Culbert & Culbert (No 2)

[2023] FedCFamC1F 1127

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Culbert & Culbert (No 2) [2023] FedCFamC1F 1127  

File number(s):

NCC 1363 of 2021

Judgment of:

SMITH J

Date of judgment:

21 December 2023

Catchwords:

 FAMILY LAW – CHILDREN – With whom children live – Best interests of children – Child disclosed being sexually touched by step-brother – further disclosure of being sexually touched by father – further disclosure of being sexually touched by step-sister – Mother extensive history of mental health issues – Mother experienced paranoid, irrational and bizarre thoughts and beliefs – Mother refused recommended medication and ongoing treatment - Mother denied having any past or ongoing mental health impairments – Mutual allegations of family violence during relationship – Father attributed conflict to mother’s mental health – Mother attributed her mental health issues to family violence perpetrated by the father – Mother alleges father was coercive and controlling - Mother’s mental health caused her to have suspicions about the father sexually abusing child prior to any disclosures – No foundation for such suspicions – Mother’s suspicions caused her to lead the child into making a disclosure of sexual touching - Mother praised and encouraged child to make further disclosures – Child has not been sexually abused by the father – The step-siblings do not pose a risk to the child – Second child has become aware of allegations - Mother has unintentionally caused the children psychological harm as a result of her mental health impairment – Mother’s fixed belief poses a serious but not unacceptable risk of ongoing harm to the children – Risk to be weighed against the risk of grave psychological harm to the children of the termination or long term restriction of their relationship with the mother – No submission by ICL or father for a no-time or no-communication order - Neither party poses a risk to the children of family violence.

FAMILY LAW – Orders: Child to live with father – Change of residence - Father to have sole parental responsibility – Child to spend time with mother – Time with mother conditional on mother complying with injunction not to convey or reinforce false belief of sexual abuse - Father to engage the children in therapy to support change in circumstances – s 68B injunction against parties from discussing proceedings or sexual assault allegations – ancillary orders.

Legislation:

Evidence Act 1995 (Cth) Pt 4.1, s 140

Family Law Act 1975 (Cth) Pts VII, XIV ss 60CA, 60CC, 60CG, 65AA, 65DAA, 68B, 114

Cases cited:

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

Isles & Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97

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

Division:

Division 1 First Instance

Number of paragraphs:

325

Date of hearing:

5-6 September 2022, 22-24 March 2023, 30 March 2023

Place:

Newcastle

Counsel for the Applicant:

Mr Bithrey

Solicitor for the Applicant:

Lucy Urach & Associates

Counsel for the Respondent:

Ms Gibbons

Solicitor for the Respondent:

Swifte Law

Counsel for the Independent Children's Lawyer:

Mr Bateman

Solicitor for the Independent Children's Lawyer:

Sharon Moore Solicitor

ORDERS

NCC 1363 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CULBERT

Applicant

AND:

MR CULBERT

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	SMITH J
DATE OF ORDER:	21 DECEMBER 2023

THE COURT ORDERS THAT:

1.Discharge all extant interim parenting orders.

Parental responsibility

2.The father, Mr Culbert born 1982 (“the father”) is to have sole parental responsibility for making decisions about the major long term issues concerning the child X born 2014 and the child Y born 2017 (“the children”), including as to the care, welfare and development of the children.

These issues include but are not limited to the children’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.

3.However, the father is restrained by injunction from changing the childrens’ schools before first term of 2025.

4.The father shall notify the mother, Ms Culbert born 1982 (“the mother’) in writing of any significant decision within 14 days.

5.For the avoidance of doubt, each parent shall have sole responsibility for day-to-day decision making when a child is in their care.

ICL may explain in the interim

6.The ICL may, but is not required to, explain to the children the effect of these orders prior to 10 January 2024.  If the ICL considers it appropriate to do so the mother is to do all things reasonably necessary to facilitate that process.

Live with and change of residence

7.The children shall live with the father.

8.The children’s primary residence shall change through Court Child Services at the Registry on Wednesday 10 January 2024.

9.The mother shall deliver the children to Court Child Services between 11.30am and no later than 11.45am on 10 January 2024 and shall depart the premises.

10.The father shall attend at Court Child Services at 12pm on 10 January 2024.

11.A Court Child Expert will explain the change of residence to the children.

12.The Independent Children’s Lawyer, may but need not, attend at the changeover.

Time with the father prior to change of residence

13.The children shall spend 26 December 2023 with the father from 10.00am until 2.00pm.

14.The children shall spend two days with the father from 10.00am until 3.00pm and then two days with the father from 10.00am until 4.00pm between 26 December 2023 and 9 January 2024 as agreed.

15.Failing agreement, the children will spend 29 December 2023 and 2 January 2024 between 10am and 3pm, and 4 January 2024 and 6 January 2024 between 10am and 4pm, with the father.

16.For the avoidance of doubt there is no supervision requirement and the father may spend the time with the children at his house and in the company of his family.

17.The change over locations shall be as specified in these orders.

Counselling

18.The father shall, as soon as is reasonably practicable, obtain a referral for the children for counselling as necessary and engage a counsellor to assist the children in managing their emotional and psychological wellbeing through the transition in living arrangements, and to assist the children to understand that they have unintentionally gained a false belief that Y was sexually abused.

19.A copy of these Orders and the accompanying Reasons for Judgment are to be given to the counsellor.

Injunction on promoting false belief

20.Pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the mother be restrained, whether directly or indirectly, from conveying to the children, reinforcing in the minds of the children, or not correcting the children if they say to her, that Y was sexually abused or sexually touched by the father, or that the father poses a risk of sexual harm to the children, or that either C born in 2014 or D born in 2016 pose a risk of harm to the children.

21.Pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the mother be restrained from knowingly allowing or permitting any other person, whether directly or indirectly, from conveying to the children, or reinforcing in the minds of the children, that Y was sexually abused or sexually touched by the father, or that the father poses a risk of sexual harm to the children, or that either C born in 2014 or D born in 2016 pose a risk of harm to the children.

22.The mother is restrained from permitting the children to call Mr E, or any other person, “dad” or “daddy”.

Restraints

23.Each parent is restrained from discussing the Court proceedings within the presence or hearing of the children and shall not allow any other person, other than a Court Child Expert or the Independent Children’s Lawyer or a treating counsellor to do so.

24.Each party is restrained by injunction from approaching within 100 metres of the other party’s residence, unless specifically invited to do so, or from approaching within 100 metres of the other party’s, or party’s partner’s, place of work.

25.That during the time the children are in the care of either parent, that parent shall:

(a)Not question the children about the personal life of the other party; and

(b)Speak of the other party and their household respectfully; and

(c)Will use their best endeavours not to expose the children to any other person denigrating or insulting the other party, either within the hearing or presence of the children or on social media platforms.

Time and communication with mother - if mother complies with injunctions

26.The mother’s compliance with the injunctions in these orders is a condition precedent to any time the children shall spend time with the mother, and to the communication the children shall have with the mother.

School term time

27.The children shall spend each alternate weekend with the mother from 3.00pm or after school Friday until 9.00am or the commencement of school Monday in week one.

28.If the Monday is a public holiday and school recommences on a Tuesday the children’s time shall be extended to the commencement of school on the Tuesday.

29.The children shall first spend time with the mother commencing on Friday 12 January 2024.

30.In the alternate week the children shall spend time with the mother from 3.00pm or after school until 5.30pm Thursday.

School holidays

31.The children shall spend half of each of the four school holiday periods with each parent commencing with the holidays at the end of term 1, 2024.

32.The children shall spend the first half of each school holiday with the mother in odd numbered years, and the first half of each school holiday with the father in even numbered years.  They shall spend the second half of each school holidays with the other parent.

33.For the purpose of these Orders the school holidays are deemed to commence on the first day after the last school day for all of the children, and to end on the last day before school commences for any of the children.

34.In calculating the mid-point of the long holiday period, the last and first days of school shall be excluded, and if there is no mid-point day then the parent with who they are spending the second half of the holidays shall have the extra day.

35.For the purpose of these orders during the short school holiday the changeover will occur at 2.00pm on the second Saturday and the children’s change-over back will occur at 2.00pm on the last day of the holiday.

36.For the purpose of these orders during the long school holiday the children’s change‑over will occur at 2.00pm on the day which is the mid-point of the holiday, and the children’s change-over back will occur at 2.00pm on the last day of the holiday.

Special occasion time

37.The children shall together spend time with the parent they are not otherwise living with/spending time with on each of their birthdays and on each of the parent’s birthdays as agreed and failing agreement between 4.00 pm and 6.00 pm.

38.Notwithstanding any other Order herein, the children shall spend time with the mother from 9.00 am until 5.00 pm on Mother’s Day.

39.Notwithstanding any other Order herein, the children shall spend time with the father from 9.00 am until 5.00 pm on Father’s Day.

Communication

40.The children shall communicate with the mother by audio-visual means for 30 minutes at least twice per week at times as agreed.

41.Failing agreement the children shall communicate with the mother by audio visual means each as follows: 

(a)On the Tuesday after a weekend with the mother at 5pm.

(b)On the Saturday in which they are in the care of the father at 5.00pm.

(c)On the Monday after a weekend with the father at 5.00pm.

(d)On the Wednesday after a weekend with the father at 5.00pm.

42.The father is to do all things reasonably required to facilitate this communication.

43.The father is to do all things reasonably required to facilitate such communication at other times if the children are distressed and want to speak with the mother for comfort.

Time and communication with mother - if mother does not comply with injunctions

44.In the event the father forms the genuine belief that the mother has breached the injunctions the father may give a written notice to the mother alleging that a breach or breaches have occurred (“the Notice”).

45.On the giving of the Notice all of the children’s time and communication with the mother pursuant to these Orders shall be suspended and the children shall only spend supervised time with the mother in accordance with the following Orders.

46.On the giving of the notice the children shall spend supervised time with the mother at F Family Services, or a similar children’s supervision service as agreed between the parties, (“the Centre”) at the first available opportunity, and thereafter at such regular times as the Centre can accommodate, but on not less than a fortnightly basis for a period of two (2) hours, unless unavailable, and for that purpose:

(a)within seven (7) days of the giving of the Notice each parent shall do all acts and things and sign all documents reasonably necessary to undertake whatever reasonable intake procedures are required of them and thereafter adhere to the rules of the Centre; and

(b)The parents shall share equally the costs of the Centre.

47.If the mother disputes the Notice of breach of the injunction she may file an Application in this Court to determine the alleged breach.

48.The children’s time with the mother shall be supervised until such time as the issue of the alleged breach of the injunction is determined.

49.If the mother does not dispute the Notice then the supervision shall continue.

Changeovers

50.Changeovers are to occur through school or otherwise inside the McDonald's Family Restaurant, G Street, Suburb H.

51.The parties may send a delegate known to the children or may attend in person.

Exchange of information and communication

52.The parties will keep each other informed of their telephone numbers, email addresses and residential addresses, and will notify each other within 24 hours of any change to those details.

53.The parties will communicate by text message, excepting in case of urgency or emergency in which case they may telephone.

54.The parties will communicate in a polite and civil manner at all times.

55.The parties will act in a polite and respectful manner at change overs.

Health and Education

56.Both parties be permitted to receive from any school, day-care, extra-curricular organisation, counselling, or medical facility the children attend, any documents or information ordinarily provided to parents at each parent’s cost.

57.Both parties be permitted to attend any school, extra-curricular organisation, or medical facility the children attend, for the purpose of any event, appointment or function ordinarily attended by parents.

58.Should the children suffer an injury or illness and require professional medical attention the party they are to notify the other as soon as practicable and provide them the details of the treating medical professionals.

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 Culbert & Culbert has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

SMITH J:

INTRODUCTION

1. These proceedings are about what parenting orders pursuant to the Family Law Act 1975 (Cth) (“the Act”) are in the best interests of X (born 2014) aged 9 and Y (born 2017) aged 5 (“the children”).

2. The major factual issue is whether Y was sexually abused by her father, Mr Culbert (born 1982) aged 41 (“Mr Culbert” or “the father”).

3. Y’s mother, Ms Culbert (born 1982) aged 41 (“Ms Culbert” or “the mother”) holds the unshakeable belief that the father sexually abused Y. 

4. The father denies this.  He says the mother suffers from poor mental health, including paranoia.  He holds the equally unshakeable belief that the mother coached Y to make false allegations of sexual abuse post separation.

5. The mother denies that she has, or had, any relevant mental health impairment.  She attributes her recorded mental health history, which she minimises, to the father’s conduct and says it is in any event irrelevant.  She denies intentionally, or inadvertently, coaching Y to make disclosures.

6. The matter is complicated by the fact that Y, then three years old, first made a disclosure about being sexually touched by the father’s new partners’ six year old son C, then later said she was also sexually touched by the father, and then later that she was sexually touched by C, the father and also by D, the father’s new partners’ four year old daughter.  The father’s new partner is Ms K.

7. The main issues at Trial were:

   (1)The mother’s mental health, and whether it has any relevance to the facts in issue; and;

   (2)Whether Y was sexually abused by the father, or sexually touched by C and / or D, and if not whether Y’s disclosures about sexual abuse by the father, and/or by either or both of her step-siblings, were the result of leading questions by the mother, whether malicious or inadvertent; and;

   (3)Whether the father poses an unacceptable risk of sexual harm to Y; and;

   (4)Whether C and / or D pose an unacceptable risk of harm to Y by reason of the father’s refusal to consider they may be hurting Y; and;

   (5)Whether the mother poses an unacceptable risk of psychological harm to Y, and X, through the conveyance and maintenance of a false belief of sexual abuse; and;

   (6)The parties’ mutual allegations of family violence throughout their relationship.

8. For reasons set out below, in summary, I find that the mother suffers from a long standing untreated mental health impairment which results in paranoid and irrational thoughts and beliefs and fears, particularly directed at the father. 

9. I find that this caused the mother to hold suspicions that the father was sexually abusing Y, with no foundation for such suspicions, before any disclosure was made. 

10. I find that the mother’s suspicions caused her to lead Y into making a disclosure of sexual touching when she asked Y, whose genital region was sore, whether it was because someone touched her there.  This resulted in a disclosure that C had touched her that morning, when C had not in fact been present.

11. I find that the mother then praised Y and encouraged her to make further disclosures and that this resulted in Y disclosing that “a big person” also touched her genitals.  Only when pressed to identify the “big person” did Y identify the father as the “big person” who also touched her. 

1. I find that this process of praise, and the expectation to continue making disclosures, lead Y to also disclose that D had also sexually touched her.

2. I find that Y has not been sexually abused by the father.

3. I find that while it is possible that, at some stage, C has touched Y’s genital region in exploratory play, that the father and Ms K are aware of the issue and that C and D do not present a risk to Y.

4. I find that the mother has, unintentionally, caused Y and X psychological harm by causing them to falsely believe that the father has sexually abused Y.  I find that the mother’s fixed belief that the father sexually abused Y, in the context of her untreated mental health impairment, poses a serious risk of ongoing harm to Y and X through the continuing propagation of this false belief.

5. On that basis, I make orders for the children to live primarily with the father and for the father to have sole parental responsibility, and orders for the children’s time with the mother to be conditional on her complying with an injunction against continuing to convey or promote the false belief in order to balance the risk of the mother continuing to promote the false belief to the children against the clear harm they will suffer if their relationship with their primary attachment figure, the mother, is terminated or severely limited.

   HISTORY

   Relationship background

6. The parties met in 2010.  They commenced cohabitation in 2011 and moved to City L.  They married in 2012.  They had the children in 2014 and 2017. 

7. There was significant conflict in the relationship involving mutual allegations of family violence particularly from mid-2018.  The father attributed the majority of the conflict to the mother’s poor mental health.  The mother denied any serious mental health impairments and attributed any mental health issues to the father’s conduct.  The parties separated on a final basis on 12 December 2019.  They divorced in 2021.

8. The mother lives with the children in the 3-bedroom former matrimonial home at M Street, Suburb N, NSW.  She retained the house in the property settlement.  The mother had been a communications professional but now works part-time with a NSW government department.

9. Post separation the mother formed a relationship with Mr E (born 1985) aged 37.  He is employed full-time as a tradesperson.  He does not have any children.  By 21 September 2021 Mr E was occasionally staying at the mother’s home.[1]  At Trial Mr E was spending between three and seven nights per week at her home.

   [1] ICL 2, Child Inclusive Conference Memorandum p.2.

10. Following separation the father moved to an apartment in Suburb RR.  The children lived with the mother and spent regular time with the father. 

11. In late 2020 the father met his current wife, Ms K (born 1990) aged 33.  The father commenced spending time with Ms K including overnight time at her property.  By late 2021 he was living with her in her property.[2]  They married in late 2021.[3]  The children’s time with the father gradually came to include time with Ms K, C and D.

    [2] Ibid.

    [3] Father’s Trial Affidavit filed 22 July 2022 at [18].

12. The father and Ms K live together with her two children, C (born 2014) aged 8 and D (born 2016) now aged 6 (“the step-siblings”) at O Street, Suburb P NSW.  That is over an hour from Q School where the children attend.[4] 

    [4] Exhibit G, The father’s evidence was 49 minutes, the mother’s 64 minutes.

13. Ms K is employed full-time as a manager, however, at Trial she was expecting a child with the father.  The father was not working at the time of the Family Report interviews.[5]  He declined to state an occupation or employer during his evidence due to his concerns about the mother. 

    [5] Exhibit ICL 1, Family Report at [5].

    Proceedings and disclosures

14. The mother filed an Initiating Application on 28 April 2021 seeking Orders with respect to parenting and property.  The father filed his response on 7 June 2021.  On 9 June 2021 Orders were made for the parties to attend upon a Child Inclusive Conference.

15. In mid-2021, Y, made her first disclosure of sexual touching.  That disclosure was in relation to C who was then six years old. 

16. Some days later, Y made a disclosure that the father had also touched her sexually.  The mother disclosed the allegation about C to the father.  The mother did not disclose to the father that there was also an allegation about him. 

17. In late 2021 Y made a similar disclosure about D, then four years, in the context of confirming the disclosures about C and the father . 

18. The parties attended the CIC on 21 September 2021 with a child court expert Mr R (“the expert”).  A report of that date was released.[6]  The mother told the expert about the disclosures regarding C and the father.  She did not mention the allegation regarding D.  It was only as a result of the CIC that the father became aware of the disclosure concerning him.

    [6] Exhibit ICL 2, Child Inclusive Conference Memorandum.

19. The property proceedings were finalised by consent on 8 October 2021.  On 26 October 2021, the mother filed an Amended Application seeking orders that the children spend supervised time only with the father.

20. On 1 November 2021, orders were made for the appointment of the Independent Children’s Lawyer (“ICL”).  On 10 November 2021 the matter was transferred to Division 1 and allocated into the Magellan Protocol, with orders made for the preparation of a Magellan Report.

21. On 14 February 2022, a Justice of this Court made interim orders that the children live with the mother and spend professionally supervised time with the father and ordered a Family Report.  The Family Report dated 4 April 2022[7] was prepared by Mr R. 

    [7] Exhibit ICL 1, Family Report.

22. On 3 June 2022 the matter was set down for final hearing commencing Monday 5 September 2022.

    Trial

23. The Trial commenced on Monday 5 September 2022 with each party and the ICL legally represented including by counsel.

24. The applicant mother filed a court book of 172 PDF pages.[8] The mother relied upon or read:

    (1)Amended Initiating Application filed 22 July 2022;[9]

    (2)Trial affidavit filed 22 July 2022;[10]

    (3)Affidavit of Mr E filed 22 July 2022;[11]

    (4)Case Outline filed 2 September 2022;[12] 

    (5)The Court Book also included a tender bundle, which was ultimately tendered by the ICL;[13]

    [8] MFI 1.

    [9] Ibid p.1.

    [10] Ibid p.15.

    [11] Ibid p.82.

    [12] MFI 2.

    [13] Exhibit ICL 6, MFI 1 pp.140-169.

25. The respondent father filed a Court Book consisting of 197 PDF pages.[14] The father relied upon or read:

    (1)Response to Initiating Application filed 7 June 2021;[15]

    (2)Notice of Child Abuse, Family Violence or Risk filed 7 June 2021;[16]

    (3)Trial affidavit filed 22 July 2022;[17]

    (4)Affidavit of Ms K filed 22 July 2022;[18]

    (5)Case Outline filed 30 August 2022;[19]

    [14] MFI 3.

    [15] Ibid p.1.

    [16] Ibid p.28.

    [17] Ibid p.55.

    [18] Ibid p.120.

    [19] MFI 4.

26. The Independent Children’s Lawyer (“ICL”) provided a Court Book of 74 PDF pages,[20] and tendered or relied upon:

    (1)Child Inclusive Conference Memorandum to Court dated 21 September 2021 (“the CIC”);[21]

    (2)Family Report dated 4 April 2022;[22]

    (3)Magellan Report undated;[23]

    (4)Case Outline filed 4 September 2022.[24]

    [20] MFI 5.

    [21] Exhibit ICL 2, Ibid p.68.

    [22] Exhibit ICL 1, Ibid p.8.

    [23] Exhibit ICL 3, Ibid p.58.

    [24] MFI 6.

27. The mother was called on day one and cross-examination for the father commenced. 

28. In cross examination on her mental health records the mother was cross examined about a mental health history taking in 2018 which recorded that in December 2014 she was “hearing some voices and sensing a presence”.  She disputed the notes and said “I’ve never heard voices in my life”.[25] 

    [25] Transcript 5 September 2022, p.31 line 20 to p.32 line 40.   

29. In the context of being asked about whether she accepted the result of the closed police investigation, the mother stated that the police investigation was in fact still ongoing and that she was aware of that due to an email she had received.  The email was called for and produced overnight. At the commencement of day two the email dated mid-2022 advising a further investigation was in progress was tendered.[26]

    [26] Exhibit ICL4.

30. An oral application was made by the father to adjourn the trial part heard, to protect his rights in relation to an ongoing criminal investigation.  That application was not opposed.  A short separate Judgment was given.  The matter was adjourned part-heard to a date to be fixed.

31. The father foreshadowed an application to have the mother examined by an independent psychiatrist and this was subsequently raised in procedural hearings.  As noted in the Orders of 7 October 2022 the application was not pressed due to the father’s inability to fund a Single Expert Report and the lack of Legal Aid funding for such a report.

32. The parties were notified that the police investigation had been closed. 

33. The matter was set down for a further three days commencing Wednesday 22 March 2023.  The parties were permitted to file and rely upon further material. 

34. The mother filed a supplementary tender bundle of 56 PDF pages of documents.[27] and a further supplementary tender bundle of 28 PDF pages of documents.[28] The father filed a supplementary tender bundle of 34 PDF pages of documents.[29] A 114 page bundle, which had been relied on in the interim hearing relating to the obtaining of expert evidence of the mother’s mental health on 7 October 2022, was tendered.[30]

    [27] MFI 8.

    [28] MFI 9.

    [29] MFI 10.

    [30] Exhibit F3, MFI 11.

35. The mother read a supplementary affidavit filed 6 March 2023.  

36. The father read a supplementary affidavit filed 13 March 2023. 

37. The mother, father, Ms K, Mr E and the expert were required for cross examination.  The evidence concluded within the three days.  The matter was stood over to Thursday 30 March 2023 for closing oral submissions.

38. Numerous documents were tendered from the Court books and tender bundles and became exhibits.  They are referred to as necessary.

    MOTHER’S MENTAL HEALTH

39. The mother’s mental health was raised as an issue by the father early in the proceedings.  There was no medical report or opinion on the mother’s mental health status.  The father sought the appointment of a single expert psychiatrist at an interim hearing on 7 October 2022, after the matter went part heard.  However, there were no funds available to pay for one so no order was made.  The mother did not lead any evidence from any qualified or treating medical or mental health practitioner.  Her submission was that it was unnecessary as she does not have any mental health impairments.

40. While the evidence of the mother's mental health and family violence are interlinked it is convenient to deal with them separately, starting with the mother’s mental health.

    Father’s affidavit evidence

41. The father’s evidence was that in 2011 the mother commenced taking medication for “mental health issues” and that he then became aware she had been receiving assistance from a psychologist for “some time” prior.[31]  He said the mother stopped taking her medication during her pregnancy with X and that she resumed when no longer breast feeding. The father said that when not taking her medication the mother became “erratic, manipulative and verbally abusive”.[32]  He said the mother again stopped taking her medication whilst pregnant with Y and did not recommence.  He said she became both physically and verbally abusive towards him.  He said that when not taking medication the mother would accuse him of false things:[33]

    … including but not limited to having an affair, having another family interstate, being gay and having gay sex at public toilets, accusing me of getting a friend's younger sister pregnant, being an alcoholic, being addicted to drugs, being addicted to Panadol or prescription medication, having secret bank accounts, and hiding money.

    [31] Father’s trial affidavit filed 22 July 2022 at [78]–[80].

    [32] Ibid at [81].

    [33] Ibid at [88].

42. In this context of the allegations of sexual abuse the father told the expert that he believed “at some stage the mother has believed it to be real and that it has happened”.  That is the basis of his primary concern that the mother poses a risk of psychological harm to Y,[34] i.e., that the mother has falsely persuaded, and will continue to re-inforce, to Y that she was sexually abused by the father when she was not.  In this way the father says the mother has caused, and will continue to cause, Y the same psychological trauma as if she had been sexually abused by the father.  Similarly, X has become aware of the allegations that the father sexually abused Y, and if false, this belief is also likely to have ongoing negative psychological impacts on X.

    [34] Exhibit ICL 1, Family Report at [93].

    Child Inclusive Conference

43. The expert interviewed both parties but not the children.  The mother raised her concerns about “sexual abuse” by C and by the father.  She did not raise the disclosure regarding D. The father raised his concern about the psychological harm to the children from the mother’s “mental health and erratic behaviours”, her response to Y’s disclosures about C and inability to facilitate a relationship with him.[35] 

    [35] Exhibit ICL 2, Child Inclusive Conference Memorandum at [5].

44. Both parties also raised their cross allegations of verbal, psychological and physical abuse and controlling behaviours.[36]

    [36] Ibid at [8].

45. At that time there were no records in relation to the mother’s mental health. The expert recorded that:[37]

    [37] Ibid at [23]–[26].

    Mental health

    23. The mother presented with seemingly heightened anxiety through much of her interview and verbalised and apologised for speaking in “tangents,” however she was able to refocus herself and welcomed being refocused by the Family Consultant as required.

    24.The mother reports a period of about 4-5 months in 2016 where she was medicated with [medication] for anxiety. She reports having seen a number of counsellors and psychologists over many years from around 2010 (e.g. a counsellor by the name of [Mr S] in [Suburb T], [Ms U], domestic violence counsellor [Ms V] as noted earlier). She attributed all her mental health issues as being due to her experience of her relationship with the father and the family violence perpetrated by the father, emphasising the father’s psychological abuse of her as being “the most extreme form of gaslighting” she has heard of. Of her current mental health, the mother said “I’m actually very mentally well” and that she feels her anxiety heighten when speaking about the father.

    25.The father reports being aware of the mother suffering from anxiety and paranoia which he reports was mentioned by a psychiatrist who the mother had an argument with and only saw once around 2017/2018. He gave examples of his experience of the mother’s paranoia (e.g. believing that people “were out to get her,” believing that the maternal grandfather’s partner was attempting to poison her and the children, accusing the father of affairs), and reports that these beliefs would last 2-3 months before moving on and focusing on a new belief. He reports the mother’s concerning behaviour to have escalated while pregnant as she ceased medication, and that it heightened when pregnant with and after birthing [Y] as she did not return to using medication. The father is concerned that the mother not returning to using medication is of concern as her paranoid beliefs have escalated to the point of her actually believing that these are true.

    26.It appears agreed that the father does not have a formal history of mental health, however the mother described the father as being a narcissist. She also reports the father’s behaviour to be similar to that of the paternal grandfather who she reports married 4 women, ripped these women off for their money, and that he “ran off” with a niece of his.

    …

    (Emphasis in original)

    Family Report

46. The expert interviewed both parties, Ms K, Mr E and the children on 28 March 2022.  The expert recorded:[38] 

    91.The mother reports no formal diagnosis and only a brief past period of 4-5 months in about 2016 when she took prescribed medication […] in relation her mental health. The father reports believing that the mother was medicated for a more sustained period of time, that she ceased medication when pregnant with [X], recommenced medication at some stage after [X’s] birth, and ceased medication again when she was pregnant with [Y]. The father reports that, while she was “still angry and abrupt,” the mother “seemed far more balanced” when medicated previously and the extent of her behaviour, paranoia, and level of conflict between them and between her and her family members, friends and colleagues was not as bad. A note from psychologist [Ms U] (subpoena number 8) from April 2016 informs that the mother had commenced antidepressants. There does not appear to be any further information available regarding the mother’s history of prescribed medication in relation to her mental health.

    92.The mother was asked specifically about her mental health in 2018 based on a review of notes contained in information from [W Health Service] (subpoena number 8). The mother described the mention of “psychosis” (a word used by a treating psychiatrist at [OO Health Service] [in] June 2018) as being “unfortunate wording.” She explained that [Y] was born in 2017, she was in an abusive relationship with the father, that she was trying to run her business, and was experiencing postnatal anxiety, and that this combination of factors was placing her under great stress at the time.  Regarding the documented “sensory stuff” (i.e. documented “sensory hallucinations” as noted by psychologist [Ms U] [in] June 2018), the mother reports that she never saw or heard anything as suggested by [Ms U’s] notes, but that she felt like there was a presence in the house and […] does believe “that there’s something else out there.” She expressed feeling that the psychiatrist she saw at the time did not actually assess her properly and was presumptive in forming their view of her. The mother reports that she essentially helped herself at the time, with support from [Ms U], and that she was better two weeks later.

    (Emphasis in original)

    [38] Exhibit ICL1, Family Report at [91]–[92].

    Mother’s affidavit evidence

47. The mother’s trial affidavit, filed 22 July 2022, did not adequately address the historic evidence of impaired mental health set out in the subpoena material, which was available to her and her legal advisors, and which was raised with her by the expert in March 2022. 

48. The mother referred to the fact that in March 2020 the father refused to return the children until she provided mental health records.[39]  She said that she had “situational anxiety” and received treatment from her GP, recently started on a small dose of medication which she had previously taken for anxiety for a few months in 2016, and was attending counselling with a Ms V every two weeks.[40]  The mother did not address the issue in her updating affidavit filed 6 March 2023, despite the matter being raised with her in cross examination at the first hearing.

    [39] Mother’s trial affidavit filed 22 July 2022 at [54].

    [40] Ibid at [159].

    The subpoenaed records

49. The documents referred to by the expert, and others produced on subpoena, were tendered.  The mother was cross examined on them.  The mother’s history to the expert was of seeing counsellors from around 2010 and of medication starting in 2016.[41]  The available documents only went back to 2015.   

    [41] Exhibit ICL 2, Child Inclusive Conference Memorandum at [24].

50. Given the absence of any medical opinion evidence directed to the relevant issues I consider it is necessary and appropriate to set out the most relevant material in some detail to explain the basis on which I have formed the view I have concerning the mother’s mental health without the assistance of an expert opinion.

1. From at least late 2015 the mother was seeing Ms U, a clinical psychologist at W Health Service.  In May 2016, Ms U wrote to Dr YY.  She said she had discussed the mother’s anxiety with her, including how “she reacts before she thinks with her husband”, and that the mother was benefiting from her medication.  It was suggested that the mother would hopefully “be able to focus and see her anxiety as not just a reaction to external events”.[42]  The mother raised with Ms U the possibility she had a personality disorder.  However, Ms U did not consider that likely.  In June 2016 Ms U wrote to Dr Z noting that the mother had undertaken an on-line screen with the ZZ Program which “suggested a probable [mental health condition]” and that the mother was not concerned about pursuing any further assessments.[43] 

   [42] Exhibit F3, MFI 11 at p.51.

   [43] Ibid at p.52.

2. The parties’ relationship deteriorated from early 2018 with each party making allegations of increasing family violence.  Ms U continued to treat the mother on mental health referrals. [44]

   [44] Exhibit F3, MFI 11 at pp.52–58.

3. There was an event in early 2018 which involved ambulance and police attendance.  This was the first recorded police involvement in a domestic dispute.  The mother relied upon this as evidence of the father’s persistent family violence.  She said the father was verbally abusing her, that he filmed himself pretending she was assaulting him, and that he then called 000.[45]

   [45] Mother’s trial affidavit filed 22 July 2022 at [24].

4. The COPS report read:[46]

   … Ambulance officers were already on scene and police spoke with the victim [Mr CULBERT] outside the house. The victim had driven back from [City CC] (sic) yesterday and arrived home today. He has been experiencing problems with his wife, P/N [Ms CULBERT], where they argue and he believes she is acting strangely due to untreated mental illness. P/N has accused the victim of sleeping with a female friend and getting her pregnant in recent weeks. During the argument [in early 2018] the victim informed the P/N this friend was not pregnant and he was not cheating. During the argument the victim re-packed his things and attempted to leave with their 3yo son [X]. The P/N tried to stop the victim from leaving and allegedly assaulted the victim. The victim filmed part of the incident and contacted ambos to assist his wife. Police spoke with P/N who seemed well but did admit she suffers anxiety and has been stressed. P/N claims the victim constantly loses jobs and she has do to (sic) everything around the house. She also claims he goes partying and leaves the victim to look after children. P/N believes the victim is trying to leave her. P/N does accuse the victim of sleeping with a 14yo amongst other things. P/N has been seeing a counsellor but is not taking any medication. Police then reviewed the video the victim took. The footage depicts an argument but no offences were detected. It is clear the P/N was trying to prevent the victim from leaving but she was not violent. The victim appears to dramatise being “touched” by the P/N. The victim told police he has not lost his job; he received a redundancy and is starting a new job next month. Police are of the opinion the P/N is more anxious than she indicates and is exaggerating what is actually occurring. There is stress between all parties looking after their young children and the victim appears to he (sic) paranoid about the victim leaving her…

   (Bold emphasis added)

   [46] Exhibit E, MFI 9 at pp.6–7.

5. The father was cross examined on this event.[47]  He did not agree that he was pretending the mother was assaulting him and maintained that he had been pushed.[48]  He denied that he was trying to leave the relationship or that the recording was to be used as evidence in the event the relationship ended.  He said he made the recording to try and get the mother help.[49]  

   [47] Transcript 23 March 2023, p.250 commencing line 18.

   [48] Ibid p.253 lines 26–27.

   [49] Ibid p.254 lines 7–9.

6. There was no evidence that the father was cheating on the mother, nor that he had impregnated another woman.  These allegations, which were the kind of false allegations the father said the mother was making when suffering poor mental health, were not put to the father in cross examination as being true. 

7. In response to my question to the father about the allegation the mother made to police that he was sleeping with a 14-year-old, he said: “[t]here was no 14 year old. It was some irrational thought or thing that she said … it was basically in retaliation”.  He said police spoke with the mother and she “confirmed with them that she made that up, that it never happened”.[50]  The father was not challenged on this evidence.  It was not submitted there was any basis for the mother’s allegation of child sex abuse of a 14 year old as made to police at that time.

   [50] Ibid p.254 lines 23–40.

8. In mid-2018 Ms U wrote to Dr Z[51] requesting a plan for further sessions.  She recorded “[Ms Culbert] presents with severe anxiety which manifests most noticeably in conflict with her husband” and that:

   At our last session [Ms Culbert] reported that she and her husband had had some distressing times. Her husband has been employed for 3 weeks now – [Ms Culbert] anxious that it will not last. He came home from being away for 4 days, had driven 15 hours and was putting the little boy to bed and looking at his phone. [Ms Culbert] got angry with him and then attacked him verbally about her fears that he was seeing another woman. It became very unpleasant - her husband stormed out. He called an ambulance who came and took her BP and chatted to her, and the police also arrived. No action was taken.

   [Ms Culbert] told me she has some paranoid thoughts that her husband might harm her, and some times senses a presence in the room.

   (Bold emphasis added)

   [51] Exhibit F3, MFI 11 p.58.

9. Ms U’s assessment was, relevantly:

   DASS

   Depression-18(moderate) Anxiety-16(severe) Stress-38(extremely severe)

   …

   ASSESSMENT AND MANAGEMENT

   [Ms Culbert] is reluctant to consider medication. I didn’t mention specifically a psychiatric assessment but I think that could be helpful. I am seeing her in 3 weeks and will talk address that. She is well engaged in therapy, but it is her inability to manage her emotional reactivity that seems to be the main issue.

   (As per the original)

10. In mid-2018 the BB Health Service[52] recorded a referral and, amongst other things, the following history:

    [52] Ibid pp.77-80.

    Situation:

    Worsening anxiety and paranoia. Lives with supportive husband and 2 kids. On Maternity leave now. Sees psychologist from [W Health Service] - once / month.

    Background:

    Anxiety in the past. Was on [medication] until […] 2017, stopped due to become pregnant.

    Assessment:

    Irrational fears/ sensory feelings or hallucinations, anxious with heart racing, feels like “weight on her body, paranoid that her husband is going to hurt her, this impacting her sleep, withdrawn, poor memory, overthinking, pressured speech, circumstantial.

    …

    Reason for Referral

    …

    [Ms Culbert] reported experiencing the following symptoms ;

    •Used to be [a communications professional] - read a lot. Doesn't want to be medicated.

    •Works in [a NSW government department].

    •Had anxiety in the past.

    •Sensory hallucinations/ paranoia - Lately, finding hard to sleep because “feels like there is a spiritual presence at home”. Goes to bed, and then gets a weird feeling like “someone walked in to room and heart beats goes fast, feels stress response, tries to lay on her side, then ends up like, sometimes it goes away - in the last couple of months, had feelings like this for 10 times. Feeling like being in a haunted place. Did hear something like, “whistle”.

    •Feels like, “weight on her body”. Used to get this in the past when she had anxious. Heavy feeling.

    •All the above impacting her sleep. All the above happens once in a week, can’t do anything on those days. Feeling or worrying that this could get worse.

    •Anxiety issues - up and down, situational. Gets raised heart rates, rushing thoughts.

    •Withdrawn - from people and from doing things.

    •Energy is okay - Has a [medical condition] - sometimes tired due to this or anything else, unsure.

    •Always needs to be busy - motivation is okay.

    •Husband has got depression and anxiety - makes her anxious. Husband lost job recently and that was a stress.

    •Memory is really bad.

    •Paranoia - Sometimes, “husband says mean things. When she is really tired, had thoughts like if husband is going to put a pillow on her face and harm her, these are thoughts that came to her head 3 times so far”.

    •States, “anxious, overthinking, super busy mother”. Denied SH and SI. Denied any HI.

    •Snappy at times.

    •Poor concentration at present. Not able to finish tasks.

    …

    MENTAL STATE IMPRESSIONS

    Well engaged, feels embarrassed that she needs to express her issues, however, cooperative, increased rate and quantity of speech, some pressure of speech and circumstantiality, irrational fears / sensory experiences, paranoia, good insight and seeking help.

    …

    At risk mental state

    [x] Yes [] No [] Unknown

    Irrational fears/ sensory feelings or hallucinations, anxious with heart racing, feels like “weight on her body, paranoid that her husband is going to hurt her, this impacting her sleep, withdrawn, poor memory, overthinking, pressured speech, circumstantial.

11. In mid-2018,[53] a letter from the Health Service to an unnamed medical practitioner stated that: 

    [Ms Culbert] was referred to our service by her psychologist, [Ms U], at [W Health Service], due to concerns regarding escalating anxiety, along with the occurrence of paranoid and bizarre ideas. There is a background of anxiety, which has been managed with [medication] (ceased […] 2017 due to pregnancy) and psychology (multiple times in the past).

    [53] Ibid pp.85-87.

12. It continued:

    Recently, [Ms Culbert] has felt there is a “presence in the room” when she is going to bed at night. She then hears tweaks in the air-conditioning or creaks at the door, which she believes are related to the spirit. She does not think it will actually harm her or her family in any specific way, but feels the spirit isn’t one that is kind. She feels a fear when she senses this presence. She turns on her side and eventually falls asleep.

    At night, she has also had thoughts her husband may harm her. She does not have such thoughts about him in the daytime. There is no history of domestic violence.

    There is no history consistent with obsessive-compulsive disorder nor mania.

    Poor sleep as is a light sleeper to begin with. Often woken up by sounds made by the dog or [X] climbing into bed with her. Often has ruminating thoughts. For example, on a cold night, she was wondering if the baby was warm, and began googling “how many layers of blanket” are needed to keep a baby warm.

    Past psychiatric history:

    With the birth of her first child, [X] - in the initial months she also felt a “presence in the room” associated with feeling a breeze on her face that came from the window. This somehow resolved. She felt this spirit had been a good one, compared to the one currently. She mentioned that she checked with friends, who said that such occurrences of spirits were normal for new mothers.

    Anxiety - formally diagnosed 2012 for the first time, started counselling ([therapy]).

    -medications first tried in 2016, […]. Did not tolerate side effects, switched to [another medication].

    -has been on [that medication] since then until cessation in 2017.

    No past inpatient psychiatric admissions.

    …

    Is seemingly resistant to medications, which needs to be further explored.

    Imp:

    Bizarre beliefs and increased anxiety, which raise concerns re post-partum psychosis, though not seemingly of a delusional intensity, with little other accompanying signs.

    …

    4. Currently not amenable to a trial of [medication] to aid sleep. To try her preferred strategies of sleep hygiene, plus support with parenting routines to see if they can ameliorate some anxiety and aid sleep.

    (As per the original)

13. The Health Service advised the mother that they wanted to speak with the father and she consented.  The conversation with the father was in mid-2018:[54]

    … [Mr Culbert] states that [Ms Culbert] has always been a worrier, but over the past 4-5 months this seems to have escalated with angry outbursts towards him and at times in front of [X]. [Mr Culbert] reports that these are happening around 1-2 times per week. [Mr Culbert] reports that he walks away when she does this as its the only way he knows how to stop the escalation. He described the event when the ambulance and police were called. This was similar to [Ms Culbert's] story, but why he drove away and took [X] with him and how the ambulance had asked him to wait for them. He described another incident of when they were driving and [Ms Culbert] wanted a trampoline for [X], but [Mr Culbert] said they couldnt have one in their yard […]. [Mr Culbert] reports [Ms Culbert] escalating to the point of saying she was going to jump out of the moving car.

    [Mr Culbert] states [Ms Culbert] is accusing him of having a girlfriend; of having another family; of being gay and meeting boys in parks and that he is going to kill her - which has led her to sleep in a different bedroom. He states that [Ms Culbert] thinks she is seeing spirits and has saged the house and has vacumned (sic) corners in the home to get rid of the spirits. [Mr Culbert] reports that after [X] [Ms Culbert] thought she saw spirits, but that didnt last long and wasnt as bad as now.

    [Mr Culbert] states that that [Ms Culbert] has some high moments and ‘then I know its going to end badly’ ...... ‘either that night or the next day with a angry outburst’.

    When asked about cleaning or OCD tendencies [Mr Culbert] replied that [Ms Culbert] ‘is always moving’ ..... , ‘she doesn't clean, she will say she has spent the day cleaning, but she is only moving things from one spot to another’. [Mr Culbert] feels this has ‘got worse since [Y] was born’.

    When asked how [Ms Culbert] is with the children, [Mr Culbert] reports ‘she is good, shes a good mother, though [X] has been with them during some of the fights’.

    [Mr Culbert] reports that [Ms Culbert] has issues with people at work and often was crying about this when she was working.

    [Mr Culbert] feels that [Ms Culbert] was ‘more balanced when she was on medication’ .... it didnt take away the outbursts, but they were a lot less than now’. He stated that [Ms Culbert] is paranoid about taking medication as she is paranoid about the drug companies’.

    (As per the original)

    [54] Exhibit F4 pp.95-96 (pdf 19–20); MFI 9 pp.10–11.

14. In mid-2018 the mother was seen with Y after a weekend away in City DD.  The record states in part:[55]

    [55] Exhibit F4 pp.96-97 (pdf 20–21); MFI 9 p.11.

    …

    Thought content - states no longer feels the presence of spirits at home. Felt it once while on family holiday in [City DD] over the weekend, which made her think “maybe it's in my head” because it's not just happening at home.

    - however, states nil further occurrences since then

    - has been researching naturopathic methods to help her sleep and cope with stress, wants tests for zinc and copper levels etc.

    - hesitant to try medications […] and knows “medications are not an exact science”. Her expressed views on medication and her choice of naturopathy were conflicting or vague at times

    - wants to try sleep and relaxation strategies, look after herself etc before she revisits medications.

    Sleep remains interrupted.

    Case discussed with [Dr EE], perinatal psychiatrist, in a de-identified manner, for advice on management.

    Result of discussion as below:-

    - Impression: Agitated post-partum state with high levels of free-floating anxiety and poor sleep.

    Differentials are that of post-partum psychosis (though the time frame is not usual for typical post-partum psychosis); one must consider the contribution of pre-morbid anxiety and possible schizotypal personality traits, and the lack of sleep.

    - Recommendations:

    l. Address sleep first, then re-assess mental state. Preferred option is [medication], starting at [a lower dosage], which is the preferred agent at mother-baby units to address agitated states in mothers, about 1% passes into breastmilk, can make baby sleepy. Aim for 5 to 7 nights of good sleep then reassess mental state. [Medication] can be increased to [a higher dosage] if required.

15. In June 2018 an email from Ms U to the Health Service in response to a “request for info re [Ms Culbert’s] premorbid personality and anxiety symptoms” read:[56]

    … “Hi [Ms FF], [Ms Culbert] did mention when her eldest child was 4 months ([…] 2014) that she was hearing some voices and sensing a presence. Didn’t mention these in follow up sessions till more recently following the birth of her daughter. Did take some antidepressant medication for a time but not happy with this.

    She saw [Dr GG] for a psychiatric assessment [in 2015] at [W Health Service].

    Has always been very anxious about money - her husband has lost quite a few jobs. Doesn't have a regular GP – wants to see someone who bulk bills. Critical of her husband's behaviour - doesn't wipe down the kitchen benches, eats white bread, Admits he is a good dad.

    Some problematic relationships but does have friends. Always worried about her self. She wondered if she had [a mental health condition]…

    [56] Exhibit F3, MFI 11 at p.88.

16. In that context the Health Service sought to obtain a copy of Dr GG’s psychiatric assessment.  It appears that they were not able to obtain a copy.  However a summary was provided over the phone, recorded as:[57]

    [57] Ibid at p.89.

    - however […] able to provide some info over phone by looking over reports fr 2015.

    - ax by [Dr GG] in 2015 was […] after birth of first child .Noted:-

    - increased irrationality with poor sleep, VH of man standing in room when [Ms Culbert] is half-asleep. This is similar to her experiences as a child. Sometimes wake up screaming.

    - lows were of feelings of intense gratitude for family & friends, feeling creative

    - downs were when she would whine more and feel increased interpersonal sensitivity

    - no overt perpetual dirturbacnes (sic) noted, good insight

    - imp was of GAD with secondary depression, on a b/g of familial hx of mood and anxiety disorder. also noted [hormonal and vitamin] deficiencies.

    (As per the original, bold emphasis added)

17. The reference to “VH” appears to be a reference to a “visual hallucination”.[58] 

    [58] Transcript 24 March 2023, p.324 line 43 (expert in cross examination).

18. In mid-2018 the mother had a telephone consultation with the Health Service which was recorded as:[59]

    Phone call to [Ms Culbert] who states she ‘is feeling really good’. [Ms Culbert] was talking fast, but able to slow herself down and did not talk over staff. [Ms Culbert] continues to ruminate about things - ie appointment with [Dr HH]; her partner; medication etc. We discussed anxiety, the impact on ones brain and body - the rumination that can continue. We discussed the importance of sleep. [Ms Culbert] states she is sleeping well, she has started walking every day and feels this is making a difference. [Ms Culbert] reports eating regular meals. [Ms Culbert] states that she has not seen spirit since [City DD] and she is now accepting that this must be her anxiety, not a real thing, ‘and I think that’s all gone now’. [Ms Culbert] states that her and [Mr Culbert] continue to have issues and that 'we just dont communicate well'.

    We discussed the importance of [Ms Culbert] managing her own anxiety and that she couldnt make [Mr Culbert] seek help, but that she can talk with her counsellor about ways of managing [Mr Culbert’s] behaviours. We discussed [Mr Culbert’s] behaviours and [Ms Culbert] feels at times ‘its like emotional abuse ... he swears at me when he gets angry ... then I react to this’. Discussed DV and that [Ms Culbert] could access support to discuss this further ... [Ms Culbert] then said ‘No its just his way of coping .... hes had a terrible upbringing’. Discussed that [Ms Culbert] did not need to tolerate any abuse and discussed the impact of this on the children. [Ms Culbert] then acknowledge that her accepting help is beneficial for the whole family and she didnt need to access DV services.

    (As per the original)

    [59] Exhibit F3, MFI 11 at p.98.

1. A short time later, the Health Service conducted a home visit.  The record of the visit includes, amongst other things, that:[60]

   … [Ms Culbert] discussed her continued worry about finances, how she budgets, how different her and her partner are with money. ‘[Mr Culbert] is a spender … I give him $70 a week to spend’. [Ms Culbert] talked of returning to work earlier than planned due to financial stress. She talked of books she had read on money and building wealth etc.

   …

   We had a number of conversations around the impact of her ‘worry and ruminations’ on herself and her family, discussed medication how this can assist, though [Ms Culbert] continues to be reluctant. Discussed longer term counselling, but [Ms Culbert] states she had excuses due to finances, some relevant, some not so much - staff offered alternatives…

   [60] Ibid at p.99.

2. In mid-2018 a Health Service Review recorded that:[61]

   [61] Ibid at p.100.

   PIMH Supervision and case consultation with [Dr JJ] and [Dr KK].

   Discuss [Ms Culbert] mental state, her initial presentation, [Ms Culbert] not wishing any medication, but appears reluctant or unable to seek longer term counselling support. Discussed [Ms Culbert’s] ruminations and paranoia. That she continues to ruminate on her mental health and how she can support this best with natural therapies. Discussed my observations.

   [Dr JJ] felt there was no reason for FACS notification or CWU report - children appeared well cared for and not frightened of their mother. [Ms Culbert] is not currently suitable to be scheduled as she is managing daily life. [Ms Culbert] has been able to implement some strategies, such as meditation prior to bed; getting out each day; meeting up with friends; she states the spirits have gone and no thoughts of harm to herself or others.

   THOUGHTS:

   Encourage [Ms Culbert] to attend [Dr HH's] review appointment.

   Phone partner to see if he has further concerns - encourage him to contact services if he is concerned with [Ms Culbert's] mental health.

   Try and keep [Ms Culbert] engaged in service.

   Letter to GP advising of support offered and [Ms Culbert’s] reluctance.

   (As per the original)

3. The mother’s unwillingness to take medication and to see a psychiatrist appear to have lead to the mother’s disengagement from the Health Service.  Their records of mid-2018 state:[62]

   [62] Ibid at p.89.

   P/C to [Ms Culbert], who states she has been doing well. States she has been feeling good and attributes this to some lifestyle changes and the support she has been receiving from [Ms LL], PIMHS. [Ms Culbert] states she will not be attending MO review tomorrow as she is not willing to take medication at this stage and feels discussing same will cause more stress for her. Attempted to convince [Ms Culbert] to attend though she was adamant this would not be helpful for her, then began giving other reason she could not attend, such as friends visiting, errands to run, etc. [Ms Culbert] states she does not want any further MO reviews booked at this stage, states in future if she gets unwell and needs to see a psychiatrist she will seek referral to [Dr NN], who one of her friends had spoken highly of. [Ms Culbert] asked if she could remain engaged with [Ms LL] if she stopped seeing the Dr, I advised that our recommendation would be that she continue seeing the Dr alongside [Ms LL] and myself. [Ms Culbert] asked if [Dr HH] could call her during appointment time as she wants to discuss blood test results, I advised I would ask [Dr HH].

   Email sent to [Dr HH] regarding above, response as follows;

   [Ms MM] and [Ms LL],

   Thank you for your efforts with [Ms Culbert]. Firstly, i (sic) noticed her appt tomorrow with me is double-booked with 2 of my patients, so I doubt I’ll have the opportunity to call her.

   Secondly, I think you’ve done well in trying to maintain engagement, but should she be adamant in not seeing me, can we offer another MO (though there is a chance she’ll become wary of new MO and then refuse follow-ups)? If she refuses any doctor contact with us, we are obliged to inform her husband of our concerns, need for monitoring and recommendation for follow-up with a psychiatrist (ie husband to ensure she actually sees [Dr NN]).

   Can you both continue to manage patients who choose to see a private psychiatrist, or are you obliged to close their SR to avoid “double dipping”?

   Plan:

   - P/C to [Ms Culbert] to advise that [Dr HH] unavailable to call her tomorrow. Suggest to [Ms Culbert] MO review with alternate doctor, if [Ms Culbert] refuses same encourage her to follow up with [Dr NN].

   - P/C to [Ms Culbert's] husband to discuss our concerns and let him know that [Ms Culbert] is currently declining follow up with psychiatrist.

   (Emphasis added)

4. In mid-2018 the Health Service called the father:[63]

   Phone call to [Mr Culbert] ([Ms Culbert’s] partner) to discuss any concerns he may have with [Ms Culbert’s] mental health and to advise that she is not wishing support from the [OO Health Service] at the moment.

   [Mr Culbert] states that [Ms Culbert’s] ‘moods fluctuate’ - ‘are up and down all the time’ … ‘At time she can have angry outbursts … at other times, … like on Satureday (sic) … she just goes to bed for a couple of hours’, while he cares for the children.

   [Mr Culbert] doesn't know her GP as she ‘Dr shops, just like she is doing with you guys’. [Mr Culbert] has the 1880 MH line number and is aware he can contact them if he is concerned. I told him that if he needs to present with [Ms Culbert] […] he can and encouraged him to seek assistance if he needs to. He stated that [Ms Culbert] had seen a naturopath and said ‘it was a waste of time as she's is already doing all the things suggested’. I advised that if [Ms Culbert] didn't wish to engage with [OO Health Service] we could not make her and would normally send a letter to her GP, but unsure who this was. [Mr Culbert] was understanding of above.

   [63] Ibid at p.90.

5. That same day the mother was recorded as telling them that:[64]

   Phone call from [Ms Culbert] whom I discussed her not wishing to attend [Dr HH's] appointments or engage with [Ms MM]. [Ms Culbert] stated that she has been seeing [Ms U] (counsellor) and is finding this helpful. [Ms Culbert] is ‘going with the lifestyle strategies at the moment … and feel they are helping … Im just going for a walk with [Y] now’.

   [Ms Culbert] states her GP is [Dr PP] at [QQ Street] [Suburb RR] and she would be happy for the bloods and a letter to go to him. [Ms Culbert] is not wishing support from [OO Health Service] at this time and is aware that she can re-engage or be referred in if she wishes at a later date.

   [Ms Culbert] is aware that I have talked with [Mr Culbert] this morning.

   (As per the original)

   [64] Ibid at p.91.

6. In mid-2018 the father contacted the BB Health Service in relation to the mother’s mental health,[65] saying they had argued, that he was concerned about her mental state, that she was showing signs of extreme paranoia, had classic anxiety and panic, was losing control of herself and yelling and going off at him, with erratic behaviour.

   [65] Exhibit E, MFI 9 at pp.8–9.

7. In mid-2018, A letter sent to the mother’s GP by the Health Service said, amongst other things:[66]

   … During these appointments we discussed with [Ms Culbert] our recommendation that she commence on […] medications, though [Ms Culbert] declined same. [Ms Culbert] has recently decided to cease contact with our service. …

   [66] Exhibit F4 at p.91 (pdf 15).

   Mother’s cross examination on mental health

8. The mother was extensively cross examined on these documents and on the history she had given to the expert.  In cross examination the mother consistently downplayed and sought to minimise the mental health issues identified in the contemporaneous notes, including denying histories recorded as having been given by her.

9. The mother confirmed she was seeing Ms U from 2014 to 2018.[67]  In relation to “spirits” the mother said “[y]es. I – I believe in spirts”.  She said it had only been a problem once in her life when it caused her some anxiety for about two weeks and she saw a psychiatrist, did not need to go on medications and was good.  She said “I’ve never had psychosis”.[68]

   [67] Transcript 5 September 2022, p.29 line 13.

   [68] Ibid p.30 lines 28–39, p.31 line 3.

10. When asked whether she recalled Dr GG and a psychiatric assessment in 2015 the mother said she did not.  When asked whether she had given a history of hearing some voices and sensing a presence in December 2014, as referred to by Ms U in mid-2018, she said she did not recall telling Ms U that she “was hearing voices” but said that after both children she was tired and stressed.[69]  When pressed on this history as reported by Ms U the mother said “I’ve never heard voices in my life” but said “…in 2018, I felt the presence of a spirit in the house…”.[70] 

    [69] Ibid p.31 lines 37–40.

    [70] Ibid p.32 lines 38–46.

11. She was pressed on the issue of voices and psychosis and said “I have never heard voices. I felt a spirit in the room. I have spiritual beliefs, which I believe is not a crime. I believe that there are spirits”. And “I’ve never had psychosis in my life…”.[71]

    [71] Ibid p.36 lines 7–15.

12. At the resumed Trial, the mother said she had taken no steps to address any mental health issues raised in cross examination at the first part of the Trial.  She was asked about “feeling presences in the room from time to time?” and answered, “[o]nce in 2018, yes.”  She said that resolved “two weeks later” and that “[i]t happened once in my life.”  She said she had not slept for three days “and thought the house was haunted.  A week later it was fine”.[72] 

    [72] Transcript 22 March 2023, p.65 lines 6–21.

13. When later pressed she said in 2018, for a one and a half week period, I thought there was – the house was haunted, because I had post-natal depression, probably. I went to a counsellor, started exercising and sleeping, and then I was good, and then I continued seeing that counsellor, and they were never worried again – very much taken out of context…”.[73] 

    [73] Ibid p.84 lines 26–30.

14. The mother confirmed she had told the expert the use of the word “psychosis” by a treating psychiatrist at the OO Health Service was “unfortunate”.  She said this was:[74]

    Because I never had psychosis – I think I mentioned before I had a week and a half period where I hadn’t slept for a very long time, had a little bit of postnatal depression, just needed to sleep – maybe not postnatal depression, but just needed sleep. And then two weeks later, exercised, slept and ate well and I was fine, as is in all of my mental health reports that [Mr Culbert] subpoenaed.

    [74] Ibid p.182 lines 31–35.

15. The mother was asked about current treatment.  She said she has a domestic violence counsellor, whose qualifications she did not know. When asked if she might need a psychologist or psychiatrist she said “I definitely don’t”.[75]

    [75] Ibid p.184 lines 7–8.

16. In cross examination the mother denied accusing the father of having affairs despite the references to her allegations recorded throughout the materials.[76]

    [76] Transcript 5 September 2022, p.20, lines 1–2.

    Expert

17. In the Family Report the expert stated that “[w]hile the mother's mental health and history of mental health when considered in isolation does not appear to pose a risk to the children, this needs to be considered in the context of allegations of sexual abuse against [Y]”.

18. The expert noted the references to paranoid thoughts and queried whether the mother’s mental health may have impacted how she responded to, managed and interpreted Y’s comments or disclosure.  The expert also referred to a need to consider the possible causes of the mother’s “seeming decline in mental health in 2018”, including potentially family violence, a stressful relationship dynamic or pre-existing factors.[77]

    [77] Exhibit ICL1, Family Report at [154].

19. The expert was cross examined about the mother’s mental health history.  He said that he was qualified to commented only at a general level, noting that he did not have specific expertise in mental health to comment beyond that.[78]

    [78] Transcript 24 March 2023, p.332 lines 23–26.

    Mother’s suspicions

20. The mother took Y to see Ms SS psychologist, of TT Psychologists, in December 2020 pursuant to a mental health care plan.  Ms SS recorded a history that Y “comes home from dad’s quite tired.  Some nappy rash. Change in sleep posture. Some throwing upon return. …”  It was noted that “nil issues raised by [Y]”.  The mother did not proceed with further sessions for Y.[79]

    [79] Exhibit ICL 6, MFI 1 p.140, Clinical notes of Ms SS December 2020; Transcript 22 March 2023, p.138 lines 10-13.

21. At the CIC interview on 21 September 2021, the mother told the expert about the disclosures concerning the father and C, not about the disclosure concerning D.  Further:[80]

    •The mother reports previous related concerns she held about one year ago that she did not share with anyone, noting that [Y] displayed concerning behaviours such as bed wetting, throwing up a few times on return from time with the father, and expressing being “scared” of going to the father’s, which led to her seeking psychological support for [Y] through [TT Psychologists] which was just one session due to [Y's] young age.

    (Emphasis added) 

    [80] Exhibit ICL 2, Child Inclusive Conference Memorandum at [16].

22. At the Family Report interviews on 28 March 2022:[81]

    66. The mother consistently referred to [Y] having been “sexually abused” and expressed having “no doubt” that the father has sexually abused her, saying “as a mother you know” and that her “mother's instinct” meant she held suspicions for a year prior to [Y's] initial disclosure in [mid-]2021 (e.g. bedwetting and vomiting for a period of about 3 weeks previously after spending time with the father). …

    (Emphasis added) 

    [81] Exhibit ICL 1, Family Report at [66].

23. In cross examination when asked why Y first saw Ms SS prior to the disclosures, the mother said, “I call it mother’s instinct” although qualified this by saying she “just wanted to check how they were going mainly about the separation”.[82]

    [82] Transcript 22 March 2023, p.103 line 5 to p.104 line 20.

    FAMILY VIOLENCE

24. The evidence of family violence is inextricably linked with the evidence concerning the mother’s mental health.  The mother says any mental health issue arise exclusively due to the father’s alleged family violence and he says that her mental health issues caused conflict, caused her to act out in ways which constitute family violence, and affected her perceptions of events.

25. Given the clear evidence, and my findings set out elsewhere, that the mother suffers from impaired mental health, as reported by her and noted by mental health practitioners, each party’s evidence of family violence must be considered in light of the mother’s impaired mental health.

26. The mother’s firmly held belief that the father has been “gaslighting her”, ie falsely trying to make her question her sanity to undermine her, may be genuine.  However, it cannot be accepted given the extensive documentary evidence concerning her poor mental health, including her own descriptions of herself as suffering from paranoid thoughts and her refusal to accept recommended medication or ongoing treatment.

27. The events of early 2018, in which both ambulance and police officers attended, set out elsewhere, is an example of the interaction between the mother’s mental health, the father’s unfortunate but perhaps understandable frustration and reaction to her behaviours, and the escalating mutual conduct which each interpreted as the other intentionally engaging in family violence. 

28. I note that the father specifically stated that the mother “was never violent directly towards the children.”[83]

    [83] Transcript 23 March 2023, p.224 lines 34-35.

29. I find that both parties have engaged in behaviour which would constitute family violence within the meaning of the Act and that these behaviours have occurred in, and must be viewed in, the context of the mother’s mental health impairments.

30. I am satisfied that the mother’s behaviours were driven by her long standing, and largely untreated, mental health impairment. 

31. I am satisfied that the father’s behaviours, including for example, the event where he either threw a plate or, as he says, out of frustration or anger he took a swipe at a box and knocked it off the table causing a bounce and contact with the glass door, which on any version shattered,[84] though not acceptable behaviours, were responsive to and must be seen in the light of the mother’s irrational behaviours and that specific difficult situation.  

    [84] Transcript 23 March 2023, p.256 lines 10-29.

32. I do not accept that the father was relevantly engaged in coercive or controlling behaviours towards the mother independent of the long standing mutual dynamic between the parties, in respect of which the ICL submitted that the mother was “explosive” and the father “provokes” or sometimes steps back, and in any case “neither parent covers themselves in glory”.[85]

    [85] Transcript 30 March 2023, p.504 lines 25-30.

33. I find that neither party poses a risk to the children of perpetrating family violence either directed at them, or towards another person which will expose the children to that family violence.

34. In that context, while I have considered the detailed evidence of each party about the many different issues and incidents of alleged family violence which were raised in their evidence and cross examined on at Trial,[86] including physical events, financial control, coercion and control and emotional manipulation, I do not consider that a discussion of the details of the events will add to these reasons or this decision.

    Y'S DISCLOSURES

    [86] See for example Mother’s trial affidavit filed 22 July 2022 at [14]-[15], [17], [19], [24], [26] and Annexure MSC2; Exhibit F1, mother’s affidavit filed 28 April 2021 at [21]; Transcript 5 September 2022, p.11 line 5 to p.17 line 20; Transcript 5 September 2022 p.36 line 34 to p.37 line 26; Father’s Trial Affidavit filed 22 July 2022 at [29]-[30], [45]-[46], [91]-[95], [101], [103]-[106], [108]-[109]; Father’s supplementary affidavit filed 13 March 2023 at [20]; Exhibit F (email 12 December 2019); Transcript 23 March 2023, p.224 line 21 to p.244 line 40; Transcript 23 March 2023 p.250 line 5 to p.255 line 19; Exhibits A; Exhibit B; Exhibit C; Exhibit D; Exhibit ICL5.

    Mid-2021 – First disclosure re C

35. At the time of the first disclosure the children were spending time with the father four nights per fortnight.  That time was each alternate weekend from Friday afternoon to Sunday afternoon and an overnight in the alternate week.  The children’s time with the father was sometimes spent with Ms K, and with the stepsiblings.  At this time X was just seven, C six, D four, and Y three .

36. The children spent the weekend commencing in mid-2021 with the father, Ms K, and the stepsiblings on a trip to City DD.[87] The children also spent time with the father and Ms K from the afternoon of the following Wednesday until 9.15am on the next morning.[88]  C and D were present in City DD but not on the Wednesday evening.  The mother did not know until later that C and D spent that Wednesday night with their own father.

    [87] Mother’s affidavit filed 22 July 2022 at [78].

    [88] Ibid at [79].

37. The mother’s trial affidavit recorded:[89]

    80.On the afternoon of [mid-] 2021 [Y] complained to me that her vagina was sore. I asked what happened. [Y] responded with words to the effect of “[C] stuck his finger inside me” She then said “It hurt, I cried and cried a lot” I asked [Y] whether she had told [Mr Culbert]. [Y] told me that she told both [Mr Culbert] and [Ms K]. She said to me “[C] got in so much big trouble”. I asked [Y] when this happened and she responded “in the morning”.  I took this to mean that it had happened that morning, being [in mid-] 2021.

    (Italics emphasis in original, bold emphasis added).

    [89] Ibid at [80].

38. In cross examination the mother initially confirmed that she had asked Y “what happened”, as state in her affidavit.[90]  When asked why she assumed something had happened she then said:[91]

    … Like, I don’t think I – I’ve never said, “What happened” to her before, but it’s something that did worry me. So I remember her getting to the stop of the stairs and her saying, “It hurts down here” or “My vagina hurts” and then I said – I guess – I either said, “What happened” or something like, “Why – why does it hurt?” Fair question. I don’t know.

    [90] Transcript 22 March 2023, p.122 lines 35-47.

    [91] Transcript 22 March 2023, p.123 lines 7-11.

1. The ICL also referred to the expert's opinion,[167] that there as a risk that the mother’s fixed view would mean she may engage in further questioning of Y, misinterpretation of events or Y’s comments and involvement of police and DCJ and submitted that “[i]n the independent children’s lawyer’s submission, that is a real and present danger”.[168]

   [167] Exhibit ICL 1, Family Report at [157].

   [168] Transcript 30 March 2023, p.492 lines 1-2.

2. On this basis the ICL submitted that option one would apply, with the children living with the father and the father exercising sole parental responsibility.  The ICL accepted that was a “radical change”[169] for the children, but submitted it was in their best interests.

   [169] Ibid p.492 lines 37.

3. The need for a time of settling in with the father was submitted to justify a moratorium on the time with the mother, although given the expert’s opinion on the risks associated with a total loss of the mother the proposal was modified to supervised time with the mother commencing immediately.  In effect a reversal of the current regime of supervised time with the father.

4. The ICL raised the issue of what would happen if the supervision proved to be “disastrous”, by which I understood the ICL to mean if the mother was unable to restrain herself from promoting the false belief that the father abused Y but did not provide a firm proposal for what should occur if the mother is unable to restrain herself from promoting that view. 

5. The ICL submitted that to the extent C may have touched Y, the Court would accept that the father and Ms K are now alive to the issue and the father’s evidence that he would make sure C understood it was not acceptable behaviour.

6. Both parents agreed to the mutual s 68B injunctions restraining them from approaching each other’s homes or places of work.

7. The father adopted the ICL’s first proposal.

8. The father’s closing submissions were in similar terms to those of the ICL.

   DISCUSSION AND FACTUAL FINDINGS

   Discussion

9. The mother’s consistent evidence was that all of her mental health issues were caused by the father’s family violence and gaslighting.  She denied any relevant past, or ongoing, mental health impairments or need for treatment.  She said, however, her anxiety heightened when speaking with, or about, the father who she described as a “narcissist”.

10. The father’s evidence was that the mother experienced long term mental health impairments, including delusional and paranoid beliefs in particular about him.  His evidence was that whilst still affected by these thought patterns when medicated, the mother’s refusal to use the recommended medications caused a significant escalation in these issues in the period pre‑separation.

11. In the absence of any opinion from a mental health practitioner, I have given significant weight to the contemporaneous documentary evidence from the mother’s treating mental health practitioners in forming my opinion. 

12. I find that the mother was not a reliable witness when giving evidence in cross examination concerning the material contained in these documents.  To the extent that the mother denied giving certain histories, or denied that certain recommendations were made to her, I prefer the contemporaneous records of the health professionals involved. 

13. The mother’s mental health records, read as a whole, provide a consistent history of self-reports of subjective mental health impairments given by the mother to her treating mental health practitioners and of the practitioners concerns and recommendations, including for ongoing treatment and medication which the mother refused.

14. The mother’s own reports included that she had seen counsellors and psychologists over many years from around 2010.  However, when describing her visual hallucinations, she gave a history this was “similar to her experiences as a child”.  That may be suggestive of a much longer history of mental health issues than disclosed by the mother. 

15. There are multiple references in the material to the mother having “paranoid” thoughts and beliefs, “bizarre ideas” and “irrational fears”, particularly in relation to the father hurting her, and of paranoia and associated anxiety worsening through mid-2018.  These appear to include the mother’s own assessment of her beliefs as paranoid when speaking with health professionals.

16. The father’s allegation that, in this context, the mother would make unfounded allegations against him is supported by the mother’s false allegation to police that he was sleeping with a 14-year-old in the context of the domestic dispute they were involved in.  The mother’s histories to her counsellors on the topic of her allegations about the father also indicate that she accepted her perceptions of the father’s conduct and her allegations were influenced by paranoid and irrational beliefs and fears.

17. There are multiple references to the mother’s histories of both visual hallucinations and hearing voices, as well as of being in a haunted place and sensing the presence of spirits in her room, some “kind” or “good” and others not.  She appears to have accepted, in July 2018, that these experiences were anxiety and “not a real thing”.  As noted, the history appears to stretch back to childhood.  I do not accept the mother’s denial to the expert that she ever saw or heard anything as recorded in the records.  I do not accept her prevarication in her oral evidence.  I accept the consistent contemporaneous recordings of her histories.  I consider the mother’s evidence on this topic to be intentionally incorrect.

18. To the extent to which the mother raised concerns with her treating practitioners that she had a personality disorder or mental health condition, I take that into account as evidence of the mother’s own perception of her impaired mental health, rather than as evidence of a possible diagnosis, particularly noting that Ms U did not consider it likely that the mother had a personality disorder.

19. There are consistent references to the mother’s formal diagnosis of anxiety.  On the mother’s history that diagnosis went back to 2012.  The mother’s thoughts and beliefs are repeatedly described as paranoid, irrational and bizarre.  She experienced auditory and visual hallucinations.  The possibility of post-partum psychosis was raised as a differential diagnosis, noting the timeframe was not usual, and pre-morbid anxiety and possible schizotypal personality traits were also raised for consideration. 

20. Contrary to the mother’s evidence, her counsellors in 2018 did not discharge her because they were not worried.  It is clear that the recommendation, which she refused, was for ongoing treatment with a psychiatrist and for medications in parallel with ongoing counselling.

21. In the absence of an expert able to assist in the interpretation of the medical evidence, I am not able to attempt to place a diagnostic label on the mother’s mental health impairment.

22. Ultimately, the issue is not the diagnosis but the demonstrated impact on the mother’s mental health and mental capacity of these identified issues, and the extent to which they have impacted on her perceptions of events, her behaviours and her parenting capacity, which is relevant to these proceedings. 

23. What is clear is that the mother had a serious mental health impairment which seriously affected her mental capacity, involved paranoid and bizarre thoughts and beliefs and hallucinations, and for which she ceased and refused treatment in mid-2018 contrary to medical recommendations. 

24. Given I do not accept the mother’s evidence on this topic, and given there has been no treatment, there is no reliable evidence to suggest that the mother does not continue with the identified mental health impairments and associated behaviours related to the holding of paranoid and bizarre beliefs in relation to the father which were identified and for which treatment was recommended in mid-2018 when she terminated treatment against advice.

25. The fact that the mother has untreated mental health impairments, and denies that she has had such impairments, is itself a factor which must be weighed in assessing not only her parenting capacity but also the risks this may present for the children.

26. It is in the context that the “mother’s suspicions” must be viewed.

27. The mother’s evidence of her “mother’s suspicions” clearly identifies that she suspected that the father was sexually abusing Y almost a year before there was any disclosure.  The suspicion was pursued by taking Y to Ms SS in late 2020 because Y was coming home from “dad’s quite tired.  Some nappy rash. Change in sleep posture. Some throwing upon return.” 

28. While the mother said that this initial consultation was due to concerns about post separation distress, it is clear from her later statements that it related to her suspicion that Y was being sexually abused.  That suspicion had no rational foundation at that time and was consistent with her pattern of paranoid concerns regarding the father and her false allegation that he was sleeping with a 14 year old child.

29. It is in the context of both the mother’s history of paranoia and her suspicions that the evidence regarding the disclosures must be considered.

30. On the day of the first disclosure Y’s vulva was mildly irritated with no lacerations or scratch marks.  The pain only came on that day.  Dr XX considered it could be consistent with a normal irritation or with pain due to digital penetration.  Inferentially, if there was pain because of digital penetration the event occurred that morning.  C was not present that morning.

31. The mother said she asked Y “what happened” or “why does it hurt”.  That was a leading question as it suggested to Y that there was an external cause of the pain.  However, Dr XX contemporaneous record taken on the day of the disclosure says she discussed the issue with the mother first and “mum asked her if she had been touched down there and she said yes”.

32. That is a far more leading question, as it not only suggested to Y that the irritation and pain occurred because something had happened, but rather suggested that the pain occurred as a result of somebody having touched her genitals.

33. Given that Dr XX’s record was taken on the day of the disclosure, and given the mother’s pre‑existing suspicion that the father was sexually abusing Y, I am comfortably satisfied that Dr XX’s record accurately states the question the mother asked Y which resulted in the first disclosure about C.

34. It may merely be that Y wished to please her mother by providing a name in answer to the question, and that having named C she then made up details.  Some of the details are clearly inaccurate, as Y told Dr XX it happened that morning.  Some of the details are disputed, as Ms K says no report was made to her. 

35. However, it may be that because of Y’s age, the temporal connection was not clear to her and she was answering the question whether somebody had touched her genitals at any time.  I note that Y expressed being scared of C in late 2021.  That may be consistent with C having touched Y, or with Y being scared of C for another reason and naming him when asked if she’d been touched by somebody.  I note that it was common ground that given his age, if C touched Y’s genitals, it would have been innocent, though inappropriate, exploratory play.

36. The highly leading nature of the question makes the answer from a child of Y’s age, who would want to please her primary carer, makes the disclosure of limited value.

37. The disclosure about the father arose in the context of the mother praising Y by telling her how “very proud” she was of Y for being “brave enough” to make the disclosure regarding C.  The mother then encouraged Y to seek more praise by telling the mother about “anything like that”. 

38. In response, Y then disclosed that “it happened from a big person too”.  There is no suggestion that Y had ever previously referred to the father as “a big person” or as other than “daddy”.  No explanation is offered for why Y would refer to her father, one of her primary attachments, as “a big person” rather than as “daddy”.  That is suggestive that she was making a disclosure to please the mother and gain praise.  It was only when asked who the big person was that Y disclosed that it was “daddy”.  Given her age there were a limited number of big people known to her.  She then gave a disclosure that what happened was “just the same as [C]” with no new or different details at that stage.

39. This was a further example of leading by offering praise.  The fact that the disclosure was not “daddy” but “a big person” is not persuasive of a genuine disclosure.  Further, given the only evidence was from the mother, and given the concerns about the accuracy I have regarding her evidence of her mental health, the accuracy of the precise circumstances in which the disclosure were made may also be open to question.

40. The next disclosure was about the father but now included details going back in time.

41. The fourth disclosure related to not only C and the father but now included D.  The mother did not tell the father, the expert or the Court about the disclosure regarding D when orders restricting the father’s time with the children were sought.  This further disclosure including D either suggests that there have been multiple people touching Y, including a four year old girl, or that Y had formed the view that she would be praised and rewarded for making ongoing disclosures.

42. The further history of disclosures were confirmatory of what Y had said, and been praised for saying, with additional confirmation from the mother and Mr E that Y was a victim of sexual abuse by the father.

43. Having considered the totality of the evidence, I am comfortably satisfied that the most likely explanation for the disclosures is that Y was first lead to assert she was touched by someone, and then identified C, and was then praised for that disclosure, and offered more praise for additional disclosures, leading to the disclosure about a big person who, only when pressed, did she identify as the father.  Y then, in the context of this praise and reward process, also included D in the group of people who had allegedly sexually touched her.

44. While the father’s firm belief is that the mother acted maliciously, it was not submitted for the father or the ICL that the mother had acted intentionally, rather the submission was that her history of anxiety and paranoia had led her to lead Y into making disclosures in the context of irritation around her genital region which was explicable through normal hygiene issues.

45. As noted elsewhere, the question of family violence is intertwined with the issues of the mother’s mental health.  While both parents engaged in acts which would constitute family violence against the other party, I do not consider that either of them poses any risk of harm to the children of exposing them to family violence.

    Factual findings

46. I find that the mother suffers from a long standing untreated mental health impairment which results in paranoid and irrational thoughts and beliefs and fears, particularly directed at the father. 

47. I find that this caused the mother to hold suspicions that the father was sexually abusing Y, with no foundation for such suspicions, before any disclosure was made. 

48. I find that the mother’s suspicions caused her to lead Y into making a disclosure of sexual touching when she asked Y, whose genital region was sore, whether it was because someone touched her there.  This resulted in a disclosure that C had touched her that morning, when C had not in fact been present.

49. I find that the mother then praised Y and encouraged her to make further disclosures and that this resulted in Y disclosing that “a big person” also touched her genitals.  Only when pressed to identify the “big person” did Y identify the father as the “big person” who also touched her. 

50. I find that this process of praise, and the expectation to continue making disclosures, lead Y to also disclose that D had also sexually touched her.

51. I find that Y has not been sexually abused by the father.

52. I find that while it is possible that, at some stage, C has touched Y’s genital region in exploratory play, the father and Ms K are aware of the issue and that C and D do not present a risk to Y.

53. I find that the mother has, unintentionally as a result of her mental health impairment, caused Y and X psychological harm by causing them to falsely believe that the father has sexually abused Y. 

54. The mother has an unshakeable belief that the father sexually abused Y.  When asked by the expert whether she had considered the possibility that Y had not been sexually abused by the father she told the expert that that was not possible. [170]  In cross examination the mother repeatedly referred to the father as a “paedophile”.[171]

    [170] Mother’s affidavit filed 22 July 2023 at [100]; ICL 1, Family Report at [66]-[67].

    [171] Transcript 22 March 2023, p.75 line 11; Transcript 22 March 2023, p.82 line 1; Transcript 22 March 2023, p.167 line 5.

55. I find that the mother’s fixed belief that the father sexually abused Y, in the context of her untreated mental health impairment, and the fact that this belief is fully supported by Mr E, poses a serious risk of ongoing harm to Y and X through the continuing propagation of this false belief.  Although a serious risk of harm, this risk must be weighed against the risk of psychological harm to the children of the termination or severe long-term restriction of their important and meaningful relationship with the mother.

    CONSIDERATIONS AND ORDERS

56. The paramount consideration in the formulation of parenting orders is the children’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC. The two primary considerations, in order of weight, are firstly the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to the children of having a meaningful relationship with both parents.

57. The mother has, unintentionally, exposed the children to psychological abuse by falsely persuading Y and X to believe that the father sexually abused Y.

58. The major impacts of childhood sexual abuse are not, generally, direct physical injury but rather the myriad of adverse psychological consequences arising from the breach of trust.  That is particularly so where the perpetrator is a parent or other primary or significant attachment figure. 

59. If a child is falsely led to believe that they have been sexually abused by a parent, when that is not in fact the case, then the person who has instilled that belief has inflicted on the child similar psychological harm to that harm which would have been inflicted on them by actual sexual abuse.

60. In causing Y to falsely believe the father has sexually abused her, the mother has in fact caused Y much the same harm she is seeking to prevent.  The fact that it is unintentional, and a consequence of her own poor mental health, does not reduce the adverse impacts on Y.

61. Further, as X has become involved and has apparently adopted the belief the father sexually abused Y, X has been similarly exposed to psychological harm.

62. If the children continue to live primarily with the mother, her fixed and unshakeable belief means that there is no prospect that this false belief will be able to be rectified.  Rather, it is inevitable that the belief will become entrenched.

63. The children have a meaningful relationship with the mother.  Despite their belief that the father sexually abused Y, the observations at F Family Services and the expert’s evidence suggest that the children retain a meaningful relationship with the father. 

64. The ICL’s proposal, which the father substantially adopts, seeks to maintain that relationship while also ensuring that the children receive counselling and support to understand that there has been a misunderstanding and that the father has not sexually abused Y.

65. That is a difficult balance to achieve given the mother’s, and Mr E’s, fixed belief in the context that the mother maintains she has no mental health impairments.

1. The ICL’s proposal to address that issue, which was withdrawn due to the problematic nature of its formulation in the context of the need to make parenting orders, was that the mother’s time with the children would be subject to her successfully engaging in therapy with a psychologist. 

2. While it would be in the children’s best interests for her to do so, and indeed in her own best interests to accept the advice given in 2018 and to engage with a psychiatrist and accept any recommendations as to appropriate medications, it is not appropriate for me to make such an order as a parenting order.

3. That leaves the conundrum of how to facilitate a meaningful relationship between the children and the mother, while reducing the risk to them that the mother will, even unintentionally, perpetuate the belief that Y was sexually abused by the father.

4. I accept the submission implicit in the ICL’s and father’s proposal that a no time and no communication order and the termination of the children’s relationship with the mother, which would remove the risk of her promoting the false belief of sexual abuse, would cause such significant emotional harm to the children that it should not be made.  That is in line with the expert’s opinion.

5. Nevertheless, there must be a mechanism to ensure that the mother does not propagate this false belief and to address what will occur if she is unable to restrain herself, which is a real risk.

6. The ICL’s proposal for a s 68B injunction relating to the discussion of the sexual abuse allegations is an appropriate starting point. It will need to be modified to allow discussion with the children, particularly as they need to have it explained to them that there was no sexual abuse and as they may raise the issue. However, it can be modified to restrain the mother from suggesting to the children or confirming to the children or otherwise conveying to the children that Y was sexually abused by the father.

7. To achieve that, and to minimise though not reduce the risk of ongoing litigation, that order will be made and will be made a condition precedent to the children spending time or communicating with the mother.  That will mean, that if the mother is unable to restrain herself, or Mr E, the effect will be to terminate all time and communication. 

8. The risk of future litigation remains, as there may be a dispute about whether or not the mother is complying with the injunctions, however, if the mother is found to be breaching the injunctions, then the orders that flow will be as determined here.

9. Before moving to the specific orders I note that I am required to, and have, considered the factors identified in s60CC(3).

10. To the extent to which the children have views, noting there was disagreement regarding Y's previous willingness to move between the parents' households and about their time at the supervision centre, they are young, and they have been influenced by the mother leading them to hold a false belief.  In that context and noting the psychological risk issues, I give limited if any weight to the children’s views adverse to the father.

11. The children have a strong attachment to the mother who has always been their primary carer.  That is a significant factor in the decision not to make a no-time and no-communication order to ensure they are protected from psychological harm.  Their relationship with the father has been sufficiently maintained through supervised time, although it is clearly strained. 

12. The nature of the children’s relationship with Ms K and C and D is unclear, given the absence of recent time together and given that Y has expressed fear of C and implicated him in her sexual touching.  There is no reason that these relationships cannot be rebuilt with the assistance of appropriate counselling for Y and X to assist them to understand that there has been a mistake in what they came to understand, as explained by the expert.

13. Each parent has taken the opportunity to participate in making decisions about major long-term issues in relation to the children, spend time with the children, and communicate with the children pre-separation and post separation to the extent permitted by interim orders.

14. Each parent has adequately fulfilled their obligations to maintain the children.

15. The likely effect of the changes in the children’s circumstances from the orders I will make would be difficult to overstate. 

16. They will move from their primary carer to live with a father they have been wrongly led to believe sexually abused Y, and to live with a new step-mother and step-siblings they have had limited involvement with for an extended period, and with a new half-sibling.

17. The psychological effects are likely to be traumatic, particularly the reduction in time with and communication with the mother and with Mr E to who the children have also become attached, noting that Y insisted to the expert that he was her daddy now.

18. The fact that it is likely that they will need to change schools, eventually, will only add to the unending of their stability.

19. The significant and traumatic nature of the change was acknowledged by the ICL and the father.  It was a major plank of the mother’s argument against moving the children even if I substantially accepted the father’s and ICL’s submissions. 

20. I have considered the mother’s submission that, if her belief is wrong, the making of the injunctions restraining her from continuing to convey the false belief would be sufficient to protect the children, noting the mother has generally complied with the Court’s orders. 

21. It would certainly be easier, and significantly less traumatic for the children, if the making of the injunctions alone, with counselling for the children to correct the false belief, could address the false beliefs and the psychological risk issues without the need to upend the children’s entire worlds by changing primary residence.

22. Unfortunately, the mother’s oral evidence that if the Court did not accept there was an unacceptable risk of sexual harm from the father then, like a person with their “arm chopped off”[172] she would deal with it, did not persuade me that this was an option.

    [172] Transcript 22 March 2023, p160 line 45.

23. The vehemence of the mother’s belief that the father has sexually abused Y, in the context of her untreated mental health condition which has expressed itself in paranoid and irrational thinking with associated uncontrolled emotional conduct, causes me to find the psychological risks to the children of continuing to live with the mother significantly outweigh the psychological risks to the children of the major and traumatic move this change of primary residence, and probably schools,[173] eventually due to the location of the father’s residence, will necessarily entail.  The father agreed that he would not change schools initially for consistency to reduce the impact of the change of residence, and I will make the order that they not change schools for 12 months to avoid adding unnecessary stress.

    [173] Transcript 23 March 2023, p.297 lines 30-40.

24. The parties live within a reasonable driving distance and there is no real practical difficulty or unmeetable expense of the children spending supervised and then unsupervised time with and communicating with the mother.

25. The father’s parenting capacity with the children has not been recently tested, but I am satisfied it is adequate.  The mother’s parenting capacity to provide for the children’s general needs is adequate, however, her capacity to provide for the children’s psychological and emotional needs is significantly impaired by her mental health impairment and associated false belief about the father.

26. The factors relevant to each party, and the children’s, maturity, sex, lifestyle and background (including lifestyle, culture and traditions), and other relevant characteristics of the children, including their false belief, are discussed elsewhere.  The fact that X has been particularly shy and does not communicate well in larger social settings will also make the transition to a new household and school move difficult for him.

27. Neither child is an Aboriginal or a Torres Strait Islander child.

28. While some of the father’s behaviours towards the mother in the context of their escalating domestic disputes was poor, overall his attitude to the children, and to the responsibilities of parenthood, are adequate. While the mother was generally adequate in this regard her resistance to mental health treatment and consequent conduct has caused the children harm.

29. I have addressed the issues of family violence elsewhere and taken into account the provisions of s60CG.

30. Turning now to parental responsibility, given my finding that both parties engaged in family violence within the meaning of the Act the presumption of equal shared parental responsibility is rebutted.

31. There is no possibility that these parents can communicate or co-parent effectively given the mother thinks the father is a paedophile and the father thinks the mother maliciously fabricated the allegations, noting that was his evidence and view but not his legal submission.

32. The allocation of parental responsibility must flow to the parent with whom the children live which is the father. 

33. I do not think consultation between the parties is feasible.  The mother said the bridges between herself and Ms K were all 100% burned, and Mr E also believes the father is a paedophile, so these are not alternative communication paths.[174]  In those circumstances there will be an order for notification rather than consultation and notification, on each parties part, of any medical or other significant issue.  For the avoidance of doubt there will be an order that each party may exercise day to day decision making when the children are in their care.

    [174] Transcript 22 March 2023, p.161 lines 4-8.

34. The s 65DAA factors do not apply, but in any event they would not be feasible given my findings.

35. In terms of time, the ICL’s proposal was for no time for a period of two months, but in submissions accepted that this was likely to add to the trauma, particularly if there is no communication.  Then there was a proposal for limited supervised time and then a move to unsupervised time conditional on the mother undertaking counselling.

36. The clear psychological risks of harm to the children from the change of residence means that particularly careful consideration is required about the way in which both the change-over and the maintenance of the children’s relationship with the mother is managed.

37. Unfortunately, this decision has taken longer to deliver than I anticipated.  Nevertheless, the fact that the decision will be delivered immediately before Christmas, which is a significant time of year and a time of heightened emotions and stress in any event, and when the father will not have ready access to counselling or other services to support the change, must be taken into account when considering what is best for the children.

38. Further, while I consider that the children’s primary residence must be changed to minimise the risk of the mother continuing to convey to them that Y has been sexually abused by the father, or that the father is a risk of sexual harm to the children, or that either C or D pose a risk of harm to the children, the primary damage has been done and will probably take a significant period of time and counselling to undo.

39. A poorly handled change of residence now will add unnecessarily to the inevitable trauma of the move.

40. That means that, unlike a case involving an immediate risk of sexual or physical abuse, it is not necessary for the children to be moved immediately and without warning, particularly immediately before Christmas which they will be eagerly anticipating.

41. In this context, and while I have real concerns about the mother’s capacity to comply with the injunctions, given that the ICL’s and father’s proposals are for the mother to have unsupervised time with the children within a period of four months, on balance I consider that there is little benefit and significant additional risk in completely separating the children from the mother for a period of months. 

42. If I thought the children’s counselling could commence and the faulty belief be fully addressed in that timeframe I might have come to a different conclusion, but the availability of resources and the complexity of the process of persuading the children that they have a faulty belief may take a considerable amount of time, assuming that the mother complies with the injunction.

43. In terms of the proposed two months of supervision to ensure compliance with the injunction, the mother will either comply with the injunction in the short and long run or she won’t. 

44. If she is not going to comply then delaying the opportunity for her to breach the injunction by two months, by requiring limited contact and supervision for that period, at the risk of adding to the children’s trauma will not ultimately benefit the children. 

45. As the orders will make compliance with the injunctions a condition of the children’s time and communication with the mother, and will provide a default mechanism if she fails to comply, it will be preferable to allow the children regular unsupervised time with the mother immediately.

46. In these circumstances, on balance, I think that the best approach is to order that the children change residence at 12.00pm on 10 January 2024, with the hand-over to be facilitated through the Court Children’s Services at the Registry and facilitated by a Court Child Expert.

47. That will allow the children to have Christmas with the mother and, in the meantime to have a reintroduction to unsupervised time with the father, and at his election to Ms K, C, D and the new child, so that there is a reintroduction before the children move to live with the father. 

48. There are risks in this approach, particularly that the mother will use the time to undermine rather than support the change process, but on balance I consider the risk of that occurring is less than the risk of the psychological trauma of a substantial removal of the mother from the children’s lives.

49. I will make orders for the children to spend four (4) hours with the father on 26 December 2023, and on four further days prior to the change-over to allow a gradual, but not too slow, reintroduction to the father and his house and household prior to the change of residence. 

50. I considered a changeover later in January, but a balance is required between allowing some time to come to grips with the change and with allowing the process to drag on and become more scary through the waiting.  I will make provision for the ICL to explain the upcoming change to the children, but the ICL is not required to do that if the ICL would prefer for the entire process to be explained by a Child Court Expert on 10 January 2024.  Unfortunately, it is not possible to have a Child Court Expert explain the matter prior to that date.

51. The children will move straight onto to a regime of alternate weekends after the move, with a Thursday afternoon in the alternate week, and regular audio-visual communication.

52. They will move to alternating half school holidays commencing at the first holiday after term 1, 2024.  There will be provision for special occasions.

53. I will make orders for counselling for the children, including for the release of orders and these reasons.

54. There will be restraints on the mother in regard to promoting or conveying or reinforcing the false belief, including by not challenging it, or permitting anyone else, in particular Mr E, from conveying or reinforcing the false belief.  It is difficult to draft an effective injunction in these terms, however, as the alternative to being able to craft such an injunction is to make a no-time order or a long term supervised time order, I have attempted to craft an injunction that is sufficiently clear as to be effective.  My view is that if such an injunction is considered to be impractical, then it must follow from my findings that the children’s best interests require an order for a no-time and no-communication given the risk to the children of the false belief being reinforced and the difficulties with long term supervision.

55. The mother will also be restrained from allowing the children to refer to Mr E as “dad” or “daddy”.

56. Both parties will be restrained from discussing the proceedings, or denigrating the other party, and by consent from approaching the other parties residence or place of work.

57. I very much hope that the mother is able to comply with the injunction, but must make provision for the possibility that she cannot given her mental health history and denial of that history or the need for treatment.  The ICL’s proposal, which the father supported, provides the best opportunity for the children to maintain a relationship with the mother, but it is premised on a hope that the mother will comply with the injunction.  Unfortunately, I have grave doubts about that, but consider the benefits to the children of being able to maintain a meaningful relationship with the mother worth the risk of further litigation and the need to change these orders if the mother is unable to comply with the injunction.

58. If the mother is unable to restrain herself from continuing to convey to the children that the father sexually abused Y, then the risk to the children of ongoing unsupervised time with the mother will become unacceptable and it is anticipated that any future time would have to be supervised time only. 

59. I will make orders to facilitate a process to allow the matter to return to Court if the father forms the genuine belief that the mother is breaching the injunction, including orders for supervised time. 

60. I will make the standard orders sought concerning the exchange of contact information and access to health and educational information.

61. I do not consider the proposed orders requiring the parties to engage in counselling to be appropriate parenting orders at this stage and will not make them.

62. If any party seeks to make an application in respect of costs they may file an Application in accordance with the rules, otherwise each party shall bear their own costs.

I certify that the preceding three hundred and twenty-five (325) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.

Associate:

Dated:       21 December 2023