Danton & Brockett (No 2) - [2022] FedCFamC1F 708

Federal Circuit and Family Court of Australia
(DIVISION 1)
Danton & Brockett (No 2) [2022] FedCFamC1F 708

File number(s): SYC 4201 of 2020

Judgment of: SCHONELL J

Date of judgment: 16 September 2022

Catchwords: FAMILY LAW – PARENTING – Unacceptable Risk – Where both parties seek sole parental responsibility and that the child live with them and spend limited time with the other parent – Where the mother asserts that the child disclosed that his half-brother had inappropriately touched him – Where the half-brother has level three autism and an intellectual disability – Where the mother contends that the father and half-brother pose an unacceptable risk to the child – Where the father and Independent Children’s Lawyer contend that the mother poses an unacceptable risk – Where the Court found that the mother does pose an unacceptable risk to the child – Consideration of primary and additional considerations under s 60CC of the Family Law Act 1975 (Cth) – Where it is in the best interests of the child that the child live with the father and spend time with the mother.

Legislation:
Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.03, 7.25

Cases cited:
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96

Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251

Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102

Isles & Nelissen [2022] FedCFamC1A 97

Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235

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

Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76

Potter and Potter (2007) FLC 93-326; [2007] FamCA 350

Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Division: Division 1 First Instance

Number of paragraphs: 413

Date of hearing: 23 – 26 May 2022 and 11 – 12 August 2022

Place: Sydney

Counsel for the Applicant: Mr Dura

Solicitor for the Applicant: SMB Law

Counsel for the Respondent: Mr Blackah

Solicitor for the Respondent: Greysilver Law

Counsel for the Independent Children's Lawyer: Mr Longworth

Solicitor for the Independent Children's Lawyer: Gordon & Barry Lawyers
ORDERS

SYC 4201 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR DANTON

Applicant

AND:
MS BROCKETT

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SCHONELL J

DATE OF ORDER:

16 SEPTEMBER 2022

THE COURT ORDERS THAT:
1.All existing parenting orders be discharged.
2.The applicant father (“the father”) have sole parental responsibility in respect of Y born 2016.
3.Y live with the father.
4.In the event the father intends to make a decision in respect of the long-term care, welfare and/or development of Y he shall provide the respondent mother (“the mother”) with not less than 14 days’ prior written notice of the decision he intends to make, the reason for the decision and the date the decision is proposed to be implemented.
5.Y shall spend time with the mother during school terms each alternate weekend from the conclusion of school Friday until commencement of school Monday commencing on the second Friday of the school term.
6.For the purposes of the Term 3 2022 school holidays, the mother shall spend time with Y from 3.00 pm Friday 23 September 2022 until 9.00 am Monday 26 September 2022 and from 3.00 pm Friday 7 October 2022 until 9.00 am Monday 10 October 2022.
7.Y shall spend time with the mother and father during school holidays as follows:
7.1.During the school holidays (with the exception of Term 3 2022 school holidays) at the end of Terms 1, 2 and 3 by agreement and, failing agreement:
7.1.1.For the first half of the school holidays at the end of terms 1 and 3 with the mother commencing from the conclusion of school on the last day of school term and concluding at 12.00 noon on the second Saturday of the school holiday period and with the father until the commencement of school;
7.1.2.In respect of the school holidays at the end of term 2, with the father for the first half of the school holidays commencing from the conclusion of school on the last day of school term and concluding at midday on the second Saturday and with the mother for the second half of the school holiday period commencing at 12.00 noon on the second Saturday of the school holiday period and concluding at 12.00 noon on the Sunday immediately before school resumes and otherwise with the father;

7.2.Subject to Order 6 during the term 4 school holidays by agreement and, failing agreement, as follows:
7.2.1.With the mother in years ending in an even number, for the first half of the school holiday period commencing at 12.00 noon on the first Saturday of the school holiday period and concluding at 12.00 noon on the day being the mid-point of the school holiday period and otherwise with the father;
7.2.2.With the mother in years ending in an odd number, from 12.00 noon on the day being the mid-point of the school holiday period until 12.00 noon on the Sunday immediately before school returns and otherwise with the Father,

7.3.On special occasions as follows:
7.3.1.In years ending in an even number, from 12.00 noon 24 December until 12.00 noon 25 December with the mother;
7.3.2.In years ending in an odd number, from 12.00 noon 25 December until 12.00 noon 26 December with the mother;
7.3.3.In years ending in an odd number, from 12.00 noon 24 December until 12.00 noon 25 December with the father;
7.3.4.In years ending in an even number, from 12.00 noon 25 December until 12.00 noon 26 December with the father;
7.3.5.On Y’s birthday, if Y is not otherwise spending time with the Mother, from:
7.3.5.1.after school until 7.00 pm if it is a week day;
7.3.5.2.from 9.00 am to 12.00 noon if Y's birthday occurs on a weekend;

7.3.6.On Y’s birthday, if Y is not otherwise spending time with the father, from:
7.3.6.1.after school until 7.00 pm if it is a week day;
7.3.6.2.from 9.00 am to 12.00 noon if Y's birthday occurs on a weekend;

7.3.7.On Father’s Day from 9.00 am until 5.00 pm with the father;
7.3.8.On Mother’s Day from 9.00 am until 5.00 pm with the mother.

8.For the purposes of these orders and unless otherwise agreed, changeovers shall occur at school on a school day and at the Woolworths carpark in Suburb B on a non-school day.
9.The mother shall forthwith provide to the father Y’s passport and the father shall thereafter retain possession of Y’s passport.
10.For the purpose of Order 2 herein, Y is permitted to travel internationally as provided by s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and for this purpose the father is permitted to apply for an Australian passport and to renew such passport for Y under the provisions of s 11(1)(b)(i) of the Australian Passports Act 2005 (Cth).
11.Each of the parties shall be restrained from denigrating the other party or any member of the other party’s family in the presence or hearing of Y.
12.Each of the parties shall be restrained from allowing Y to remain in the presence of, or within Y's hearing of, any other person who is denigrating the other party or any member of the other party’s family or any person who is in a relationship with the other party.
13.The mother and father shall be restrained from discussing the proceedings with Y.
14.The father shall do all acts and things and sign all documents necessary so as to deliver Y to Level 2 of the Federal Circuit and Family Court of Australia Counselling Section for the purpose of these orders being explained to Y by a Child Court Expert and/or the Independent Children’s Lawyer at 9.30 am on Monday 19 September 2022.
15.Pursuant to s 13C(1)(c) of the Family Law Act 1975 (Cth), the parties must within 28 days appoint a parenting coordinator (“the parenting coordinator”) for a minimum term of 12 months from the date of these orders on the terms provided in this order and in the form of the Parenting Coordination Agreement endorsed by Parenting Coordination Australia (“the Standard PC Agreement”) provided that where the terms of this order conflict with the Standard PC Agreement this order will prevail.
16.The parties must attend on the parenting coordinator as required by the parenting coordinator on a non-confidential basis with the parties to meet the cost equally.
17.The parties will complete the appointment of the parenting coordinator, including:
17.1.Selection of the parenting coordinator (if not named in this order);
17.2.Execution of the Standard PC Agreement; and
17.3.remittance of all requisite retainers and deposits,

within 42 days of the date of these orders, with liberty to apply to the Court failing conclusion of the appointment of the parenting coordinator.
18.The parenting coordinator may assist the parties in the implementation of the parenting plan in the following manner and on a non-confidential basis by building consensus between the parties, including but not limited to by:
18.1.Developing and instituting guidelines for the implementation of the parenting terms of this order;
18.2.Developing and instituting guidelines for communications between the parties;
18.3.Identifying, creating and implementing strategies for resolving conflicts between the parties;
18.4.Providing information respecting resources available to the parties for the improvement of their communication or parenting skills; and
18.5.By issuing recommendations and/or proposed protocols that the parenting coordinator believes would be in Y’s best interests in the implementation of the parenting plan and, in the event the parenting coordinator issues such recommendation or proposed protocol, shall provide the parties with written reasons for that recommendation or proposed protocol.

19.The mother shall be restrained by injunction from taking Y to any medical/health practitioner, police service or child protection service other than for the purpose of responding to or obtaining treatment for an acute injury and only after providing the father with notice in writing by SMS including details that would enable the father to attend and/or participate in the process.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Danton & Brockett has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:

These are parenting proceedings in relation to the parties’ child, Y, who is six years of age.
Each party contends there are significant risk factors such that the child should live with them, that they have sole parental responsibility and that the child spend limited time with the other parent.
The applicant father (“the father”) contends in his Case Outline in relation to the question of risk as follows:
12.The Father holds serious concerns that [Y] is in very real risk in the Mother’s care due to her conduct, her unfounded beliefs regarding the alleged disclosures by [Y] and her unwavering desire to ensure that [Y] is interviewed and examined by any relevant health professional, DCJ officer and/or Police Officer until she is able to secure a finding and/or a substantiation of the alleged abuse. To date this has not been forthcoming and [Ms C] identifies the risk to [Y] should this behaviour continue.
The respondent mother (“the mother”) contends in her Case Outline in relation to the question of risk as follows:
The need to protect the child from harm (section 60CC(2)(b) of the Family Law Act)
3.It is the Respondent Mother’s case that [Y] has been exposed to sexual harm by [X], whilst [Y] has been in the Applicant Father’s care.
4.And that the Applicant Father fails to appreciate the extent of the risk which has caused actual physical and psychological harm to [Y].
…
Best interests - additional considerations
…
7.The Respondent Mother submits that the Applicant Father’s parenting ability is impaired, by reason of his failure to appreciate and act appropriately in relation to the risk posed by [X] to [Y].
The proceedings were listed for hearing for five days commencing on 23 May 2022. In the afternoon of 26 May 2022, the single expert, Ms C, was scheduled to give her evidence. She had been provided with the Court Book, which comprised some 940 pages. It became apparent that she had read the father’s affidavits but not the mother’s. The volume of material to read was such that it could not reasonably be read and the cross-examination could not be completed in the remainder of the day. The single expert was not available the next day.
Consequently, the matter had to be adjourned. The hearing resumed part-heard on 11 August 2022, with the single expert’s evidence taking the whole day. The matter continued the next day with submissions.
Before submissions commenced, counsel for the mother made an application that I discharge the single expert and appoint a new expert as consequence of the single expert conferring with the father’s counsel in what was said to be a breach of r 7.03(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Having heard from all parties on the application, I declined to make the order sought and indicated that I would give my reasons at the same time as delivering my reasons in relation to the competing parenting applications.
The parties thereafter made their submissions and I indicated that my judgment was reserved.
Application to discharge single expert
The mother’s counsel made an application in the following terms:
That [Ms C’s] evidence be excluded and that a fresh single expert be appointed.
(Transcript 12 August 2022, p.339 lines 25–26)
The application was supported by an affidavit sworn by the mother’s solicitor. The affidavit in broad terms contended that on the previous morning prior to the single expert giving evidence, the solicitor for the mother observed counsel for the father conferring with the single expert. The solicitor then gives evidence that he had a conversation with counsel for the Independent Children’s Lawyer (“the ICL”) to the following effect:
8. …
ME: “Mr Longworth. I have just seen Mr Dura and [Ms C] alone in a closed meeting room. Is that appropriate?”
MR LONGWORTH: “I see no issue. There is no property to a witness.”
(Affidavit of Matthew Lee Marshall filed 12 August 2022)
The solicitor indicates that he then informed counsel for the mother what he had observed.
No issue was taken with the evidence given by the mother’s solicitor.
The mother’s counsel referred to r 7.03, which provides as follows:
7.03 Appointment of single expert witness by parties jointly
(1)If the parties agree that expert evidence may help to resolve a substantial issue in a proceeding, they may agree to jointly appoint a single expert witness to prepare a report in relation to the issue.
Note:Subrules 7.13(3) to (5) set out the requirements that apply to instructions to a single expert witness appointed by agreement between the parties.
(2)A party does not need the court’s permission to tender a report or adduce evidence from a single expert witness appointed under subrule (1).
(3)A party must not communicate unilaterally with a single expert witness, except as permitted by these Rules.
(4)Any communication between a party and a single expert witness must, at the same time, also be provided to all other parties engaging that single expert witness, except as permitted by these Rules.
Counsel also drew the Court’s attention to r 7.25, contending that the only circumstances in which a party may confer with a single expert is after they have entered into a written agreement about conferring with that expert. Rule 7.25(7), absent agreement, is to the following effect:
7.25 Conference
…
(7)If the parties do not agree about conferring with a single expert witness, the court, on application by a party, may order that a conference be held in accordance with any conditions the court determines.
Counsel for the mother, after referring to the fact that the parties had not conferred in accordance with the Rules, submitted:
… what we’re left with is that [Ms C], having conferred with both Mr Dura and Mr Longworth, has then given her evidence, which, on any view of it, was unfavourable to the mother and she was, in my submission, an unsatisfactory witness who failed to make proper concessions in cross-examination by me and who failed, really, to explain why it was that her report didn’t articulate that various admissions had been made to her.
And the result of all of that is that the mother is left in the position that she has no confidence in the integrity of [Ms C’s] witness – her evidence and so, that is a basis on - - -
(Transcript 12 August 2022, p.343 lines 5–14)
Counsel was then specifically asked whether or not he was seeking to disqualify the single expert on the basis of bias. He then said:
… I’m not suggesting she’s biased. I’m suggesting that in the exercise of your Honour’s discretion to exclude this evidence, you would have regard to those matters.
(Transcript 12 August 2022, p.343 lines 18–20)
Counsel for the mother agreed that it is not unusual that parties confer with single experts before they give their evidence. He agreed that he had done so himself but contended that he had done so before the new Rules came into effect.
I then specifically asked counsel in the following terms:
HIS HONOUR: And just tell me how the process lacks integrity, notwithstanding – accepting for the moment that there has been non-compliance with the rules, how do you say that impugns integrity of the process?
[COUNSEL FOR THE MOTHER]: Well my client has a concern in regard to the witness’s evidence, that it may have been influenced by matters that were discussed in conference that she was not privy to, contrary to the rules.
HIS HONOUR: But you would have known that yesterday in the course of your cross-examination of the expert, correct?
[COUNSEL FOR THE MOTHER]: I did.
HIS HONOUR: Okay. Thank you, Mr Blackah.
[COUNSEL FOR THE MOTHER]: Thank you, your Honour.
HIS HONOUR: Was there anything else you wanted to say?
[COUNSEL FOR THE MOTHER]: No, thank you.
(Transcript 12 August 2022 p.346 lines 1–20)
I accept that the rule provides that a party must not communicate unilaterally with a single expert witness other than as permitted by the Rules.
It would appear that there has been non-compliance with the rule. However, the difficulty I have with the application is as follows:
(1)The mother was on notice of the conference with the expert prior to the commencement of cross-examination;
(2)The mother’s counsel did not cross-examine the single expert about the conference with the father’s counsel; and
(3)In circumstances where it is not contended that the witness is biased, what flows from non-compliance with the rule?

It should be noted that had there been a request to confer with the single expert then, subject to hearing a reason why not, I would have permitted a conference with the single expert. In my view, conferring with experts prior to them giving their evidence is a sensible thing to do. Parties are entitled to know what the single expert will say on a particular topic.
The mother’s application should have been made prior to the giving of the expert’s evidence. If an application was to be made, that was the time to do so and not to sit on one’s hands and await the outcome of the evidence.
At no time was the single expert asked what she had discussed with counsel and it was not suggested to the single expert that she was in some way influenced by the conference with counsel.
It is not clear to me to adopt the words of counsel for the mother how “the integrity of the process” has in some or other been undermined given that it was not contended that the single expert was biased. Beyond the assertion that the single expert was an unsatisfactory witness, I was not taken to a particular example nor was I taken to a particular example of her failing to make proper concessions in cross-examination.
In the absence of clear articulation as to how the conference had undermined the integrity of the single expert’s evidence, I dismissed the application.
Background
The mother was born in 1979 and is currently aged 42.
The father was born in 1980 and is currently aged 42.
The father was previously married to Ms D. They separated in 2005.
There is one child of their relationship, X, who was born in 2005. X is currently aged 17, and has been diagnosed with autism and an intellectual disability.
The father and Ms D share equally the care of X.
The mother was previously in a relationship with Mr E and there is one child of their relationship, F, who was born in 2010. The mother and Mr E share equally F’s care.
The parties initially had a short relationship in 2014. They resumed their relationship in early 2015 and were married later that year.
In or about early 2016, the parties commenced cohabiting in a property at Suburb G. At this time, the mother was pregnant with Y, and the household consisted of the parties and at various times F and X.
Y was born in 2016.
It seems common ground between the parties and Ms D that shortly after the commencement of cohabitation, X started to display behaviours that had not previously been observed.
Prior to then, the father and Ms D described X as a happy boy who, within the limits of his disability, was doing well at school. Ms D in her cross-examination described him as moving in 2016 from cheerful and confident to severely withdrawn.
X’s behaviour deteriorated over the next two years. It involved disruptive behaviour at school, aggression, and inappropriate touching of adults and other children. X’s behavioural change and its presentation informs much of what subsequently happened as between the parties and this will be dealt with at length later in these reasons.
I have little doubt that the father and Ms D believe the deterioration in X was in part a response to an attitude they say was displayed by the mother to X. The father’s evidence of what he says was the mother’s attitude to X is inconsistent with contemporaneous statements made by him to the mother and others. There is no evidence that would enable the Court to draw any conclusion as to the reasons why there was a change in X. It is unnecessary to speculate or hypothesise as to why, in part because there is no evidence and because neither party proposed that the mother have an ongoing relationship with X.
That said, however, it is not in dispute that as between the father and Ms D on the one hand and the mother on the other, there is a palpable dislike. Ms D and the father have in the past described the mother in the most disparaging of terms, while the mother seems to believe they are wilfully blind to the risks posed by X and are willing “to risk compromising [Y’s] safety and emotional well-being in order to ‘normalise’ [X’s] behaviour” (Family Report, paragraph 173). The mother seeks orders that Y not be brought into contact with Ms D.
There is no utility in examining the reasons why there is such dislike or conducting an enquiry as to why or who is to blame. Any findings, assuming they could be made, would serve to only inflame an already appalling situation.
On 8 January 2019, the parties separated, with the mother asserting that the father threatened her. In early 2019, the father was charged with assault and an apprehended domestic violence order (“ADVO”) was put in place. The father commenced spending supervised time with Y on or about early 2019.
On 30 January 2019, the mother’s solicitor proposed a parenting plan, which included a provision that the father was not to bring Y into contact with X or Ms D (Exhibit 18). No agreement was reached at this time.
The father commenced spending time with Y on an unsupervised basis in mid February 2019.
The father says that by about March 2019, the parties had reached an agreement in relation to final parenting arrangements concerning Y.
At a hearing in early 2019 before the Local Court, the father was found not guilty and the ADVO was dismissed.
The parties in the latter part of 2019 unsuccessfully pursued a reconciliation.
Final parenting orders were made by consent on 9 August 2019 (Exhibit 5). Those orders provide that the parties have equal shared parental responsibility, that Y live with his mother, and spend initially alternate weekends and one day in the intervening week with the father as well as time on other special occasions. The orders also provide for Y to spend time with X, but in fairly restricted circumstances. The orders specifically provided that Y was not to spend time with X overnight or come into contact with Ms D.
By late 2019, the father was of the view that the parenting orders were too restrictive as far as they related to time between Y and X. It is also clear that the mother was of the view that the parties should abide by the agreement they had reached as encapsulated in the final orders.
The mother in her affidavit says the following:
166.Until the end of 2019, the arrangements set out in the existing Orders had been working well. However, around [late] 2019, [Mr Danton] started pressuring me to change the existing Orders to remove the restrictions concerning [Y’s] interactions with [X].
The respective positions of each party is reflected in the correspondence they exchanged, which the mother included in her affidavit. On 2 December 2019, the father sent the mother an email, which says in part:
172.…
(d)“Besides the fact the Orders are discriminatory and prejudicial against a child with special needs, the above issues are examples of how the present restrictive Orders are unworkable and not in [Y’s] best interests. They are also, unfortunately, a continuation of the anxiety, discrimination and prejudice you brought to parenting [X], a heavily disabled boy. As a result, in due course, I would like to seek a variation to the current Orders to remove the unjustified restrictions and return some sense of maturity to the current regime.”
The mother responded to the father’s email in part stating:
174. …
(a)“[Mr Danton] The tone you are now taking is very disappointing given we had made such progress in being amicable for the sake of [Y]. Given that you signed the Court Orders I am not sure why you are now backtracking. All I can say is I wish not to revise the orders as I feel they provide adequate structure and security to [Y’s] well being.”
The father then wrote to the mother on 4 December 2019 as follows:
176. …
(b)“For a brief period of time mid last year, [X] displayed occasional inappropriate touching. That inappropriate touching took the form of slapping of bottoms, groins and breasts.”
(c)“The behaviour was inappropriate but had to be understood in the context of [X’s] disability which typically involves a difficulty understanding social boundaries.”
(d)“The above issues demonstrate how the present restrictive Orders are unworkable. I agreed to the restrictive Orders because at the time you had recently withheld reasonable access to [Y] and because you insisted on them being present.”
(Emphasis in original)
To which the mother responded on 11 December 2019 as follows:
180. …
(c)“I would like to point out however that [X’s] inappropriate sexual behaviour was more than a brief period as described by you below. He was displaying those behaviours at least a year at home before the school made their observations. May I remind you that [F] has been on counselling for the best part of this year because of his experience with you and your son.”
(d)“Please note (and I thought you would understand this […]), the purpose of having orders is to make life easier and arrangement simpler. There is nothing wrong with what we both signed but everything wrong with you trying to bully me into changing them. Again, I will be sticking to the orders that we both signed.” …
This correspondence is emblematic of the rapid deterioration in the parties’ relationship. A feature of the correspondence is the different views they each held in relation to X and the issue of whether or not he posed a risk to Y.
In the first quarter of 2020, proposals for mediation resulted in no agreement and the parties continued to correspond in an unconstructive way, each insistent upon the rightness of their position, with the father contending that the orders should change and the mother insisting on the correctness of the agreement reached.
The parties continued their unhelpful correspondence. The mother records in her affidavit the following email exchanges:
196. At 10:17am on 1 April 2020, [Mr Danton] sent me an email stating:
“[Ms Brockett], as indicated at the changeover this morning, please note that contact between [X] and [Y] will occur this coming Sunday, 5 April 2020. Given the current COVID 19 health crisis it does not seem appropriate that contact occur via an outing or to invite any third person to my home noting that all entertainment facilities are currently closed and there are severe restrictions in place regarding leaving one's home and social distancing.
Order 3. 7 specifically provides that we can agree to vary the Orders if we wish. I propose that the contact this Sunday between [X] and [Y] occur via them both being present at my home. I will, of course, be there to supervise. Can you please provide your consent for that course? If you do not consent, can you please provide a reasonable justification for that position, noting that a mere reference to the Orders is inadequate.”
…
197.On 3 April 2020, I replied to [Mr Danton's] email dated I April 2020. My email stated:
“I do not consent to contact taking place between [Y] and [X] at your residence without any other adult being present to supervise...I remind you it would be a contravention of the Orders if you alone were to supervise [Y] and [X] in your residence without any other adult being present. You have promised me ongoing conflict, all because I choose to remain compliant to the orders that we have in place.”
…
198. On 4 April 2020, [Mr Danton] replied to my email dated 3 April 2020. [Mr Danton] stated:
“[Ms Brockett], I note that you have again failed to provide any reasonable justification for your insistence on [Y] and [X] not being present at my house without another adult present. The reason for that is clearly because there is no reasonable justification and you are instead motivated by your continuing fear and prejudice against my disabled son.”
The mother contends things came to a head such that she insisted that changeovers between the parties take place at a police station. Between early April 2020 and September 2020, all changeovers took place at the Suburb B police station. This was subsequently changed to a Woolworths car park.
The mother says the following in her affidavit:
204.Because I refused to consider any changes to the Consent Orders, [Mr Danton] started breaching the Consent Orders as of approximately April 2020. In this Affidavit, I refer to [Mr Danton’s] breaches in so far as they relate to the interactions between [X] and [Y] and [Mr Danton’s] failure to provide adequate supervision which led to the risk of harm to [Y]. I found out about the breaches directly from [Y]. …
The mother throughout her affidavit makes a complaint that she was seeking information from the father for an explanation of the various things that Y was saying to her that were suggestive of a breach of the orders by the father. The mother says the father was not responding to or engaging with the issues raised by her and her solicitor as to the alleged breaches.
The mother says the following in her affidavit:
216.As I was suspicious of [Mr Danton’s] disregard for the Consent Orders, [Y’s] disclosures of [Mr Danton’s] repeated contraventions, and also [Mr Danton’s] lack of care for [Y’s] wellbeing, I employed a private investigator to monitor [Mr Danton] on 13 June 2020. The private investigator provided a report (Private Investigator’s Report) which clearly shows [Mr Danton] contravening the Consent Orders by having [Y] and [X] in his sole care at his residence with no other adults present, and I was not provided with 14 days notice of any family event. Photographs and commentary in the Private Investigator’s Report clearly show [Mr Danton] putting both boys in his car outside of his residence, which supports [Y’s] disclosures that he was with “daddy and [X]” on that weekend. It also appears from the Private Investigator’s Report that [Mr Danton] left [X] at home alone, when he came to collect [Y] from me on the morning of 13 June 2020. …
On 16 June 2020, Y made a disclosure to the mother of inappropriate touching by X. Following these allegations, the mother arranged for Y to be medically examined and she contacted the Department of Communities and Justice (“the DCJ”).
The mother suspended time between Y and the father on 23 June 2020.
The mother filed a Contravention Application on 26 June 2020.
An investigation was undertaken by the DCJ.
The father’s time with Y resumed on 18 August 2020.
On 28 April 2021, Y made another disclosure to the mother of inappropriate touching by X.
Y was medically examined again and the mother also contacted the DCJ again.
The mother again suspended the father’s time with Y.
On 25 May 2021, the father filed an Amended Initiating Application seeking that the 2019 orders be set aside, that he have sole parental responsibility, and that Y live with him and spend only supervised time with the mother.
On 10 June 2021, orders were made restraining the father from allowing Y to have any contact with X.
On 21 June 2021, the father resumed spending time with Y.
On 22 June 2021, Y told the mother that X was present with Y on 21 June 2021 and that he touched Y inappropriately. If this event occurred, then the father acted in breach of the orders made on 10 June 2021.
The father and Ms D say that X was not with the father on 21 June 2021 and what Y reports could not have happened.
The mother had Y medically examined on two occasions in June 2021 and contacted the police and the DCJ.
On 5 July 2021, the parties attended interviews with the single expert. The day after the interviews, the father was informed for the first time about the 21 June 2021 allegations.
Y was interviewed by the police on 9 July 2021 and made no disclosure of inappropriate touching.
The father’s time with Y resumed on 18 July 2021.
On 10 August 2021, the single expert’s first Family Report was released to the parties.
On 5 November 2021, the parties attended upon the single expert for an updated report.
On 9 November 2021, the single expert’s Addendum to the Family Report was released to the parties.
In April 2022, the parties filed their trial affidavits with the full knowledge of the single expert’s recommendations.
The mother contends that the father breached Court orders on a number of occasions starting in April 2020 and up to 22 June 2021.
The mother does not assert any breach of the orders after 22 June 2021.
The mother alleges that, commencing from 16 June 2020, Y reported to her that X has inappropriately touched him including pulling back his foreskin, kissing him on the lips, touching him in bed on his penis, sleeping in a bed with him naked, and putting his finger in his anus. These allegations in relation to X’s behaviour arise in a period between 16 June 2020 and 22 June 2021. The mother’s allegations are particularised extensively in her affidavit and summarised in Exhibit 10.
The mother contends:
316. Whatever events occurred on 21 June 2021, it is clear to me that [Y] has suffered some form of trauma whilst in [Mr Danton’s] care. The graphic disclosures that [Y] has made of suffering digital anal penetration, and inappropriate groping and touching from [X] is very concerning. Whilst [X] suffers from various disabilities, it is also documented that he has shown sexually inappropriate behaviour to fellow classmates, and school staff previously. It is not inconceivable that [Y], a defenceless child, could also have been subject to such behaviour from [X], who is now a 16 year old teenager in the peak of puberty, especially in the context where supervision from [Mr Danton] is insufficient to protect [Y] from such inappropriate acts from [X].
…
369. The past few years have been a nightmare for my family, and especially [Y]. [Y] has recounted things to me that no 4 year old, or 5 year old should have knowledge of (or any child for that matter). It is clear to me that [Y] has suffered, and the cause of that suffering are events that took place whilst he was in the care of his father, [Mr Danton].
…
371. [Mr Danton] has not once shown an ounce of sympathy for [Y] during the Current Proceedings. He has not even indicated that he is willing to consider that [Y] may have suffered sexual harm whilst in his care.
The father admits breaching orders between April 2020 and 16 June 2020. He denies breaching any orders after 26 June 2020.
The father contends that the allegations in relation to X’s behaviour are untrue and that there was no opportunity for X to touch Y in the manner asserted, as at all times either the father or another adult were present or that X was not present.
Documents relied upon and proposal of each party
The father relied upon the following documents:
(1)Further Further Amended Initiating Application filed 7 March 2022;
(2)Affidavit of father filed 22 April 2022;
(3)Affidavit of Ms D filed 27 April 2022;
(4)Affidavit of Ms H filed 25 August 2021;
(5)Affidavit of Ms K filed 25 August 2021; and
(6)Case Outline document.
The mother relied upon the following documents:
(1)Further Amended Response to Initiating Application filed 25 March 2022;
(2)Affidavit of mother filed 26 April 2022;
(3)Affidavit of Ms N filed 22 April 2022; and
(4)Case Outline document.
Each of the parties and the ICL relied upon a Child Dispute Conference Memorandum dated 1 October 2020 as well as the Family Report dated 9 August 2021 and the Addendum to the Family Report dated 8 November 2021, which were prepared by the single expert. Each of these documents became Exhibits in the proceedings.
At the time of the hearing, the existing consent orders provided that Y live with his mother and spend time with his father on five nights a fortnight in school terms and for half school holidays. All such time occurs on an unsupervised basis. Y has not spent time with X in over 12 months.
The father at the commencement of the hearing sought orders that he have sole parental responsibility for Y, that Y live with him and spend time with his mother, initially on a supervised basis for approximately twelve months and thereafter, subject to her compliance with a form of therapy conducted by Dr L, the mother’s time increase ultimately to an unsupervised basis. The father sought no restrictions on Y’s relationship with X.

The father’s alternative position (which was predicated on the basis that the Court finds that X sexually abused Y and presented a serious risk of harm to Y) was that the mother have sole parental responsibility, that Y live with the mother, and that he spend time with the father, limited to half of each school holidays and time on his birthday, father’s day and Christmas Day. He also sought orders restraining Y from being in the presence of X until Y turns 15 years of age.
Just prior to the single expert giving her evidence, the father amended the orders that he sought and now sought orders that became Exhibit 21. In broad terms, the father sought that Y live with him, that he have sole parental responsibility, and that Y spend supervised time with his mother for three Sundays a month between 10.00 am and 5.00 pm.
The mother initially sought orders as set out in her Further Amended Response that she have sole parental responsibility for Y, that Y live with her, that if the father elects to do so, he spend time with Y from 9.00 am to 3.00 pm on Sundays with such time to be supervised by a professional supervision agency, and that the father be restrained from allowing Y to be in the presence of X or Ms D.
In her affidavit, the mother said:
379. The only way forward is for [Mr Danton] and [Ms D] to concentrate on raising [X], as I expect his needs for extra care will remain a priority as he gets older. I seek to raise [Y] with sole parental responsibility, and to give him the protection, nurturing and guidance he will need to overcome the trauma he has clearly suffered.
Before completion of her cross-examination, the mother proposed a new position, which became Exhibit 19. In that Minute, she sought the same orders for sole parental responsibility but proposed that the father have supervised time for six months on one day of each weekend as well as time on a Monday each week and alternate Wednesdays. On the Wednesdays, X could be present. After six months, the requirement for supervision was removed except when X was present.
Just prior to the single expert giving her evidence, the mother amended the orders that she sought and now sought orders set out in Exhibit 22. In that Minute, she sought the same orders for sole parental responsibility but proposed that the father have supervised time for six months on one day of each weekend as well as time on a Monday and Wednesday. On the Wednesdays and each alternate weekend, X could be present. After six months, the requirement for supervision was removed except when X was present. After 12 months, the father’s time increased to three nights per fortnight in school terms, a week in each of the shorter school holidays, and two weeks in the Christmas school holidays.
The ICL at the commencement of submissions tendered a Minute of Orders that became Exhibit 24. The ICL proposed that Y live with the father and that the father have sole parental responsibility. Y would spend time with the mother in school terms for four nights a fortnight and half school holidays. The ICL proposed the appointment of a parenting coordinator, a position that each party subsequently indicated agreement with.
Submissions of the ICL
Counsel for the ICL submitted that X did not pose an unacceptable risk to Y, that the father did not pose an unacceptable risk of harm to Y, but that the mother did. He submitted that there were four broad risks that the mother presents:
(1)Her inability to trust the father which infected her capacity to support the relationship;
(2)Her inability to critically assess things that are said to her by Y about the father and/or X;
(3)The likelihood that the mother will expose Y to further assessments and examinations; and
(4)That Y is either now or will in the future suffer cognitive dissonance in the mother’s primary care.
He submitted that the orders proposed by the ICL sat within the recommendations of the single expert.
Counsel for the ICL submitted that both parties’ evidence was, to some extent, unsatisfactory. The father’s from the point of view of failing to concede earlier that he had not complied with Court orders, leading the mother to be unable to trust him. In relation to the mother, there were also credibility problems that included her failure to accept that X was not present on 21 June 2021, that some of the evidence the mother gave of things said to her by Y were not consistent with other documents, and that she was not completely frank with the single expert in failing to inform her that the CCTV footage did not support her allegation that X was present on 21 June 2021.
For these reasons, counsel for the ICL submitted that Y’s best interests were met by living with the father and spending time with the mother.
Submissions of the father
The father’s counsel adopted many of the submissions of the ICL and also accepted that the orders of the ICL were appropriate, save and except in relation to the orders that provided for time between Y and his mother on an unsupervised basis, and that Order 12 of the proposed orders of the ICL should be amended to remove any requirement that the parties consult.
Counsel for the father identified that the cognitive dissonance identified by the single expert was a significant risk factor for Y taken together with the mother’s firm belief that X has assaulted Y and that her fixed views are unlikely to change. He contended that the difficulty with the ICL’s orders were that there was no ability to protect Y from the risk of the mother discussing things with Y when spending time with him. The imposition of the parenting co-ordinator and the order proposed by the ICL to restrain the mother from engaging with medical practitioners, the DCJ or the police, did not restrict or prevent her in any way in discussing matters with Y. To adopt the submission of the father’s counsel “it wouldn’t protect Y from his mother questioning him in her own home” (Transcript 12 August 2022, p.389 lines 9–10). He contended that this presented a very real risk to Y given the mother’s firmly held and entrenched views. He contended that the only way this risk could be managed is by supervised time in accordance with the proposal of the father, which was frequent and regular enough to maintain a meaningful relationship with his mother, F, and extended family.
The father’s counsel submitted that there were difficulties with the mother’s credibility demonstrated by the inconsistency in her evidence between what she reports Y reported to her on 21 June 2021 and what she told the police, and that she was not frank with the single expert. Overall, he submitted that the Court should make orders in accordance with the father’s Minute of Order for ongoing supervision of the mother’s time with Y on three Sundays of each month.
Submissions of the mother
Counsel for the mother submitted that there had been an inordinate focus on the events that occurred on 21 June 2021 and that the Court should conclude that Y was mistaken in asserting that X was present that night. He submitted that if the father had complied with the 2019 orders, then the parties would not be here.
He submitted that there was an unacceptable risk posed by X, and that the Court could not accept the father’s evidence that he would properly supervise the children in circumstances where he had left X unsupervised for at least 50 minutes on the occasion of the June 2020 weekend. He described this as lax and negligent parenting and that if Y was left in the father’s primary care, then the Court could expect further lax parenting and that X and Y would be left unsupervised. He contended that the likelihood is that X has inappropriately touched Y in a sexualised way.
He submitted that the single expert was an unsatisfactory witness who could not provide a proper explanation and refused to make concessions. He described her having a fixed view about matters contained in the Family Report.
He also submitted that the Court would find that the father lied when he said that he had not observed any sexual behaviour by X towards F or Y and that one of the risks posed by the father is his failure to appreciate the risks posed by X.
He contended that the Court would find that the father is unsupportive of a relationship between Y and the mother and has been disparaging and spoken derogatorily about the mother. He says that there is a risk that Y, left unsupervised with X, will be exposed to sexualised behaviours by X. He submitted that there are no risks in the mother’s care and that a removal of Y from his mother's primary care would cause him trauma and see a loss of a relationship with his brother and the mother’s maternal family and his faith.
Issues in dispute
The single expert produced two reports. In the Addendum to the Family Report, the single expert posed the question for the Court in the following terms:
I. If the Court finds that the father has deliberately contravened the current Interim Orders made by Judge Morley on the 10 June 2021, placing [Y] at risk of harm, then it is suggested that the mother should have primary care of the child and be awarded sole parental responsibility for [Y]. Any time that the father spends with [Y] should be fairly limited and may need to be subject to professional supervision.
II. If the Court finds that [X] does not pose a risk of harm to [Y] and that the mother is unable or unwilling to resile from her belief that [X] has sexually abused [Y] and is likely to continue to act in a manner that is likely to cause harm to [Y], then it is suggested that the father should have primary care of the child and be awarded sole parental responsibility for [Y]. Any time that the mother spends with [Y] should be fairly limited and may need to be subject to professional supervision.
III. If the mother is willing to accept a finding by the Court that [X] does not pose a risk of harm to [Y], it is recommended that all restrictions be removed in relation to [Y] spending time with [X] and that [Y] lives primarily with the father and spends time with the mother and [F] on alternate weekends from the end of school on Friday until the commencement of school on Monday and for half of the school holidays. In this scenario, sole parental responsibility will need to be allocated to the father and he will be responsible for supervising the time that [Y] spends with [X].
The single expert is an experienced psychologist. There was no challenge to her qualifications or her experience. Her reports are well reasoned and comprehensive.
The single expert was cross-examined by all parties.
I do not accept the submissions of the mother’s counsel in respect of the single expert’s evidence. Despite contending that she did not make concessions and despite being asked to specifically identify them, he did not. I do not accept that she did not make concessions. Nor do I accept that she adopted fixed views and would not change them. Contrary to that submission, she in fact proposed different to the position in the Addendum to the Family Report that Y should spend more time with his mother than was her recommendation in the event that the Court made findings in accordance with her second recommendation.
I found the single expert to be an impressive witness who listened carefully to the questions she was asked and provided insightful, helpful and fulsome answers. I place great weight on her observations and her accept her evidence unless I otherwise state to the contrary.
The parties were ultimately in agreement that the following represented the issues in dispute (Exhibit 14):
1What are the risks to [Y] in the care of the Father and the Father’s capacity to manage any risk(s)?
2Which of the risks amount to an unacceptable risk?
3If [Y] is at risk in the Father’s care what Orders, if any, should be made to enable [Y] to spend time with the Father including what conditions (if any) relating to time [Y] spends in the company of [X]?
4What are the risks to [Y] in the care of the Mother and the Mother’s capacity to manage any risk(s)?
5Which of the risks amount to an unacceptable risk?
6If [Y] is at risk in the Mother’s care, what Orders, if any, should be made to enable [Y] to spend time with the Mother?
7What Order should be made as to the allocation of parental responsibility?
8If there is to be a change in the current parenting arrangements of [Y]:
a.how that change is to be achieved including any transitional arrangements?
b.how that change is to be communicated to [Y]?
The issue as to whether the father and/or the mother pose an unacceptable risk looms large in the proceedings.
The High Court reminds in M & M (1988) 166 CLR 69 (“M & M”) at 76:
… it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. …
…
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw.
(Footnote omitted)
Further, the High Court states at 77–78:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
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. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor)). This imposing array indicates that the 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.
(Footnotes omitted)
In Isles & Nelissen [2022] FedCFamC1A 97, the Full Court constituting Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ had cause to reconsider the issue of unacceptable risk. In the course of their judgment, their Honours observed that earlier decisions of the Court in Potter and Potter (2007) FLC 93-326 and Johnson and Page (2007) FLC 93-344 no longer accurately reflect the law in so far as they suggested that unacceptable risk needed to be established on the balance of probabilities.
Their Honours observed that when allegations of harm are raised, the relevant historical facts that underpin the allegations need to be established on the balance of probabilities.
However, when assessing whether there is unacceptable risk of future harm, the possibility of a risk of harm may be based on a finding of a possibility of harm in the past, which may not have been established on the balance of probabilities. In undertaking this risk assessment, the Court is assessing both the prediction of future harm and the severity of the impact if it eventuates. At some point in the risk assessment, the possibility of future harm and severity of harm may become unacceptable.
As their Honours observed:
47.…the civil standard of proof is not the measure by which an unacceptable risk of harm is to be assessed. The civil standard of proof is reserved for the proof of facts, the positive or negative findings in relation to which could well feed into any alternate finding about the existence of an unacceptable risk of harm.
Their Honours also specifically approved of Austin J’s judgment in Fitzwater v Fitzwater (2019) 60 Fam LR 212, where his Honour observed as follows:
133. In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134. It must be borne in mind that proceedings in respect of children under Pt VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at CLR 76; ALR 581; Fam LR 611; ZP v PS (1994) 181 CLR 639 at 647; 122 ALR 1 at 6; 1 Fam LR 600 at 604). The paramount consideration in Pt VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at [64]). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at [186]).
135. The conclusion reached by a court in Pt VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J C Hutton Proprietary Ltd (1990) 169 CLR 638; 92 ALR 545 (Malec)).
136. In Malec, Brennan and Dawson JJ said (at CLR 639–40; ALR 546):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
… To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation …
and Deane, Gaudron and McHugh JJ said (at CLR 643; ALR 548):
… The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring …
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald v Karrington (2016) 55 Fam LR 344; (2016) FLC 93-726; [2016] FamCAFC 152 at [60]; Bant v Clayton (2015) 53 Fam LR 621; [2015] FamCAFC 222 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter v Potter (2007) 37 Fam LR 208; (2007) FLC 93-326; [2007] FamCA 350 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140. It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis v Nikolakis [2010] FamCAFC 52 at [41], [44], [49]–[53], [96]; Partington (aka Bande) v Cade (No 2) (2009) 42 Fam LR 401; (2009) FLC 93-422; [2009] FamCAFC 230 at [56]–[61]; Johnson v Page (2007) FLC 93-344 at 81,888–9; [2007] FamCA 1235 at [68], [71], [76], [77]).
141. Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142. As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (children) (care order: future harm) [2001] 1 Fam Law R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

The consequences for Y and his parents of a finding of unacceptable risk is so great that it requires the Court to carefully assess all of the evidence and determine, having regard to all of the circumstances, whether there is an unacceptable risk to Y.
General observations
I have read all of the evidence relied upon in the proceedings, but do not propose to repeat all of it in these reasons. As the High Court reminds in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447:
62.… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not property considered the losing party's case.
I have listened very carefully to the evidence and taken note of the answers given in cross-examination. I have also carefully observed each of the parties give their evidence and the way they answered questions and their general demeanour.
The father, his former partner Ms D and his mother were all cross-examined.
Ms K was not required for cross-examination by the mother and I accept her evidence.
The mother was cross-examined extensively.
Her mother was not required for cross-examination and I accept her evidence.
There was a remarkable similarity in the way the mother and father gave their evidence. They were both at times tangential, non-responsive and did not engage directly with the question that they were asked. They each had to be directed on a number of occasions to answer questions asked by counsel. Each insisted on making speeches and was critical of their former partner. Each sought to reassure the Court that errors of judgment in the past would not be repeated in the future.
I have listened carefully to the father and watched him in cross-examination. He was not seriously challenged on his recall of events nor was he found wanting on issues of credit other than on his admission that he deliberately breached orders, which reflects poorly upon him.
I have concerns about his insight and the contribution he has played in creating the lack of trust that the mother feels. The things he has said to and about her, which should never have been said or written, reflect poorly upon him. They raise for consideration his attitude to parenting and his capacity to promote a relationship between Y and his mother.
I have also listened carefully to the mother and watched her in cross-examination. She was found wanting in a number of respects about what she reported Y said to her. I am left in the position where I am not confident that the mother’s account of what she says Y has told her on a number of occasions as recorded in her affidavit is either reliable or accurate.
As with the father, I have concerns about her insight and in particular, how she has responded to Y’s allegations and how she would respond in the future should the same or similar situation present itself. I have these concerns notwithstanding her statement to me that she has learnt from the experience and would act differently. These concerns raise for consideration her attitude to parenting and her capacity to promote a relationship between Y and his father.
Given the issues of risk identified by the parties and the single expert, it is logical to analyse the disclosures made by Y as reported by his mother and recorded by others. In doing so, I am conscious as the High Court mandates in M v M that the resolution of the issue of sexual assault and other harms is “subservient and ancillary” to what is in Y’s best interests (at 76).
Y’s allegations
The parties separated on 9 January 2019.
The first disclosure of any inappropriate touching by X after separation is made on 16 June2020. The disclosure occurred immediately after the weekend when the mother discovered, through a private investigator she retained to follow the father, that X was present overnight with Y over the weekend of 13 and 14 June 2020 in breach of court orders.
Y returned to the care of the mother on 14 June 2020. The mother reports in her affidavit as follows:
217.On 16 June 2020, when [Y] came to my bedroom in the morning, he told me that when he was at [Mr Danton's] home during the weekend of 13-14 June 2020:
(a)[X] came into the shower with him and soaped him up, touching his bum and willy,
(b)[X] pulled back the skin on [Y's] "willy", whilst [Mr Danton] was not in the bathroom as he was cooking dinner.
(c)[Y] also told me that he and [X] had slept in the same bed at [Mr Danton's] house and that [X] was hugging him "really tight" in bed.
(d)[Y] also told me that [X] got into the bath with him at [Mr Danton's] home.
Unlike subsequent disclosures, what the mother reports is a summary of what she says Y told her happened to him that weekend. The mother does not contend that Y was distressed when he reported this to her. The mother says that she reported the disclosures to the DCJ.
The mother took Y to Dr M to be examined on 19 June 2020. Dr M produced a report (Exhibit 16), which records the following:
[Y] presented with his mother, [Ms Brockett], on Friday 19/062020.
He was given his routine immunisation and his mother, [Ms Brockett], Expressed grave concern that there had allegedly been inappropriate inter-action with half brother [X] whilst in the care of his father, [Mr Danton], and in particular in the bath.
Upon examining [Y] I asked him if anyone is with him when he is being bathed. [Y] said that [X], aged 15 yrs, is in the bath with him and naked. [X] soaps him and washes/squeezes his genitalia.
[Y] said that his father tells and shows [X] what to do with washing and also with the pull-ups.
(As per the original)
This was but the first of a number of medical examinations Y was subjected to over the next 12 months.
The mother immediately suspended Y’s time with the father.
The mother says that on 24 June 2020, Y reported to her that X sleeps in his bed at his father’s home and that he tickles his tummy and ‘willy’.
The mother reported that on 1 July 2020, Y told her that X licks him on the mouth.
On 8 July 2020, the mother says that Y told her that X comes into his bedroom and sleeps in his bed.
The mother’s affidavit contains the following disclosures:
226.On 9 July 2020, when I was giving [Y] a bath after playgroup, he said to me: “[X] puts my pull-ups on/or bedtime, but sometimes he doesn't know what to do, so my daddy tells him what to do and sometimes my willy is not inside, so [X] has to put my willy inside. It is so funny.”
227.On 14 July 2020, while I was on the computer, [Y] told me: “You know, sometimes I see [X’s] willy in the shower. We don't have any clothes on. I don't like to see his willy.” He then added: “[X] doesn't have any clothes on in bed, because he gets too hot. He sweats and it’s disgusting. I try and move away- like this.” [Y] lay on the sofa and showed to me how he was trying to move away. He then added: “[X] kisses me on the lips and daddy says, “Good boy [X].’ ”
228.On 15 July 2020, when [Y] got up in the morning and was going to the bathroom, I asked him: “Does daddy stay with you while you and [X] are in the shower?” [Y] answered: “No, he is cooking dinner. If I say ‘daddy, I want to get out now’, daddy says ‘stay a bit longer, let [X] get you nice and clean.’”
…
230.On 17 July 2020, when [Y] and I were in the car, [Y] suddenly told me: “I don't have body hair. I'm too young to have body hair.” I said: “That’s right, [Y], you are too young.” [Y] then said: “Daddy has body hair all over.” I said: “Yes, daddy has body hair. Who else?” [Y] said: “[X]”. When I asked, “Where does [X] have body hair?” [Y] answered: “All over his body.”
231.On 18 July 2020, when [Y] was on his potty, he said “my willy is big”. He then told me “[X’s] willy gets big - like this.” [Y] then stretched his hand out in front of him, to demonstrate. I then asked him: “Where do you see this?” [Y] answered: “In the shower.” I then asked: “Is it big anywhere else”? [Y] said: “Yes, in bed, as well.”
(As per the original)
The documents produced by New South Wales Police (Exhibit 17) record that on 18 July, the mother emailed them and in part says:
Are you able to provide me with an update as to where my case sits currently?
It would be good for [Y] to be seen and assessed soon if this is your intention at this stage. He has been exposed to a lot that he shouldn’t at his young age.
Many thanks
[Ms Brockett]
The police did not interview Y at this time.
The mother reports:
232.On 19 July 2020, [Y] told me that, when he stays at [Mr Danton's] house, he often plays with his toys on the floor of his bedroom for as long as he can to avoid getting into the bed with [X] who is naked. He also later disclosed to me on the same day that he can't sleep properly because he is scared of monsters. Around this time, [Y] requested to sleep with the door open and the light on. I had to also play relaxing music to [Y] to help him get to sleep. This process can take anywhere from I hour to 2 hours depending on his level of restlessness. [Y] was typically an excellent sleeper who fell asleep quickly, and slept for 10 hours a night on average.
On 23 July 2020, the mother took Y for an interview with a counsellor of the DCJ.
The mother then reports:
236.On 24 July 2020, when I was on the phone talking to my mother and [Y] was in my bed but was still awake, he asked if my mother, [Ms N], could tell him a story. After telling [Y] the story of Three Little Pigs, [Y] requested another story. He then said he would tell her a story and started to tell her the story of the Gingerbread Man. After that story he was still wanting more stories and clearly stalling going to sleep. I heard the following conversation between my mother and [Y]:
[MS N]: “Why won't you sleep, [Y]?”
[Y]: “Because I am afraid of monsters.”
[MS N]: “But there are no monsters, [Y], darling.”
[Y]: “Do you know that at my dad's house [X] comes into my bed and he sweats because he does his exercise, and he is so hot. His hands are hot, his face is hot, his arms are hot, his willy is hot, his back is hot, his legs are hot, so he runs into my room, and he is naked and comes into my bed.”
[MS N]: “Where is Daddy?”
Y: “Daddy doesn't mind, but I don't like it, I'm like this”, and he pushed away his toy kangaroo he usually takes to bed with him.
237.On 27 July 2020, [Y] said to me before we headed to playgroup, “[X] hits me.” I asked “What does Daddy say?”, to which [Y] replied, “nothing. Daddy doesn't tell [X] not to.”
238.On 5 August 2020, I facilitated a FaceTime call with [Mr Danton]. [X] was also present with [Mr Danton]. [Mr Danton] told [Y] to say hello to [X]. [Y] was quiet and looking into the phone. [Mr Danton] repeated for [Y] to “say hello to [X] [Y] ... go on ... say hello to [X] ...”. [Y] just put his hand to his ear, to indicate that he couldn't hear [X] saying hello either. After the call [Y] became very quiet and appeared upset. I asked him what was wrong and he replied:
“ ... I don't want [X] to come into my bed ....”.
239.On 6 August 2020, [Y] said to me, “I tell Daddy that [X] doesn't have any clothes on and that he comes into my bed ... and Daddy says that he does have clothes on and it's not true.”
The father next spent time with Y on 18 August 2020.
The mother adduces no evidence of what she was informed by the DCJ as a result of their investigation.
The father asserts that he was told by the investigating officer as follows:
72.On 21 September 2020, I had a telephone conversation with [Ms O] during which words to the following effect were said:
[Ms O]: “We have completed our investigation and found the allegations to unsubstantiated. We don't have any concerns about [X] or about [Y's] safety. We don't issue a report at the conclusion of an investigation, but I can inform you that a notation has been made in our files that the allegations have been found to be unsubstantiated. Those records are available to be subpoenaed in the family law proceedings if needed.”
Me: “That is great news. Thank you”
[Ms O]: “Be very careful moving forward. I suspect that [Ms Brockett] will make future complaints.”
Me: “Thank you. I will”
There are no other disclosures of inappropriate touching made by Y in relation to X between 6 August 2020 and 25 December 2020.
On 26 December 2020, the mother says she has a conversation with Y about X being a bad piggy and that Y tells her that he does not like it when X is in his bed and that “[X] does bad stuff to me. He really does bad things to me” (mother’s affidavit, paragraph 250).
The next disclosure is on 1 January 2021 when Y reports to the mother:
253.… You know daddy forces me to kiss and hug [X] when I tell him I don’t want to he tells me I have to.
The mother reports that on 12 January 2021, Y said to her:
257.… [X] spits in his hands and rubs it on me. He rubs his spit all over me including my mouth. I don’t like it and I want him to stop but he keeps doing it.
There are no other disclosures of inappropriate touching made by Y to his mother until 28 April 2021, when the mother records:
271.…
(a)On the night of Wednesday 28 April 2021, after [Y] had used the toilet and I was washing him, he suddenly told me, “you can put your finger up my bottom.” When I replied, “oh no, [Y], why would you say that?”, [Y] replied, “because [X] does it.” I asked, “what does he do?”, to which [Y] replied, “he puts his finger up my bottom.” When I asked, “when does this happen?”, [Y] replied, “when we wrestle on Daddy’s bed and [X] does it when I am playing in my room - sometimes he touches my bottom when we are outside with Daddy.” I asked, "what does Daddy say?”, to which [Y] replied, “Daddy doesn't say anything-he is watching the news with [Ms P].” Previously, [Y] mentioned to me that [X] would sometimes engage him in wrestling on his father's bed, while [Mr Danton] was in the other room with [Ms P] ([Mr Danton’s] girlfriend), and that [X] would tickle him and spit on him while wrestling, and that [Y] did not “like all that”.
It is clear from what the mother says that Y did not tell her exactly when these events take place. It is clear from the mother’s evidence that Y did not report that he was in pain, or that it hurt. The closest the disclosure comes to identifying a time and location is that it occurs when the father is with his former partner Ms K.
Despite Y disclosures being unclear as to how long ago they occurred and that he did not disclose that he was in any pain or had suffered any injury, the mother nevertheless arranged for Y to be medically examined the next day by Dr Q.
The results of Dr Q’s examinations are recorded in Exhibit 12. Dr Q’s note contains the following:
[Y] said that these incidents occurred when they were “tackling on Daddy’s bed in his bedroom, while Daddy is in the living room watching television with [Ms P], Daddy’s friend.”
[Y] said that it didn’t hurt when [X] stuck his finger in his bottom,
Under examination, the doctor records the following:
Midline superficial posterior anal fissure, consistent with history of abuse, also [Y] sometimes has hard stools.
In my view, this was an unnecessary examination in circumstances where Y had not made any complaint of pain or injury to his mother.
The mother gives evidence that on that same day she met with Y’s headmistress saying:
272.… I discussed my concerns for [Y’s] safety in light of the disclosures he had made regarding [X’s] behaviour and [Mr Danton’s] failure to provide adequate supervision. …
It is unclear as to why it was necessary for Y’s school to be informed about these matters.
On 4 May 2021, the mother’s solicitor wrote to the father’s solicitor informing of Y’s disclosures and that time would be suspended. The letter (Exhibit 13) contains the following statement:
My client is extremely concerned that the alleged incidents were the result of the father’s failure to supervise [X] and [Y] when the boys were in the father’s care and that the presence of another adult, the father’s girlfriend [Ms P], did not ensure proper supervision either.
It is clear from the letter that the mother must have been informed by Y that Ms K was present when X inappropriately touched Y.
The mother says that on 5 May 2021 she called the DCJ and spoke to a consultant and discussed with them what she describes as “[Y’s] latest disclosures as well as his past disclosures and [Dr Q’s] examination findings” (mother’s affidavit, paragraph 277).
She called the DCJ again on 10 May and 11 May 2021 and spoke to Ms R from S Service. The mother says that Y disclosed to her after school that his father had told him “not to lie about [X]” (mother’s affidavit, paragraph 280).
The mother in her affidavit says:
280.… On the same day, [Y] made the same disclosure to [Ms T], who added it to her file note. I called [Ms R] at [S Service] again and explained [Y’s] latest disclosure. She said she would take it to the board again for review.
On 21 May 2021, Y was interviewed in the presence of the mother by two case officers from S Service. Y is said to have reported to the case officers:
283.On Friday 21 May 2021, two case officers from [S Service] named [Ms U] and [Ms Z] visited my home to talk to [Y] about his latest disclosures. I was asked to be present during [Y's] conversation with the case officers. I recall that the following discussion took place between [Y] and [Ms U]:
(a)[Ms U] asked [Y] to tell her "all the things he was worried by at Mummy's house and at Daddy's house". [Y] told her that, at Daddy’s house, he was worried about [X]. [Y] said that [X] “plays rough with him” and that [X] “put his finger up [Y’s] bottom”. [Y] said that he doesn’t like to wrestle with [X]. When [Ms U] asked where they wrestle, [Y] answered “Daddy’s bed while Daddy is in the living room watching television”. [Y] further told [Ms U] that, when [X] plays rough with him, he is afraid he is going to get hurt. [Y] then repeatedly told Ms U that he is scared of speaking to his dad about [X], for fear of getting told off. [Y] said that Daddy makes him upset when this happens.
On 10 June 2021, the Court made orders as follows:
2.Pending further order, and on a without admissions basis, the Father [Mr Danton] born […] 1980 is restrained from allowing the child [Y] born […] 2016 to have communication with or come into presence of [X] born […] 2005 at any time and in any manner.
The next occasion upon which the father spent time with Y was on 21 June 2021. This was the first time the father had seen Y since the events of 28 April 2021.
The mother says the following in her affidavit:
290. On the afternoon of Tuesday 22 June 2021, I collected [Y] from school to resume my care of him in accordance with the Consent Orders. I noticed that [Y's] behaviour was very odd upon his return to me. That evening [Y] said to me words to the following effect:
[Y]: “Can I watch Godzilla?”
ME: “No. Godzilla is not for children. It's a bit scary.”
[Y]: “I love watching Godzilla vs King Kong, I watch it at my dad’s house with [X].”
ME: “When did you watch it with [X]?”
[Y]: “I watched it last night with [X]. But daddy puts it on the fighting parts because [X] loves those bits, and so do I.”
ME: “So, was [X] at daddy's house last night?”
[Y]: “yes, but I'm not supposed to talk about [X]. Daddy says I can’t talk about my daddy either.”
ME: “You can tell mummy [Y], remember - no secrets.”
[Y]: “[X] was at my daddy's house. [X] was in my daddy’s car after school. I was feeling too sick to go swimming. Later, [X] came into the bathroom when I was having a bath with a red bath bomb. Daddy was in the living room. [X] spat in my face. We then wrestled at daddy's house and [X] put his finger up my bum so deep this time it hurt. We also went to bowling with Daddy, and then Daddy and I had dinner in [Suburb V] at the [AA Hotel].”
291. Upon hearing [Y's] disclosures I became very concerned. That night [Y] also wet the bed, which is unusual for him.

The mother’s proposal in relation to Y’s relationship with X is, in light of this evidence, one that I find is not in his best interests.
I also note the single expert records as follows:
182.… Severing the sibling relationship should definitely be a last resort, particularly in circumstances where the alleged perpetrator is a minor with a disability who cannot be held responsible for his actions.
In the context of supervision of X’s time with Y, the single expert said:
HIS HONOUR: Does the imposition of supervision of his arrangement with [X] also pose a problem for [Y]?
[THE SINGLE EXPERT]: I think it does, your Honour. I – I think that it takes away opportunities to just relax and have downtime and have a normal relationship to have somebody else there and to be organising it around the ability of somebody else to be present. I think it’s really important that [Y] and [X] have those opportunities to build a really strong relationship. Siblings relationships are the longest relationships that we have, and there – there is going to come a time when mum and dad aren’t going to be around and it’s going to be really important for [X] to have [Y], who understands him and who wants to look after him and loves him, and I think that putting a strain on that relationship now by having very limited time and not really having those opportunities to - - -
[HIS HONOUR]: But I think the - - -?
[THE SINGLE EXPERT]: - - - enjoy those shared experiences that will have a - - - 15
[HIS HONOUR]: I think let’s distinguish between time and supervision. Is it just having a supervisor present there’s an unreality about it as well?
[THE SINGLE EXPERT]: Yes. Particularly as he becomes older as well.
(Transcript 11 August 2022, p.275 lines 3–19)
I agree with her observation.
In relations to any possible change to the existing arrangement, I accept the single expert’s evidence where she said:
[COUNSEL FOR THE ICL]: Okay. But – and you did say there would be trauma either way, but would you accept that the move from the mother’s primary care where he has been all life to the father is a very big wrench?
[THE SINGLE EXPERT]: It is.
[COUNSEL FOR THE ICL]: And you – do you - - -?
Sorry.
Sorry. Go on. You were going to say something?
[THE SINGLE EXPERT]: Yes. I – I think that the father has the capacity to be able to give [Y] what he needs. I think that he is attuned to [Y’s] needs and moods and he’s able to respond to those appropriately, and I – I think that he will be able to manage that transition. I think if [Y] were to remain with his mum, he would be quite happy with his mum, but if he has less time with his father and less time with his brother, that’s going to be a loss for [Y] as well.
(Transcript 11 August 2022, p.274 lines 6–17)
(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a relevant consideration and it was not submitted by either counsel that it was.
(f) The capacity of each of the child's parents and any other person to provide for the needs of the child, including emotional and intellectual needs;
The single expert recorded:
173. While each parent questions the capacity/willingness of the other parent to meet these needs, both seem equipped to do so, as do the respective grandparents. The mother has concerns about the risk posed by [X] and she perceives the father, [Ms D] and the paternal grandparents as wilfully blind to that risk and willing to risk compromising [Y’s] safety and emotional well-being in order to ‘normalise’ [X’s] behaviour to ensure his acceptance as a member of the family and of society in general. The information provided by [X’s] school would seem to support the paternal family’s position that [X] does not pose a risk of harm to his peers or treating professionals and suggests that [X] is able to offer a lot in terms of positive relationships with others, including his younger sibling. It would be unwise to discount the positive benefits to [Y] of having a relationship with a sibling who unconditionally loves him.
I agree with her observation.
A significant risk is that posed by the mother’s response to the disclosures by Y and her attitude to X. In cross-examination, the single expert was asked the following:
[COUNSEL FOR THE FATHER]: … So it’s unlikely, isn’t it, that from what you’ve read thus far, and your interviews and discussions with [Ms Brockett] that [Y] is able to come back to his mother after spending time with his father and [X] and being able to say that he had a good time or he had fun, and speak positively about his experience over there; do you agree with that?
[THE SINGLE EXPERT]: I agree with that.
[COUNSEL FOR THE FATHER]: And that’s something in itself, leaving everything else aside, is going to create a sense of psychological harm for [Y]?
[THE SINGLE EXPERT]: Unless, you know, the mother addresses her – her behaviour and is very aware of it and monitors herself.
[COUNSEL FOR THE FATHER]: And did you get a sense in your discussions with the mother that she, firstly, is aware of that behaviour?
[THE SINGLE EXPERT]: To a certain extent. You know, she reassured me that she hadn’t prompted his disclosures and she had shut down the questioning and – so she – she does know what the line is. I’m just not sure whether she will be able to restrain herself.
[COUNSEL FOR THE FATHER]: And that’s the problem, isn’t it?
[THE SINGLE EXPERT]: Yes.
(Transcript 11 August 2022, p.280 lines 2–18)
This evidence from the single expert, which I accept, demonstrates in part the unacceptable risk to Y in the mother’s care.
The single expert was also asked about each party’s capacity to support Y’s relationship with the other parent. She said:
[COUNSEL FOR THE ICL]: And the second part, that is, the support of the relationship between [Y] and the father?
[THE SINGLE EXPERT]: I think that she will encourage [Y] to have a relationship with his father, but she will always be hypervigilant around that relationship and [Y] will pick up on that. And what you were saying earlier made me remember what happened during the observation session with [Y] and [X] and his father, and Y’s comment to his father that, you know, not to tell Mum that he was having a good time.
(Transcript 11 August 2022, p.256 lines 40–46)
In contrast with the father, the single expert said:
[THE SINGLE EXPERT]: There – there was nothing to suggest that [Y] wasn’t able to tell his father about the things that he enjoyed doing with his mother, but there was certain information there to support that he felt uncomfortable telling his mother about some of the things, and I’m thinking of the movies that he was watching at Dad’s place, and her various obvious disapproval, and, you know, “We don’t watch those movies at our house.” So, to answer your question, I think he would be more likely to tell Dad about the fun things at Mum’s house without feeling wary, because there would be less disapproval.
[COUNSEL FOR THE ICL]: Or that he’s betraying a loyalty?
[THE SINGLE EXPERT]: Yes.
(Transcript 11 August 2022, p.333 lines 34–43)
On one view, therefore, Y has the capacity to have a less fraught relationship with his father than he does with his mother. On the basis of the single expert evidence, which I accept, he will be able to speak more openly about what happens in his mother’s home with his father than he will be able to do in his mother’s home.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
No submission was put to me that this was a relevant consideration.
(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her culture; and the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
I have addressed this consideration exhaustively above.
(j) Any family violence involving the child or a member of the child's family;
No submission was put about the relevance of family violence. The single expert in the course of her cross-examination said that the mother perceived the father as coercive and controlling. She said:
[COUNSEL FOR THE ICL]: Did you from your observations of material and from your observations of the parties have any view as to whether or not the father’s behaviour had met any of the criteria for coercive and controlling behaviour?
[THE SINGLE EXPERT]: I think probably at the lower end of the scale. It’s agreed that he – that their arguments would be very loud, that there were occasions where he – and this is prior to separation – where he would lose his temper and where – I think there was an occasion where he put a hole in the door. After separation when he was trying to convince the mother to ease up on the restrictions, she found him to be quite manipulative in that respect. For example, she recalled an occasion where they went on a picnic and he started off by being nice and then that quickly escalated and ended with her leaving the picnic. So she experienced his behaviour as controlling and as manipulative. Does that answer your question?
(Transcript 11 August 2022, p.249 lines 34–44)
Irrespective of her view, the mother’s counsel made no submission about family violence as a matter for consideration in the determination of this matter.
(k) Any relevant inferences that can be drawn from a family violence order, if it applies
No submission was made that this was a relevant consideration.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These parties have been in litigation about Y since June 2020 and in conflict since late 2019. It is in the child’s best interests for the proceedings to end and for Y to have some certainty in his life, particularly about when he will see his father and importantly when he will see his other half sibling. I am hopeful that the orders I make are the least likely to lead to further proceedings.
(m) Any other fact or circumstance that the court thinks is relevant.
The mother’s counsel submitted that Y would not be able to take part in the faith if he lived with his father, as his father is an atheist. The orders I propose will not prevent Y from taking part in the faith when he is with his mother.
Parental responsibility
Pursuant to s 61DA(1) of the Act, the Court is required to apply a presumption that it is in the best interests of a child for the child's parents to have equal shared parental responsibility.
That presumption may be rebutted if there are reasonable grounds to believe that a parent of a child has engaged in abuse or family violence or there is evidence, which satisfies the Court that it is not in the best’s interests of the child for the presumption to be apply.
Each of the parties sought orders for sole parental responsibility.
I agree with the observations and conclusions of the single expert that it is not appropriate that there be an order for equal shared parental responsibility. The high level of conflict and disputation between the parties is such that an order for equal shared parental responsibility would not be in the best interests of Y.
The parties have no capacity to communicate or co-parent. The single expert records:
116. Trust & Communication: There are significant issues around trust and communication between the parents which are impeding the parents ability to successfully co-parent [Y]. Unless resolved, this will preclude a shared-care parenting arrangement, meaning that one parent will be need to be designated as [Y’s] primary carer, should the matter require a judicial decision.
117. Parental Conflict: The parents currently have an acrimonious relationship that hinders their ability to co-parent [Y]. Unless this changes, it would appear unlikely that the parents will be able to share all aspects of parental responsibility going forward. Sole Parental Responsibility or Responsibility for certain aspects of care (such as medical care) may need to be allocated to the parent who is assigned primary care of [Y].
…
189. This is not a matter that is suited to a shared-care parenting arrangement. The trust and communication issues highlighted above suggest that [Y] would be best off in a situation where he lives primarily with one parent and spends time with the other parent (for example, an alternate weekend/half school holiday arrangement). The issue for the Court to decide is which parent will be the primary carer. It is suggested that primary care should be allocated to the parent who is deemed most likely to prioritise [Y’s] needs over and above their own needs or wishes. This would include facilitating [Y’s] relationships with the other parent and all of his extended family members. The Court may wish to consider allocating sole parental responsibility for all important decision making to the parent who has primary care of [Y]. It is further suggested that [Y’s] passport be retained by his primary carer.
(Family Report dated 9 August 2021)
28. It now seems highly unlikely that [Mr Danton] and [Ms Brockett] will be able to put aside their feelings about what has occurred during the course of the current dispute, particularly in regard to the allegations that have been raised about [X]. It will be exceedingly difficult for either parent to trust the other parent in the future, thus making it impossible to co-parent on any level. Given the acrimony between the parents, it is suggested that future arrangements ensure that changeovers are not in person.
(Addendum to Family Report dated 8 November 2021)
I agree with these observation. In her cross-examination, the single expert said that co-parenting is not going to be possible and that neither parent trusts the other. I accept her evidence and recommendations and will make an order for sole parental responsibility.
In light of my findings as to unacceptable risk, I am of the view that Y’s best interests are served by an order for sole parental responsibility in favour of the father.
Having made such a finding, I am consequentially not required to consider s 65DAA. I will now proceed to address what time Y shall spend with each parent.
Which parent should the child live with and what time should the child spend with the non-residential parent?
In view of my findings about unacceptable risk and sole parental responsibility, then consistent with my findings Y should live with his father. I am of this view for the reasons referred to earlier, identifying the mother’s past conduct in relation to Y’s allegations and the unacceptable risk in the future of her so acting. I am also of the view that the father is more likely to prioritise Y’s needs including ensuring that he has a relationship with both of his parents and all of his extended family than would be the case in the event that he remained living in his mother’s primary care.
The recommendations of the single expert in the Family Report as to time in the event of findings as to unacceptable risk posed by the mother were that Y’s time with the mother should be “fairly limited and may need to be subject to supervision” (at paragraph 192) . In her cross-examination, the single expert suggested that this was at the extreme end of the range and “it’s not something that I would like to see happen” (Transcript 11 August 2022 p.269 line 29).
Such a proposal would also inhibit and disrupt his relationship with his maternal extended family and his sibling relationship with F. Such a disruption to his life would be inconsistent with his best interests and would cause him trauma.
The single expert was asked the following:
HIS HONOUR: [Ms C], I’m the one who has to ultimately make a decision about this, so I’m looking for some guidance from you. If I look at 192 – and this is where Mr Longworth is taking you now a number of times – if I came to the conclusion that [X] did not pose an unacceptable risk to his brother, [Y], if I – assuming I came to that conclusion – all right – and assuming I also came to the conclusion that the mother believes that [X] does pose a risk of harm to [Y] and assuming I concluded that the mother does believe that [X] has been the perpetrator of sexual harm towards [Y], what do I do?
[THE SINGLE EXPERT]: I would then suggest that [Y] should live with his father and he should have limited time with his mother and some precautions taken so that she was not able to take him to doctors or to make those reports without some sort of procedure in place.
[HIS HONOUR]: Okay. So what does that limited time look like in the real world?
[THE SINGLE EXPERT]: I think that [Y] would struggle with the father’s proposal, which is - - -
[HIS HONOUR]: Forget about the father’s proposal?
[THE SINGLE EXPERT]: - - - quite limited.
[HIS HONOUR]: What’s your recommendation?
[THE SINGLE EXPERT]: My recommendation? I – I think that – that she has a lot to offer [Y]. She’s a good mother. And I think that [Y] will experience significant grief and loss if he was to have his time restricted in the way that the father is suggesting. I – I would be proposing every other weekend, half school holidays with some restrictions - - -
[HIS HONOUR]: All right. So - - -?
[THE SINGLE EXPERT]: - - - around parental responsibility.
(Transcript 11 August 2022, p.270 line 35 to p.271 line 12, p.272 lines 30–39)
In light of this evidence, I am of the view that the arrangement that is in Y’s best interest is one that sees an adoption of the school term and school holiday time proposal recommended by the single expert. The mother’s counsel made no submissions about the ICL’s orders other than to agree with the orders in relation to a parenting coordinator.
Such a time proposal ensures that Y is able to maintain a meaningful relationship with his mother, F, and her extended maternal family.
The father submits that this proposal does not protect Y from questioning in the mother’s home and that the only way this can be done is by the imposition of supervision. I accept that the mother will in all likelihood question Y about what happens in his father’s home and it is likely that what Y reports could be negative and there is a risk that he may make disclosures similar to that made between June 2020 and June 2021.
That said, it remains a balance in light of the trauma identified by the single expert. The single expert was clear that the father’s proposal was one that was not in Y’s best interests. The ICL did not submit how it was that her proposal accorded with the recommendations of the single expert. It remains as I said a balance and I strike that balance in the orders I propose to make. It remains very much within the mother’s control to minimise that trauma.
If there is a repeat by the mother of what occurred between June 2020 and June 2021, a subsequent court may be left with little alternative but to implement the more limited supervised time between the mother and Y as proposed by the father and as set out in the single expert’s report.
The single expert says:
185. The Court may wish to consider appointing an accredited Parenting Coordinator to settle parenting disputes and to ensure adherence to a structured process of fact checking and decision making around any future allegations in order to prevent what is often referred to as ‘Systems Abuse’ whereby a child may be subjected to ongoing questioning and examination by a variety of professionals who are often unaware of the history of a matter.
I am of the view that is an appropriate order. It is one that the parties indicated that they consent to.

In my view, the orders that I propose are ones that are in Y’s best interests.

I certify that the preceding four hundred and thirteen (413) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell.
Associate:
Dated: 16 September 2022

File number(s):	SYC 4201 of 2020
Judgment of:	SCHONELL J
Date of judgment:	16 September 2022
Catchwords:	FAMILY LAW – PARENTING – Unacceptable Risk – Where both parties seek sole parental responsibility and that the child live with them and spend limited time with the other parent – Where the mother asserts that the child disclosed that his half-brother had inappropriately touched him – Where the half-brother has level three autism and an intellectual disability – Where the mother contends that the father and half-brother pose an unacceptable risk to the child – Where the father and Independent Children’s Lawyer contend that the mother poses an unacceptable risk – Where the Court found that the mother does pose an unacceptable risk to the child – Consideration of primary and additional considerations under s 60CC of the Family Law Act 1975 (Cth) – Where it is in the best interests of the child that the child live with the father and spend time with the mother.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 7.03, 7.25
Cases cited:	Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 Champness & Hanson (2009) FLC 93-407; [2009] FamCAFC 96 Fitzwater v Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Isles & Nelissen [2022] FedCFamC1A 97 Johnson and Page (2007) FLC 93-344; [2007] FamCA 1235 M & M (1988) 166 CLR 69; [1988] HCA 68 Mazorski v Albright (2007) 37 Fam LR 518; [2007] FamCA 520 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Mulvany & Lane (2009) FLC 93-404; [2009] FamCAFC 76 Potter and Potter (2007) FLC 93-326; [2007] FamCA 350 Sigley & Evor (2011) 44 Fam LR 439; [2011] FamCAFC 22 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48
Division:	Division 1 First Instance
Number of paragraphs:	413
Date of hearing:	23 – 26 May 2022 and 11 – 12 August 2022
Place:	Sydney
Counsel for the Applicant:	Mr Dura
Solicitor for the Applicant:	SMB Law
Counsel for the Respondent:	Mr Blackah
Solicitor for the Respondent:	Greysilver Law
Counsel for the Independent Children's Lawyer:	Mr Longworth
Solicitor for the Independent Children's Lawyer:	Gordon & Barry Lawyers

SYC 4201 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR DANTON Applicant
AND:	MS BROCKETT Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SCHONELL J
DATE OF ORDER:	16 SEPTEMBER 2022