abuse against his partner on 25 April 2019. It was then suggested to him that he, with the assistance of his partner, bombarded the mother with criticisms of her parenting in social media posts. Although the father was initially particularly evasive and obfuscated in answering these questions, he ultimately agreed that he and his partner had done this.
It is recorded in the Magellan Report that on 16 May 2019 the Department received a further ROSH report concerning suspicious indicators consistent with sexual abuse. The matter was referred to the JCPRP as it contained new information (that the younger child had also been “touched”). JCPRP declined to investigate the matter as it was considered that there was a lack of contextual detail in relation to the reported information and as the older child had been recently interviewed and the matter not substantiated.
On the same day that the last mentioned notification was made to the Department, 16 May 2019, the mother and the father’s partner engaged in an argument through text messages with each making allegations against the other. According to the mother she had become aware “through the children” of the father’s partner allegedly speaking negatively about her to the children and in reply the father’s wife criticised the mother and accused her of defamation by making complaints of sexual abuse against her to the Department.
In 2019 the father and his wife were married.
After the children spent two days with the father and his wife following their wedding, the mother and the father’s wife became involved in an argument at changeover. Although there is a differing account given by each person in relation to this argument, it is common ground that it was extremely heated. At around this time, the father’s wife engaged a lawyer for the purposes of obtaining an APVO for her protection against the mother and on 23 May 2019 the mother received an email from the lawyer putting her on notice about that matter.
The mother confirmed under cross-examination that the lawyer’s letter made her upset when she received it and that it was a pivotal moment in the relationship between her and the father’s wife when any hope of ongoing cooperation between the two of them became impossible. She agreed that after receiving the letter from the lawyer she told the father by text message that she was not going to allow the children to spend time with him at this house (though she was prepared to agree to arrangements for the children to spend time with him elsewhere and alone). The mother agreed when cross-examined that from that moment she effectively suspended operation of the parenting plan but denied that she did this in retaliation for the way in which she felt she was mistreated by the father’s wife. The mother confirmed that she genuinely believed at that point that the children had been sexually abused by the father’s wife.
In the context of the mother’s oral evidence that she genuinely believed that the children had been sexually abused by the father’s wife as at May 2019, she was shown documents that she had been completed on 29 May 2019 in relation to the older child. The first was a “pre-school anxiety scale parent report” which included a question “has your child ever experienced anything really bad or traumatic?” to which the mother answered “minor motor-bike accident”. The second document, a ‘Child Behaviour Checklist” included the question “what concerns you most about the child?” to which the mother answered “questioning if there is psychological abuse”. The mother agreed that nowhere in the documents did she state that she was concerned about this child being sexually abused by his step-mother.
According to the Magellan Report on 23 May 2019 it was decided that the investigation would be closed without further assessment as there was insufficient information to substantiate risk of sexual harm.
Ongoing difficulties with the father’s contact with the children following the sexual abuse allegations
It is common ground that after the argument between the mother and the father’s wife on 21 May 2019, the parties were unable to reach agreement about a suitable arrangement for the children to spend time with the father alone and no time was spent for the ensuing 10 months.
A short time after ceasing the children’s time with the father the mother unilaterally withdrew the children from their early learning centre and made alternate arrangements for their child care. This came after the mother says the father and his wife attended the children’s early learning centre on 29 May 2019 to “remove the children”, a matter which the father denies. Although denying that he and his wife attended the early learning centre as alleged, under cross-examination the father did agree that on that particular date in May 2019 he had requested police to conduct a welfare check on the children as he had not heard from them despite reaching out to the mother in order to talk to them.
It is the mother’s case that from around this time the father then engaged in stalking her which she experienced as aggressive and threatening. In particular, she deposes that on seven occasion in June and July 2019 she was “aware” that the father drove slowly past her home and workplace. The father denied engaged in any stalking of the mother and maintained this denial under cross-examination.

There is also no dispute that there were a number of incidents throughout this 10 month period in which the parties and members of their extended families were engaged in intense conflict when the father attempted unsuccessfully to have contact with the children. The parties also extended their conflict to social media posts which in some cases were offensive and potentially defamatory of each other party.
Incidents between the parties involving extended family members
It is not in dispute between the parties that on 8 July 2019 the father attended at the mother’s home with the paternal grandmother but was unable to see the children. Under cross-examination the mother agreed that she was aware of their presence but that she did not bring the children out to see him. In his affidavit the maternal grandfather deposes to being concerned for the safety of the mother and the children due to the father’s harassment and stalking at this time.
According to the father’s affidavit, on an unspecified date in July 2019 (which later appears to have been clarified as 22 or 24 July 2019) he attended at the maternal grandparents’ property (where the mother lived at the time, in separate premises) to drop off some presents for the children. The father says that when he arrived his wife remained in the car and that he had a conversation initially with the maternal grandfather. He goes on to say that the mother came over and started screaming at him using offensive language and telling him that he had no right to be there and that the children were scared of him and hated him. The father deposes that he told the mother that he just wanted to give the children their presents to which the mother responded “they don’t want anything from you”. The father says that he felt extremely upset but did not want the situation to escalate any further so he left.
In her affidavit evidence the mother deposes that on the day in question the father and his wife came to her house but the father remained on the other side of the fence and his wife remained in the car. She deposes that “[the father] was asked to leave but denied” and that after a short disagreement the father threatened her that “when he gets his children she will never see them”.
Under cross-examination, the father denied that he engaged in a heated exchange with the maternal grandfather and maintained that it was quite a cordial, polite exchange. He denied saying the words attributed to him and confirmed his evidence about the mother’s conduct.
Under cross-examination in relation to this incident, the mother agreed that the father had sent her a message beforehand to indicate that he wanted to drop off presents for the children as it was close to one of the children’s birthday. She also confirmed that this child was inside the house at the time but she did not bring him outside to speak to the father. The mother denied telling the father that the children hated him, that they did not want to see him and that they did not want anything from him. Although she agreed that the children’s safety was not compromised on that day as they were inside, the mother called the police after the incident seeking an AVO but was told that the father’s actions did not meet the threshold for an AVO.
The father’s wife deposes to remaining in the car during the entire visit and to the mother shouting at the father and telling him to leave.
According to the maternal grandfather’s affidavit on this occasion he and the father engaged in a heated exchange at the front fence in relation to the father seeing the children. He deposes that when the mother arrived on the scene, the father said to her “when I get those kids you will never see them again” which the maternal grandfather deposes was extremely concerning “as [the father] (sic) behaviour was quite unpredictable and we were concerned for the safety of the boys”. He goes on to say that “this was a very direct threat and we were unsure of his intent of any harm to the boys”. The maternal grandfather was not challenged in relation to any of his evidence concerning this incident under cross-examination.
The mother also deposes in her affidavit that on the younger child’s birthday the paternal grandmother and the father’s wife’s mother attended at the mother’s house and delivered a bag full of presents for each of the children. The mother said she did give the presents to the children. The maternal grandfather deposes of this incident that he “did not appreciate [the paternal grandmother] bringing strangers” to his home, where the mother and children also lived.
There is also no dispute between the parties that one of the encounters between the father and the extended maternal family occurred on 4 September 2019. On this day, both parties agree that the children were in the company of their maternal grandparents at a park in the local area and that the father (who apparently became aware of the children’s presence at the park) attended there and asked the maternal grandfather if he could see the children. Each of the father and the maternal grandfather allege that the other behaved aggressively but both agree that the maternal grandfather denied the father the opportunity to see the children. The father then telephoned the police who advised that unless there was a physical altercation they would not be attending and that he should leave the area to avoid an escalation of the situation.
The maternal grandmother who also deposes to this incident in her affidavit says that after having lunch with the children she saw a person in a truck yelling to the children and waving her arm and that the older child identified the driver as the father’s wife’s mother. The maternal grandmother said she commented to the maternal grandfather that she then felt uneasy that the father may then attend at the park, and wanting to avoid any confrontation with the father they decided to quickly finish their lunch and “tried not to let the children know that they were anxious”. She deposes that after finishing lunch they were making their way to the car when both children said that they needed to go to the toilet so she took the children there and were all absent for about 10 minutes. She deposes that when she was returning the children after taking them to the toilet she saw the father standing with his head down making a phone call.
The maternal grandmother deposes to hiding behind a car closest to the bush and the furthest distance from the road and that she was able to look through the window of the car to observe what was happening in the park. She says for most of the time she and the children were hiding behind the car the children did not move or say anything “as they felt that something was wrong and could see that I was upset”. She describes feeling very uneasy and fearful as the father can be quite aggressive and that as she did not have her mobile phone she was unable to contact the maternal grandfather to make sure he was okay.
The maternal grandmother deposes to hiding in that position for 10 to 15 minutes and that during this period the older child began to become anxious and said to her that his “stupid” “dad [is] here to take us, isn’t he?” and started to cry. At this point, the mother arrived at the park and came over to the maternal grandmother and the children who were “quite shaken” and “very upset”. The maternal grandmother and mother had to console the children and assure them that they were now both safe.
The maternal grandfather’s affidavit is consistent with the maternal grandmother’s version of events. He deposes to the father abusing him but that he remained “reasonably calm” and repeatedly told the father that he was “not seeing the boys”.
Under cross-examination, the maternal grandfather agreed that when the father first attended at the park and asked to see the children, he said to the father “no. That is not happening.” He agreed that the father said to him something along the lines of “you are not the legal guardians of the children. You’ve no right to stop me or keep me from them” and that he just kept telling the father he was not “taking” the children. The maternal grandfather maintained that the father was present at the park that day because “he wanted to take the kids” though he agreed that the father had not told him that and that it was his assumption. He also agreed that in fact the father has said that he simply wanted to see the boys. The maternal grandfather agreed that he would have been in the position to supervise if the father saw the children and that the mother had not requested him to prevent the father from seeing the boys. Rather, he said “I took it upon myself” (to prevent the father seeing the children).
When asked by the ICL’s counsel why he didn’t facilitate the children saying hello to his father, the maternal grandfather said that he “didn’t want to put the children through any confrontation”. The witness agreed that the father had said that he was there to see the children but that he thought that the father wanted to “confront us”.
When cross-examined about the incident at the park on 4 September 2019, the mother said that she had not told the maternal grandfather to prevent the father from seeing the children. When asked whether she would have consented to this happening with both of her parents present, the mother replied “I think for the safety of everyone, probably not”. In answer to a question about whether she believed at that time that the father was a risk to the children she answered “to some degree yes”. The mother explained that she was concerned about the father’s aggression and that it seemed like he was “coming for intimidation”. The mother explained that her concerns were not so much that he would assault the children but that he may assault her parents in the presence of the children.
When asked about her response when the older child said “has my stupid dad come to take us”, the maternal grandmother said that she did not engage with the child.
Under cross-examination the maternal grandmother agreed that after seeing the father’s wife’s mother in a truck, she assumed that this person would advise the father of the presence of the children at the park. She agreed that she said to the maternal grandfather something along the lines of “I bet [the father] is going to turn up”. The maternal grandmother did not agree that the older child expressing concern about the father turning up was a result of him overhearing what she had said to the maternal grandfather.
The maternal grandmother said under cross-examination that she did not feel that she could have facilitated the children saying hello to their father in a public park in her presence because she “just wanted to keep the boys safe”. The witness reiterated that she was concerned about the likelihood of a confrontation because of information she had been given from the mother about previous incidents involving the father.
The 10 month period in which the children did not see their father
Under cross-examination the mother agreed that on Father’s Day 2019 she did not allow the father to see the children and did not arrange for them to speak to him on the phone, or send him a text message or card on their behalf or do anything in relation to the father for Father’s Day.
Although the mother agreed under cross-examination that the children did not see the father from late May 2019, she denied that she would have continued to prevent the father seeing the children indefinitely if he had not commenced proceedings in October 2019. She claimed that she would have allowed the father to see the children when there was a suitable time that worked well for both parents and the children. The mother agreed that it was her position at the time that she alone was to decide whether the children should see their father.
The mother was then cross-examined about the older child’s appointments with a psychologist from around this time. She agreed that at the time of the first appointment on 22 November 2019 she knew that the father had commenced parenting proceedings and that this was an important matter for her. The mother recalled that one of the things this child said to her in the presence of the psychologist that he was worried that he would be taken away.
It is also recorded in the psychologist’s notes that the older child said “I haven’t told you about how [the father’s wife and her daughter] hurt me. They bit me”. The mother denied having told the older child to tell the psychologist words to that effect and said that they were originally spoken when she was outside the room but when she came back into the room the psychologist reported the things that the child had said. When asked whether she specifically asked the psychologist to make a written record of the older child’s comments, the mother replied that she had said “is everything written down that [the older child] does disclose?” She denied that she was hoping that the psychologist would ensure that there would be a written record of any allegations for the proceedings.
The mother claimed that she did ask the psychologist what might be done for the older child in relation to treatment or therapy, though this is not recorded in the psychologist’s notes. The mother confirmed that when the psychologist was providing feedback about what the older child had said she reported that the child “missed his daddy”. The mother did not remember the psychologist telling her that the child also said it would make him feel better if the mother would allow him to speak with his daddy on the phone.
When asked whether she did anything to allow the older child to spend time with the father after that session with the psychologist, the mother said that she asked this child if he wanted to see or speak to his dad the next day but the child answered “no”. She apparently accepted this answer and took no further steps for such contact to occur.
Social media posts
In her affidavit the mother deposes to the father and his wife defaming her and making statements in relation to the family’s private business concerning their parenting since 2017. She annexes various examples of such posts to her affidavit. The father was asked about a number of these posts under cross-examination and while he agreed that they had been made by him he denied that they were on an “open page” so that the post could be viewed by any member of the public. He maintained they were posted to his private page and could only be viewed or shared by his “friends” on the particular social media platform.
There is no evidence to suggest when the first post of concern was made. It refers to the father’s ongoing difficulty with the mother in seeing his children. In that post he raises various allegations including that the mother had “put these two boys [the children] into the FACS (Departmental) system without my knowledge just before my wedding” and the investigations that followed as a result of the mother’s “false allegations”. Under cross-examination the father was unable to explain why he made posts about issues of this nature on social media but conceded that “it was stupid”.
In another post made at around Father’s Day (when the mother was not facilitating the children’s time with him) the father refers to the mother as “the devil” and in that post identified his children by way of pictures. The father agreed when cross-examined that it was completely inappropriate to post these photographs of the children in circumstances where he was describing their mother in this manner. He was taken to other posts which included photographs of the children in circumstances where he was being highly critical of the mother and another in which he described the mother as “fucking psycho”.
The father was also asked about various posts that he had made that were “tagged” by his wife which I understand to effectively mean that they were endorsed by her and that “friends” of his wife may have access to those posts. In particular, the father was asked about a post made on 23 December 2019 about an incident in which he referred to the mother as a “coward mother”. The father agreed that his intention at the time was to cause distress to her.
The father was taken to various other posts on other platforms made by himself or his wife in which there are references to the sexual abuse allegations. When asked about the purpose of the posts, he referred to living in a small neighbourhood in which the mother was making allegations of sexual abuse against his wife and while claiming to understand that the actions of himself and his wife were wrong he stated they were made because “in some way you have to tell people your side of things”.
The children’s supervised time with the father from March 2020
On 27 February 2020, the mother agreed to orders that allowed for the children to spend time with the father supervised by a private supervision agency and this time commenced on 10 March 2020. This was the first time that the children had seen the father since he and his wife had been married.
The supervisor’s report for this first occasion of the children’s time with the father is positive. It describes the father’s affectionate and attentive interactions with the children and the children wanting to stay longer. It is also recorded that when the children were first introduced to the supervisor and she was taking them to meet the father, the older child twice stated that he was not going to tell his father where he went to school. It is further recorded that in the course of playing with the father at a playground the older child said that the mother had told him he had a new dad, to which the father replied “I will always be your dad”.
The mother agreed under cross-examination that she cancelled the next time event scheduled for 24 March 2020 because the children were sick. The mother said she did not tell the father about this illness but provided a medical certificate which indicated that the older child was not fit for his usual school duties. The mother agreed that she cancelled the scheduled time with the father for both children but had not ever produced a medical certificate in relation to the younger child. There also seemed to be no dispute that the mother also cancelled the following contact event but she claimed this was around the time that the restrictions associated with the COVID-19 pandemic came into play.
The children’s time with the father recommenced following an exchange of correspondence between the solicitors. The reports of the ensuing contact events on 5 May, 19 May and 2 June 2020 are also positive in relation to the interaction between the father and the children and the father’s conduct. In the report for 5 May 2020 it is recorded that when the father was naming family members and listed the children’s half-sister the children had the following reaction:
[The older child] said “she is not our sister!” [The father] asked who told him that and he replied “no one. We don’t want a sister. We hate sisters”. [The father] remained calm and said that she was their sister. [The younger child] then excitedly said “I can’t wait to go to your house. I am so excited” and a few minutes later, whilst playing said, “that baby is not our sister”. [The father] didn’t respond.
It is recorded at the end of this contact event that the father gave the children a photo album to take home and that after he had left and the supervisor and children returned to the mother the children showed the mother the album and she said she would look at it with them later.
Although the report of 19 May 2020 is equally positive, at one point it is recorded that while the father and children were engaged in general conversation they talked about the photos the children had been given on the previous occasion. The children said “she (inferentially the mother) threw them in the bin, she is so mean”. It is also recorded that the older child apparently spontaneously told the father that “someone hurts us”. At the end of this contact report after the father had left and the supervisor was returning the children to the mother, the following is recorded:
[The older child] said something to his mother about telling [the father] that [the father’s wife] hurts us, like you said and the mother said “oh, right””.
(Emphasis added)

The father and mother continued to seek the same orders as had been sought at the completion of the evidence in November 2021.
I indicated in the course of final submissions on 15 July 2022 that having regard to the events following November 2021 (most of which were not in dispute) and my findings in the June 2022 Judgment, I no longer considered the father’s original proposal as actively under consideration in resolution of the dispute.
Best Interests Considerations
Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child's best interests.
The primary considerations (under s 60CC(2)) are:-
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
Pursuant to s 60CC(2A), I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having meaningful relationships with both parents.
Although the meaning of the phrase “meaningful relationship” is not defined in the Act, the Full Court has approved the interpretation that the word “meaningful” when used in the context of “meaningful relationship” is synonymous with a relationship that is “significant” “important” or “of consequence”.[15]
[15] McCall & Clark (2009) FLC 93-405 approving the interpretation of the phrase by Brown J in Mazorski & Albright (2007) 37 Fam LR 518.
The word “meaningful” is qualitative rather than quantitative and the phrase has not been interpreted as requiring the court to craft orders to support an optimal relationship.[16] Further, in accordance with the Objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having meaningful involvement in their lives to the maximum extent consistent with the best interests of the child (emphasis added).
[16] Godfrey & Sanders [2007] FamCA 102 at 36.
Each of the proposals provide for the children to live with one parent and spend regular time with the other which, if made, would foster the children’s meaningful relationships with both parents. Both parents and the ICL must be taken as accepting that the children do receive a benefit from having a meaningful relationship with each of the parents. Having regard to all of the evidence, including the observations of the children with both parents and the pattern of care throughout their lives, I am satisfied that they do receive a benefit from having such relationships with both parents.
The second of the primary considerations, being the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, looms large in these proceedings.
In particular, it had been the mother’s contention from the commencement of the proceedings in 2019 and up until final submissions made on her behalf in November 2021 that there was a need to protect the children from harm from being subjected to sexual abuse in the father’s household. It had been her case that it was the father’s wife who posed the risk of such abuse and from whom the children required protection. In the course of final submissions, it became apparent that the mother no longer contends that such a risk is present in these proceedings and the orders proposed by her provide for fulsome overnight time between the children and their father including overnights and holiday time in his household without requiring that the father’s wife not come into contact with the children.
Although this risk of harm previously said to be posed by the father’s wife was no longer contended for by the mother in final submissions, the presence of this claimed risk had been central to the way in which the care of the children had been approached for a number of years. For this reason, the father and ICL sought that this matter be explored and findings made in these Reasons. For the reasons given, there is no evidence from which I could find that the father’s wife poses a risk to the children that they may be harmed by sexual abuse.
The mother continued to maintain in final submissions made in November 2021 that the children would be exposed to psychological harm from being subjected to emotional abuse in the father’s care if orders were made for them to live with him. In the course of those submissions, however, it also became apparent that the thrust of this submission related to the father’s parenting capacity rather than directed to this consideration and for this reason it is a matter to which I will return.
Further, it became clear in the course of the proceedings that the greater risk of harm to the children was present in the mother’s household than the father’s. In particular, a concern arose about the need to protect the children from harm arising from exposure to family violence if the mother were to continue her relationship with Mr C. The various harms which may be experienced by children when their parent is in a relationship with a person who poses a risk in this regard were outlined by the family consultant and are set out earlier in these Reasons.[17]
[17] At [227].
As explained, I am satisfied that Mr C presents an unacceptable risk as a perpetrator of family violence if he and the mother were to reconcile and the children were to live with her. I am satisfied that given the close supportive nature of the relationship between Mr C and the mother and their future intention to “co-parent” their unborn child, they have effectively reconciled. I continue to assess the magnitude of risk posed by Mr C as unacceptable even if the evidence is accepted that his relationship with the mother is not sexual in nature and that they do not have a current intention to live together.
The mother’s case is that if the Court does find that Mr C poses such a risk of harm to the children, the order made on 20 June 2022 restraining and injuncting her from bringing the children into contact with Mr C will be a sufficient measure to mitigate this harm if the children were to live with her as she proposes.
It is central to the submissions of the ICL and the father that the Court could have no confidence that the mother would abide by this restraint, particularly given the dishonesty of herself (both when giving evidence in November 2021 and July 2022) and the dishonesty of Mr C in these proceedings. The father contends that the risk posed in the mother’s care in this regard is so great that the children’s time with her must be limited and not include overnights in addition to the protection that will be afforded to them by the proposed restraint on their contact with Mr C.
While in November 2021 the ICL accepted that other arrangements such as the children having substantial and significant time with the mother may equally be consistent with the children’s best interests, in July 2022 the ICL moved back to her initial position. It is now clearly the ICL’s contention that the only arrangement which is proper and in the children’s best interests is the ICL’s initial final proposal that the children live with the father and have limited time with the mother that does not include any overnight time and that the father has sole parental responsibility for the children.
Placing particular weight on the evidence of the family consultant and matters to which I will return,[18] I am also satisfied that Mr C poses a risk of harm to the children through their potential exposure to family violence (and also a result of limitations in the mother’s parenting capacity) not only if the children are living primarily with the mother but also if they are to spend substantial time in her household.
[18] At [368] and [375].
I also consider that so long as the restraint on the mother permitting the children to come into contact with Mr C is adhered to, this restraint will provide some protection to the children in respect of this domain of harm. However, having regard in particular to the mother’s lack of insight about the risks posed by Mr C, together with her dishonest approach in the proceedings in respect of her own evidence and the evidence of Mr C, and the evidence adduced when the proceedings were re-opened, I cannot be satisfied that this restraint will be adhered to if orders are made that the children return to live with her.
I am also of the view that it is virtually inevitable that the mother will encounter significant practical difficulties in complying with this restraint if the children are living primarily with her as I am satisfied for the reasons given that a relationship with Mr C is currently ongoing and will continue in the future.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children
Nature of the children’s relationship with each parent and other significant persons
As touched upon earlier, at the time the family was assessed by a family consultant the children were then aged four and five.
When assessing the children’s relationships with each parent, the family consultant noted, consistent with the parties’ evidence in the proceedings, that both gave vastly differing accounts about the father’s involvement with the children prior to separation. While the family consultant stated that it was outside the scope of her assessment to determine which party’s account may be accurate, she concluded that her observations of the children with the father would support the father’s description of his close relationship with each of them. It was her observation that the father “appeared warm and generally appropriate” when interacting with the children, and concluded that although the children did not express a preference in relation to their parenting arrangements there was no indication during the observation that the children were reluctant to spend time with him as had been asserted by the mother.
The available reports of the children’s time with the father when supervised by a supervision agency also record warm and close interactions between the father and children and their reluctance at being separated from him. Records of the psychologist to whom the older child was taken in late 2019 also record this child reporting at the time that he missed his father.
At the time of the assessment, the children had not spent time with the father’s wife for about 15 months. It was not clear to the family consultant, given the older child’s age at the time the allegations were first made in relation to the father’s wife harming him and the extended period of time since he had had contact with her, why he made remarks about her harming him and his brother. The family consultant considered it likely that such statements were not made spontaneously and were prompted by conversations prior to the assessment. The family consultant made similar observations in relation to the older child’s reaction to the younger child attempting to speak about the mother.
Although the mother’s interactions with the children when assessed by the family consultant were observed to be “not markedly warm in nature” it was observed that she did respond with affection when the children appeared upset or hurt and they appeared to be calmed at times by her presence.
The children’s stated views generally strongly aligned with the mother’s which meant, according to the family consultant, that it was likely that the mother had influenced those views. Given the apparent contradictions between the children’s presentations with the father and the mother’s reports of their views in relation to him, the family consultant recommended that any statements made by the children in relation to their parenting arrangement be given no weight.
In the foregoing circumstances, I do not attach any weight to comments attributed to the children in relation to their parenting arrangements or relationships with the father and his wife.
As the mother herself now promotes a parenting arrangement that would see the children spend substantial and significant time with the father and that there be no restraint upon him bringing the children into contact with his wife as she previously proposed, she must be taken as accepting that the children share a good relationship with the father and members of his household.
The children had also expressed negative views concerning their half-sister to both the father when spending supervised time with him and to the family consultant. These views were expressed within the context of living with the maternal family where strong negative attitudes towards the father and his new family prevailed and are likely in my view to have influenced the children. I consider it also likely that as the children spent increased time with the father and in his household pursuant to the October 2020 interim orders and even more significantly since they moved to live him in June 2022, their relationships with their half-sister has greatly developed and strengthened.
The children will be able to develop a relationship with their maternal half-brother who is shortly due to be born either when living with or spending time with the mother under each respective proposal.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The mother’s high-handed attitude towards the father and his involvement in decision-making regarding the children spending time with him is a salient matter in these proceedings. The parties initially appear to have come to a reasonably workable parenting relationship following separation and to some extent the mother’s hesitation in facilitating the children’s time with the father in the early days was justified. However, from around the time the father and his wife married in 2019 the mother engaged in a course of making escalating allegations of risk against them and denying the children the opportunity to spend time with him. By these means the mother effectively became the gatekeeper for the children’s relationships with the father and thereby deprived the children of the benefit of the father’s input in their lives for a considerable period of time.
The mother’s maintenance of a case that the father’s wife posed a risk of harm to the children including at the interim hearing and up until the time of final submissions in November 2021 required that the Court take a cautious approach which meant that the children’s time with the father was not as fulsome as it may have been had the mother not persisted with these allegations.
Although both parents undoubtedly exacerbated the dispute between them through their irresponsible use of social media which entrenched each of their positions, the father has been diligent since separation in seeking to involve himself in the children’s lives and participate in decision-making in relation to them and spend time and communicate with them through the bringing of this application for parenting orders.
The attempts by the mother to withhold relevant information in relation to the children’s best interests from the father and the Court as previously touched upon, do not reflect well upon her attitude towards the responsibilities of parenthood. In this regard, the mother’s attitude and actions after the proceedings were initially adjourned in November 2021 in pursuing a relationship with Mr C (no matter how that is described) and bringing the children into contact with him after having informed the Court through her counsel that she recognised the risks posed by Mr C and that restraining the children’s contact with him effectively mitigated that risk, equally reflects poorly upon the mother and raises considerable doubt as to her capacity to remain child-focussed.
Finally, in my view some concerns arise in relation to the mother forecasting “difficulties” in her unborn child being effectively inhibited in relation to sharing a full relationship with both his father and siblings (the children). The tenor of the mother’s evidence suggests that she prioritises Mr C’s relationship with her unborn child over the risks Mr C poses to the children.
Likely effect of change in the children’s circumstances
Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs
These two interrelated matters are particularly weighty in these proceedings. As dealt with at some length earlier in these Reasons, the family consultant identified in her report a concern about the mother attempting to undermine the children’s relationship with the father being a significant shortcoming in the mother’s parenting capacity.
At the time the family consultant gave evidence in November 2021 the father’s proposal amounted to a change in the children’s residence. The family consultant was of the view at that time that such a change would only be recommended in the event the Court considered the children’s current living arrangements to be significantly detrimental to their wellbeing.
As previously discussed, although the family consultant did not identify any current risk of serious physical harm to the children in her assessment, she opined that if the Court made a certain finding relating to the mother’s undermining of the children’s relationships with the father it may be considered that she had behaved in an emotionally abusive manner towards the children, exposing them to emotional trauma.
The family consultant went on to opine:
If this is the case, [the mother]’s ongoing persistence in maintaining this stance suggests that she is unaware of or indifferent to the harm these actions have caused the children and significantly increases the likelihood that she will continue to expose the children to such harm. In this case, [the father]’s proposal that the children live with him would be recommended. It may be that this proposal also provides the children with the greatest likelihood that they may maintain significant relationship with each of their parents.
As explained earlier in this Judgment, I am satisfied about a number of the matters identified by the family consultant as indicating that the mother has behaved in an emotionally abusive manner towards the children. In particular, as previously explained, I am satisfied that from at least when the mother ceased making the children available to spend time with the father she actively and intentionally sought to undermine their relationships with him. I also find that the mother did influence the children in coming to the view that the father represented a danger or threat to them including that he may remove them from the maternal family. In accordance with the opinion of the family consultant, this conduct amounts to emotional abuse.
The fact that the mother continued to run a case right up until final submissions in November 2021 that the father’s wife poses a risk of harm to the children causes me to conclude that there are real risks that if children are to live mainly with her, they may have ongoing difficulties in maintaining a positive relationship with the father. The family consultant opined that if this were to occur, given the children’s apparent closeness to the father, their ongoing experiences of disruption to these relationships would:
likely…cause grief, distress and confusion to the children… would prevent [them] from benefitting from a relationship with an active and involved father, and would also prevent [them] from having a relationship with their sibling, and their extended paternal family.

Under cross-examination when further information was provided to the family consultant about the presence of Mr C in the mother’s life and the matters related to his family violence, the family consultant opined that the added risk posed by Mr C would strengthen her recommendation that the children would be “better off” living with the father and would also necessitate that protections be put in place to ensure the children were not exposed to family violence if they were to spend time with the mother.
When considering the likely impact upon the children of such a change in their living arrangements and the father’s capacity in this regard, the family consultant agreed to suggestions made by the mother’s counsel that the children would experience grief and emotional stress from such a change. The family consultant reiterated, however, that in her opinion the father would be well-placed to support the children provided he engages in a parenting course to assist him in identifying and supporting the children with their emotional needs. She also opined that the children would benefit from counselling to help them understand the changes and support them while they developed a new routine and adjusted to a new environment.
In summary, the family consultant opined that her observation of the father’s relationship with the children was that it was warm and supportive which lead her to hope that he would be able to support the children with any distress arising from a sudden change to their residence.
It is to be remembered that when the family consultant undertook the assessment for the purposes of the Family Report, the question of any risks posed by Mr C were not known, although it is noted that the father told the family consultant that he was led to believe that the person now known as Mr C “was not a nice person” and that the mother may have been in a relationship with him at the time. The main focus of the family consultant’s concerns about risks to the children at the time were the then-alleged risk of sexual abuse in the father’s household and the risk of the mother undermining the children’s relationship with the father. It may have been the case that in light of the mother’s abandonment of her contentions about the risks posed by the father’s wife any concerns about the mother continuing to undermine the children’s relationship with the father would have justified a change in residence but not the orders for the children to have limited time with the mother that the father and ICL now propose.
Further, by the time the family consultant gave oral evidence the greatest potential risk to the children had been identified as the harm they may experience by being exposed to family violence in the mother’s care. The family consultant’s evidence was to the effect that this issue cemented her recommendation that the children’s interests would best be met by living with the father. The family consultant elaborated that in the event the mother is unable or unwilling to acknowledge that there was a difficulty or potential problem stemming from Mr C, the children should spend limited time with her, being day time only or time occurring in a public place “where the likelihood of [the children] being exposed to [Mr C] or to any violence was significantly reduced”. Ultimately, the family consultant confirmed that arrangements for the children to spend time with their non-residential parent depend upon an assessment of the likely effectiveness of the orders proposed to mitigate risks arising in that parent’s care.
As referred to earlier in these Reasons, the mother also raised an issue concerning the father’s parenting capacity which was expressed as the father perpetrating emotional abuse against the children. Although this was initially raised as a risk of harm issue, the mother’s counsel agreed that the identified harm related to the psychological or emotional harm to the children arising from the father’s behaviour in relation to his use of social media. The mother’s counsel agreed that these contentions may be more appropriately considered when considering the father’s capacity to meet the needs of the children or his attitude to the responsibilities of parenthood. In this way, this matter was flagged as an issue to which the mother’s counsel would return.
When the mother’s counsel returned to this issue he submitted that both the father and his wife had engaged in conduct in making a barrage of social media posts which amount to bullying rather than framing this conduct as a matter which related to the father’s capacity as a parent or his attitude to the responsibilities of parenthood. Ultimately, this matter was taken no further and the submission of the mother’s counsel made in this regard in November 2021 was unclear.
As I observed earlier in these Reasons, the parents both engaged in ill-advised social media posts concerning their children and this dispute which cannot have been to the benefit of the children. However, I am not satisfied that the father’s conduct in particular in this regard amounts to emotional abuse against the children.
By the time final submissions were made following the proceedings being re-opened in July 2022, the children were living with the father and spending quite limited time with the mother, being a period of six hours on a Sunday each alternate weekend. This pattern of time with no increases and additional time only at Christmas is in accordance with the ICL’s proposal.
It seems likely that the children did experience some grief when they were first moved to live with the father in June 2022 and are also likely to miss their mother as she is their primary attachment figure and the person with whom they primarily lived all of their lives. There is, however, no evidence to suggest that the father has not been capable of managing the children’s transition into his care or that the children’s likely initial distress when they first spent time with the mother after this move was not managed appropriately.
Further, in my view, the father has conducted himself appropriately and responsibly in bringing the additional matters to the Court’s attention about the change in the mother’s circumstances relevant to the children’s best interests after 19 November 2021 through his application to reopen the proceedings.
It is most unfortunate for the children that the mother engaged in undermining their relationships with the father, persisted in pursuing a relationship with a person that she claims to have understood poses a risk of harm to them and continued to bring them into contact with that person in an apparent disregard for the safety concerns that arise from that person’s presence in their lives. In light of the family consultant’s evidence as discussed earlier, these actions by the mother in my view do justify the continuation of the current interim orders as a final arrangement to mitigate these identified risks of harm to the children.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
This is not a salient matter in these proceedings. Neither party proposes orders that would see a parent having to incur significant expense or any practical difficulty in spending time with or communicating with the other parent.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
There was no evidence adduced in the proceedings about the lifestyle and background, including culture and traditions of either parent in the proceedings.
It came to light in the cross-examination of the mother for the first time that the older child had been diagnosed with ADHD in September 2020. The family consultant said under cross‑examination that she thought that issue was being examined at the time she assessed the family. The family consultant could not recall whether this child had received a definitive diagnosis but said it was certainly raised as an issue. Having been informed that that diagnosis had been confirmed, the family consultant said that this matter probably would not affect her recommendations.
The family consultant also questioned the extent to which this child’s behaviour (which she noted as giving rise to some concerns at the time) was related to a diagnosis of ADHD and whether some of this behaviour was related to other stressors that were also present.
Family violence relating to the children or a member of the children’s family
Although when assessed by the family consultant the mother raised matters concerning family violence in relation to the father, such allegations were not pursued at final hearing. Rather, concerns about family violence in the mother’s household which assumed great significance in the proceedings have been dealt with at length earlier in these Reasons.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
I am unable to assess whether either of the proposed suite of orders are more likely to lead to the institution of further proceedings in relation to the children and do not consider this a matter of significance in these proceedings.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[19] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[19] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The ICL seeks an order that the father have sole parental responsibility for the children combined with an additional order in relation to consulting with the mother in exercise of that parental responsibility.
The mother proposes equal shared parental responsibility (in accordance with the presumption), while the father maintains the presumption has been rebutted and that it would not be in the children’s best interests for the parents to share parental responsibility for them. He maintains in accordance with the ICL’s initial final proposal that he hold sole parental responsibility.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father and ICL must mean that the father would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the children and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.
While adopting the ICL’s proposal, the father’s counsel submitted in November 2021 that an order for the father to have sole parental responsibility subject to considering the mother’s views is sought on the basis of evidence given by the mother under cross-examination. It was explained on the father’s behalf that the mother gave evidence that she is “unable” to come to a joint decision with the father but that if the Court were inclined to grant a change in the children’s residence she would want some input into the decision-making which she agreed she felt confident she could practically manage. The father’s counsel finally submitted that an order in this form would therefore allow the mother to have the input that she claims to be able to manage while allowing the father to make a final decision where it is the mother’s own evidence that she is unable to.
The family consultant in her report only recommended that the father hold sole parental responsibility for the children in limited circumstances. She explained that orders changing the children’s primary living arrangements is likely to be detrimental to the mother’s ability to behave in a child-focussed manner in which case it would be recommended that the mother seek counselling to support her in remaining child-focussed through such a transition. Only in the event that the mother, after attempting counselling, continues to undermine the children’s relationship with the father and is therefore unable to focus on the children’s needs which would undermine the co-parenting relationship, does the family consultant recommend that the father exercise sole parental responsibility.
Otherwise, the family consultant is of the view that the children would benefit from having “two interested and involved parents” and while she acknowledged that each parent reported that sharing parental responsibility would present significant difficulties for them, she ultimately recommended that the parents share parental responsibility for the children, which was not challenged under cross-examination.
There have been further events since the family consultant gave evidence which suggest that the mother has not been child-focussed and that the level of mistrust between the parents has deepened. The parties have demonstrated since the commencement of these proceedings that they have a high level of mistrust of each other and no capacity for joint decision-making. They have engaged in surveillance of one another and waged war against one another on social media. Notwithstanding the serious nature of any order which would remove a parent from all which is involved in the exercise of parental responsibility and the family consultant’s opinion and recommendations, I am satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for the children. Accordingly, the presumption is rebutted.
I am of the view that the order proposed by the ICL with which the father agrees does provide for some input by the mother into decision-making for the children which would not be present if there were simply an order for sole parental responsibility to the father.
Other parenting orders
As has been explained, the circumstances for the children and matters relating to risk in each of the parent’s households has changed considerably throughout the course of these proceedings.
Ultimately, the need to protect the children from the harms associated with emotional abuse perpetrated by the mother and from exposure to family violence if it were to be perpetrated by the mother’s partner against her are the most salient matters relevant to the best interests of the children. Having regard to those matters in particular, and for all of the other foregoing reasons including my findings in the June 2022 Judgment, I am satisfied that the orders proposed by the ICL and adopted by the father are proper and in the children’s best interests.
Accordingly, I make the Orders set out at the forefront of this Judgment in terms as ultimately proposed by the ICL other than small adjustments to the restraint made on 22 June 2022 which I consider appropriate to provide effective protection for the children but do not depart from the effect of the previous injunction made with the consent of the parties.

I certify that the preceding three hundred and ninety-eight (398) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 21 July 2022

File number(s):	PAC 5254 of 2019
Judgment of:	HANNAM J
Date of judgment:	21 July 2022
Catchwords:	FAMILY LAW – CHILDREN – Final parenting – Where expert evidence is given about the increased risk posed by a person who has perpetrated family violence in the past – Consideration of harms which may be experienced by children when their parent is in a relationship with a person who poses a risk of family violence – Where a proposal for limited time with a parent is justified where that parent lacks insight into the potential risks posed to their children by their partner – Where undermining a child’s relationship with a parent is found to constitute emotional abuse – Where evidence adduced in re-opened proceedings amplifies Court’s concerns and strengthens previous findings – Where presumption of equal shared parental responsibility is rebutted by evidence of a high level of mistrust between the parents and a parent’s inability to conduct themselves in a child-focussed manner.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 61B, 61C, 61DA, 65D, 65DAC
Cases cited:	Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Christy & Young [2022] FedCFamC1F 446
Number of paragraphs:	398
Date of hearing:	21-23 September, 18-19 November 2021, 15 July 2022
Place:	Parramatta
Solicitor for the Applicant:	Bainbridge Legal
Counsel for the Respondent:	Mr Schroder (21-23 September and 18-19 November 2021) Mr Cairns (15 July 2022)
Solicitor for the Respondent:	Pannu Lawyers
Counsel for the Independent Children’s Lawyer:	Ms De Vere
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

PAC 5254 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR CHRISTY Applicant
AND:	MS YOUNG Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	hannam j
DATE OF ORDER:	21 july 2022