Danniell & Letty (No 3)

Case [2025] FedCFamC1F 31

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…

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AGLC
Danniell & Letty (No 3) [2025] FedCFamC1F 31
Case
[2025] FedCFamC1F 31
Decision Date

CaseChat Overview and Summary

The case of Danniell & Letty (No 3) involved a dispute between the parents of a child named H, born in 2018. The primary issues before the court were the allocation of parental responsibility, the living arrangements for the child, and the allegations of sexual abuse against the father by the mother. The independent children’s lawyer had recommended joint decision-making for major long-term issues, with the child residing primarily with the mother and the father having supervised visitation rights. However, the mother had made clear she would not comply with such an order.

The court needed to decide whether the mother's allegations of sexual abuse by the father were credible and whether it was in the child's best interest to have a relationship with both parents. The court also had to consider the impact of the mother's allegations on the child's welfare and whether the mother's actions were in the best interest of the child.

In its reasoning, the court found that the mother's allegations of sexual abuse were groundless. The court highlighted the mother's polarised view of the father and her preoccupation with the possibility of sexual abuse, which influenced her interpretation of the child's statements. The court concluded that the child's statements did not suggest sexual abuse but were likely innocent remarks about tickling. The court found the father's explanations for his contact with the child during bathing and dressing to be appropriate and not indicative of inappropriate behaviour.

The court determined that it was in the child's best interests to live with the father, with the mother having supervised visitation rights initially, escalating to unsupervised visits after a period of time. The mother was restrained from any contact with the child for six weeks following the order. The court also outlined detailed arrangements for the child's time with the mother, professional supervision during certain periods, and conditions for travel and passport arrangements. Additionally, the court mandated therapy for both parents and the child to address the emotional and psychological impact of the case.

The final orders included sole parental responsibility for major long-term issues resting with the father, detailed living arrangements for the child, supervised and unsupervised visitation schedules, and specific conditions for travel, passport management, and therapy for all parties involved.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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