Conte & Galanas - [2022] FedCFamC1F 501

Federal Circuit and Family Court of Australia
(DIVISION 1)
Conte & Galanas [2022] FedCFamC1F 501

File number(s): PAC 2869 of 2019

Judgment of: HANNAM J

Date of judgment: 14 July 2022

Catchwords:
FAMILY LAW – CHILDREN – Where dispute relates mainly to children’s time with the father – Where mother alleges that father poses an unacceptable risk of harm to the children on a number of bases including in relation to his alcohol misuse, perpetration of family violence and inappropriate sexualised behaviour - Where Court finds that father’s alcohol use gives rise to a need to protect the children from harm associated with neglect – Where Court finds father engaged in unacceptable and grossly offensive behaviour but that such behaviour does not fall within the definition of ‘family violence’ in the Family Law Act - Where Court finds that the children are at risk of physical and psychological harm as a result of the father’s inappropriate sexualised conduct towards them which causes them to be acclimatised to an environment that is sexualised and is sexualising them which increases the risk of sexual abuse by others – Where Court finds that a comparatively small risk of really serious harm amounts to unacceptable harm - Where Court holds concerns about the father’s capacity to meet the children’s needs on the basis of his emotional state and decision-making around emotional issues - Consideration of identity contact and its origins in the child protection system - Where Court finds that identity contact is not appropriate where children will maintain a close connection with one biological parent - Where Court also finds that identity contact does not take priority over protecting children from harm or contact with a person who poses a risk of harm - Orders made in accordance with mother’s proposal subject to minor amendments.

FAMILY LAW – COSTS – ICL costs - Where ICL seeks an order that the parties pay the ICL’s costs in equal shares - Where mother opposes ICL’s costs application - Where father did not address issue of ICL’s costs in his written submissions - Where Court observes that each party has financial capacity to meet an order for costs - Where Court considers it justified that an order be made that the parties contribute to the ICL’s costs - Where in light of father’s conduct in the proceedings and as he was wholly unsuccessful, father ordered to pay his half-share of ICL’s total costs - Where in the circumstances the Court considers it just that mother only pay her half-share of ICL’s basic composite fee - Orders made accordingly

Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 65D, 117

Cases cited:
Fitzwater v Fitzwater (2019) 60 Fam LR 212

Isles & Nelissen [2022] FedCFamC1A 97

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93-40

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF &LKL (2005) 33 Fam LR 123

Penfold v Penfold (1980) 144 CLR 311

Division: Division 1 First Instance

Number of paragraphs: 476

Date of last submissions: 6 December 2021

Date of hearing: 15-17 November 2021

Place: Parramatta

Counsel for Applicant Ms Lioumis

Solicitor for Applicant Karen L Haga & Associates

Counsel for the Respondent Mr Harper

Solicitor for Respondent Hills Family Lawyers

Counsel for the Independent Children’s Lawyer Ms Rebehy

Solicitor for Independent Children’s Lawyer Shedden & Associates
ORDERS

PAC 2869 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CONTE
Applicant

AND
MR GALANAS
Respondent

and INDEPENDENT CHILDREN’S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

14 JULY 2022

THE COURT ORDERS THAT:
Parenting orders
1.All previous parenting orders are discharged.
2.The mother has sole parental responsibility for the children X born in 2013 and Y born in 2015 (“the children”).
3.The children are to live with the mother.
4.The children are to spend no time with the father.
5.Unless expressly provided for in these orders, pursuant to section 68B of the Family Law Act 1975 (Cth) (“the Act”) the father Mr Galanas is hereby restrained from contacting or approaching or attempting to contact or approach the mother by any means whatsoever including through any third party and is restrained from:
6.Attending or being within 500 metres of the ordinary place of residence of the mother and attempting or being within 500 metres of any place of employment of the mother.
7.Contacting or attempting to contact or approach the children by any means whatsoever, including through any third parties, and being within 500 metres of the children’s ordinary place of residence or being within 500 metres of any school or education institution or extra-curricular activities without the mother’s written consent.
8.Order (5) above and each sub-paragraph contained in Order (5) are injunctions to which section 68C of the Act apply.
9.Pursuant to section 65Y of the Act, the mother is permitted to travel with the children internationally outside the Commonwealth of Australia without the consent of the father being required.
10.The names of the children are to be removed from the Family Law Watchlist and the mother shall provide the Australian Federal Police a copy of this order within seven days.
11.Pursuant to section 11(1)(b) of the Australian Passports Act 2005 (Cth) the mother is permitted to apply for and obtain the issue and renewal of Australian passports for the children without the father’s consent.
12.The mother is permitted to provide a copy of these orders to any school at which the children attend.
13.The mother is to do all things and acts necessary to comply with the recommendations of the Single Expert in these proceedings to obtain psychological support for the children.

Independent Children’s Lawyer’s costs
14.The father is to pay his half-share of the Independent Children’s Lawyer’s costs in the amount of 7,814.40.
15.The mother is to pay her half-share of the Independent Children’s Lawyer’s basic composite fee in the amount of $1,650.

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 Conte & Galanas 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 concerning the future parenting of their two young daughters aged seven and eight (“the children”) following the breakdown of their six-year marriage.
From the time the parties separated in 2019 and throughout the proceedings, the children have lived with the mother and spent limited time with the father as a result of concerns held by the mother regarding the children’s safety in the father’s care. In particular, it has been the mother’s case (which the father largely denies) that the father perpetrated family violence towards her, has engaged in sexually inappropriate behaviour towards the children, and has misused, and continues to misuse, alcohol which impairs his capacity as a parent.
In June 2019 the proceedings were allocated into the Magellan Program[1] and shortly after, interim orders were made with the consent of the parties providing that the children’s time with the father be supervised at a contact centre.
[1] The Magellan program is a case management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
The final hearing of the matter proceeded over three days in November 2021 at which time the children were spending two hours with the father each week supervised by a contact worker. In the course of the hearing, the expert appointed to the proceedings gave evidence of concerns she had about the children’s regime of time then in place and in particular the way in which the time was being supervised. In these circumstances, at the conclusion of the final day of hearing the parties agreed to orders pending final judgment that the children’s time with the father be reduced to three hours per month and that it be supervised by a suitably qualified person nominated by the ICL.
It is the mother’s final proposal that she hold sole parental responsibility for the children and that the children live with her and spend no time with the father. She also seeks restraints on the father from contacting or approaching her and the children, and orders that she be permitted to travel overseas with the children and apply for their passports without the father’s consent.
The father proposes that the mother exercise sole parental responsibility for the children subject to consulting him about decisions regarding the children’s long-term care, welfare and development, and that the children live with the mother and spend defined time with him. He proposes that this time initially be for two hours per week supervised by a qualified supervisor nominated by the ICL and that following a period of six months this time is to become unsupervised and take place each alternate weekend and half school holidays. He also seeks orders that he engage in therapy to assist him in addressing problematic behaviour identified by the expert.
The ICL supports the mother’s position that the father poses an unacceptable risk of harm to the children on a number of bases and that the children should therefore live with the mother and that she should have sole parental responsibility for them. The ICL, however, seeks an order that the children spend time with the father twice per year for the purposes of maintaining their identity and that such time be supervised by a suitably qualified person.
It is clear from the proposals of each of the parties and the ICL that they largely agree on the living arrangements for the children and orders as to parental responsibility. Accordingly, the only real issue to be determined relates to what time, if any, the children are to spend with the father having regard to the children’s best interests as the paramount consideration.
background
The mother who is 47 and the father who is 52 began living together in 2012 and were married a short time later.
The parties’ older child, a daughter now aged eight (“the older child”) was born in 2013, and their younger child, another daughter, now aged seven (“the younger child”), was born in 2015.
In mid 2018 the father voluntarily admitted himself into a clinic as an in-patient for alcohol addiction. He discharged himself about half-way through the 21 day admission. It is the father’s case that he only admitted himself into the clinic to pacify the mother who had concerns for some time about his serious alcohol misuse, a matter which he denies. The dispute concerning the father’s alcohol use and any risks to the children arising from it is central to these proceedings and is a matter to which I will return.
It is also the mother’s case that throughout the parties’ relationship the father engaged in acts of family violence including verbal abuse of herself and other members of her family. This allegation is also largely denied by the father or he contends that the conduct complained about does not amount to family violence. It is also a matter to which I will return.
The parties separated on a final basis in March 2019 when the older child was aged five and the younger child three. There is no dispute between the parties that their separation was precipitated by the mother confronting the father in March 2019 with information she had received from the father’s mother (“the paternal grandmother”) the previous day about his conduct and informing him through text message not to return to the home.
The information provided by the paternal grandmother to the mother was that the older child disclosed that “daddy put his doodle on my leg” and “it felt funny, and “it’s our secret”. Having received this information, the mother attended at a police station and police obtained an Apprehended Domestic Violence Order (“ADVO”) against the father for the protection of the children.
An allegation that the father has engaged in sexually inappropriate conduct is central to the other domain of harm allegedly posed by the father and is a matter that will be dealt with at greater length later in these Reasons.
It suffices for the purposes of this background to record that in the ensuing months after separation, both children made further disclosures of inappropriate touching by the father which grounded notifications to the Department of Communities and Justice (“the Department”) and investigation by the Joint Child Protection Response Team (“JCPRT”)[2].
[2] The Joint Child Protection Response Team is made up of officers from police and the Departments of Communities and Justice and Health and investigates allegations of serious child abuse.
In the course of the JCPRT investigation the older child was first interviewed by police attached to that team on 15 March 2019. The child did not make any disclosures consistent with abuse.
The mother claims that both children then made a disclosures the following day about the father “touching their privates” which was reported to the Department and led to a further JCPRT investigation in the course of which both children were interviewed on 10 April 2019. Although the older child gave some answers to questions which may be consistent with allegations of sexual abuse the allegations were not considered to be “substantiated” by the investigative agencies and no criminal proceedings against the father were initiated.
On 6 June 2019 the 2019 ADVO was varied to remove an order prohibiting the father from attending at the children’s school and day care centre. Two weeks later, on 18 June 2019 the father attended at the younger child’s day care centre and collected this child despite having not informed the mother of his intention to do this. The mother then decided to supervise any face-to-face contact between the children and the father which she says generally took place on a weekly basis.
Later that same month on 24 June 2019 the mother commenced these proceedings seeking orders that she hold sole parental responsibility for the children and that they live with her and spend limited supervised time with the father.
On the first return date of the mother’s application on 26 June 2019 the proceedings were allocated into the Magellan program and a Magellan report was ordered.[3] On this occasion an ICL was appointed to the proceedings and the parties were also directed to attend upon a family consultant for the purposes of the Child Responsive Program.
[3] A Magellan Report sets out the involvement of the Department with the family.
In his Response filed 31 July 2019 the father sought orders for equal shared parental responsibility for the children and that the children live with the mother and spend substantial and significant defined time with him including in each school holiday period. He denied engaging in any untoward conduct towards the children or misusing alcohol as alleged by the mother and otherwise insisted that he and the children had a positive relationship and that it was the mother who posed a risk to the children arising from historical substance abuse.
The family met with the family consultant in August 2019 when the investigation into the sexual abuse allegations by JCPRT was still ongoing. Each of the parents were interviewed separately by the Family Consultant and the children were observed with each parent.
For the purposes of the Child Responsive Program, the family consultant prepared a Children and Parents Issues Assessment (“CAPIA”) contained within a Memorandum to Court which was released to the parties in September 2019.
According to that Memorandum, each parent reported various concerns about the safety of the children in the other parent’s care. The mother in particular repeated her allegations that the father inappropriately touched each of the children based on disclosures allegedly made by them. She also reported other sexualised behaviours she said she observed from the father in the past and maintained her allegations that the father perpetrated family violence towards her and was an alcoholic who continues to consume alcohol in excess despite previously attending a rehabilitation facility.
The father denied each of the mother’s allegations and told the family consultant with respect to the sexual abuse allegations that the mother had misconstrued the older child’s alleged first disclosure to the paternal grandmother because the mother herself had been sexually abused as a child and was therefore “overreacting”. The father further reported that the mother was physically aggressive and verbally abusive towards him during their relationship and raised concerns about her historic drug use.
The family consultant opined that it did not appear to be in dispute that the children desire a relationship with both parents and that they are likely distressed about having limited contact with the father. The family consultant went on to conclude that given the serious sexual abuse allegations, however, any time the children spend with the father should be supervised until the Court can determine whether the children would be at an unacceptable risk of harm if left in his unsupervised care. To assist in this regard, the family consultant recommended that a suitably qualified practitioner dealing with families where allegations of child sexual abuse have been made be appointed as a single expert to provide an opinion to assist the Court in resolution of the dispute.
On 18 September 2019 at a case management court event before me, the proceedings were listed for interim hearing in November 2019. At that court event the parties also agreed to orders (“the September 2019 orders”) providing that pending the interim hearing the children spend supervised time with the father at a contact centre once each week. The parties also consented to an order that the father’s alcohol use be monitored by requiring that on one occasion each month he undertake a Carbohydrate Deficiency Transferrin Test (“CDT”) and liver function test, as requested by the ICL.
At the hearing on 1 November 2019, the father withdrew his application for (variation of) interim orders. Further, as the children’s time with him pursuant to the September 2019 orders had not yet commenced due to a long waiting list with the nominated contact centre, the parties further agreed to an alternate contact service (“the alternate contact service”) supervising the children’s time with him if such appointments could be arranged to commence earlier than the originally nominated contact centre. At this time orders were also made for the appointment of a single expert (“the expert”) for the purposes of the proceedings.
Prior to the commencement of the children’s time with the father, on various occasions throughout November 2019 the father began using insulting and derogatory language in his text message communication with the mother. It is the father’s case that the tone of these messages was not dissimilar to others sent during the course of their relationship and that he had understood such messages would have been seen by the mother as funny or sent in jest.

On 1 December 2019, as a vacancy at the nominated contact centre was still not available, the children began spending time with the father in the community supervised by the alternate contact service, a private supervision agency.
From the time supervised contact began until the time that service terminated supervision due to the father’s non-payment of fees in May 2020, there were numerous occasions when the father cancelled the contact events without explanation. It is also the mother’s case that from the commencement of the children’s time with the father the older child in particular was reluctant and increasingly anxious to spend time with the father. The father’s conduct and children’s response to supervised time are other matters which will be explored to a greater extent later in these Reasons.
On 7 January 2020 the family was assessed by the expert for the purposes of preparing a report for the assistance of the Court (“the expert’s report”). The expert’s report which was released in late March 2020, will be set out in greater detail later in these Reasons.
It suffices to say at this stage that after assessing the family including interviewing each parent and observing the children interact with each of them, the expert was of the view that separating the children from the mother as their primary carer would cause them emotional and psychological harm and undermine their sense of security and safety. The expert also opined that while the children experience similar feelings of connection to their father, their relationships with him have been compromised by his inappropriate behaviour and the subsequent disruption to their lives. She ultimately concluded that, in her view, the older child, and to a lesser extent the younger child, are at risk of psychological abuse and possibly sexual abuse in the father’s care.
The alternate contact service continued to supervise the children’s time with the father for a short time prior to the father terminating its services in late May 2020.
There was a period of time in which the children spent no time with the father until it was resumed and supervised by a second supervision service (“the second supervision service”) in about July 2020. As I understand it, the parties informally agreed that this supervised time would occur at the home of either the father or the paternal grandmother.
By mid-2020, the dispute which had not been resolved was ready to proceed to final hearing and trial directions were made. As the father twice failed to comply with trial directions the listing of the final hearing was delayed for some time.
It is the mother’s case that for the latter half of 2020 the father continued to communicate with her including via text message and email in a concerning manner. She says the father’s communication with her sometimes oscillated between messages in which he made critical and denigrating comments about her and her parenting, and messages in which he spoke to her positively, including using terms of endearment (which she also considered abusive).
On various occasions in late October and November 2020, the children’s supervised time with the father did not occur. According to the mother, these contact events were either cancelled by the father due to his unavailability or by the second supervision service when the service did not receive confirmation from the father that he would be attending the scheduled time.
At a hearing on 25 February 2021 the parties agreed to some further interim orders (“the February 2021 orders”). These orders were made by the court with the parties’ consent and provided in summary :
·The children’s time with the father supervised by the second supervision service occur at the father’s home and at a frequency agreed to by the parents or failing agreement, two hours each week as previously ordered by the Court;
·Changeover occur at the father’s home and the only persons to be present with the children during the supervised time are the father, paternal grandmother, paternal great grandmother, paternal great grandmother’s carer and the supervisor; and
·The mother make the children available to have electronic video communication with the father on nominated days each week.
In the ensuing few months the mother made the children available to spend time with the father pursuant to the February 2021 orders though on some occasions the older child did not attend she had again become increasingly reluctant and anxious to spend time with the father including when such time occurred at a public place such as a park.
The children’s face-to-face contact with the father then came to a halt for about seven weeks commencing July 2021 when restrictions associated with the COVID-19 pandemic were operational (“the lockdown”). During this period, the children maintained regular electronic communication with the father in accordance with orders.
As will be explored at greater length in these Reasons, on numerous occasions prior to the final hearing the father continued to send the mother harassing and offensive messages and at one point also engaged in a tirade of abuse towards members of the maternal family which was reported to police.
The final hearing commenced on 15 November 2021. At the time, the children’s time with the father supervised by the second supervised service had resumed.
Before concluding the hearing on 17 November 2021, interim orders were made with the consent of the parties providing that the children’s time with the father be reduced to three hours each month and be supervised by a suitably qualified supervisor nominated by the ICL. The potential need to vary the prevailing interim orders arose after the expert raised concerns about that interim time arrangement and the qualifications of the supervisor in the course of her oral evidence. The parties also agreed to interim orders restraining the father from contacting or approaching or attempting to contact or approach the mother by any means whatsoever, and from being within a nominated distance of the children’s home or school premises without the mother’s written consent or as provided under orders.
Given other developments in the course of final hearing, including an application made by the ICL that the parties pay the ICL’s costs in equal shares, the parties were also directed to exchange between one another and the ICL their final Minute of Order proposed and file directly to chambers their written submissions in support of their respective parenting proposals and any evidence and submissions addressing the ICL’s cost application.
Each of the parties and the ICL complied with these directions on 6 December 2021 and judgment was then reserved.
THE MATTERS IN DISPUTE
The ICL contends that:
·The father was a perpetrator of family violence towards the mother and children during the relationship and following separation;
·The father lacks insight or capacity to meet the children’s needs;
·The father poses an unacceptable risk of psychological or emotional harm to the children; and
·The father has a chronic alcohol abuse problem which negatively impacts on his capacity and emotional regulation.
The mother submits that the evidence supports the same findings identified by the ICL in relation to family violence and alcohol misuse.
The father takes issue with the mother’s account of his alcohol use and denies that he drinks at a level that should raise any concern for the Court. This is a matter that requires resolution.
Ultimately there was little dispute between the parties about the father’s conduct which I understand the mother and ICL contend amounts to family violence. With some small exceptions the father in the main conceded that many of the mother’s allegations were correct though I understand that he takes issue with her characterisation of this behaviour as family violence. Accordingly, some factual findings must be made about this issue.
The mother characterises the risks posed by the father to the children and his capacity to meet the children’s needs in a different manner to the ICL, contending that the risk arises from his sexually inappropriate conduct. Although she does not seek a finding that the father either sexually abused one or both of the children, or that there is an unacceptable risk that he may sexually abuse them in the future she does seek a finding that he has behaved in a sexually inappropriate manner in the past. Some of the facts which form the basis of her contentions about the risk of harm posed by the father are disputed by the father and require resolution.
Does the father misuse alcohol in a manner that raises a risk of harm to the children?
According to the mother’s affidavit, the father had a significant drinking problem which escalated over the course of their marriage. She deposes that in the early days of the marriage the father always consumed four to five large glasses of wine at night and from the time of the younger child’s birth he started increasingly drinking scotch escalating to drinking about half a bottle every night, unless he was unwell. She says that he used to drive around each day with a bottle of scotch and two litres of diet coke in his car and drink scotch and coke from a plastic cup in the car. She further deposes that she and the father had numerous arguments and a couple of short separations over the issue of his drinking.
According to the mother’s affidavit, the father voluntarily admitted himself into a clinic in June 2018 for the purposes of undertaking an in-patient program for alcohol addiction lasting 21 days. She deposes that the father discharged himself before the program ended, 10-12 days following admission.
According to the mother’s affidavit, in conversations with the treating doctors during this admission she was advised that the father did not fully comply with the program and “made up his own rules”, self-selecting the sessions he attended. She says that the father was permitted to leave the premises during the day and she learnt that he continued to use alcohol throughout his stay saying that she observed entries on his bank statement at a local bottle shop during this period. She also deposes to being present at a joint session where the father argued with a psychologist that his drinking did not affect his driving.
The mother also deposes that the father advised her that he would not be meeting one of the requirements of the rehabilitation program, being attendance at Alcoholics Anonymous (“AA”) meetings. She said that although the father announced that he knew how to control his drinking, within two weeks of discharging himself from the program he reverted to his usual pattern of drinking, consuming at least half a bottle of scotch each night.
The mother deposes that due to the father’s excessive drinking she never left the children alone in his care prior to separation and that when she was required to travel for work the paternal grandmother always stayed at their home. She deposes to the father’s practice of drinking every evening and being frequently passed out on the lounge by 7pm.
The mother was not challenged about any of her evidence concerning the father’s drinking under cross-examination.
In his affidavit the father first refers to the mother having made allegations in relation to his excessive consumption of alcohol which led to an order for him to have random CDT testing. He then deposes that during the proceedings he has undergone three such tests, the first on 30 July 2019 being a date of his choosing rather than pursuant to an order. He also says he underwent two tests at the direction of the ICL in March and November 2020, though the latter appears to be a typographical error as the records indicate that this test took place in November 2019. The results of each of these tests indicate that the results that would have been elevated if he were drinking to excess were within a normal range.
Otherwise in his affidavit the father denies that he was in the habit of falling asleep on the lounge due to heavy drinking as alleged by the mother. He says that while he fell asleep on the lounge on occasions this was due to tiredness rather than alcohol consumption.
The father does not give any evidence in his affidavit about his pattern of drinking in the past and currently other than to say that if he had consumed the amount of alcohol alleged by the mother he would not have been able to get up at 5am every day and run his business successfully. He denies ever having drunk half to a full bottle of scotch nightly.
In relation to his admission to a clinic for alcohol misuse (in 2018), the father deposes that he only went there to “pacify” the mother. He deposes that when he arrived at the clinic the doctor asked him why he was there “as the full blood tests showed no adverse result”. In relation to his early departure from the clinic he deposes as follows:
I left because I was told I could have leave over the weekend and would be discharged on the Monday. I did leave early as arranged with the staff. I did not drink alcohol the whole time I was there. I did not make up my own rules I followed the program.
According to the father’s affidavit AA was not suitable for him “given my overall situation being that I am not an alcoholic and only have a couple of drinks after I finish work.” The father also deposes that he does not drink at home during the week, only on weekends.
The father was cross-examined extensively about his alcohol use. In general he stated that he did not believe he has issues with alcohol, he had never been drunk in all his life, and that his alcohol usage has neither increased nor decreased over time. He reiterated that this alcohol usage which has always remained at about the same level is reasonable and does not place his children at risk. He claimed to have fully complied with all requests by the ICL for CDT testing.
In relation to the admission to the clinic, the father said that he went there mainly to satisfy the mother and that on the first day he had a blood test done and a psychiatrist told him that his “levels are perfect” and questioned his need to there. The father reiterated that the only reason he attended was because the mother required it of him and was at the time threatening to leave him if he did not get assistance.
When asked about an intake assessment at the clinic, the father agreed that he was asked questions about his alcohol usage and that he was honest in his answers to the staff. He confirmed that the amount that he drank at the time caused no difficulty for him and that remained his position at the time of giving evidence. The father agreed that the program was for 21 days duration but denied leaving after 10 to 12 days and said that he left with three days to go. He maintained that there was no need for him to stay any longer and confirmed that the clinic endorsed and approved him leaving early because there was no reason for him to be there in the first place as he has never had any difficulties with alcohol.
When asked why he thought the mother needed to be pacified about his alcohol use, the father said that was because he “would have a couple of drinks in the office every day” and would then drive home but added that he never had alcohol at the home. He agreed that he did have alcohol in the car, and that he did drink it from plastic cups in the car outside the house and that the alcohol in question was scotch.
When asked how many drinks he “would have” in the office the father said two or three scotches every day and that he would carry the drink he was drinking in the car and finish it off. He gave other varying evidence about his pattern of alcohol usage ranging from never drinking at home, to drinking at home on various occasions such as while watching sport or TV generally and washing the car and to having the same pattern of drinking on every day of the week.
The father said in oral evidence that the mother’s evidence about him drinking between half to a full bottle of scotch every night was “entirely incorrect”, false and impossible for him to have done so. He agreed that the mother was lying in her evidence when she made those claims. The father also confirmed that there would be no reason for the Court to make orders from his perspective for him to attend any sort of therapy for alcohol use.
The father was then cross-examined about documents from the rehabilitation clinic. When asked about information given during a pre-admission interview, the father agreed that he told the staff that the mother said that he drank too much. When asked whether he accepts that he admitted to having a bottle of scotch a day, the father said that this was a lie but then said he did make this statement “only to get into the clinic”. The father initially denied having told staff at this intake that “it’s normal” (to drink a bottle of scotch a day). He then appeared to concede that he had thought it was normal to drink a bottle of scotch a day and did appear to agree that he said this, but only for the purposes of being admitted into the clinic.
The father agreed that he had seen two doctors prior to his admission to the clinic but denied that as noted in his general practitioner’s referral to the clinic dated 22 May 2018 he “was asked to leave his home yesterday and is now accepting his diagnosis”. The father denied that he had ever been diagnosed with alcohol addiction and denied that his general practitioner ever made comments about his alcohol use.
When asked about the clinic records of the history given on the day he was admitted to the clinic, the father did not recall stating that he had a five-year history of heavy drinking but said he possibly said that he drank half to three quarters of a bottle of scotch every evening. He then emphatically denied that that statement was correct. He also denied that he told the staff at the clinic about that level of alcohol usage but then immediately changed his evidence admitting that he had said that to “get into the clinic”. Thereafter, the father had no recall of what he had told the staff.
The father gave varying and at times inconsistent evidence about information recorded in the clinic’s records having been provided by him. In particular, he said that it is possible he told a doctor that he started drinking when he was 15 years old but “absolutely” denied telling the doctor that when he was 36 he started drinking a bit more and started drinking about one bottle of scotch a day. He “absolutely” denied the suggestion that he was in fact drinking one bottle of scotch a day at the time of his admission. He also did not recall that he had told the doctor that he was a becoming forgetful and that his drinking was affecting his relationship with his wife and his health. All of these matters are referred to in the records of the clinic.
In summary, the father emphatically denied going to the clinic because he was drinking between three quarters to a full bottle of scotch a day, and that as a consequence of his alcohol use the mother had raised concerns about his capacity to function at home.
In relation to his early discharge from the clinic it was brought to the father’s attention under cross-examination that the discharge summary records the following:
Patient had disciplinary discharge due to non-compliance as well as refusing to see a psychiatrist prior to leaving the premises.
The father said that this record did not surprise him but he “absolutely” denied being discharged because of non-compliance with the treatment program and his refusal to see a psychiatrist because he left the program. He denied in equally emphatic terms that he discharged himself by signing himself out against medical advice.
In later cross-examination by counsel for the ICL, the father initially denied having any issues raised about his conduct in the clinic but then immediately agreed that he did recall such issues being raised. He denied saying to a staff member “I’m a stallion: anyone want to have a go” even though he was shown the entry in the clinic’s records where the context in which he made this statement, (being in the course of administering medication) was put to him. He did not remember saying those words and agreed that if he had said them that would have been inappropriate.

The father was then asked whether he remembered another event during his time at the clinic where he was spoken to after being found in another patient’s bed. He agreed that he recalled this incident which, according to the records, is as follows:
Reported by night staff, patient found in fellow patient’s female’s room last night. I spoke to [the father] this AM, discussed unit’s policy. He was comforting patient, he was in bed with her,
The father stated that he remembered the event clearly but said that he did not know that this behaviour was against the clinic’s rules, maintaining that the other patient was “hysterical” and that he was there to comfort her. When asked whether he seriously thought that it was not against the rules for him to be in bed with a fellow patient at the clinic, the father denied that he was in the patient’s bed and maintained that he was comforting her because there was no staff around. He then confirmed that he was on the other patient’s bed and then clarified that both he and the other patient were lying beside one another on her bed. The father denied that it occurred to him that it would be obviously against the rules in a clinic for two patients to be lying together on a patient’s bed. He then said that he regarded his conduct in this regard as appropriate.
The event just described is recorded to having occurred three days before the father left the clinic.
When asked about the clinic’s records in relation to his discharge, the father denied that he had discharged himself and said that a record to this effect was incorrect. He also “absolutely” denied being given medication at the clinic for alcohol withdrawal during his stay there and said any record to this effect was incorrect.
The father was then taken to various emails sent to the mother in April 2019 shortly after separation. He agreed that at that time he was trying to resolve the issues that had arisen between himself and the mother and that he was being truthful to in those emails. He agreed that he told the mother that he wanted to change his lifestyle and was willing to follow a particular plan in order to save his marriage. The father agreed that part of his plan included not drinking every night but only “socially” and that he wanted to do this “in order to ensure my health is maintained”. He then denied that his health was being affected by his alcohol use at the time and said that he only made that statement because the mother thought his health was being affected. He agreed that he was making that statement to appease her.
The father was also asked about another statement in the email in which he said he “would like to see a psychologist every week to help me with the drinking part” and agreed that he believed at the time that he needed help from a psychologist to help him with his drinking. He then said that he had not seen a psychologist and had not seen any other person in relation to his drinking since his release from the clinic nor had he received any other form of assistance for the amount of alcohol he consumes.
The father reiterated in several answers that he would agree to seeing a health professional “if everyone thinks I’ve got a drinking problem” but reiterated that he did not consider that he had such a problem but instead drank moderately. He agreed that any attendance at a psychologist would only be for the purpose of complying with court orders not because he really needed it.
The father was then asked about other statements in his email to the mother just after separation including “I am willing to put in the necessary action plan and steps to recovery” but could not recall what steps he was talking about. He seemed confused at first about the “action plan” but later stated that was “a step-by-step plan to go to a psychologist, counselling, marriage counselling etcetera”. When asked how the relationship counselling would fix his drinking he said “to make my ex-wife aware that it wasn’t a major problem” but then immediately denied that she had identified his drinking as a major problem. He confirmed that this issue was the mother’s problem and that she saw things in a way which was not normal and was overreacting to his drinking.
Later in cross-examination, the father was asked about concerns about his alcohol consumption raised by other people. He at first denied that the maternal grandmother had concerns about this matter but then agreed that she did have such concerns and had raised them with him.
When asked more general questions about his conduct when affected by alcohol the father denied that this causes him to lose sight of what is appropriate. His attention was drawn to some text messages that he sent to the mother which he agreed were not appropriate but “absolutely” denied the possibility that he was under the influence of alcohol when he sent them. The father then said that it was possible that he was sober when he sent the inappropriate text messages or emails but this depended upon the time of day that they were sent. He agreed that if the messages in question were sent after 5pm then he might have been drinking and thus been affected by alcohol.
Discussion and findings
No submissions were made on behalf of the father in relation to the evidence or findings that were sought with respect to the father’s alcohol use. The only reference to alcohol at all in submissions made on his behalf is contained in his proposed order requiring that within two months of the date of final orders he commence and engage with therapy including “to deal with alcohol abuse issues”. This appears to be contrary to the entire tenor of his evidence, that he does not abuse alcohol.
It is submitted on the mother’s behalf that her evidence about the father’s alcohol use which is consistent with the records of the clinic in particular, should be accepted and the Court be satisfied as to her account about this matter. In particular, it is submitted that the Court should be satisfied that the father’s misuse of alcohol is a current problem which remains unaddressed by him.
I am satisfied to the requisite standard[4] that the father has engaged in a pattern of alcohol misuse for many years up until the present for the following reasons.
[4] In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities: s 140(1) of the Evidence Act 1995 (Cth).
The mother was not challenged under cross-examination about her evidence that from at least around 2018 the father was drinking between half to a full bottle of scotch every night which caused him regularly to pass out and that for this reason she never allowed him to take care of the children alone if she was absent from the house.
There is some support in the father’s account that corroborates the mother’s evidence. There is no dispute for example that the paternal grandmother did come to assist the father with the care of the children when the mother was away for work. The father also does not dispute that he voluntarily admitted himself to a clinic as an in-patient for alcohol addiction in mid-2018 but did not complete that program and has not received any assistance for alcohol misuse since that discharge. He also gave clear evidence that his pattern of drinking has remained the same for many years including from the time he attended at the clinic until the present.
Further, on the father’s own account the mother had raised his alcohol misuse as a problem for their relationship since around mid-2018, threatening to leave him if he did not address this matter. He also agreed under cross-examination that the grandmother had raised with him that his drinking was problematic. Further, there is email correspondence between the parties shortly after their separation in 2019 in which the father states that he wanted to reduce his drinking from the level of drinking every night and needed to do so in order to maintain his health. He also agreed that he had made a statement in an email at this time that he would like to see a psychologist to help him with his drinking.
I also attach weight to the contents of the letter of referral from the father’s GP to the clinic which states that the father told this doctor that he had been asked to leave his home in early 2018 and was now accepting his diagnosis which the doctor describes as “alcohol addiction”.
For the following reasons I reject the father’s evidence that although he made statements to staff at the clinic and in various emails to the mother, which are consistent with the mother’s contentions about his problematic alcohol use, these statements were conscious lies made only for the purpose of appeasing the mother.
First, the father’s account as a whole concerning his alcohol use is riddled with inconsistencies. He does not depose in his affidavit to any detail concerning his alcohol use except to deny aspects of the mother’s evidence. He denied at one point telling the staff at the clinic that he drank a bottle of scotch a day or saying that this level of drinking is “normal” but then agreed he had said these things for the purposes of gaining admission to the clinic. His evidence concerning his pattern of drinking at home also varied widely, ranging from statements that he never drank at home, that he only drank at home on the weekends and then giving other examples of occasions when he did drink while at home.
I consider the records of the clinic in relation to the father’s admission particularly weighty especially concerning matters that do not depend only on information given by the father. Further, I consider it is likely that the records of the clinic are accurate as they reflect important issues relating to the father’s health and treatment. For example, the father denies being placed on medication in the course of his admission whereas there are records of him receiving medication for alcohol withdrawal. He emphatically denied being discharged because of non-compliance with the treatment program and his refusal to see a psychiatrist, and that this discharge was against medical advice contrary to records to this effect.
In relation to the connection between the father’s alcohol misuse and inappropriate conduct, I have no reason not to accept the accuracy of the clinic records. These include the father saying to a staff member “I’m a stallion: anyone want to have a go” and note that this statement was said to have been made in the course of administering medication, even though the father emphatically denies having received medication. I also consider it curious that the father quibbled in effect about the distinction of being found lying side by side with another patient on her bed and comforting her when the record of the clinic stated that he was in the patient’s bed. Most compelling of all is that the father considered his conduct in this regard as appropriate and said that it had not occurred to him that it would be obviously against the rules for two patients to be lying together on a patient’s bed.[5]
[5] It is to be noted that under cross-examination, in the context of being asked about the father’s conduct that could be considered a crossing of boundaries, the expert answered “I can’t think of a more inappropriate thing than two patients in a treatment unit on the same bed”.
The father’s evidence about the circumstances of his discharge, including in particular that it was sanctioned and approved of by the clinic, is entirely at odds with the clinic’s records. In general, none of the records of the clinic support the father’s assertion that he did not have a problem with alcohol and there was no difficulty with him leaving early as there was really no foundation for his admission in the first place.
I am also satisfied that in accordance with the mother’s evidence, within two weeks of his release from the clinic the father reverted to his usual pattern of drinking at least half a bottle of scotch each night. Not only was the mother not challenged about this evidence under cross-examination, the father does not dispute her statements that he told her he would not be attending AA meetings and he agreed to other statements attributed to him contained in the records of the clinic about his views concerning the inappropriateness of him attending AA.
The father appears to attach weight to the results of three CDT tests deposed to in his affidavit as corroborative of his evidence about his alcohol use. However, one of those tests was conducted at a time of his choosing (rather than as directed by the ICL and in this sense is not random) and the three tests that resulted from a request of the ICL were twice not complied with in a timely manner and on another occasion, not at all. Further, at the time of the hearing these results were somewhat stale (having been conducted in July and November 2019 and March 2020) and the father did not seek leave to adduce any current evidence about his alcohol usage at the time of hearing. In all of these circumstances limited weight only can be attached to these test results which show alcohol use at the time of testing within normal limits.
For all of the foregoing reasons, I accept the mother’s account of the father’s alcohol misuse. This matter will be revisited when considering the matters relating to the children’s best interests later in these Reasons.
Allegations of the father’s inappropriate sexual conduct
The mother deposes to a number of incidents which she contends prove that the father has conducted himself inappropriately, in most cases towards or in the presence of the children, and seeks a finding that these events occurred in accordance with her evidence. The father takes issue with most of these allegations.
Although the issue that triggered the parties’ separation related to sexually inappropriate conduct the mother does not seek a finding that the father sexually abused the children or either of them or that he poses an unacceptable risk of harm arising from sexual abuse. In other words she does not seek a finding that the father did the act complained of at the time of separation (placing his penis on the older child’s leg) or that he did any of the acts later alleged by the children in disclosures made to her after separation and in answers given in their JCPRT interviews (touching their genitals and/or bottoms). Rather, the mother relies on the fact of these complaints being made as part of the matters than give rise to her contentions about unacceptable risk arising from inappropriate sexual conduct.
Ultimately it is accepted by the father that the older child did report something concerning about his conduct to the paternal grandmother[6] when the mother was away and there was little, if any dispute between the parties that the mother accurately deposed to things told to her by the paternal grandmother[7].There is no doubt about the children’s answers given when interviewed by the JCPRT. The nub of submissions made on behalf of the father, which I accept is that these complaints by the children about the father’s conduct are so contaminated, including by the investigation process, to be unreliable and of no weight in support of the allegations regarding sexual abuse made at the time of the parents’ separation. In circumstances, where neither the mother nor the ICL seek a finding in relation to these allegations, it is not necessary to determine any factual disputes concerning the events surrounding the parties’ separation and following.
[6] Father’s submissions, [11].
[7] See father’s submissions, [15].
Accordingly, the only factual matters in dispute which require resolution with respect to the father’s allegedly inappropriate sexualised conduct relate to the incidents other than the allegations of sexual abuse that caused the parties’ separation.
The father’s conduct with the mother’s three nieces
According to the mother’s affidavit, on Christmas Day 2014 when celebrating at a maternal uncle’s home the three daughters of the maternal uncle (“the mother’s nieces”) who were then aged 12, 10 and eight, had been swimming in the pool and later went to have a shower. The mother deposes that the father walked into the girls’ bathroom on two occasions while the nieces were showering, even though the father was well aware that this bathroom was used by the nieces and not to be used by guests who had two other guest bathrooms available to them.
The mother deposes that the nieces advised their mother of the incidents which were subsequently relayed to the mother. The mother said that she raised this with the father and that he said in response words to the effect of “oh, nothing happened”. The mother was not challenged under cross-examination about her evidence concerning this matter.
In his affidavit, the father agrees that he did enter the bathroom when the mother’s nieces were there on this occasion. He deposes that when he found it occupied he turned around and walked out. He does not address the mother’s allegations that he walked into the bathroom when the nieces were showering on twice or that he understood that the bathroom being used by the nieces was not to be used by guests who had two other bathrooms available for their use. He was not cross-examined about these last-mentioned additional matters.
The father’s “[…]”game
According to the mother’s affidavit, in October 2018 when a friend was visiting on one evening the older child was playing around on the lounge. She deposes that the father who was next to her was pulling the child’s underwear down and kissing her bottom while singing a song which had the words “[…]”[8] which she says meant “bottom” in Country B language. She deposes that this was a song he always loved to sing to the children. The mother deposes that at the end of the visit her friend told her that she found the father’s behaviour very disturbing and as this friend came from a Country B background, she could understand what he was saying. The mother deposes that this was a game the father frequently engaged in with the older child. The mother was not challenged under cross-examination about this evidence.
[8] This appears to be a typographical error for the word ‘[…], a vulgar expression meaning “bum” in Country B language.
In his affidavit, the father deposes that the mother’s allegation that he pulled the older child’s pants down and kissed her on the bottom is “not true”. He deposes that he never pulled the girls’ pants down and then says “it is a [Country B] custom to play with children and kiss them affectionately and hug them. I am simply a father who loves his children”.
Under cross-examination the father agreed that he did engage in this game with the older child in which he pulled down her underwear, kissed her on the bottom and sang “[…]”. He maintained that this was an innocent game and agreed that he frequently played it with the older child.
There was further oral evidence given by the father about the ‘[…]’ game when he was cross-examined about whether he could proffer any explanation for answers given by the older child when she was interviewed by the JCPRT. In particular, the child had given some answers to questions about her father touching her bottom and said that this occurred “in his room” “on his bed”. When asked whether he could recall a time when he may have been playing with the older child on his bed and touched her on the bottom, the father replied:
Yes, because we used to play a little game that was called […] in [Country B language]. That’s how I was raised up and there was nothing sinister in it. It’s just a little tap on the bottom saying, “[…].” That’s it.
At this point of his evidence the father said that the tap on the bottom was done above the older child’s clothes and denied kissing her on the bottom as part of the game. He then agreed that in the course of playing the game that it was possible he touched this child under her skirt and under her underpants. He also agreed that it was possible that he said “[…]” when he was touching her. He then said that he possibly touched her on the bare bottom and touched her and kissed her on her bare bottom and in doing so believed it was a game. He maintained in oral evidence that there was “absolutely” nothing inappropriate in that game in each of the cultures of the parents in which the child was raised.

Under cross-examination the father also denied that in playing the ‘[…]’ game it was possible that he made the older child feel uncomfortable or that it was possible that she did not like him touching her in that way. He denied that this child asked him to stop or that it was even possible she had done so.
The father also said under cross-examination that he could not remember a time when both children were in the bedroom and he was playing this game with the older child but said there were occasions in which he and both children were playing “tackle wars” which involved “just tackling each other on the bed”. The father agreed that it was possible that he had touched both children on their bottoms and genital areas above the clothes and added “but I doubt it”. He then denied ever touching the children on the underpants.
Further under cross-examination the father denied that in the course of playing the ‘[…]’ game there was ever a time where he also touched the older child’s “vagina”, though agreed that it was possible that he touched “above her clothes” in that area when playing the game or tackling. He “absolutely” denied that it was possible that that behaviour was more than playing a game and “absolutely” denied touching the older child on the bottom or her vagina to derive sexual pleasure from that conduct.
The “doodle doodle doodle” song
The mother deposes that there were many occasions on which the father came out of the shower wrapped in a towel which he then removed and walked around naked in front of the children. She deposes that he frequently sang a song with the words “doodle doodle doodle doodle” to which she responded with words such as “you’re disgusting”. According to her affidavit, the father often called her names in response to her comments such as a “prude”.
In his affidavit, the father denied ever taking off his towel in front of the children or singing a song that contained the word “doodle”. He describes this allegation in his affidavit as a “blatant lie”.
Under cross-examination, the father remained firm in denying that he had ever sung such a song but agreed that he did shower his children.
The shower incident
In her affidavit, the mother also deposes that the father frequently wanted to shower with the children which was not an issue when they were “really little”. According to her affidavit, there was an incident in early 2019 (when the children were aged five and three) in which she was washing the children’s hair and the father walked in naked and attempted to get in the shower with them. The mother says she pushed him out of the shower and told him to “get out”.
The father agrees in his affidavit that he and the mother showered the children together when they were “babies” but that his stopped this practice after they started to get older. He denies entering the bathroom naked in 2019 and describes this incident as a “blatant lie”. Under cross-examination, the father maintained his denial about this incident.
The mother was not cross-examined about either of the last two incidents and accordingly it was not put to her that she was lying.
Observations of the expert
Finally, the expert in her report commented on a particular interaction between the father and the younger child which the expert considered “disturbing”, an assessment which she confirmed under cross-examination. The father takes issue with the expert’s observations about his conduct.
According to the expert, when observing the interactions between the father and the children on the first occasion (8 January 2020) for the purposes of her assessment, the following occurred:
In the final minutes of the contact visit an incident occurred which I found disturbing and it involved [the father] laying on the grass and resting on his elbows with [the younger child] laying on his lap with her back to his chest. [The father] called to me and I approached him, and he made a number of general comments regarding the contact visit and asked whether I wanted to ask him anything following our earlier conversation. During this short interaction I observed [the younger child]’s dress to be pulled up above her underpants. [The father] was looking directly at me which raised the thought in my mind that he was aware [the younger child]’s underwear was on show and he did not pull her dress down nor speak to her and ask her to pull her dress down.
In oral evidence the expert expanded upon this incident in saying that the father smiled and looked directly at her in the course of this event. The expert remained very firm under cross-examination about her evidence that the child’s skirt was “up” and underwear exposed.
The father’s affidavit is silent about this incident but under cross-examination he agreed that there was a point during the observation on that day when he was lying down and the younger child was lying on him with her back on his chest. He said he was lying flat on the ground and that this child was lying on him looking up at the sky. The father said he was aware that the child was wearing a skirt but was “absolutely not” aware that her underwear was showing. When asked to confirm that he did nothing to pull down her skirt, the father said that “her skirt wasn’t up”.
Under cross-examination the expert was not challenged about her opinion which can be gleaned from answers to a number of questions that she considered the “[…]’ game, the “doodle doodle song”, the incident involving the father walking into the bathroom on the mother’s nieces and the father wanting to shower with the children as inappropriate sexualised behaviour engaged in by the father.
Discussion and findings
As was the case with the submissions concerning findings about alcohol misuse, it is submitted on behalf of the mother that the Court will accept the mother’s account about the foregoing events and reject the evidence of the father. No submissions were advanced on the father’s behalf in relation to the evidence of the parties or otherwise in relation to these matters.
For the following reasons I am satisfied that each of the foregoing incidents deposed to by the mother occurred in accordance with her evidence.
First, the mother was not cross-examined about her version of each of these incidents. Although the father gave an alternate version of some of the incidents in his affidavit and was also not cross-examined about many of them he is silent as to some details which I consider of significance. For example he did not address the mother’s allegation that he walked in on the mother’s nieces in the bathroom on two occasions or that he was aware that it was not a bathroom to be utilised by guests who had two other bathrooms available to them. In other words, the father does not challenge the clear inference that arises from the mother’s evidence (upon which she also was not challenged under cross-examination) that he intentionally chose to enter the nieces’ bathroom on two occasions and that it was not an inadvertent error on a single occasion as he contends.
I also consider it weighty that the mother’s account of some of these incidents reported to the expert in January 2020 are generally consistent with her affidavit evidence. For example, the mother raised with the expert that she believed the father engaged in inappropriate sexual behaviour for some years, reporting that she had spoken to the father on occasions regarding him continuing to shower with the children, being naked around the home and his regular kissing of the older child on the bottom while singing “[…]”, behaviours which made her feel uncomfortable. It is also recorded that she relayed her concerns about the father’s behaviour towards her nieces, describing to the expert that the father twice walked into the bathroom while her nieces were showering.
Further, I prefer the evidence of the mother over the father where it differs for the same reasons identified when considering the father’s evidence with respect to his alcohol usage. As noted when considering that matter, the father’s oral evidence was on occasions inconsistent with the account in his affidavit and varied under cross-examination. In relation to the allegations of inappropriate sexual conduct similar inconsistencies are present. For example, in his affidavit the father deposes that the mother’s allegation that he pulled the older child’s pants down and kissed her on the bottom while playing the “[…]” game is “not true” but under cross-examination agreed that he had engaged in such a game in terms completely consistent with the mother’s evidence. In other words, at one point in his evidence he denied that this had occurred at all but then agreed he frequently engaged in this activity with the older child but maintained it was an innocent game.
In assessing the reliability of the father’s evidence, I also attach some weight to the unusual emphatic answers that he gave to many questions asked under cross-examination only to give contradictory answers thereafter. When agreeing with a matter he regularly used the expression “absolutely” utilising a very emphatic tone and when denying a matter he responded in similar emphatic tone saying “absolutely not” even though some of the matters he “absolutely” denied he subsequently agreed to.[9]
[9] For example, the father “absolutely” denied telling the clinic that his alcohol consumption was between half to three-quarters of a bottle of Scotch each evening but then agreed that he did tell the clinic this information over the phone but explained that he had done so in order to be admitted. At another stage of his cross-examination when asked if in his video conversations with the children he blamed the mother for physical contact visits not going ahead he answered “absolutely not”. Immediately after when taken to a statement in the mother’s affidavit of the father deflecting blame her and asked whether he had said such words to the children during a video call, replied “Yes, I did say that, absolutely”. He also answered “absolutely not” when it was put to him that on one occasion his dressing gown had fallen open and exposed his penis to the children, but subsequently agreed that such an incident could have “possibly” happened.
Further, the emphatic nature of the father’s evidence can be seen in his affidavit when he deposes that the mother’s evidence about some matters is “a lie” even though it was not put to the mother that she had lied, for example in relation her evidence concerning the “doodle doodle song”.
Some details of the mother’s evidence about these matters is consistent with other matters not in dispute between the parties. For example the mother says that when she told the father he was “disgusting” for singing the “doodle doodle” song he responded by telling her that she was a “prude”. This is consistent with the evidence of both parties that the father has regarded the mother’s concern about similar issues as an overreaction (as a result of her own experience of childhood sexual abuse) or unreasonable in relation to what he considers to be completely normal or appropriate conduct.
Finally when considering the mother’s evidence as a whole it is generally consistent with matters not in dispute and with records likely to be reliable (such as the medical records in relation to the father’s alcohol use). The father’s evidence was not as consistent with matters contained in other records, (which I consider likely to be reliable and accurate) and he could proffer no explanation for these inconsistencies other than to say that the records, kept by a number of different people were “incorrect”.
In all of the foregoing circumstances, I accept the mother’s evidence over that of the father’s where it differs. Accordingly, and for the other reasons given, I accept her account in relation to conduct that she says is inappropriate.
I also prefer the evidence of the expert about the father’s conduct in the course of the expert’s observations of his interaction with the younger child on 8 January 2020. The expert is a trained professional and a significant part of her assessment depends upon her observations of parties’ conduct and interactions with their children. The father’s evidence in relation to this interaction itself contains matters of which he says he was unaware, while it is central to the expert’s role to take careful note of any interactions of significance. For this reason, I accept the expert’s evidence about the younger child’s skirt and underwear when lying on the father and the expert’s account that the father looked directly at her and smiled, a matter which was not challenged under cross-examination.
I also accept the father’s oral evidence about his conduct when playing the ‘[…]’ game or the “tackle wars” game with the children on the bed. Although the context of this cross-examination related to whether the father may be able to provide an explanation for answers given by the older child in the course of her second JCPRT interview, I do not regard those answers as a version of events about particular incidents given by this child. This is especially so given the leading questions about those particular matters, the leading nature of the interview as a whole and the context in which the child was interviewed, all matters that give rise to a serious risk of contamination of this child’s account. The older child’s version of events was also of course not tested by cross-examination. I accept the father’s evidence that he played the ‘[…]’ game with the older child on his bed and that if he touched or kissed the child on her bare bottom this occurred in the course activity that he considered to be nothing more than a “game”.
I will return to the mother’s contentions and the expert’s opinion about these matters when considering the expert’s evidence as a whole and the matters to be taken into account in relation to the best interests of the children.
The father’s conduct, including allegations of family violence during the relationship and after separation
As noted when setting out the background, the mother contends that the father perpetrated family violence towards her particularly following separation. The ICL also submits that the evidence is capable of supporting a finding that the father was a perpetrator of family violence. While the father concedes that he did engage in some of the conduct alleged and particularly used language complained of when communicating with the mother, it is his case as I understand it, that none of his conduct can be characterised as family violence.
The mother also deposes to other conduct such as denigration of her and her family or things allegedly said to the children which she and the ICL contend ground a finding that the father lacks insight and capacity to meet the children’s needs. Some of these matters are disputed by the father and require resolution.
The father’s behaviour following separation
According to the mother’s affidavit, when the parties first separated the father sent frequent text messages with the tone ranging from being abusive to loving in a matter of days. She then requested in a letter sent by her lawyers to the father’s lawyer on 2 August 2019 that there be no further communication between them unless it related to the welfare of the children.
The tenor of the father’s affidavit is that after separation he and the mother remained on reasonably amicable terms for some time (though this is contradicted by other parts of his affidavit).
The father deposes to many matters that he says formed the basis of his belief that the mother had no fear of him and did not authentically believe he posed any risk to the children and on occasions actively sought him out to assist her, for example when her car was broken into. The balance of the father’s affidavit in relation to events prior to the variation of the ADVO on 11 July 2019 is variously to the effect that he and the mother had an amicable and mutually cooperative relationship and that at times the mother was affectionate towards him, while also deposing that the mother was manipulative and that there were no genuine grounds for the ADVO made against him.
It is clear from the tenor of the father’s affidavit that he considers the parties’ separation and the mother’s concerns about his conduct and potential risks to the children are matters that have, in his words “been blown out of proportion by [the mother] and her family”. Much of his affidavit is concerned with criticisms of the mother and her parenting and conduct generally, matters which were not pursued in the final hearing. The father does not address many of the mother’s allegations about aspects of his conduct other than the sexual abuse allegation that caused the parental separation and allegations in relation to his drinking.
Derogatory and inappropriate remarks made by the father in the presence of or to the children
During the initial period after the parties’ separation when the mother was supervising the children’s time with the father, she deposes to the father making derogatory remarks about herself and her family. She gives as an example an occasion when the father brought the product “slime” for the children to play with and said to them “this slime reminds me of the [maternal] family”.
On two occasions in August 2019, the mother alleges that the father said inappropriate things to the children in the course of a video-call. On the first occasion, the father said “one day when you are older enough daddy is going to tell you a story about the truth” and three days later said to the children during a call “please look after yourselves and stay safe with that crazy mother of yours”. A few days later in the course of a video-call the older child told the father that both she and the mother had the flu, to which the father answered “I don’t care about mummy”. Later in the conversation, the father said to the children “mummy and daddy won’t be living together again, okay girls”.
Under cross-examination the father agreed that on 20 August 2019 during a video call he said to the children “I’m really sorry that she’s putting you through all of this. One day daddy will tell you the truth about her” and a few days later said something along similar lines.
The father agreed under cross-examination that it was very important to him that he tell the children the “truth” and agreed that this included the truth about the mother, the mother stopping him from seeing the children and requiring that their time with him be supervised and the truth about the sexual abuse allegations including that numerous members of the maternal family had “made the children say those things” (disclose the abuse).
The father then agreed under cross-examination that he would tell the children that it was all a fabrication and a lie and that he was the victim of the mother and the Court process requiring him to undergo supervision of his time. He agreed that he would tell the children that this was entirely unjust and entirely unfair. When asked about the impact that all these statements would have on the children, the father answered “well hopefully I won’t say anything to them until they are above 18 years of age”. He then agreed that all of these matters were the truth as he saw it but may not be the truth as the children saw it. He could not agree that in telling the children these things he may be undermining their relationship with the maternal family but stated that he did not want to do that.
At a contact event on Father’s Day 2019 the mother deposes that one of the children complained that the father had told her in the mother’s absence that he does not like the mother anymore and when the mother asked him not to say anything inappropriate that may affect the children’s mental wellbeing he told her to “get stuffed” in the presence of the children. At a later stage when one of the children asked to have a family photo, the father said to her “no…we are no longer a family” which the mother says caused the child to look upset. The mother deposes that the father then made up a song which he taught the children and encouraged them to sing, along the lines of “[The father’s family name] are the best, forget about the rest”.

The father did not challenge the mother’s evidence that the only financial support he provided to her in relation to the children was the very small amount he was assessed to pay by way of child support ($56 per week) from July 2020. Prior to this the father did not provide any financial support for 16 months following separation.
The father also did not challenge the mother’s evidence that on at least one occasion he tried to leverage the provision of financial support to his advantage by saying that he would pay all of the of the children’s school fees if the mother went out with him for dinner and when she declined said that he would not pay any additional expenses in relation to the children as “that is what child support is for!”.
The mother’s evidence which was also unchallenged and which I accept is also that the father has a significant gambling problem which consumes a large sum of money and thus reduces his available funds for the support of the children.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
The father proposes supervision of the children’s time with him for a period of six months but does not raise that this will cause any practical difficulty or significant expense. The proposal of the ICL would see the children spend time with the father on only two occasions per year which also unlikely to raise any difficulties in this regard. The mother’s proposal provides for the children to have no time with the father so any difficulties in this regard do not arise under her proposal.
Capacity of each parent and any other person to provide for the children’s needs
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
According to the expert, the mother demonstrates strengths in her parenting capacity, appears to have coped with parenting and is responsive to the children’s physical, emotional and developmental needs. The expert opined that there does not seem to be any obvious impediment to her parenting capacity. This opinion was not challenged in the proceedings consistent with the parties’ final proposals that the children live with the mother and that she have sole parental responsibility for them.
The expert opined that the father also “appears to have strengths as a parent” but adds that “these are matched by his inappropriate behaviour”. The expert also noted that the father claims to be able to meet the children’s care needs (but as recorded when considering the children’s relationships) the older child’s interactions with the father suggest to the expert that this child does not currently have a strong attachment relationship with him.
The expert opined that the father argues he is also capable of meeting his children’s physical, emotional and intellectual needs but it was her observation during the assessment that “he experienced difficulty in adjusting his expectations and behaviour to meet his children’s needs”. Under cross-examination the expert expanded upon this observation and her related opinion concerning the various shortcomings in the father’s parenting capacity.
The expert’s first concern, related to the father’s sexualised behaviour and the risks this raises for the children, has been dealt with at length. The second issue the expert raises relates to the father’s alcohol use. As previously touched upon, obvious significant issues arise with respect to the father’s capacity to care for the children especially given their ages, if orders were made as he proposes in light of the findings I have made about his alcohol use.
As also previously noted, the shortcomings in the father’s parenting capacity arising from his alcohol use are not addressed at all in submissions made on his behalf other than noting that he proposes an order requiring that he “commence and engage with therapy to deal with alcohol abuse issue with a therapist approved by the ICL”.
The tenor of submissions made on behalf of the father overall is that his engagement in therapy pursuant to court orders to address matters such as his alcohol use and supervision of the children’s time with him for a period of six months are measures sufficient to mitigate any risks or shortcomings in his parenting capacity that may be found to be present by the Court.
The difficulty with this submission in relation to alcohol use is that it has never been suggested that the father has been affected by alcohol when the children have spent their short periods of supervised time with him following separation. It can thus be expected that he will continue to abstain from consuming alcohol during the two hours each week that he proposes the children spend supervised time with him for the first six months.
The greater concern about the father’s capacity to care for the children arises after the six month period when he proposes that the children immediately begin to spend time with him every second weekend and for half of each school holiday period. I am satisfied that, in accordance with the mother’s evidence, when the relationship was intact whenever the mother was absent from the home for work she ensured that the paternal grandmother moved into the family home to assist the father in the children’s care and that the father was regularly “passed out” by 7pm from drinking alcohol to excess.
The proposal of the father to engage in “therapy to deal with alcohol abuse with a therapist approved by the ICL” is extremely vague. Further, given that the father’s previous unsuccessful attempt at addressing his alcohol misuse entailed a three-week residential program and ongoing attendance at AA, I would have expected that he set out a concrete plan to address this significant area of concern.
Moreover, although the expert referred to the capacity of therapists to engage with sex offenders who are in denial about their conduct, there is no evidence to suggest that similar effective therapy is available with respect to alcohol misuse for people who do not take responsibility for that misuse. The father trenchantly denied all allegations about his alcohol misuse and the need for rehabilitation throughout the whole of his evidence and the Court can have no confidence that his long-standing problematic behaviour in this regard and associated impairments to his parenting capacity will be as easily and satisfactorily addressed through “therapy” as he proposes, especially given the vague and general nature of that proposal.
The other matter identified by the expert relevant to the father’s capacity to meet the children’s needs relates to his emotional state and decision-making around emotional issues. In this regard, the expert’s attention was drawn to the numerous occasions on which the father made statements to the children (either when they were spending time with him or in the course of their electronic communication) that he knew were untrue such as that he would be coming to the mother’s house for dinner that night which the father explained he said to “get a reaction out of [the children] to see how much they missed [him]”.
In a similar vein, the expert was asked about comments made by the father along the lines of telling the children that their failure to return his telephone call caused him to cry which the father considered to be an appropriate comment. The expert opined that statements along these lines indicated that the father was telling the children that he felt hurt and abandoned by them and that they should be doing more to look after him. The expert recognised this as a reversal of the role of a parent with respect to his children. The expert considered it likely that in circumstances where the children were not to see the father for a little such comments would cause them to become worried and anxious noting that the older child at six years of age was already hyper-anxious around anything to do with the father.
When commenting on the father’s interactions with the children on both occasions for the purposes of her assessment the expert opined that in her view he was not meeting the needs of the children and was not responsive to them. The expert reiterated that a parent’s interaction with a child is not about making the parent feel good. She also had concern that the tenor of the father’s conversations with the children when he asked questions about their recent overseas holiday was akin to an interrogation designed to elicit information, being more like a conversation between adults rather than with children aged four and six years old.
The expert also considered the video conversation in August 2021 (in the midst of the COVID-19 lockdown) in which the father had told the older child that “[you] are not allowed to go out to get food” and that “[the mother] is very very naughty” before asking the child whether the maternal uncle had “ever touched your private part”. The expert described these comments made by the father as “opportunistic” and “voyeuristic” and concluded that the father could only have asked the question in relation to inappropriate touching by the uncle to satisfy his own interest or need for information and gave no benefit to this child. It was a strong theme throughout the expert’s evidence generally that the father was not child-focussed and prioritised his own needs over those of the children. This is an obvious shortcoming in his parental capacity.
Another domain in relation to this consideration is the father’s pattern of exposing the children to his negative views of the mother. There were numerous occasions in the evidence (and the father conceded that these were correctly deposed to by the mother) of the father telling the children that the mother was “very very naughty” and similar expressions. These statements indicated to the children that the mother was responsible for matters such as them missing out on their time with the father or that the mother was breaching the rules associated with the COVID-19 pandemic in circumstances where either the father himself was responsible for the children not seeing him (by either not confirming the upcoming time as required or paying the fees) or when there was no basis to suggest that the mother was doing anything wrong with respect to the lockdown restrictions.
In his oral evidence the father seemed persistent in his efforts to ensure that the children understood (incorrectly) that the mother was responsible for all the difficulties that the family had endured. He agreed that he intended telling the children the “truth” about the family’s circumstances including that it was the mother who stopped him from seeing the children and who required that their time with him be supervised, that members of the maternal family had forced the children to make untruthful allegations, and that he was the victim of the mother and the Court process which was entirely unjust and unfair. It was particularly concerning that when the father was asked about the impact that saying such things may have on the children (which he conceded would be very detrimental) his answer included “hopefully I won’t say anything to them until they are above 18 years of age”. In my view, this is a hollow hope given that the father conceded that on various occasions he was unable to control himself and as a result said things to or in the presence of the children that are likely to have been psychologically or emotionally detrimental[19] to them. In my view, the father’s case overall and the orders he proposes show no recognition of the shortcomings in his capacity to meet the children’s emotional needs and impairments in his behaviour and decision-making around emotional matters. Even the father’s proposal for the issues to be addressed in “therapy”, which it is suggested in submissions made on his behalf to be a safeguard for the children’s wellbeing, does not include these matters associated with his decision-making and conduct which impair his capacity to meet the needs of the children.
[19] For example, the father compared the product “slime” with the maternal family in conversation with the children as he “just couldn’t control [myself] because of the outrageous allegations”, and said that he had intended to “go to the ‘media” about “everything about the case” as a result of “not being able to control my emotions”. Other examples of the father agreeing that he had no self-control over his behaviour include telling the mother that he had spoken to her ex-husband about her which was untruthful and his explanation for leaving the abusive and threatening voice messages for members of the maternal family was that he was “having a meltdown”.
Under cross-examination the father said that he was not sure what the expert meant when she opined that he “had some difficulty adjusting [his] expectations and behaviour to meet the children’s needs”. When given a further opportunity to consider this opinion the father said that he thought it meant “that I don’t understand what the children require from me as a father”. When asked what he had done in response to reading the expert’s opinion about this matter to assist him and to develop better skills, the father said “I absolutely disagree with her comments”. Given he disagreed with the expert’s comments the father concluded that there was no need for him to do anything else.
The father did not agree with a specific example of the expert’s concerns in this regard such as the identification in her report that the “during the assessment the children were exposed to [the father’s] dismissive attitude towards the mother” and did not agree that it had any validity.
Under cross-examination, the father made it clear that he disagreed with the entirety of the expert’s opinions and said that he did not need to address any of the concerns the expert had raised about his attitude, language or conduct because the expert is “absolutely” wrong.
When taken to the expert’s opinion regarding the father comparing the older child negatively to the younger child, the father did not agree that these comments were made within the older child’s hearing and said that as a consequence “absolutely” nothing needs to be done to assist him in the way he treats the older child. The father was also taken to portions of the expert’s report in which she opined that the older child had anxiety with which he agreed, but when asked whether he accepts that a possible cause is his behaviour towards her the father said “absolutely not”.
When asked about his proposal that the children’s time be supervised for only a limited time only and then move quite quickly to overnights the father conceded that under this proposal the older child will miss her mother and that if she physically wants her mother and is quite distressed that he will take her to the mother’s place. He agreed that this meant he had an expectation that the mother would be there and then said that he would discuss the matter with the mother to see if she could be on standby for a couple of weeks until the older child got used to the arrangement. The father then said that the older child would “cope with me in the day time” and then gave answers in which he downplayed the significance of this child’s anxiety saying that she had difficulties adjusting to her time with him five to 10 per cent of the time. He then returned to agreeing that for overnights “anxiety is…an absolute major issue” for the older child and suggested that it would take “maybe six weeks” of spending overnight time with him after which this child would not have any difficulties.
As I understand it, the mother and father are of different ethnic heritages. Although neither parent deposes to any matters related to the culture and traditions associated with their respective heritage or their lifestyles and background, it can be assumed that it would be a loss to the children to be deprived of their father’s culture and traditions which may occur if they are to have no relationship with the father in the future. There is, however, no evidence about the extent to which paternal culture and traditions have been adopted within the family already and may be maintained in this way and there is a possibility that the children will have contact with some of their extended paternal family under the parenting arrangement proposed by the mother.
A particularly concerning feature of the father’s derogatory and insulting language towards the mother and her family is that it has an overtly racist tone with respect to the maternal ethnic heritage. In my view, there is a real risk that the father will continue to denigrate the children’s maternal ethnic heritage and traditions and the maternal family generally if orders are made as he seeks providing for the children’s regular time with him to be unsupervised. I attach weight to the evidence of the father’s inability to control himself with respect to emotional matters and the umbrage he takes at the involvement of the maternal family in the breakdown of his family together with his evident feelings of superiority over the maternal father in many domains including race, education and occupation which are all clear themes in the language he has used, in coming to this view. Any ongoing denigration of the children’s maternal heritage I consider likely to be experienced as confusing and distressing by the children.
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The opinion of the expert that both parents express their love for the children and appeared to have been active parents is consistent with the evidence in the proceedings.
Despite some matters raised in the father’s evidence about the failure of the mother to protect the children from risks in the extended maternal family (albeit that this is inconsistent with his final proposal), the expert was not challenged on her opinion that the mother indicated her willingness and demonstrated her capacity to provide for the children with the degree of parenting they require including meeting their need for safety, individual attention, emotional support and opportunities to socialise with family, peers and the community.
The expert reports that the father argues he is capable of parenting the children and meeting their individual requirements and developmental needs but in discussion was unable to identify their needs and what would be required. This is consistent with the evidence in these proceedings as previously discussed when considering other matters.
Family violence relating to the children or a member of the children’s family
The mother spoke to the expert about changes in the father’s behaviour over the course of their relationship and following separation towards herself and the children which led to increased anger in managing situations which the mother found inappropriate and of concern. This is consistent with my findings that the father’s behaviour at times has been concerning and inappropriate as well as being not child-focussed.
It is recorded by the expert that neither parent indicated that the children were exposed to “domestic violence” though the expert was not challenged on her opinion that they were exposed to the deterioration of the parents’ relationship which has likely impacted their emotional and psychological health.
When considering factual disputes between the parties in relation to this matter earlier in these Reasons, although I accepted the mother’s evidence and some of the father’s evidence as to these matters I also indicated that it was a matter to which I would return.
Having regard to my findings about disputed matters of fact, although I consider the father’s conduct as unacceptable and at times grossly offensive, I am not satisfied that it falls within the definition of ‘family violence’ in s 4AB of the Act being “violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful” (emphasis added).

A close examination of the mother’s evidence contained in her affidavit and under cross-examination reveals that she does not depose that the father’s conduct caused her to feel “fearful” or that she was otherwise ”coerced” or “controlled” by the father’s behaviour. Although the mother used the adjective “threatening” on a couple of occasions in her affidavit to describe the father’s communication with her she does not depose, nor was it contended of her behalf that the father’s communication had the effect of coercing or controlling her or causing her to feel fearful. On other occasions the mother expresses no more than “concern” about matters such as believing the father may be stalking her and does not otherwise depose to the impact that the father’s actions had upon her.
Overall, the tenor of the mother’s evidence was that she found the father’s comments and behaviour completely inappropriate and harassing but she does not express that it amounted to family violence. This is consistent with the mother reporting to the expert that she found the father’s increased anger towards the end of the relationship “inappropriate” and “of concern” rather than reporting that she had experience family violence at his hands.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
Both the proposed orders of the mother and ICL if made entail the risk of further proceedings to a greater extent than the father’s proposal.
The expert’s clear recommendation at the completion of her cross-examination is that the children’s time with the father should not be considered unless and until he has addressed the identified matters of concern. The alternate possibility raised by the expert ( which she ultimately moved away from) promoted by the ICL, would see the children have very limited “identity contact” with the father during the period that he addresses the matters the expert identified as posing a risk of harm to the children.
The expert did not recommend in either case that the parenting arrangement for the children be revisited except through further proceedings. In other words, both of these arrangements raise the spectre of the father instituting further proceedings if he considers that he has satisfactorily addressed these matters, especially as the expert also opined that losing his relationships with his children is likely to be strong motivator for the father.
While the institution of further proceedings is generally considered to be best avoided, and is more likely to eventuate if orders are made as proposed by the mother and ICL, I do not consider that this matter is weighty in these proceedings. Other issues such as the risk of harm posed by the father and serious limitations in his capacity to meet the children’s needs must be prioritised.
CONCLUSION
Parenting orders
As noted at the commencement of these Reasons, the parties have reached agreement that the children are to live with the mother and it is proper and in their best interests for her to hold sole parental responsibility for them.
For the reasons given I attach the greatest weight to the need to protect the children from harm in resolution of this dispute and my finding that if orders were made as proposed by the father the children would be at an unacceptable risk of harm is effectively determinative. When considering the father’s proposal and the two alternate proposals of the mother and ICL I also attach weight to the nature of the children’s relationships with each parent and the capacity of each parent to provide for the children’s needs. Having regard to all of the foregoing considerations and attaching particular weight to the identified matters for the reasons explained, I consider that the orders proposed by the mother are proper and in the children’s best interests. Accordingly, I make orders substantially in the terms proposed by the mother, subject to some minor amendments.
The unacceptable risk of harm posed by the father to the children and shortcomings in his capacity to meet their needs have been clearly identified in these Reasons, together with a pathway that he may choose to follow if he wishes to address these matters in a meaningful way. It is to be hoped, consistent with the expert’s opinion, that the father’s desire to have a relationship with his children will be a strong motivator for him to address the identified matters which leaves open to him the opportunity to seek further orders in the children’s best interest if such matters are satisfactorily addressed.
THE ICL’S COSTS
As touched upon earlier, at the conclusion of the final hearing on 17 November 2021, the ICL made an application that the parties pay in equal shares her costs incurred in the proceedings.
Both parties and the ICL were ordered to file their respective final written submissions, which was to include their submissions in relation to the ICL’s application for costs.
The ICL attaches to her written submissions filed 6 December 2021 a Costs Notice which specifies that the total amount that she seeks to be paid by the parties in equal shares is $15,628.80. That is, she seeks an order that each party to pay $7,814.40.
According to the ICL’s Costs Notice, the total amount to be paid by the parties comprises the ICL’s professional costs, including a basic composite fee of $3,300 for work done from the date of the ICL’s appointment (26 June 2019), and other disbursements including monies paid by the ICL for subpoenas issued in the course of the proceedings.
The mother opposes the ICL’s application for costs and otherwise submits in her written submissions filed 6 December 2021 that if the Court were minded to make such an, the father should meet a greater proportion of those costs than her.
The father did not address the issue of the ICL’s costs in written submissions filed on his behalf on 6 December 2021.
The law and discussion
Applications for costs in this Court are the exception to the rule. Section 117(1) of the Act sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to subsection (2) which gives a Court discretion to make an order for costs if there are circumstances that in the Court’s opinion justify it in doing so. Any such order for costs is to be pursuant to s 117(2) “as the Court considers just”.
The High Court in Penfold v Penfold[20] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[20] (1980) 144 CLR 311.
Relevantly, the Act also makes specific provision in s 117 for orders as to the costs of an ICL. In particular, ss 117(3) - (5) provide the following:-
(3)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(i)a party to the proceedings has received legal aid in respect of the proceedings; or
(ii)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation
to the costs of the independent children's lawyer.
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
The Court is conscious of the restrictions provided in s 117(4) of the Act that an order against a party in favour of an independent children’s lawyer must not be made if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the independent children’s lawyer’s costs.
In the present case, neither party received Legal Aid in the proceedings. There is also no evidence to suggest that either of them would suffer financial hardship if ordered to bear a proportion of the ICL’s costs. Both parties are self-employed and run their own respective businesses from which they earn an income. Both parties were also legally represented throughout the proceedings with counsel briefed at the final hearing. Although the mother submits that she is primarily responsible for meeting the costs of the children and is receiving minimal child support from the father, it is not submitted on her behalf that an order for costs in the ICL’s favour will cause her financial hardship.
Accordingly, the Court can consider making an order in relation to the costs of the ICL, subject to s 117(2A) which sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. The matters that are relevant in these proceedings will be considered and balanced below, noting that there is nothing preventing any one factor being the sole determinant for an order for costs.[21]
[21] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF &LKL (2005) 33 Fam LR 123.
The financial position of each of the parties to the proceedings
In the absence of Financial Statements filed by the parties, the specific respective financial circumstances of the parties is largely unknown. However, in light of my earlier observations about their employment and engagement of lawyers in the proceedings, I do not consider that either party would suffer financial hardship if an order was made that they contribute to the ICL’s costs.
The conduct of the parties to the proceedings in relation to the proceedings
I accept the submission made on the mother’s behalf that she has conducted herself appropriately throughout the proceedings including by complying with filing directions in a timely manner and not causing any delay in the proceedings by her conduct generally. The mother relies on an affidavit filed by her lawyer dated 1 December 2021 in which the lawyer deposes to steps taken on her behalf to ensure that appropriate evidence was before the Court. This includes corresponding with the ICL to ensure that the father undertakes CDT testing as ordered and prompting the ICL on numerous occasions about the issuing of subpoenas to relevant agencies and organising the production and inspection of documents.
The father chose not to address the issue of ICL costs in his final written submissions and I am satisfied that his conduct in the proceedings has been somewhat counterproductive.
Court records indicate that the father twice failed to comply with trial directions. On the first occasion of non-compliance the father’s lawyer wrote to the Court on his behalf advising of a serious medical condition that impacted the father’s capacity to meet the filing timetable and both the mother and ICL consented to a brief adjournment to allow him to file the relevant material.
On the second occasion, however, no explanation for non-compliance was proffered on the father’s behalf and at the compliance court event before the Registrar, the Registrar noted that in addition to failing to file all relevant material, the father did not file documents “in proper form” in accordance with the Court’s directions. As the practice in this registry is not to allocate trial dates until all trial directions have been complied with, I am satisfied that the father’s conduct prevented the allocation of trial dates and thus delayed the matter proceeding to final hearing at an earlier stage.
Whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court
In support of her case that she should not be ordered to pay a portion of the ICL’s costs, the mother also submits that she instituted proceedings in circumstances where the father ignored her requests that he spend no unsupervised time with the children in light of various risks of harm the mother contended were posed by the father.
I do not consider that this matter as contended by the mother is relevant to the particular provision upon which the mother appears to rely, being s 117(2A)(d). That provision requires that the Court have regard to “whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court”.
The mother does not refer to the father failing to comply with previous orders made by the Court which brought about proceedings. Rather she relies on his conduct that she says was against her wishes and that motivated her to seek orders relating to the children’s future parenting arrangements. For similar reasons, I cannot also be satisfied that such conduct by the father amounts to conduct “in relation to the proceedings” that may otherwise be a relevant matter in the determination of the costs application.
Whether any party to the proceedings has been wholly unsuccessful in the proceedings
I consider it a weighty matter in determining the ICL’s costs application that the father has been wholly unsuccessful in his application for parenting orders relating to the children’s time with him. For reasons discussed at great length, I consider that the orders proposed by the mother are proper and in the children’s best interests.
Such other matters as the court considers relevant
The other matters which I consider relevant in determining the ICL’s costs application are set out in the ICL’s written submissions.
The ICL who is employed by Legal Aid NSW submits that in accordance with Legal Aid’s policy, unless a party has applied for or sought an exemption or waiver of costs from Legal Aid, she is required to make an application for costs at the conclusion of the proceedings.
The ICL also submits that a condition of her appointment as ICL to the proceedings is that any party who is not in receipt of Legal Aid must pay a portion of the “basic composite fee of $3,300” which the ICL explains is a compulsory fee for anticipated costs and disbursements for work done up to but not including the defended hearing of the matter. The ICL says that such fee is usually payable within seven days of the ICL’s appointment and that while she did not press for such payment in that time frame, neither party has met any part of their share of these fees to date.
In these circumstances, and noting that neither party has applied for an exemption or waiver of costs from Legal Aid and as I am otherwise satisfied that each party has some financial capacity to meet a costs order, each party remains liable to pay their share of the outstanding amount owed to the ICL in accordance with Legal Aid’s policy.
It should be noted in this regard that the mother in her submissions did not raise any impediment in meeting her share of the ICL’s composite fee and while no submissions were made on behalf of the father in relation to this matter (or at all) I find no reason why the entire burden of costs arising from private civil litigation between the parties should fall on the public purse. It is just in my view that both parties be required to pay their share of the basic composite fee.
The ICL in support of her costs application also asserts that she has discharged her obligations as ICL in an appropriate manner. She lists various steps taken by her to assist in the progress of the proceedings.
In my view, the total costs incurred by the ICL for her involvement in the proceedings is a reasonable sum having regard to the context of these proceedings and the various court events that have taken place since she was appointed in June 2019.
Conclusion
Balancing the foregoing matters, I am satisfied that orders that the parties contribute to the costs of the ICL is justified.
So far as the father is concerned, I consider it justified in light of his conduct in the proceedings and as he was wholly unsuccessful, that he pay his half-share of the ICL’s costs being the amount of $7,814.40.
While I do not consider that an order that the mother pay her half-share of the ICL’s costs is justified in the circumstances, given she has some capacity to meet an order for costs as discussed, I am satisfied that she should pay her share of the basic composite fee owed to the ICL totalling $1,650.
Orders are made accordingly.

I certify that the preceding four hundred and seventy-six (476) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 14 July 2022

File number(s):	PAC 2869 of 2019
Judgment of:	HANNAM J
Date of judgment:	14 July 2022
Catchwords:	FAMILY LAW – CHILDREN – Where dispute relates mainly to children’s time with the father – Where mother alleges that father poses an unacceptable risk of harm to the children on a number of bases including in relation to his alcohol misuse, perpetration of family violence and inappropriate sexualised behaviour - Where Court finds that father’s alcohol use gives rise to a need to protect the children from harm associated with neglect – Where Court finds father engaged in unacceptable and grossly offensive behaviour but that such behaviour does not fall within the definition of ‘family violence’ in the Family Law Act - Where Court finds that the children are at risk of physical and psychological harm as a result of the father’s inappropriate sexualised conduct towards them which causes them to be acclimatised to an environment that is sexualised and is sexualising them which increases the risk of sexual abuse by others – Where Court finds that a comparatively small risk of really serious harm amounts to unacceptable harm - Where Court holds concerns about the father’s capacity to meet the children’s needs on the basis of his emotional state and decision-making around emotional issues - Consideration of identity contact and its origins in the child protection system - Where Court finds that identity contact is not appropriate where children will maintain a close connection with one biological parent - Where Court also finds that identity contact does not take priority over protecting children from harm or contact with a person who poses a risk of harm - Orders made in accordance with mother’s proposal subject to minor amendments. FAMILY LAW – COSTS – ICL costs - Where ICL seeks an order that the parties pay the ICL’s costs in equal shares - Where mother opposes ICL’s costs application - Where father did not address issue of ICL’s costs in his written submissions - Where Court observes that each party has financial capacity to meet an order for costs - Where Court considers it justified that an order be made that the parties contribute to the ICL’s costs - Where in light of father’s conduct in the proceedings and as he was wholly unsuccessful, father ordered to pay his half-share of ICL’s total costs - Where in the circumstances the Court considers it just that mother only pay her half-share of ICL’s basic composite fee - Orders made accordingly
Legislation:	Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 65D, 117
Cases cited:	Fitzwater v Fitzwater (2019) 60 Fam LR 212 Isles & Nelissen [2022] FedCFamC1A 97 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-40 PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF &LKL (2005) 33 Fam LR 123 Penfold v Penfold (1980) 144 CLR 311
Division:	Division 1 First Instance
Number of paragraphs:	476
Date of last submissions:	6 December 2021
Date of hearing:	15-17 November 2021
Place:	Parramatta
Counsel for Applicant	Ms Lioumis
Solicitor for Applicant	Karen L Haga & Associates
Counsel for the Respondent	Mr Harper
Solicitor for Respondent	Hills Family Lawyers
Counsel for the Independent Children’s Lawyer	Ms Rebehy
Solicitor for Independent Children’s Lawyer	Shedden & Associates

PAC 2869 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CONTE Applicant
AND	MR GALANAS Respondent
and	INDEPENDENT CHILDREN’S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	14 JULY 2022