Danniell & Letty (No 3)
[2025] FedCFamC1F 31
•28 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Danniell & Letty (No 3) [2025] FedCFamC1F 31
File number: SYC 6309 of 2023 Judgment of: CAREW J Date of judgment: 28 January 2025 Catchwords: FAMILY LAW – CHILDREN – Whether either parent poses an unacceptable risk of harm to the child – Whether either parent has capacity to promote the child’s relationship with the other parent – Where it is found that the mother made false claims that the father coerced her into having sex and/or raped her – Where the mother’s claim that the father sexually abused the child is groundless – Whether the child can have a relationship with both parents if she remains in the primary care of the mother – Where it is found that it is in the child’s best interests to live with the father – Where the mother will be restrained from spending any time or communicating with the child for a period of six weeks – Where following the moratorium, the mother’s time with the child will be professionally supervised until 2027. Legislation: Australian Passports Act 2005 (Cth)
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65D
Hague Convention on the Civil Aspects of International Child Abduction
United Nations Convention on the Rights of the Child
Cases cited: Baghti & Baghti and Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Eastley & Eastley (2022) FLC 94-094
Isles and Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
N and S and the Separate representative (1996) FLC 92-655
Pickford & Pickford [2024] FedCFamC1A 249
Number of paragraphs: 278 Date of hearing: 4 – 8 November 2024 Place: Heard in Sydney, delivered in Brisbane via videolink Counsel for the Applicant: Mr Nehmy SC Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Williams KC Solicitor for the Respondent: Broun Abrahams Burreket Counsel for the Independent Children's Lawyer: Ms Cotter-Moroz Solicitor for the Independent Children's Lawyer: Mason Mia & Associates ORDER
SYC 6309 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR DANNIELL
Applicant
AND: MS LETTY
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CAREW J
DATE OF ORDER:
28 JANUARY 2025
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Parental responsibility
2.Mr Danniell (“the father”) have sole parental responsibility for H born 2018 (“the child”) in relation to major long-term issues (as defined by s 4 of the Family Law Act 1975 (Cth)) for the child.
3.Prior to making any decision about a major long-term issue, the father inform Ms Letty (“the mother”) about the decision/s to be made as follows:
(a)The father inform the mother by email of his proposal relating to the child and include in that email his views about what is needed and why and provide source information that he is relying on when making his proposal;
(b)Within 7 days of receiving the email from the father pursuant to subparagraph 3(a) herein, if the mother wishes to comment on the father’s proposal, she advise the father by email (to the address from which the father sent his email) of her views in relation to his proposal relating to the child. If the mother has a different view regarding the proposal made by the father, she include in that email her views and her source of information supporting her different view;
(c)Upon receipt of any email from the mother pursuant to subparagraph 3(b) herein, the father take her views into account and after doing so, he make the decision and advise the mother via email within 24 hours of making the decision.
(d)If the mother does not respond pursuant to subparagraph 3(b) herein, the father be entitled to presume that the mother does not wish to be involved, and the father may decide the issue accordingly.
Living arrangements
4.The child live with the father.
5.Unless otherwise agreed in writing between the parents, the mother be restrained from spending any time or communicating with the child for a period of six weeks from the date of this Order.
6.After six weeks from the date of this Order, the child spend time with the mother at all such times as may be agreed in writing between the parents but failing agreement and until 31 July 2027, under professional supervision as defined in paragraph 13 herein, with all costs of such supervision to be paid by the mother and the father equally, as follows:
(a)In week 1, on Wednesday from the conclusion of school (or 3.00 pm if the child is not attending school that day) until 6.00 pm; and
(b)In week 2, on Saturday from 3.00 pm until 6.00 pm.
7.From 31 July 2027 the child spend time with the mother at all such times as may be agreed in writing between the parents but failing agreement, unsupervised, as follows:
(a)In week 1, on Wednesday from the conclusion of school (or 3.00 pm if the child is not attending school that day) until commencement of school the following day (or 9.00 am if the child is not attending school that day);
(b)In week 2, from conclusion of school on Thursday (or 3.00 pm if the child is not attending school that day) until commencement of school the following Monday (or 9.00 am if the child is not attending school that day) or if the Monday is a public holiday or pupil free day then until the commencement of school on the Tuesday or 9.00 am if the child is not attending school that day.
School Holidays
8.Unless otherwise agreed in writing between the parents the child’s time with the mother pursuant to paragraph 7 herein be suspended during school holiday periods and the child spend time with the mother for the first half of each school holiday period at the conclusion of Term 1, Term 2, Term 3 and Term 4 in odd numbered years and the second half in even numbered years.
Special Occasions
9.For Christmas in 2025 and 2026, unless otherwise agreed in writing between the parents, the child spend time with the mother, under professional supervision as defined in paragraph 13 herein from 3.00 pm until 6.00 pm on Christmas Day or if a supervisor is unavailable on Christmas Day then on a day proximate to Christmas Day at the mother’s election.
10.On Mother’s Day each year, unless otherwise agreed in writing between the parents, the child spend time with the mother under professional supervision as defined in paragraph 13 herein from 3.00 pm until 6.00 pm and on Mother’s Day in 2027 and thereafter from 9.00 am until 6.00 pm unsupervised.
11.On the mother’s birthday each year, unless otherwise agreed in writing between the parents, the child spend time with the mother under professional supervision as defined in paragraph 13 herein from 3.00 pm until 6.00 pm and on the mother’s birthday in 2028 and thereafter from 9.00 am until 6.00 pm unsupervised.
12.On the child’s birthday each year, unless otherwise agreed in writing between the parents, the child spend time with the mother under professional supervision as defined in paragraph 13 herein and on the child’s birthday in 2027 and thereafter unsupervised:
(a)If such day falls on a school day, from after school (or if the child is not at school then 3.00 pm), until 6.00 pm that evening;
(b)If such a day falls on a weekend or a day when the child is not otherwise at school from 3.00 pm until 6.00 pm that day.
Professional Supervision
13.Where supervision is required pursuant to paragraphs 6 to 12 herein, the supervisor shall be as agreed between the parents in writing and failing agreement a professional supervisor from either AA Service or LL Family Services or MM Family Services at the mother’s election.
14.Each parent shall take all reasonable steps to complete all forms and intakes as required by the supervisor or their employer and to follow all reasonable directions of the supervisor for time to occur on each day required by this Order.
Changeover
15.Unless otherwise agreed in writing between the parents, once unsupervised time commences, changeover occur at the child’s school, including on days when the child is not attending school, and on those days, changeover occur at the front gate of the child’s school.
Facetime and Phone Calls
16.After the expiration of six weeks from the date of this Order, the father facilitate communication between the child and the mother via Facetime (or such other electronic video communication as the parents agree) once per week at a time as agreed and failing agreement at 4.00 pm on Sundays.
Other matters
17.The mother forthwith undertake therapy with a suitably qualified and experienced psychologist or psychiatrist recommended by Dr NN to assist her to come to terms with this Order and the reasons for same, and for this purpose the mother provide a copy of Dr NN’s report dated 30 July 2024, and the Reasons for Judgment dated 28 January 2025 to the therapist.
18.The father continue therapy with Dr OO or such other suitably qualified and experienced psychologist or psychiatrist recommended by Dr NN to assist him in meeting the emotional and psychological needs of the child and to gain assistance in recognising the effect his communication and behaviour can have on others and for this purpose the father provide a copy of Dr NN’s report dated 30 July 2024, and the Reasons for Judgment dated 28 January 2025 to the therapist.
19.The father forthwith engage a suitably qualified and experienced psychologist or psychiatrist recommended by Dr NN to provide ongoing support to the child as and when needed and for this purpose the father provide a copy of Dr NN’s report dated 30 July 2024, and the Reasons for Judgment dated 28 January 2025 to the therapist.
20.The parents keep each other informed of their residential address and mobile telephone numbers and notify the other party of any changes in those details within 7 days of any such change.
21.The parents notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the child whilst in their care and provide full particulars of any medical practitioner, health service provider or institution attended by the child and provide any such authority and direction necessary to enable the other parent to obtain all necessary information concerning the child from such medical practitioner, health service provider or institution.
22.Any school the child attends, is hereby authorised to provide to the father and the mother photocopies of reports, school photographs, newsletters and announcements of school activities, or information otherwise pertaining to the education, attendance, academic performance or extra-curricular activities of the child, or pertaining to any issues, incidents or accidents relating to the child, or if none have been made available in writing, then the parent who receives news or other information regarding the child’s schooling verbally, provide written particulars by email of such reports and/or activities to the other parent within 3 days of such particulars being received.
Travel
23.Unless otherwise agreed in writing between the parents, the father be at liberty to take the child out of the Commonwealth of Australia during times that the child is spending time with him in the school holidays, and after 31 July 2027 the mother be at liberty to take the child out of the Commonwealth of Australia during times that the child is spending time with her in the school holidays, subject to the following conditions:
(a)Unless otherwise agreed between the parents in writing, the country or region that the parent proposes to travel with the child, is a member of the Hague Convention on the Civil Aspects of International Child Abduction, and has an overall advice level one “exercise normal safety precautions” at the date the proposed travel period is due to commence in accordance with the recommendations of the Australian Government Department of Foreign Affairs and Trade;
(b)At least 21 days prior to departure, the travelling parent provide to the non-travelling parent:
(i)A copy of return tickets for the child;
(ii)A detailed itinerary providing addresses and phone numbers for the accommodation in which the child will be staying, the names and contact details of any additional persons travelling with the child and details of the country or countries that the child will be travelling, together with the proof of payment for all travel, accommodation, and rental expenses listed on the itinerary;
(iii)A copy of visa approvals and passports of all travellers;
(iv)A copy of the child’s comprehensive travel insurance paid by the travelling parent.
(c)Both parents ensure that all prescriptions of the child (if any) are filled and legally verified one month prior to departure and the travelling parent takes the filled prescriptions with them at the time of travel; and
(d)In the event the parents agree for the travelling parent to travel overseas during the periods in which the child is scheduled to spend time with the non-travelling parent pursuant to this Order, the non-travelling parent spend make-up time with the child for the same duration of time that the non-travelling parent would otherwise have spent with the child if they were not travelling with the travelling parent, during the proceeding school holiday period as nominated by the non-travelling parent.
Passport
24.Each parent do all acts and things to ensure that the child always has a valid Australian passport, with the parents to share the costs associated with lodging the passport application.
25.Should the mother refuse to sign a passport application for the child within 14 days of a request to do so by the father, then the father is authorised to make an application for the child’s passport pursuant to the provisions of the Australian Passports Act 2005 (Cth) to make an application for a passport to issue for the child with only his signature.
26.Each parent sign any renewal of passport application and seek a renewal of the child’s passport 3 months prior to the expiration of the passports.
27.The father hold the child’s passport at all times except when the mother requires the passport to travel with the child in which case the father is to give the child’s passport to the mother at the next changeover following receipt of the information about the travel as required by this Order and the mother shall return the passport to the father at the first changeover after she and the child return to Australia.
Name
28.Each parent be restrained from taking any action to change the child’s name unless with the consent of the other parent in writing.
Miscellaneous
29.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.
30.This Order be explained to the child by Court Children’s Services at the Sydney registry of this Court.
31.The mother, and anyone accompanying her, shall leave the premises of this Court immediately following the pronouncement of this Order.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Daniell & Letty has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:
H is six years of age. Her father, Mr Danniell (“the father”) and her mother, Ms Letty (“the mother”) have exposed their little girl to ongoing conflict. The parents have never lived together, and the mother is the undisputed primary attachment figure for the child, but both parents had significant involvement in her life up until 2 March 2023, when the mother stopped the child seeing the father after alleging that the father had sexually abused the child. The mother also contends that the father subjected her (the mother) to family violence including rape. The father denies the mother’s allegations.
Cases involving allegations of significant family violence and child sex abuse are among the most challenging because the consequences of making the wrong decision may have such profound consequences. It is important to acknowledge that despite allegations appearing to be extreme or abhorrent, the unfortunate reality is that significant family violence and child sexual abuse are not rare occurrences.
When determining what is in a child’s best interests, which is the paramount focus in parenting proceedings, it is necessary to undertake a thorough and forensic examination of all relevant evidence and to identify the nature of any risks to the child and any carer for the child and assess the magnitude of any such risks.
For the reasons which follow, I have found that the mother made false claims that the father coerced her into having sex and/or raped her in August 2014, April 2017, July 2021, and April 2022, and that the mother’s claim that the father sexually abused the child is groundless. These false claims significantly damage the mother’s credibility generally but are not determinative of the broader parenting decision.
However, if the child continues to live with the mother, she will grow up falsely believing she has been sexually abused by the father and will be denied a relationship with him, no matter what order is made. This is because the mother made it quite clear during her oral evidence that she would not comply with an order that the child spend time with the father. Although the mother proposed supervised visits on six occasions each year, the mother said she believes that the child would suffer emotional and psychological abuse even under supervision. In those circumstances, I conclude the mother would not encourage or facilitate even the limited relationship proposed by her.
I propose to order there be a change in the primary care of the child. When making this very difficult decision I have taken into account the trauma to the child being removed from her primary attachment figure, and the risk that the father may be unable to meet the child’s emotional needs. There can be no doubt that the change will be traumatic for the child in the short term, but in the long term it is more likely to be in her best interests as she will be able to have a safe relationship with both parents and her half-brother, X.
It will be necessary to put in place a moratorium on the mother’s contact with the child for six weeks to enable the child to settle and for the mother to commence therapy focussed on assisting her to come to terms with this decision which she will find difficult to accept. Thereafter it will be necessary for the mother’s time to be supervised for a lengthy period as it is anticipated that therapy will take a considerable time. Unsupervised time will commence after about two and a half years. This is at the conservative end of the estimate provided by the expert psychiatrist in the case for the time successful therapy for the mother is likely to take.
As the child will be living with the father, he will have sole parental responsibility for all major long-term parenting decisions but will be required to take into account any input from the mother. The father will also be required to continue therapy with his treating psychologist, Dr OO and engage an appropriate therapist for the child to provide support.
The father has incurred legal costs and outlays up to and including the estimated costs of what was anticipated to be a five day trial but was completed in four days of $573,822. The mother has incurred legal costs and outlays up to an including the estimated costs of the trial of $855,844. Proceedings in relation to financial matters are ongoing. It is unfortunate that the parents were unable to ready themselves for a trial on all issues.
ISSUES
On the last day of the trial, the parties identified the following detailed list of issues:
A. Does either parent pose an unacceptable risk of harm to the child?
1. In respect of the mother:
a. Whether the mother’s belief that the child has been sexually abused by the father, and persistence of that belief, is irrationally and/or unreasonably held.
b. Whether the mother has, at any time, given a knowingly false account of the child or father’s behaviour for the purposes of advancing her case.
2. Further in respect of the mother, whether she poses an unacceptable risk of harm to the child’s emotional and psychological wellbeing on account of the individual and/or cumulative effect of:
a. The Court’s conclusion to item (A1); and/or
b. Her belief that the child was sexually abused by the father; and/or
c. The investigative processes the mother subjected the child to with police and child protection; and/or
d. Her admission that she writes down everything the child says and has video recorded the child; and/or
e. The conclusions of [Dr NN] concerning the mother’s personality, namely:
i. Indications of a possible self-esteem disorder with poor boundaries;
ii. Anxiety;
iii.Controlling behaviours; and
iv. Over protectiveness.
f. The mother’s capacity to promote a long-term and meaningful relationship between the child and her father and/or brother in light of her (the mother’s) attitude to father.
3. In respect of the father:
a. Whether the sexual relations between the parents were always consensual;
b. Whether the father perpetrated family violence against the mother including verbal abuse, emotional/psychological abuse, and/or coercive and controlling family violence;
c. Whether the father exposed the child whether directly or indirectly to family violence including sexual abuse, verbal abuse, emotional/psychological abuse, and/or coercive and controlling family violence.
4.Further in respect of the father, whether he poses an unacceptable risk of harm on account of;
a. The Court’s conclusions in (A3); and/or
b. The alleged comments made by the child and alleged sexualised behaviour of the child observed by the mother.
c. [Dr NN’s] conclusions with regard to the father’s personality functioning.
5. Given the history of conflict and respective personalities of the parents will a continuing relationship between the child and both parents expose the child to an unacceptable risk of emotional and psychological harm.
B. Amelioration
1. If there is an unacceptable risk of harm to the child, whether it can be ameliorated?
2. In respect of the child spending time with the parent she does not live with:
a. Whether such time should be professionally supervised, by whom and for how long;
b. The availability of professional supervision for an extended or indefinite period;
c. When (if at all) time should become unsupervised;
d. If that time is to become unsupervised, how that time should progress (including whether it should progress to equal time);
e. Whether the commencement or progression of time ought to be conditional upon either parent meeting any requirements such as the completion of parenting or behavioural change courses.
C. Capacity to promote relationships
1. If the child lives with the mother:
a. Does she have the capacity to promote the relationship and time with the father that the Court concludes would be in her best interests?
b. Does she have the capacity to promote the relationship between the child and her brother?
2. If the child lives with the father, does he have the capacity to promote the relationship and time with the mother that the Court concludes would be in her best interests?
D. Parental Responsibility
1. What allocation of responsibility for long-term decision making is in the child’s best interests?
Some but not all the identified issues were addressed in submissions. During oral submissions, senior counsel for the father sought a positive finding that the allegations of sexual abuse of the child by the father were groundless.
It is of course not the role of the Court to resolve every factual dispute between the parties to litigation but only those matters that will inform the primary task of the Court in parenting matters, namely, what parenting order will be in the best interests of the child. It seems to me that the significant issues requiring determination relate to whether either parent poses an unacceptable risk to the child, the capacity of each parent to facilitate the relationship between the child and the other parent and X, and whether the parents can make joint decisions about major long-term issues.
PROPOSALS
The father proposes that the child live with him, that he have sole parental responsibility, and that the mother’s time with the child be supervised. The precise terms of the order (including in the alternative) are set out in Exhibit 18. The father had opposed the mother travelling overseas with the child on the basis that she was a flight risk. The father did not press his application for the child to be placed on the Family Law Watchlist or for the mother to be restrained from taking the child overseas on holidays if the child is otherwise spending unsupervised time with her.
The mother proposes that the child live with her, that she have sole parental responsibility, and that the father’s time with the child be limited to six supervised visits per year. The precise terms of the order sought by the mother are set out in her Amended Response filed 16 September 2024. For some years the mother has agitated to change the child’s name and contends that she was pressured into agreeing to the child’s name in the first place. The mother did not press her application to change the child’s name, although she did press for sole parental responsibility, which if granted would enable her to make that change.
The independent children’s lawyer (“ICL”) recommends that the parents have joint decision making for major long-term issues affecting the child, that the child live with the mother and after a short period of supervision, the father spend unsupervised time with the child up to four nights per fortnight and half holidays. The precise terms of the order recommended by the ICL is set out in Exhibit 21. Given the mother’s very clear statement that she would not comply with an order for the child to spend unsupervised time with the father, the ICL was unable to explain how her recommendation could have any practical effect.
BACKGROUND
Before turning to the issues that will inform the parenting decision, it will be helpful to set out some history to the parents’ relationship.
The parents met via a Dating Agency and had their first date in or about mid-2014. Despite maintaining a relationship, and having a child together, they did not live together. They spent time at each other’s homes and went away on holidays together. Their relationship ended in early 2021 although they continued to spend frequent time together after that date and there were some sexual encounters, the nature of which is in dispute, with the mother alleging she was raped by the father.
The child of the relationship is H. She was born in 2018. At the time of the trial, she was attending kindergarten (which is the first grade of formal schooling) at PP School. The child’s first semester report card for 2024 indicates that she is achieving at expected levels. The child is described as follows:
[The child] is a conscientious and diligent student who approaches her work with confidence. She is an attentive listener who enjoys sharing her ideas and knowledge with her peers and teachers. [The child] takes pride in her achievements and is always ready to learn something new. She is appreciative of feedback and endeavours to improve her performance by listening carefully to teachers’ advice and direction. [The child] displays a strong and positive sense of self-identity and this aids her self-confidence.
The father is 55 years of age and a health professional. The father was diagnosed with Attention Deficit Disorder in 2023 and the single expert psychiatrist in the case, Dr NN, diagnosed the father with Autism Spectrum Disorder (“ASD”) in 2024.
The father has one child from a previous relationship with Ms Mounce, namely, X, who was born in 2015. X currently attends QQ School where he is in year three. Pursuant to a final order made in this Court on 27 July 2022, X was to live with Ms Mounce and spend time with the father each alternate weekend. The father and Ms Mounce departed from the order and X has lived with the father since May 2024 and spends alternate weekends with Ms Mounce and speaks to her several times per week. Ms Mounce moved from City A, in New South Wales, to facilitate X commencing school in Sydney in 2024. In mid-2024, Ms Mounce moved back to City A. X and the child have not seen each other since March 2023 although there seems to have been a few video calls between the children until April 2023.
The mother is 49 years of age and employed as an educator at RR School where she has been employed in various roles for about 22 years. Currently the mother holds several roles.
Neither parent has re-partnered.
From early 2021 until March 2023, arrangements for the child were made by agreement and the father spent time with the child most days, including one overnight each week. On occasions, the mother joined the father when he spent time with the child and X, including going away on holidays together.
The mother asserts that the child made disclosures to her on three occasions, in December 2022, March 2023, and April 2023, about the father inappropriately touching her. The mother stopped the child spending time with the father from 2 March 2023. The child has spent no time with the father since this time, except as facilitated by Dr NN during Family Report interviews on 24 May 2024.
In early 2023, New South Wales Police applied for an Interim Apprehended Violence Order against the father. It was granted a short time later, before being subsequently withdrawn by New South Wales Police in early 2024.
Each parent accuses the other of controlling and/or coercive behaviour. Each parent concedes sending abusive and/or threatening text messages to the other. The mother also accuses the father of serial rapes during and after their relationship.
The father commenced parenting proceedings on 25 August 2023, and the proceedings were transferred to this Court on 19 October 2023.
On 15 December 2023, the Court ordered that the child live with the mother and spend no time with the father. It was anticipated at that time that a Family Report would be able to be obtained quickly. It was not obtained until July 2024.
On 24 April 2024, the father’s application to spend supervised time with the child, pending a final hearing, was dismissed and the mother’s application for interim injunctions against the father from coming into contact with the child, and/or communicating with the child directly or through a third party, was granted. The ICL did not support the father’s application. The Child Court Expert raised the “potential risk of a traumatic response and/or psychological distress” to the child if brought into contact with the father prior to a more comprehensive assessment. The restraint did not prevent the child coming into contact or communicating with the father in the presence of the Family Report writer if deemed appropriate by the Family Report writer.
Interviews for the Family Report were conducted over the period, 24 May 2024 to 30 July 2024. The Family Report is dated 30 July 2024 and was released to the parties on 6 August 2024. The Family Report was privately obtained from a psychiatrist, Dr NN. Dr NN observed the child with the father on 24 May 2024. The encounter raised no issues of concern.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by Part VII of the Act as amended. In addition, section 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage or destruction of property, unreasonably withholding financial support needed to meet reasonable living expenses of the family member or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, preventing the family member from making or keeping connection with his or her family or friends, or unlawfully depriving the family member from his or her liberty, etc.
Abuse in relation to a child is defined in s 4 of the Act and includes a sexual assault, or involving the child in a sexual activity in which the child is used, directly or indirectly, as a sexual object, or causing the child to suffer serious psychological harm, including by subjecting or exposing a child to family violence.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 at 78 (“M v M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
The High Court in M v M explained at [25] the nature of the risk in the following terms:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94-094, [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC 93–637.
THE RISKS POSED BY THE PARENTS
When determining the magnitude of risk, it is generally necessary to consider all relevant evidence and not merely individual pieces of evidence. While each piece of evidence may inform the conclusions as to risk, it would be premature in the current case, to form conclusions based on part of the evidence only. Accordingly, it is necessary to start at the beginning of the parents’ relationship.
The mother and father met through a Dating Agency which the mother contends advertised for people who were “looking for a genuine long-term relationship with someone special”. The mother contends that she “started keeping a diary of my dates and continued this diary during my relationship with [the father]. I wrote in it most nights until 2019 and then less frequently”. The mother contends that her evidence in her trial affidavit, “comes from my own recollection of events. I have used and refer to notes and records that I have kept over the years, including my diary, notebooks and recordings of [the father], all of which have been disclosed to his lawyers.”
The mother conceded during cross-examination that she had modified her typewritten diary for the purposes of the proceedings and that the father had not been provided with an original version. The mother maintained that the only modifications she made was to change the colour of some of the font. In the absence of the original diary such an assurance is unable to be verified.
The mother portrays the father as a beast of a man who subjected her to years of abuse. At [309] of her trial affidavit she describes her experience as follows:
309. I have experienced [the father’s] abuse, from his sexual abuse through insistent pressure, to manipulation and belittlement to rape. I have experienced his coercive and controlling behaviours, his narcissism, his anger and his volatility. I have heard him voice his demeaning, exploitative and misogynistic views about sex and women time and time again. I have heard him repeatedly assert that it is good for [the child] and [X] to be exposed to conflict and to fear him so that they behave. That is who [the father] is. It is through that lens that I have received and have tried to make sense of what [the child] disclosed and her behaviour and comments since.
Although including in the above quoted paragraph an allegation or allegations of rape, the mother does not otherwise use that term in her affidavit. The mother at times refers to the father pressuring her to have sex to which she consented or submitted and at other times she refers to the father forcing her to have anal sex. In relation to the latter allegation, it can safely be inferred that the mother is alleging rape. In relation to the former allegations, the allegation is less than clear. If the mother is intending to convey that her consent was other than freely and voluntarily given and that the father was aware or should have been so aware, then the allegation would indeed be an allegation of rape.
The father denies the mother’s allegations and in particular her allegations of pressuring her to have sex, rape, coercive and controlling behaviour, and sexual abuse of the child.
The parents communicated frequently by text message and selected text messages have been tendered by both parents. The mother also covertly audio recorded the father on several occasions.
Family violence
The mother makes both specific and general allegations of family violence against the father. It will be appreciated that in order to make factual findings, a general allegation that a person engaged in “narcissistic and manipulative behaviours”, “gaslighting” or “emotional abuse” can be given little weight in the absence of evidence of the specific behaviours. It is the behaviour of the person alleged to have perpetrated the family violence that is the initial focus of the enquiry. The feelings of the victim alone will not be sufficient to prove family violence.[13]
[13] Pickford & Pickford [2024] FedFamC1A 249.
In summary, the mother contends that the father’s behaviour included the following:
(a)Being sexually demanding;
(b)Being critical of her sexual performance;
(c)Making accusations that she did not care about satisfying him sexually;
(d)Repeatedly phoning her and becoming angry if she was not available;
(e)Repeatedly yelling at her or the child if they did something to displease him;
(f)Being self-focussed and vain;
(g)Imposing his rules in the relationship and telling her she needed to give him a chance to talk through things and to improve rather than leaving him;
(h)Deciding when and in what circumstances she could see his family;
(i)On one occasion in 2016 repeatedly hitting her with his open hands on her bottom, thighs, face, chest and torso after a night out when he had consumed too much alcohol, and when the driver of the car they were in asked what he could do to help the mother told him to “just get us home”;
(j)Raping her on several occasions.
The father denies the mother’s allegations save that he concedes behaving in a way that at times may have been perceived as volatile.
The father makes specific and general allegations against the mother. In summary, the father contends that the mother’s behaviour included the following:
(a)Being controlling and coercive e.g., withholding the child from him in order to put pressure on him to agree to changing the child’s name;
(b)Verbally abusing him if he did not comply with her instructions e.g., yelling at him on a date in April 2022 to just jump off a balcony and kill himself after he did not give the child morning tea that the mother had provided and shouting at him in early 2023 that he was a “fucking arsehole” because he would not agree to change the child’s name;
(c)Assaulting him in mid-2022 by “aggressively and repeatedly shadow boxing within an inch of my nose in full view of both of my children while shouting at me at the top of her lungs that I was ‘being unreasonable’” when he had resisted the mother’s attempt to apply a band-aid to a wound on his hand;
(d)Threatening to move overseas with the child so that he would never see her again if he pressed for extended holiday time with the child.
The mother denies the father’s allegations.
Many relationships involve arguments, even heated arguments, or disagreements in which less than optimal terms are used to describe the other person, but not all such arguments or disagreements constitute family violence.[14]
[14] Ibid at [31].
The assessment of the allegations in this case is complicated by the personality traits of each of the parents which will be discussed in greater detail later in these reasons. In summary, Dr NN opined that the father has ASD, the symptoms of which include difficulty picking up on nuance, intense focus on specific topics, the need for positive emotional reinforcement, literal interpretation, a need for structure, and low self-esteem. In relation to the mother Dr NN opined that she has a possible self-esteem disorder, poor boundaries, anxiety and controlling tendencies.
The mother’s own description of her thoughts and actions, if accurate, provides some insight into the complexities of her personality. For example, the mother contends that she wanted a partner and a family and that although the father presented as a misogynist and self-obsessed when she first met him, she pursued a relationship with him because he had redeeming qualities such as being a successful health professional with a stunning penthouse and expensive cars and could also be a thorough gentleman and very romantic. The mother contends that she submitted to his requirements in relation to being available, performing sexual acts that she was not comfortable with, asking for his opinion about what she should wear, etc, because she wanted to please him and make him feel good so that he wanted to be with her.
There were thousands of text messages exchanged between the parents during their relationship and thereafter. The proposed tender bundles contained many hundreds of pages. Ultimately, the parents each tendered only a small portion of their text messages, no doubt focussing on those providing the best example of a point they make in the case.
Each parent has at times sent text messages that are argumentative, accusatory, condescending, or abusive. Each parent has at other times sent entirely appropriate, considered, and conciliatory text messages. Some of the messages are extraordinarily lengthy and discuss their feelings, their problems, and their relationship and parenting difficulties.
The parents have each demonstrated a willingness to work on difficulties in their relationship and as parents, and they have attended numerous joint therapy appointments.
The focus of family violence in parenting proceedings is primarily about assessing risk to a parent or child in the future. The more serious the history of alleged family violence, the more heightened the risks are likely to be. I do not propose to make factual findings on every alleged behaviour when many of them are unlikely to inform the assessment of future risk.
Accordingly, I propose to separately consider only some of the more significant allegations of family violence made by the mother against the father involving coercive or controlling behaviour and rape.
August 2014 – “pressured to have sex”
The mother contends that from her very first date with the father she had concerns about his personality and attitudes to women. In her diary entry in July 2014, she purportedly wrote “he seems to love himself, keeps saying he is an alpha male, men don’t need women but women need men”. Notwithstanding the mother’s alleged concerns, the early text message exchanges between the mother and the father portray the mother as eager to pursue a relationship with the father.
In July 2014, the mother responded to an invitation from the father to a barbeque on the following Saturday by conveying that she had a brunch to attend but could come late afternoon/evening. The father responded that he was thinking of a lunchtime barbeque and suggested they “find another time next weekend or whatever”. The mother immediately capitulated and said she would come to the barbeque.
The mother contended that on their third date, namely the barbeque at the father’s place, the father pressured her to have sex. The mother’s trial affidavit deposes as follows:
12. On our third date [in] August 2014, [Mr Danniell] pressured me into having sex with him. I wrote in my diary after I got home that night “... he tried to have sex but I said no, he pushed so much, he said 'what did you expect my inviting you to my place? ... to have sex!' ... I really did not want to have sex, felt humiliated and violated, but he pressured too much and didn't want him to feel bad or rejected, he fell asleep on bed afterwards and I left'.
(Emphasis in original)
The impression given by the mother in her trial affidavit is that her consent to having sex on this occasion was not freely and voluntarily given, but rather she submitted so that the father did not “feel bad or rejected”. When cross-examined, the term “force” was used by counsel representing the father and the mother did not demur, nor was any objection taken to that term.
However, the mother conceded during cross-examination, after being taken to contemporaneous text message exchanges, that contrary to her evidence, she and the father did not even see each other on that date in August 2014.
It is apparent from the text messages exchanged between the mother and the father, that the mother arrived at the father’s home on a Saturday in August 2014, at about 1.40 pm. At 9.48 pm that evening, the mother sent a text message to the father stating that she was “coming back for my earrings!”. There is no evidence of any further texts between them that evening.
Then, the next day, the mother sent the following text message to the father:
Hi [the father],
Thanks for a fabulous afternoon and evening yesterday – company was great, view/aspect/location is awesome and thoroughly enjoyed the latter part of the evening also! Hope you are making the most of your day. [the mother] xo
The mother agreed that the “x” meant a kiss and the “o” meant a cuddle.
During cross-examination, the mother said she was mistaken about the date in her affidavit and that she should have said the day before, in August 2014.
In re-examination, the mother provided a one page typewritten document which was said to be a page of her diary. The entry for August 2014, is as follows: (Exhibit 7)
[…]/8 - BBQ lunch at [the father’s], came home thinking I will end it as he really is arrogant and narcissist and a misogynist (women hater), he tried to have sex but I said no, he pushed so much, he said, "what did you expect my inviting you to my place? ... to have sex!", he said if he did it from behind (doggy style), I didn't have to look at him, I really did not want to have sex, felt humiliated and violated, but he pressured too much and didn't want him to feel bad or rejected, he fell asleep on bed afterwards and I left
The mother contended that her diary entry reflects the correct date not her trial affidavit.
The diary entry is a most curious document in light of the contemporaneous text message exchange. It also seems odd to say the least to include in her own personal diary a definition of “misogynist” and “from behind”. The mother did not offer any explanation for the error in the dates in circumstances where she had deposed in her trial affidavit to having referred to her diary when completing her trial affidavit. Nor did the mother offer any explanation for the inconsistency between her diary entry and her contemporaneous text messages. The first text was sent at 9.48 pm the evening of the alleged incident when the mother sent a text message to the father stating that she was “coming back for my earrings!”. The second text message was sent the next day in August 2014, thanking the father for a fabulous time in which she said she “thoroughly enjoyed the latter part of the evening also!” and for signing off with symbols of endearment.
The general submission made on the mother’s behalf was that the mother was a “pleaser” and was so effectively overborne by the father that she said and did things indicating gratitude and pleasure which did not reflect her true experience or feelings. While I can readily accept that a person who engages in behaviour that coerces or controls another may, over time, cause the other person to say and do things contrary to their true feelings or wishes, I cannot accept this was the case here after only three dates. If the mother’s diary entries are to be accepted as contemporaneous, the mother had already formed the view from their first date that the father was an arrogant misogynist, yet she pursued a relationship with him. It is not as if the father were portraying himself to be something other than he was (according to the mother). Further, it is not as though the mother could be seen as meek and vulnerable at that time. To the contrary, in her trial affidavit, the mother describes herself as having “good self esteem at the start of our relationship”.
I reject the mother’s allegation that the father forced her to have sex against her will in August 2014, or that she submitted to having sex unwillingly after being pressured by the father. I accept the father’s submission that the mother’s allegation is an attempt to rewrite history and is a fabrication.
Event – Early 2016
In early 2016, the parents attended an event. The event ran over three days, and the parents attended each of those three days. The mother agrees she willingly attended and that she participated in a group session where she performed “sex acts” on the father. The mother deposes in her trial affidavit to feeling “degraded and humiliated” by the experience and that she does not know why she participated “other than that I was essentially trying to be who he wanted me to be”.
Inconsistent with the mother’s evidence, is the following text message exchange that occurred between the mother and father in early 2016 commencing with her text message at 9:22:43 pm:
Thanks again for a fabulous long (well sort of for me) weekend Handsome. It was great fun in so many different ways - from the model show […] Fri night, to not being about to contain my laughter in the Saturday […] session (don’t forget the hoo hoo ha, hoo hoo ha) and the rather exciting [event] on Monday.
All the while I thank you very much for your kindness, attention, pleasure and affection you gave me, as well as protecting me from the ‘goings-on’ at the party.
Thank you also for just hanging out, buying and cooking food, installing my time machine, playing a bit of [emoji cricket bat and ball] and [emoji tennis ball] and watching the stunning fireworks together last night.
I really do value and appreciate our time together.
[emoji heart] xoxoxo
The father responded to the mother’s text at 11:01:07 pm:
Who could forget hoo hoo ha! Certainly a great weekend and the [event] combo …
In her trial affidavit the mother contends she sent the above text message to the father not because it reflected how “I felt but was what I knew I had to say if I wanted to keep him happy and avoid him either being angry or mocking me for being ‘frigid’ or both”.
During cross-examination, when it was pointed out to the mother that her text message makes no mention of feeling “degraded or humiliated”, the mother responded, “I wasn’t game to”.
I am unable to accept the mother’s evidence. I find that the mother willingly attended each day of the three day event and willingly participated in activities, including performing a sex act on the father in a group session. In my view, the mother is again attempting to rewrite history to portray herself as coerced by the father. It is more likely that the mother found herself, as she says at [15] of her trial affidavit, in a relationship, the type of which she had not experienced before, and it made her “feel sexy and empowered”.
July 2016 recording – Exhibit 8
At [24] of her trial affidavit the mother deposes as follows:
24. Another incident that demonstrates these behaviours [narcissistic and manipulative behaviours] by [the father] occurred [in] or about […] July 2016. I wrote about it in my diary. I felt that [the father] had disregarded me when we had made plans to see one another. Then he arrived at my home very late, after I had gone to bed. That entry reads as follows, "[The father] said we'd catch up this night .... I knew he was still at [Ms Mounce’s] (he later told me it was because he was there for the car, bathed [X], watched [television] etc), and then came and buzzed on my door at 11.30pm and made me let him in. He then told me how terrible I was and a nasty manipulative bitch and I recorded most of the conversation. I was in tears, he hugged me continued to tell me off and that he didn't like feeling obligated and then left after about 40 mins, he went home and I went back to bed".
(Emphasis in original)
The mother recorded the conversation between herself and the father in July 2016 without the father’s knowledge. As is often the case with recordings made in such circumstances, the recording is unhelpful to the person recording the conversation. The recording lasts for just over 30 minutes. It is replete with the mother’s self-serving comments, and unfortunately for the mother, it portrays her as extremely manipulative. The recording is not flattering to the father but, as Dr NN opined and I accept, one must be very cautious about how the recording is interpreted against the father in circumstances where only one party knew they were being recorded.
What the mother does not disclose in her affidavit is that she misunderstood arrangements for the particular night and when the father sent a text saying, “Let’s catch up tomorrow”, the mother sent repeated messages saying how hurt she was, which the father interpreted, understandably in the circumstances, as emotional blackmail to force him to see her that evening, which he ultimately did. The mother was jealous that the father was at Ms Mounce’s home with X and not spending time with her.
2016 – termination of pregnancy
In 2016, the mother had an IUD (contraceptive device) removed and became pregnant to the father soon after. It is common ground that the father was pleased with the news, but the mother decided to have a termination. It is also common ground that the father opposed the termination and arranged for the mother to see a psychologist, Dr SS and a psychiatrist, Dr TT to talk about her decision. The father also arranged for the parents to attend a joint session with his own psychologist, Dr UU to discuss the proposed termination. At interview, Dr UU recalled (according to Dr NN’s discussion with him in June 2024) the father reiterating his intention not to live with the mother even after the birth of the child.
The mother contends that at the joint session, the father held out hope that they would live together but that she went ahead with the termination after receiving conflicting messages from the father.
It is common ground that, notwithstanding the father’s opposition to the termination, he drove the mother to her appointment and supported her the day following the termination.
The father contends that he does not know why the mother had a termination given that she had her IUD removed in 2016 and had given every indication of wanting a baby. The father contends that he sought out assistance for the mother because he thought she might regret her decision to have a termination. I accept the father’s evidence.
I do not regard the father’s behaviour in allegedly giving conflicting messages about living with the mother, or for arranging for the mother to avail herself of psychological assistance, to be coercive or controlling behaviour which appears to be the mother’s suggestion. Ultimately, notwithstanding the alleged behaviour, the mother proceeded with the termination and concedes the father supported her.
April 2017 – anal rape
The mother contends that anal sex was an example of something the mother had always told the father she was not interested in but agreed to it because he kept pressuring her.
Contrary to the mother’s evidence, it is apparent from text message exchanges from as early as 2014 that the mother represented to the father her intense pleasure in sex with the father including anal intercourse. For example, the following exchanges occurred on two dates in October 2014:
[…] October 2014
Father: Very sweet! How’s your butthole?
Mother: how kind of you to follow up […] [winking eye emoji]. To my surprise, it is absolutely fine – all three holes are doing very well indeed after their excitement last night and this morning [tongue extended emoji]
[…] October 2014
Father: ok my little pole-dancing cocksucker – let’s plan a weekend away […] soon if you’re interested … I’ve never been to […] hotel. We could practice anal in the rooftop pool [devil and thumbs up emoji]
Mother: hey you sexy hunk with a yummy beast of a cock, That sounds absolutely awesome – I’d love to!!!!!!! Can’t wait to get into the pool without my [swimming costume emoji]
The mother further contends that she had told the father “very clearly by 2017” that she did not want to participate in anal sex but that the father “kept having anal sex with her anyway”. In her trial affidavit the mother refers to a diary note made by her in April 2017 which she contends is an example of a time that the father had anal sex with her despite her “clearly not wanting to”. Rather than deposing to what allegedly occurred the mother merely quotes from her diary from two dates in April 2017 as follows:
52. … The diary entry states "... then he attempted to do anal and i was very reluctant and tried to pull away several times, he told me to “just take it bitch", and I started sobbing in my arms and head on bed, he continued but didn't know I was sobbing and biting my hand to try to counter the pain and hate and violation of me, he then finished and we snuggled, and he said “Im the one with the cock ... ".
53. My diary entry the following day notes "... I started playing with his cock and then [the father] turned me on my side and started putting his cock in my bum which he knows I hate but he pressured and forced and he did anal, didn't hurt as much as yesterday but I cried and [the father] kissed me lots (as he stupidly thinks it makes up for him hurting me sexually) and then we snuggled ... [the father] then phoned me on his way (after picking up [X]) and said thank you for a lovely dinner last night and he really enjoyed the anal and that he's sure I won’t let him do that next week when we are trying to conceive and made a fun joke of it to compensate for me being upset by him violating me sexually again ...".
The mother agreed that she had sent many sexually suggestive text messages to the father during their relationship including one in May 2017 in the following terms:
F****** AWESOME [monkey with eyes covered emoji] 4PLAY (make that 100 PLAY) and s-e-x […] [agreed this is a reference to the father] … My [taco emoji], [peach emoji] and [cherries emoji] loved your powerful magic [full lips emoji] [tongue emoji] [hand emoji] [finger emoji] and [eggplant emoji] …
You certainly know how to [target bullseye emoji] [hands clapping emoji] [trophy emoji] [champagne bottle emoji] [three celebration emojis]
[kissing lips emoji] [Ms Letty]
In the context of the mother alleging that she had been forced to have anal sex against her will, the mother was cross-examined about the above text message. Initially the mother said she could not remember what she was referring to by the taco, peach, and cherries emojis. In his trial affidavit the father contends that in her text messages to him, the mother used the peach emoji as a “visual reference to anal sex between us”. The mother said she thought “the peach [was] for the female genital area”. The mother rejected that it was a refence to her bottom and rather unconvincingly suggested that she thought “the peach meant the vagina area”. The mother agreed that the eggplant emoji was a reference to the father’s penis. The mother suggested she did not know what the target bullseye, hands clapping, a trophy, a champagne bottle, and three celebration emojis were a reference to and rather unconvincingly suggested, “I guess, know how to pleasure my clitoris and things”. The mother went out of her way to eschew the idea that she had represented to the father that she had enjoyed anal sex.
While enthusiasm and consent to anal sex in May 2017 does not mean that the mother consented to anal sex in April 2017, the mother’s evidence is that anal sex was something she abhorred from the very beginning of the relationship but had been pressured into submitting to it. The mother further contends that by 2017 the father could not have been under any misapprehension that she would consent to anal sex in the future.
A Child Impact Report (Exhibit 2) was prepared for the purposes of these proceedings and the mother was interviewed on 9 and 14 November 2023. Despite describing the father as coercive and controlling during and after the relationship, the mother described the father as “an angel before [the child] was born”. It seems inconceivable that the mother would make such a statement if she had been raped by the father prior to the birth of the child as alleged.
I reject the mother’s evidence that she was anally raped in April 2017 in light of her text messages to the father two dates in October 2014 (set out at [97] above) which contradicts her evidence that she had always abhorred anal sex and her text message to the father in May 2017 which, in the context, I find is more likely than not to be a reference to anal sex and how much the mother represented she enjoyed it. The text messages and the mother’s description of the father during the Child Impact Report interviews damage the mother’s credibility to such an extent that I cannot accept her evidence that the anal sex in April 2017 was not consensual.
Mother’s allegation that the father was a parent only when it suited him
The mother suffered a miscarriage in 2017 at about eight to ten weeks gestation before again becoming pregnant and giving birth to the child in 2018.
The mother conceded that during her pregnancy with the child, the father was very supportive, and she conceded sending text messages to the father during this time expressing her appreciation for his support. The mother sought to downplay the significance of her text messages during her oral evidence by saying that she was thankful for his support because he did not generally provide support. The mother also conceded that the father assisted in the care of the child after she was born although the mother did her best to minimise his input. The mother went so far as to describe the father to Dr NN as a “drop in father, being critical that he was not always there and was only when it suited him”. Generally, I was left with the impression that the mother was attempting to rewrite history.
The mother’s contemporaneous texts to the father portray the father in a very positive light and contrary to her narrative in this case, the mother conceded that:
(a)She was generally happy with the arrangement whereby the father spent time with the child (on her case) between three to six days a week;
(b)Despite contending that the child frequently cried upon returning from spending time with the father, and telling the mother that the father yelled at her if she said she missed the mother, the mother did not change the care arrangements;
(c)The parents agreed on the day care and preschool for the child; and
(d)The father attended events at the day care and preschool, and various extracurricular activities the child was engaged in.
The evidence persuades me that the father was supportive and attentive to the mother throughout her pregnancy and a caring and attentive father to the child after her birth.
Child’s name
The mother’s evidence about the child’s name is relied upon by her as an example of the father’s coercive or controlling behaviour. It is the mother’s case that she wanted the child’s surname to be “[Letty Danniell]” but that the father “insisted” on Danniell as the surname.
Contrary to the mother’s evidence, it was in fact the mother who suggested the child have the father’s surname corroborated by the text message exchange between the father and the mother in May 2016 wherein the father texted “… we’ve spoken about first names at length – but what would our child’s surname be??” and the mother responded, “Something like [Danniell] … unless you prefer something else”.
The mother’s trial affidavit states that when the father presented her with the completed birth registration documents to sign in the hospital, she simply signed them as she “didn’t have the strength to keep pressing for what [she] wanted”. By contrast, in an earlier affidavit filed 1 November 2023, (Exhibit 3) the mother deposed that at the hospital she said to the father that she did not want “that name” and requested that they talk about it more, but the father “pestered” her until she signed. The two versions are inconsistent.
The father contends that the mother did not object to the child’s name until after their relationship ended in early 2021. I accept his evidence.
2 September 2019 and 16 September 2019 – recordings
The mother again covertly recorded the father on 2 September 2019, the day after an incident that occurred at the mother’s parents’ home on Father’s Day 2019. The father took umbrage at what he perceived as disrespectful behaviour by the mother’s parents towards him. By all accounts, it was a storm in a teacup to use the vernacular. Yet the father could not let it go, and he very unfairly attributed some responsibility for the incident and its aftermath to the mother and his perception that she had not supported him.
The mother again covertly recorded the father on 16 September 2019. The father can be heard going on and on about the Father’s Day incident along the same vein as previously.
In my view, the father’s rigidity and focus is more a feature of the father’s ASD diagnosis than anything else, as explained by Dr NN. The father’s behaviour could nevertheless be categorised as an attempt to coerce or control the mother into agreeing with his perspective. The mother did not agree but I have no doubt the mother found the father’s obsession with the incident galling.
Rape allegation – during the period June 2021 to July 2021
The mother alleges she was raped by the father during a holiday together with the children at a house which the father rented for them between June 2021 and July 2021. The mother contends that she was explicit in her refusal to have sex, in both her words and actions, yet the father pushed her onto the bed and said, “lie down and take it bitch” and pinned her to the bed by holding her arms and then raped her. The mother deposed to having tears in her eyes at the time of the rape and feeling violated, numb, and sad.
The father admits that he and the mother had sexual intercourse during this holiday but maintains it was consensual. The father contends that the command to “lie down and take it bitch” was playful, and consistent with their playful sexual encounters in the past.
The mother conceded that despite maintaining a diary until October 2021, there is no mention whatsoever of a sexual assault or any incident that in any way correlates with the rape described in her trial affidavit.
The mother contended that the alleged incident occurred on the second last, or last night of the holiday, namely, in July 2021. The mother said of the incident, “I more blamed myself for not being strong enough. I guess I didn’t think of it as a horrifying event like it was for [the child] type thing when she did that disclosure”. When asked to repeat the evidence she just gave, the mother did not do so but changed it to “[The father] had taught me over the years that women just need to submit” and later that she “gave in”.
The mother conceded that in July 2021 she sent two text messages to the father. Exhibit 4 is a series of four messages exchanged between the parents commencing with two from the mother at 9.30.54 pm. The message from the mother included the following:
…
A huge thank you for inviting us to your time away with [X] – I’m very glad we came as I think it was a positive for everyone …
The father responded to the mother’s two text messages with two of his own. The messages from the father included the following:
Thanks SO MUCH for coming gorgeous!! (In every way [various emoji]) he he!! I’m glad you enjoyed your [snowman and snow emoji] holiday …
Exhibit 4 indicates that the mother “loved” the father’s two messages. The mother denied that her response indicated that she loved the sexual intercourse with the father.
The mother denied her allegation of rape was a fabrication. She said she “gave in” or “wasn’t strong enough in the end, and felt that I was violated by [the father].”
The mother attended upon a psychologist, Dr VV, in October 2021 for an initial session. The mother contends that she saw Dr VV mainly to get advice on the child being exposed to the conflict between the father and herself. Nevertheless, the mother agreed that she provided a history of her relationship with the father including outlining several incidents where he “treated her very badly”. The incidents disclosed by the mother were that the father had lost his cool and was very rude to her in a restaurant and that he had stopped the car when he was driving with her and the child and told her to get out after they had argued. The mother said the father had always wanted to live separately and described Ms Mounce (X’s mother) as an alcoholic. The mother agreed that she did not disclose any alleged rape despite disclosing that she and the father “had been intimate on two occasions” since January 2021. The mother said she did not do so because she blamed herself at the time “for not being strong enough to stop” and that it was only later that she realised “that it’s not right and I shouldn’t have had - had to go through with it”. The mother added that she was “a private person and it was hard for me when - when I was at the police”. It seems the mother made a complaint to police in 2023. The father has not been charged with any offences and has not been contacted by police.
While I readily accept that there is no usual way for a rape victim to act and that a victim may do or say things that seem inconceivable in the circumstances, I remain unpersuaded by the mother’s evidence that she was raped on or about July 2021. The mother’s contemporaneous text messages and responses to the father’s text messages, and her failure to mention to Dr VV that she had been raped despite referencing them having sexual intercourse, and despite disclosing other complaints about the father cause me to reject the mother’s allegation of rape.
I accept the father’s evidence that he and the mother engaged in consensual sex during this holiday.
Rape allegation –April 2022
The mother agreed that notwithstanding her alleged rape in July 2021, she accompanied the father and the children on another holiday in April 2022.
The mother contends that in April 2022, the father tried to kiss and fondle her, and she said “no” but agreed to cuddle instead. She contends that the father continued to try to touch her sexually and she pushed his hand away and eventually got up and went back to the bedroom she was sharing with the child. The mother contends the father entered the bedroom naked and said to her “you know you want it”, proceeded to remove her underwear and “had sex with me”. The mother contends she was in tears during sex and repeatedly said “no”.
The next day, the mother sent the father a series of text messages, (Exhibit 5). The first text message included the following:
… just writing to say thank you so very very much for the most amazingly wonderful […] holiday …
At [68] of her trial affidavit the mother purports to explain the text message as follows:
There were several reasons I sent messages like that to [the father] even after he sexually assaulted me on the holidays. Part of it was that we were a loving family in many ways and I just wanted to focus on that, I wanted to believe it, I wanted to pretend the abuse didn't happen or ignore it. I knew I also had to focus on positives and praise [the father] or face retribution. I also always felt ashamed and blamed myself for his behaviour, because I have not been strong enough; to push him away, to fight him off, to leave. I knew what he did was wrong but I felt like it was my own fault.
This alleged rape occurred about 18 months after the parents had separated. It is not clear why the mother wanted to focus on them being “a loving family” at that time. The mother had been advised by a counsellor, Ms DD, as long ago as 2021 that it would be better if the mother did not spend time together with the father and the child, and that it would be better for the child to have separate time with each parent so that she did not observe the conflict between the parents.
Other than the child allegedly saying, “tickle tickle” and/or “daddy tickles my bottom” while giggling, there is no evidence of the child giving a “very descriptive” account of what the father allegedly did to her, as asserted by the mother in her text to the father on 17 April 2023.
On 10 April 2023 at 10:51:26 am, the mother sent a text message to the father as follows:
[The child] was very out of sorts after the FaceTime call on Friday 7 April, and she is obviously trying to protect herself and I need to act in her best interests and not force her. Just fyi, I’m not going to keep writing about it. Wishing you and [X] a nice day.
The father responded as follows:
Thanks for your reply.
I would gently put forward that if she was reacting in some way as you suggest it is more likely due to the sustained period she has not seen me, and implies more frequent contact is needed.
It would be appropriate to visit upon [Dr FF] to assess this and have her expert input.
You may be trying to do the right thing – but kids don’t always behave in ways that make sense to us as adults, and this would be a very strange situation for [the child] as would be any reaction she has.
I will arrange an appointment with [Dr FF] as soon as possible and share the date/time with you.
I would really appreciate it if you could attend that session (by Zoom is fine) [smiling and thumbs up emoji]
There is no evidence the parents attended upon Dr FF at this time.
On 12 April 2023, the parents exchanged text messages about the child and X catching up and the mother proposed that X be dropped off at her place. The father enquired if the mother was intending to exclude him, and the mother responded:
It’s not me, it’s [the child], she really doesn’t feel comfortable with you. …
Not unreasonably the father said it should not be left up to a four year old and again suggested a session with Dr FF. It is unfortunate that the parents did not pursue that course.
Conclusion in relation to child sexual abuse
When a child makes a disclosure suggestive of possible sexual abuse, the words said by the child and any questions asked by an adult hearing the disclosure are very important, as are any contemporaneous behaviours by the child and the adult. This is because a young child can be very suggestible and can say things that require interpretation by an adult. The mother says she is convinced that the child has been sexually abused by the father. There was no possibility in her mind that she could be mistaken. Such conviction is difficult to understand having regard to the evidence.
I was left with the impression that the mother was embellishing her evidence to advance her case. Her inability to even contemplate that what the child was telling her was innocent and her reaction in the witness box to that possibility was somewhat histrionic.
The father denies the allegations of sexually abusing the child.
In his trial affidavit, the father concedes that he has “tickled her on occasion under her arms or on her stomach around her belly button upwards, or under her neck or near her ears”. The father denies tickling the child “in the sexual nature” alleged against him.
During cross-examination, the father agreed that at the time the allegations were made against him the child still required his assistance with dressing, toileting, and bathing. He agreed that he tickled her but “never tickled her on her perineal region, which is what [the child] interprets to be her bottom”. The father agreed that he has dried her genitalia with a towel after her bath. The father contended that if what the mother says the child demonstrated to her occurred, then there must be an innocent explanation because he has never touched the child inappropriately.
Dr NN discussed the child’s alleged disclosures with the father. The father “firmly denied he had done any inappropriate touching of the child. He said he often tickled her but not on the genitals”. The father expressed the view that the mother had made false allegations. The father told Dr NN that he “was asking for supervised visits with a gradual change to overnight visits … he wanted enough time with [the child] so as to maintain a relationship with her and a relationship between [the child] and [X]”.
In my view, the mother’s strongly held views are more likely to be a product of what Dr NN describes as the mother’s own polarised view of the father “where she initially idealised him and then significantly devalued him”, and to her own revised view of her experience of the father, and to her apparent preoccupation with child sexual abuse. Further, the allegations were made in the context of a highly conflictual relationship to which the child was at times exposed.
In my view, the allegations that the father has sexually abused the child are groundless. The mother’s allegations are neither rational nor reasonable. These conclusions are informed by the following findings:
(a)In the context of this case, I reject that the child’s statement in a playful manner that “daddy tickles my bottom” or “tickle tickle” was a disclosure of sexual abuse or of grooming behaviour by the father;
(b)I reject the mother’s evidence that the child tickled the mother’s genitals, because of the numerous inconsistencies in the mother’s account of what the child did, the inherent improbability of the child managing to put her hand between the mother’s legs and later into her underpants, and between her labia minora;
(c)Given the child’s age and developmental stage, the father had an entirely appropriate reason to come into contact with the child’s genitals when assisting her with her toileting and bathing, which in turn may have been experienced by the child as tickling;
(d)The mother had an unrelated preoccupation with the possibility of the child being sexually abused well prior to any statement or demonstration by the child that might have suggested same;
(e)While perhaps understandable, the mother engaged in questioning of the child and then interpretation of what the child said, in the context of an extreme bias against the father, high conflict, and a pre-existing preoccupation with sexual abuse;
(f)There were numerous inconsistencies in the mother’s evidence despite her evidence that she had made contemporaneous notes of everything the child said;
(g)The mother rejected even the possibility that she may be wrong in her conclusion that the father had sexually abused the child which was extreme, and irrational given the evidence;
(h)The mother’s reaction to even the possibility of the father seeing the child was histrionic.
If I am wrong in the conclusion that the allegations of sexual abuse are groundless, I nevertheless find the father does not pose an unacceptable risk of sexually abusing the child for the reasons set out above.
It seems the mother’s preoccupation with possible child sexual abuse may already be having a detrimental impact on the child, not only because she has not spent time with her father since 2 March 2023, but also possibly in her attitudes to males generally. For example, during a meeting between the mother and the child’s class teacher and deputy head of the child’s school, the mother reported that the child had said she did not want a “boy” teacher. The school records reveal that the child’s art teacher was male.
PERSONALITY ISSUES – RISK AND OTHER IMPACTS
The personality traits or vulnerabilities of each parent as identified by Dr NN are relevant not only to the assessment of risk but also to the capacity to facilitate ongoing relationships with the other parent and X, and to the ability to make joint decisions.
The father’s personality
Dr NN interviewed the father on the following occasions:
(a)For three hours in May 2024 in person;
(b)For two hours in June 2024 by AV link;
(c)For three hours in June 2024 in person;
(d)For 30 minutes in July 2024 by telephone.
In addition, Dr NN observed the father with the child for 30 minutes in May 2024.
Dr NN’s observations of the father include the following:
146. The father gave a coherent history, including life and relationship events. He was forthcoming with all answers. He was a consistent historian from interview to interview. He often answered questions in a very long-winded and over-detailed manner. Quite often he did not seem to notice if the interviewer was listening and at times he did not pick up on the interviewer’s cues, including when trying to redirect him at those times.
147. The father had no abnormality on mental state examination and notably on being challenged on various points did not became argumentative or defensive.
It is noted in Dr NN’s report that the father described being exposed to “lots of conflict” between his parents before they separated when he was a child. He spent limited time with his father and ceased seeing him all together when he was in his early teens as his stepfather told him he was being “disloyal” to his mother by continuing to do so. The father described a positive relationship with his stepfather but a difficult relationship with his mother.
According to the father’s self-report to Dr NN, he attended over 40 sessions with a psychologist, Dr UU, from mid-2016 to early 2019. Dr NN had access to some of Dr UU’s notes and spoke with him for 30 minutes in June 2024. Dr UU said he noted the father’s “psychological fragility” in that he considered the father “was sensitive to perceived criticism and thought this could impair his insight”. Dr UU did not diagnose pervasive negative narcissistic traits or a Narcissistic Personality Disorder (“NPD”) nor a Borderline Personality Disorder (“BPD”) (which has been suggested by other practitioners whom the parents jointly saw on occasion).
The father also attended approximately 50 sessions with another psychologist, Dr Z from 2017 until mid-2021. Dr NN spoke with Dr Z for 30 minutes in July 2024 who informed Dr NN that her treatment of the father occurred as a result of a recommendation by Dr P who had prepared a Family Report in the parenting dispute between the father and Ms Mounce. Dr Z said the father’s treatment initially involved “Schema Therapy”. The focus of the treatment was related to self-sabotage, with sessions later being to provide a supportive counselling space for the court process, problems in his business and support in his relationship. Dr Z did not diagnose NPD, nor did she consider the father to have significant narcissistic or borderline traits. She did note that the father “intellectualised and went into detailed monologues”.
Dr NN also spoke with the two psychologists whom the parents saw jointly. Ms DD had eight sessions with the parents and her notes include a comment about the father: “no insight re impact of own behaviour (NPD *BPD)” and opined to Dr NN in June 2024 that the father had significant narcissistic traits. Ms EE had 14 sessions with the parents and Ms EE opined to Dr NN that the father had negative narcissistic traits and likely NPD.
Dr NN considered it important to note that Ms DD and Ms EE saw the father in the context of the adversarial relationship with the mother and did not see him individually for any significant time. Ms DD’s notes from February 2021 included the following observations of the father as recorded at [308] of Dr NN’s report:
308. The father’s reported behaviours and presentation at interviews displayed overinclusive detailed answers to questions, monologues composed of long-winded speech without noting if the listener was paying attention, often missing the nuance of the question, intense focus on specific topics, a need for routine and structure (such as his having to sleep a certain number of hours and be home for his sleep) and a resulting anger when his routine is disturbed (such as when police interrupted him to question him as noted in police reports), analytical thinking and intellectualisation, an interest in collections of objects […], deep interest in technical aspects, difficulty with interpersonal relationships and a transactional approach to relationships.
As family violence is an issue in this case, I note the reference in the quoted paragraph above to the father’s collection. It is not in dispute that the father has been involved in sporting events for many years if not decades. He has won national and international competitions. The father’s equipment collection was surrendered when the provisional AVO was taken out. The father has arranged for his collection to be professionally stored and has not made application for the equipment to be returned to him or for a new licence which expired when the AVO was in place.
Dr NN also spoke to a child and family consultant, Mr YY, whom the parents saw via “Zoom” on one occasion. Mr YY said the interview was “chaotic with both parents talking over each other and the mother had the child present in the background. He noted that the mother felt unheard and that the father appeared authoritarian”. Mr YY referred them elsewhere. According to the mother, Mr YY sent her and the father a joint email after the session in which he reminded them that exposing the child to conflict can impact negatively on the child both emotionally and psychologically. Neither parent seems to have heeded that advice by protecting the child from their conflict.
Dr NN opined that the mother had a “polarised view” of the father and was entirely negative about him during his interviews with the mother. Dr NN considered that the mother’s view of the father “may be … influenced by her psychological make-up”.
Dr NN concluded at [311]-[312] of his report:
311. The father exhibits several characteristics that are consistent with Autism Spectrum Disorder (ASD), particularly in terms of social interactions, communication style, and cognitive processing. Individuals with ASD can have self-esteem issues and seek positive emotional reinforcement. His speech pattern goes towards this diagnosis, for example his literal interpretation with logical analysis and the orientation towards detail. He was diagnosed with Attention Deficit Disorder which is often comorbid with ASD. ASD at first impression can superficially appear to be narcissism. The father at interview gave a first impression of lacking empathy but on further questioning his answers indicated that he was not indifferent to the impact of his behaviour on others. What was observed by others as not listening or being unemphatic was actually related to him not fully understanding the nuance of the other person’s emotional state. An example of this was given by the mother when she said that he was not attuned to the child. These qualities are related to Theory of Mind. In the context of autism, individuals often experience difficulties with Theory of Mind. This is the ability to fully understand that other people have their own thoughts, feelings, beliefs, and perspectives, which may be different from one's own and it involves recognizing and predicting how others might think and feel. Individuals with ASD often have unique ways of communicating and interacting socially. As such they can be perceived as self-centred or indifferent and this can lead to conflict in relationships.
312. ASD can manifest in various ways and in varying degrees with an individual lying on different parts of the spectrum regarding severity. It can appear similar to narcissism or to borderline personality organisation, as people with ASD can also have issues with self-esteem and a fragile ego structure and appear to lack empathy. At first impression during the first interview, the resemblance to narcissism was noticeable. However, upon longer and closer listening over the course of subsequent interviews, whilst simultaneously paying attention to his speech pattern and the content of his answers, the traits of ASD became more apparent.
Dr NN specifically rejected at [315] of his report that the father had NPD or significant negative narcissistic traits and opined that the father did not lack empathy. Dr NN also noted the father’s ability to observe complimentary features about the mother both as a person and parent.
Dr NN opined that the father’s ASD, “would impact in a positive manner [for the child] by providing a stable predictable routine and structure with consistency … providing clear boundaries and rules helps a child understand expectations and feel more secure, and provide unique learning perspectives. However, challenges may arise in the father’s capacity to respond to and recognise the child’s emotional, non-verbal and social cues with the result, that as [the child] grows, she may feel misunderstood or not heard”. At [332] of his report, Dr NN opined:
The father in this case demonstrates a complex mix of various traits indicative of ASD. He has demonstrated a willingness to attend to the child’s needs and with assistance can manoeuver (sic) the difficulties that may arise. Significantly he has used psychologists in the past to assist with parenting and is aware of the impediments he may face in therapy.
The mother’s personality
Dr NN interviewed the mother on the following occasions:
(a)For two hours and 30 minutes in May 2024 in person;
(b)For three hours in June 2024 in person;
(c)For 45 minutes in June, 26 June and July 2024 by telephone.
In addition, Dr NN observed the mother with the child in May 2024 for 30 minutes.
Dr NN noted the following matters about the mother:
102. The mother often exhibited over-inclusive and repetitive answers, displaying anxiety about ensuring that all her information was considered. This necessitated occasional redirection and reassurance that she had already presented the information. She brought notes with her to ensure she reported everything. On being informed an interview had concluded, she felt the need to check that she had covered every point, extending the interview beyond the planned timeframe.
103. The mental state examination of the mother displayed an anxious affect with over detailed answers, as noted above. No other abnormality was noted.
104. When asked if she had any concerns about her mental health, she stated that she had no mental health diagnosis but she experiences symptoms of anxiety. She said that that she had taken anti-anxiety medication in her twenties.
…
144. In regard to relationships the mother added that until her thirties she had thought there was no sex in relationships until marriage.
Dr NN opined that there are indications that the mother has “a possible self-esteem disorder with poor boundaries”, “[h]er experience of relationships appears limited”, “[h]er experience of the father could be hypothesised to be due to a sensitivity she has in regards to interpersonal dynamics and emotional exchanges” which would “go towards explaining her being negatively impacted by the father”. In his view, “the mother at some stage has formed a polarised view of the father, where she initially idealised him and then significantly devalued him”.
Dr NN described the mother as “complex” and opined that “[i]ndividuals with self-esteem issues have poor or variable boundaries and as such may take on some aspects of the identity of the partner in the relationship. As fractures or fissures in the relationship develop, they subsequently devalue the partner and become negatively polarised”.
The issues described by Dr NN do not of course mean that the father was not coercive or controlling but, if the mother’s version of the father is correct it may help explain her early pursuit of him and wish to remain in the relationship with him and for it to go further than he wanted it to, namely, for them to live together as a family.
In relation to the impact of her personality on her parenting relationship with the child, Dr NN provided the following insights:
333. The mother demonstrates a strong capacity to meet [the child’s] needs across various domains. Her comprehensive understanding and approach ensure [H's] physical, developmental, psychological, emotional, and intellectual needs are well addressed. However, it is important to consider the impact of her anxiety and controlling behaviours on her overall capacity. The mother’s anxiety may lead to overprotectiveness, which might limit [H's] opportunities to develop independence and resilience. The need for the mother to recognise her anxiety and controlling tendencies is crucial. Should she be able to do this she can mitigate the potential negative impacts on her parenting.
334. If the mother does have a self-esteem disorder, the impact on the child depends on the traits and depth of these. The main impact is the possible development of a self-esteem disorder in the child.
335. The mother’s significantly polarised view of the father may negatively affect the child’s emotional well-being concerning the need for a father in her life. There is a risk that the mother’s current views of the father have led, or will lead her to present a narrative to the child that alienates the child from the father. This could occur inadvertently or otherwise, as she continues to devalue and criticise him.
THE CHILD’S RELATIONSHIP WITH EACH PARENT
Dr NN opined that the child had a “strong, nurturing bond” with the mother, an opinion about which there is no disagreement.
Prior to the child seeing the father, Dr NN noted that the mother was “very anxious and said that she thought the child would act in a way to please the father”. Such a comment may suggest that the mother is projecting what she contends is her own behaviour onto the child.
Dr NN asked the child about the father and the child drew a picture of him with a downturned mouth and when asked why, the child said he is “angry and yells”. The mother was present at that time.
At [216] Dr NN sets out his observations of the child with the father:
For the observation with the father the child at first said she was scared and she was reassured by the interviewer, being led into the room to be observed with the father. They both greeted each other warmly, though not with hugs, the father approaching carefully, considering he had not seen the child for over 15 months, looking at me for guidance. The child smiled and rapidly involved him in play with the kitchen set and also Mr Potato Head. There was no discomfort displayed and she spontaneously went to the whiteboard and wanted to make a drawing for the father. This time she drew herself, [X] and the father all smiling under a multicoloured rainbow. The two continued to play together on the floor and when it came time to leave the father asked the interviewer if he could give her some gifts. The child was excited at these, which included a fairy costume and other toys, with which she began to interact and show the father. On being told it was time to leave she packed her bag of gifts and was accompanied out by me to where the maternal grandmother was waiting.
After the observation of the father and child, the child was handed over to the maternal grandmother “who voiced a comment to [Dr NN], denigrating the father, whilst the child was present”. According to Dr NN, the maternal grandmother said something along the lines of, “He’s a bad man, he’s really bad”. Dr NN was in no doubt that the child heard the comment. The maternal grandmother’s examples of the father being a “bad man” were his lack of ability to interact with people, his lack of affection to the children, on one occasion when she interrupted him, he screamed “nobody interrupts me” and later asked if she was alright “as if nothing had happened”, and his car’s personalised number plate.
The mother attempted to minimise any enjoyment the child experienced in seeing the father during the report interviews by attributing any pleasure the child may have demonstrated in seeing the father, to the presents she received from him. The mother is critical in her trial affidavit of the number and type of presents e.g. that one gift included some liqueur chocolates. The mother claims that the child “did give away or donate most of the gifts”. It seems improbable that such a decision was made by a five year old. The mother also gives a curious account about the child asking her to check with “siri” why a vagina is called a vagina and the mother obliged. The mother also refers to the child’s “dysregulation” over the days following her interaction with the father at the family report interview.
When Dr NN saw the child again in June 2024, he asked the child if she remembered seeing the father on the last occasion and she said she did and when asked how she felt about seeing him, she said it was “good to see him”. When asked how she felt after she saw him, the child said, “I went home and was happy”. The mother was not present at this time. When asked if she loved the father, the child said she did not and when asked why she said, “my mom thinks he is bad because he used to scare me yelling at me”. When asked if she wanted to see the father again, she said she did not but when asked why, she was unable to explain.
At [325] of Dr NN’s report he opines:
… There is some evidence that [the child] may have been influenced by her mother or family members in this perception, and she would have been affected by the mother’s anxiety, expressed fear of the father, and observing arguments. Furthermore, the involvement of the police and DCJ may have indicated to her that her father is unsafe, a perception accentuated by the mother pointing out to [the child] that she should not allow anyone to touch her in certain areas after [the child] told her that the father had tickled her. Witnessing parental arguments would have reinforced her fear of her father, adding barriers to their relationship and further impeding rebuilding trust and comfort. However, during an observation with the father, [the child] engaged positively with him once initial hesitations were overcome. …
I consider it more likely than not that the factors raised by Dr NN have negatively influenced the child in relation to the father.
It is important to acknowledge that the fact the child was happy to see the father and interacted with him warmly is not of itself determinative of the assessment of the risk posed by the father.
Prior to 2 March 2023, the father spent significant time with the child including one overnight per week. I accept that he had a close and loving relationship with the child and find that the strength of those bonds has withstood the long separation. I do not attribute the survival of that bond to any goodwill on the part of the mother. The ‘messages’ received by the child from the mother and the maternal grandmother portray the father in an entirely negative light.
Dr NN opined that despite the father’s likely ASD the father would be able to meet the child’s developmental and physical needs but would require assistance with his communication skills. In his view, which I accept, the father’s symptoms are amenable to therapy and the father has demonstrated a willingness to engage in therapy for a range of issues over the years.
THE CHILD'S RELATIONSHIP WITH X
By all accounts, the child and X had a close relationship up until the mother stopped the child seeing the father in March 2023. The mother concedes that the child misses X.
Dr NN interviewed X in June 2024 for 25 minutes but did not observe him with the child. X said he liked living with the father but missed his mother whom he talks with regularly and sees at least every weekend. He said he preferred living in City A though preferred the school in Sydney. X spoke about the father cooking dinner many nights and generally gave a favourable impression of life with the father. He said the father has been angry with him on occasions and gave the impression he had observed the father exhibit anger towards the child but said “to be honest I don’t know why … he raises his voice, shouts”. Dr NN assessed the relationship between the father and X to be “normal” and did not suspect that the child had been influenced to give particular answers. It is a positive that X can maintain relationships with both of his parents and that he said he liked the mother. There were no indications that X is at risk in the father’s care.
The child told Dr NN that she liked X and said he was her brother and that he plays with her. The child said she wanted to see him.
It seems unlikely that the children will see each other if the child remains with the mother. Some attempts were made prior to April 2023 between the mother and Ms Mounce for the children to see each other but nothing came of it.
CONCLUSIONS IN RELATION TO RISK
The mother has made false allegations of rape against the father and false allegations of sexual abuse of the child. While such findings are very serious, they are not determinative, on their own, of the broader issue i.e. what parenting order that is in the best interests of the child.
The ongoing risks posed by the mother to the child if the child remains in her primary care are emotional and psychological and include the following:
(a)The child will in all likelihood grow up falsely believing she has been sexually abused by the father, and that the father is a bad man from whom she is not safe;
(b)The mother has had a long history of anxiety and the child would be exposed to the mother’s anxiety if the child had a continuing relationship with the father;
(c)If the child spent unsupervised time with the father, as recommended by the ICL, the child would most likely be subjected to interrogation by the mother, evidence gathering behaviours like video recording her, and further police and DCJ involvement;
(d)In all probability, if the child remains with the mother, she will be unable to have a relationship with the father given the strength of the mother’s negative views about the father including that he has sexually abused the child;
(e)The removal of the father from the child’s life would not only lead to profound effects on the child’s well-being but potentially as she gets older it may lead to a strained relationship with the mother if she blames her mother for having the father removed from her life;
(f)The child will be unlikely to have a relationship with her sibling, X;
(g)Even if the child spent supervised time with the father, the mother would remain of the view that the child is at risk from the father.
I conclude that the risks posed by the mother are ‘unacceptable’ risks in the sense explained by the High Court in M & M and that the risks cannot be ameliorated if the child continues to live primarily with the mother.
The ongoing risks posed by the father are that he may be unable to meet the emotional and psychological needs of the child, and his rigidity and focus may compromise his ability to deal appropriately with emotional issues as they affect the child. If the child is removed from her primary attachment figure it will be traumatic for her, at least initially, and she will require emotional support which the father may be unable to meet without assistance. I nevertheless do not regard the risks posed by the father to be unacceptable risks.
WHAT PARENTING ORDER IS IN THE CHILD’S BEST INTERESTS?
Notwithstanding his likely ASD, the father is high functioning in other life matters. Additionally, since May 2024 he has had the full-time care of his nine year old son, X, and has had a significant involvement in his son’s care since birth. X appears to be well cared for and despite the father and X’s mother having a history of conflict, X speaks mostly positively about his parents and enjoys communicating and spending regular time with his mother. There is no evidence that X is at risk in the father’s care.
Dr NN also opined, and I accept, that the father demonstrated an understanding and capacity to meet the child’s needs across various domains e.g. the need to provide a safe environment, balanced nutrition, regular medical check-ups, being attentive to her developmental milestones, promoting activities that advanced her motor skills and cognitive development, the need to ensure her psychological well-being, maintaining consistent routines and boundaries, being committed to her educational needs, and the need to access counsellors to assist in her well‑being when required. Dr NN opined that the father would need expert psychological assistance to parent. The father has indicated a willingness to undertake such assistance and contends that he has already commenced therapy with a person recommended by Dr NN.
Unlike the mother who has an entirely negative attitude about the father, the father readily conceded many positive attributes of the mother. For example, that she was “very loving”, “very caring”, has a “warm personality”, she is “generous”, that she is someone “who lives for other people’s happiness”, she “gives her all” and is a good mother.
There is no dispute that the mother and child have a close and primary bond and that the mother has a lot to offer the child as a caring and nurturing parent, keenly aware and able to meet the child’s physical, emotional, and cognitive needs. Unfortunately, the risks posed by the mother are not ones that can be ameliorated while the child remains in her primary care.
In Dr NN’s opinion, which I accept, if the child is removed from the primary care of the mother, the extent of any detrimental impact on the child “would depend on the child’s resiliency and what happens afterwards” but that “the long-term detriment will be overcome if the child keeps a relationship with the mother”. In my view, the father will encourage the child’s relationship with the mother and facilitate an ongoing relationship between the child and the mother. The child will also have the support and friendship of her brother, X.
I conclude that it is in the best interests of the child to live with the father.
The mother will understandably find this decision very difficult to accept, and the child will need some time to adjust and settle into the father’s household. In such circumstances, Dr NN suggested a moratorium for six weeks, but possibly 12 weeks. I propose to order a moratorium on the mother’s contact with the child for six weeks.
I propose to order that the mother spend supervised time with the child for about two and a half years so that she can undertake the therapy Dr NN opined would be necessary to enable her to come to terms with the findings and outcome of this case. In my view, taking a cautious approach to how long the therapy would take and thereafter making provision for unsupervised time is more likely to be in the child’s best interests than simply leaving the mother’s time with the child to be supervised indefinitely. The latter approach would be more likely to involve the parents in further Court proceedings.
I propose to order that after about two and a half years the mother spend weekly unsupervised time with the child including overnights and half school holidays.
Dr NN emphasised the importance of ongoing therapeutic interventions for both the child and the parents given “the complexities and conflicts present in the family dynamics”. In his view, “[e]ngaging in individual therapy with an experienced clinical psychologist or psychiatrist can help each parent address their specific emotional and psychological challenges, such as anxiety, interpersonal difficulties, and in the case of the father any potential negatives from ASD traits”. I propose to order that the parents engage in therapy as recommended by Dr NN and that the father engage a therapist for the child to provide ongoing support.
Having regard to the history of this matter, I do not consider that the parents currently have the capacity for joint decision making in relation to any major long-term issues. As the child will be living with the father, he will have sole parental responsibility for major long-term issues but will be required to consult the mother prior to making such decisions.
Each party had the opportunity to make submissions about the orders proposed by the others and ultimately the order I propose to make is one that I consider will best meet the child’s interests in the long term.
At the conclusion of the trial, I indicated to the parties that whatever decision I made, it would be best for the child to have the order explained to her by a Court Child Expert and for that reason the mother should bring the child to the Sydney Registry on the day judgment was to be delivered.
I certify that the preceding two hundred and seventy-eight (278) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew. Associate:
Dated: 28 January 2025
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