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
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…
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- AGLC
- Culbert & Culbert (No 2) [2023] FedCFamC1F 1127
- Case
- [2023] FedCFamC1F 1127
- Decision Date
CaseChat Overview and Summary
The court found that the mother's untreated mental health impairment, coupled with her fixed belief that the father sexually abused Y, posed a serious risk of ongoing psychological harm to both Y and X. This risk had to be weighed against the potential harm to the children if their relationship with the mother were to be severely restricted or terminated. The court noted that the mother had unintentionally caused psychological harm to the children by falsely persuading Y to believe she had been sexually abused, and by encouraging X to adopt the same belief. The court concluded that the children's best interests would be served by maintaining their relationship with the mother, provided she complied with certain conditions, including refraining from conveying or reinforcing the false belief of sexual abuse.
The court ordered that the children would live with the father, with the mother having supervised contact under specific conditions. The father was granted sole parental responsibility for making decisions about the children's major long-term issues. The mother was enjoined from conveying or reinforcing the belief of sexual abuse and from permitting the children to call the father "dad" or "daddy." Both parents were restrained from discussing the court proceedings in the presence of the children and from approaching each other's residences or places of work without permission. The court also ordered that the father engage the children in therapy to support them through the change in living arrangements.
The court's detailed orders included specific provisions for the change of residence, time to be spent with the mother, communication between the children and the mother, and the conditions under which these provisions would apply. The orders also included provisions for the children's education and health, and for the exchange of information between the parents. The court's decision aimed to balance the children's need for a meaningful relationship with their mother while protecting them from the psychological harm caused by the mother's mental health and false beliefs.
Orders
Orders of the court
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.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
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 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. The mother has, unintentionally, exposed the children to psychological abuse by falsely persuading Y and X to believe that the father sexually abused Y. 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. 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. 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. 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. 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. 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. 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. 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.