Denford and Manville (No. 3)

[2020] FamCA 844

FAMILY COURT OF AUSTRALIA

DENFORD & MANVILLE (NO. 3) [2020] FamCA 844

FAMILY LAW – CHILDREN – Best Interests – Where the mother seeks that the Court determine whether or not the father poses an unacceptable risk of harm to the children if they were to spend unsupervised time with him – Where the father seeks that the children live in an equal time arrangement between he and the mother – Where the Court finds that the father does not pose an unacceptable risk of harm to the children – Where it is not reasonably practicable for the children to live in an equal time arrangement between the parents – Where the parents will have equal shared parental responsibility, the children will live with the mother and spend alternate weekends and half school holidays with the father, subject to his completion of an anger management course.

Family Law Act 1975 (Cth)

APPLICANT: Mr Denford

RESPONDENT: Ms Manville

INDEPENDENT CHILDREN’S LAWYER: Justine Lilley

FILE NUMBER: BRC 5995 of 2019

DATE DELIVERED: 2 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 2, 3, 4, 5, 6 and 9, 10, 11 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Alexander

SOLICITOR FOR THE APPLICANT: Evans Brandon Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Linklater-Steele

SOLICITOR FOR THE RESPONDENT: Naughton McCarthy Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lyons

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Lilley
Legal Aid Queensland

Orders

1. That all previous parenting Orders are discharged. 

Parental Responsibility

1. That each of the mother and the father shall have equal shared parental responsibility for decisions in relation to all major long-term issues affecting the children, Y born … 2008 and X born … 2010, (“the children”) including but not limited to all of those matters specifically set out in the definition of “major long-term issues” as defined in s 4 of the Family Law Act 1975 (Cth), save for the matters expressly provided for in paragraphs (3) and (4) of these Orders.

2. That the children shall attend H School for their high school education unless otherwise agreed in writing between the parents.

3. That the child, X born … 2010, shall not be taken to any protective behaviours therapy by either parent without the prior written agreement of the other parent.

Live with

1. That the children shall live with the mother.

Time with the father during school term

1. That provided the father has completed and provided evidence to the mother of his completion of an anger management course through P Servicesas ordered in paragraph (4) of the Orders made 11 March 2020, the children shall spend time with the father:

   (i)If they have not already transitioned to alternate weekends pursuant to the transition provided for in paragraph 6 (a) to (c) of the Orders made 11 March 2020 then:

   (a)from 9.00 am on Saturday until 4.00 pm on Sunday each alternate weekend for one visit;

   (b)from 3.30 pm (or after school) on Friday until 4.00 pm on Sunday each alternate weekend for one visit; and

   (c)from then on, from 3.30 pm (or after school) on Friday until 8.00 am (or before school) on Monday each alternate weekend thereafter; and

   (ii)If they have already transitioned to those alternate weekends then from here on:

   (a)from 3.30 pm (or after school) on Friday until 8.00 am (or before school) on Monday each alternate weekend. 

School Holidays

1. That provided overnight contact has already commenced pursuant to paragraph (6) above:

   (a)the children shall also spend equal time with the mother and the father during school holiday periods on a week about basis with the parent who would ordinarily have care of the children from the afternoon of the last day of school term pursuant to alternative weekend arrangement, to collect the children from school on the last day of the school and to deliver them to the other parent after their week of holiday time;

   (b)alternate weekend time is suspended during school holidays and shall recommence on the first weekend of each school term regardless of whether they were with the father the weekend before or not;

   (c)equal time with the mother and the father during Summer school holidays may be varied from week about by written agreement between the parents at any time.

Special Days

1. That notwithstanding any other orders to the contrary, the children shall spend time with each parent on special occasions as follows:

   (a)On either child’s birthday when the birthday falls on a weekend, the children shall spend time with the parent who does not have the children in his or her care that weekend from 9.00 am to 4.00 pm on the other day of the weekend (ie Saturday if the birthday falls on a Sunday, or Sunday if the birthday falls on a Saturday);

   (b)On either child’s birthday when the birthday falls on a weekday, the children shall spend time with the parent whose home they did not wake up in for three hours after school, to be collected from school by that parent and returned to the home of the parent with whom they are to stay the night at the end of that three hour period;

   (c)On Mother’s Day, should this fall on a day when the children are not in the Mother’s care, the children shall spend time with the Mother from 10.00 am to 4.00 pm on Mother’s Day;

   (d)On Father’s Day, should this fall on a day when the children are not in the Father’s care, the children shall spend time with the Father from 10.00 am to 4.00 pm on Father’s Day;

   (e)       Over Easter:

   (i)In even numbered years, the children shall spend time with the Mother from after school (or 3.30 pm on a non-school day) the day prior to Good Friday until 6.00 pm on Easter Monday; and

   (ii)In odd numbered years, the children shall spend time with the Father from after school (or 3.30 pm on a non-school day) the day prior to Good Friday until 5.00 pm on Easter Monday.

Counselling

1. That the mother shall continue to attend for counselling and treatment by her treating psychiatrist, Dr B, (or such other psychiatrist as he refers her to) for so long as Dr B (or any successor in treatment of the mother) considers it appropriate.

Telephone Communication

1. That the parent who has the children in their care shall facilitate any reasonable request by the children to communicate with the other parent or any other family member and shall facilitate the children’s communication with the other parent when requested.

2. That during the school term, the father shall communicate with the children by mobile telephone, with the father to telephone the mother’s nominated mobile number each Tuesday and Thursday evening between 6.30 pm and 7.00 pm.

3. That during school holidays, the parent with whom the children are not living shall be at liberty to call the other parent’s nominated mobile telephone number to speak to the children each Tuesday and Thursday evening between 6.30 pm and 7.00 pm and the resident parent shall facilitate that telephone call.

4. That both parents shall each ensure that the children have privacy during their telephone communication with the other parent and shall use their best endeavours to ensure other persons give the children this privacy.

Exchange of Information

1. That each parent will keep the other informed of his or her mobile telephone and email address and will, within 48 hours of a change, advise the other parent of the details of any such change.

2. That the mother shall continue to keep the father informed of the name and contact details of any medical specialist and/or allied health professional upon whom the children attend.

3. That each parent will inform the other as soon as reasonably practicable of any injury, medical condition, significant health issue and/or significant illness suffered by the children when they are in that parent’s care.

4. That the parents shall communicate with each other in writing in relation to the children via the “School” portal save for in the case of an emergency.

5. That this order authorises each parent to request and obtain from any medical or allied health professional providing treatment to the children and/or any school, educational institution or extra-curricular organisation upon which the children attend, information and reports relating to the children’s health, medical care, education or participation as may be requested by that parent from time to time, at the requesting parent’s sole expense.

6. That the parent who has the children in their care shall facilitate the children’s attendance at school, extra-curricular activities including sport activities at the D Sports Centre, medical appointments, therapist appointments and other special events including but not limited to organised social functions.

7. That each parent may attend any school event or extra-curricular activity relating to the children to which parents are invited or normally attend during the time that the children are in that parent’s care.

8. That from the date of these Orders, neither parent shall enrol the children in any extra-curricular activities which impacts on the time the children spend with the other parent without the written consent of the other parent.

9. That each parent has leave of the Court to provide a copy of these Orders to any school, other educational institution or extra-curricular organisation upon which the children may attend.

Injunctions

1. That the parents are each restrained and an injunction is hereby issued restraining each parent from:

   (a)denigrating the other parent or any member of that parent’s family to or in the presence or hearing of the children;

   (b)discussing with the children these proceedings or the contents of any document or recording filed or used in these proceedings, or with any other person in the presence or hearing of the children;

   (c)making or allowing any one else to make any audio or video recordings of the children at any time in which the parent or anyone else is questioning the children about the other parent, anything that is happening in the other parent’s care, or any preference or view that the children may have in respect of their living arrangements, save for medical purposes and only in circumstances where the children are being recorded whilst they are asleep;

   (d)discussing with the children’s school or care provider or any other facility that the children attend, any details of any alleged abuse with regard to the children;

   (e)presenting either of the children (either personally or by an agent) to any hospitals, medical practitioners, allied health professionals or Queensland Police for the purpose of medical examinations and/or Police interviews in respect of any allegations of sexual abuse without an Order of the court or the written agreement of the other parent.

2. That the parents shall each:

   (a)save for in the case of the child being unwell, ensure that both children sleep in their own beds and neither parent shall sleep in the children’s beds with them when the children are in his or her care, and each parent shall return the children to their own beds should one or both children attempt to sleep in his or her bed with him or her;

   (b)ensure that both children are afforded privacy when showering, changing or using the bathroom including allowing both children to close the bathroom and bedroom doors while the children undertake those tasks;

   (c)respect the children’s personal boundaries and not engage in behaviour toward the children which is not age appropriate including continuing to deal with either child’s physical person if the child has expressed discomfort, dislike or aversion to the behaviour; and

   (d)not physically discipline or swear at the children when they are in his or her care.

Overseas Travel

1. That neither parent shall remove the children from the Commonwealth of Australia without the express written consent of the other parent.

Discharge of the ICL

1. That the Independent Children’s Lawyer is discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Denford & Manville has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5995 of 2019

Mr Denford

Applicant

And

Ms Manville

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. Over eight days in March this year, I presided over a trial in which these two parents pressed competing applications in respect of the proper parenting orders to govern the parenting arrangements for their two children, Y and X, who are now 12 and 10 years of age respectively.

2. The principal issue at the heart of the fact finding exercise within the trial was whether or not the two girls were at an unacceptable risk of sexual abuse from their father in his unsupervised care. The matter had started in the Court in May last year when the father commenced proceedings after the mother had first denied him contact with the girls in February that same year. Indeed, the father had been charged by police, after complaint from the mother, with an offence of indecent dealing with the youngest daughter. His bail conditions prevented contact with the two girls.  A few months later, the Office of the Director of Public Prosecutions, Queensland (“the DPP”), discontinued the prosecution of the father, plainly satisfied that there were insufficient evidentiary grounds to justify such prosecution. The father commenced his proceedings in this Court soon after that, after the mother confirmed that the withdrawal of the charges was not sufficient to satisfy her that the girls could start spending time in his unsupervised care again. The commencement of proceedings by the father resulted in him securing interim orders for supervised time with the girls on a regular basis and the matter being placed in the Magellan List of matters proceeding to trial.

3. At that trial, the mother was represented by a barrister who is very experienced in complex parenting disputes, particularly ones involving allegations of sexual abuse.  The father had a very experienced solicitor acting for him who instructed another experienced barrister to represent the father in that trial. Of course, there was also an Independent Children’s Lawyer, and she also instructed experienced counsel to appear for her at the trial.

4. After the father had been cross-examined over a couple of days and his case had closed, during her cross-examination, the mother told the Court that she conceded that the girls could begin spending unsupervised time with the father during daytime hours. Indeed, at the end of the trial, the Court was told that the parties and the ICL had agreed to ask the Court to make Orders with their consent for the girls to start spending that unsupervised time with the father from 9:00 am until 5:00 pm each alternate Saturday and Sunday from that time on. I did that.

5. Indeed, knowing that it would be some months before I would deliver my reserved judgment in the matter, and already satisfied that it was proper to order it, I made further Orders pending the delivery of these reasons and the making of final Orders for the parents to have equal shared parental responsibility for the girls and for the girls’ time with their father to progress quickly to whole alternate weekends from Fridays after school until Mondays before school, conditioned on the father completing an anger management course through a particular provider before that progression commenced. I made Orders for the girls to spend their school holidays equally with their parents; to spend time on certain special days with each of their parents; for the parents to each complete a Triple P Positive Parenting Program; for the father to attend his treating psychologist for four sessions of counselling and assistance regarding age appropriate and developmental boundaries for children and emotional regulation in dealing with children and disciplining children and emotional regulation in the presence of the children; and multiple other Orders. Attached to these reasons and marked “A” is a copy of the Orders I made at the end of the trial. Counsel for the father told the Court when I made those Orders that the father would consent to those Orders being made on an interim and a final basis. As such, I expect he has probably undertaken the courses the Orders effectively required him to complete. There has certainly been no application to re-open the case to inform the Court otherwise.

6. Now, after having had the opportunity to reflect upon the evidence and events of the trial and to consider the matter further over the seven months that have passed since I made those Orders at the end of the trial, I have decided to make most of those same Orders on a final basis, satisfied that they are the proper Orders to make in the best interests of Y and X. These are my reasons.

Some History

1. The father was born in 1969 and is now 51 years of age. The mother was born in 1970 and is now 50 years of age. The former couple first met at high school, but reconnected and began a relationship twenty or so years after leaving school. They commenced living together as a couple in late 2007. Y was born the next year and X was born two years after that.

2. There is no dispute between them that their relationship did not remain a happy one for long. Each of them says that the other was verbally and emotionally abusive to them during their cohabitation. They had counselling with a psychologist with a view to addressing their relationship difficulties but that did not help them to resolve their problems. The father asserts that their relationship really began to deteriorate after the mother established contact with her birth mother who lived in Adelaide and began a new adult mother-daughter relationship with her. The mother asserts that she considered her relationship with the father to be broken and asked the father repeatedly to move out of their home in 2013.

3. The mother worked in hospitality when they met and until she had their children and took parental leave. In 2013, she had to attend a training course in Sydney to requalify to take up employment again in hospitality. She was away in Sydney for around nine weeks, during which time her birth mother came up to Brisbane and lived in the home with the father to help care for the girls whilst the mother was in Sydney. The father and the birth mother did not have a very good relationship either.

4. After the mother’s birth mother had come up to Brisbane, but before the mother had left for Sydney, there was an incident at the home where the father and mother argued. There was dispute about the precise circumstances under which the back door in the kitchen in their home was damaged at that time, but I am satisfied that the father punched it with his closed fist in anger after the argument, with his fist breaking through the timber veneer in the door. I reject his denial of that. I accept that his hand was also slightly damaged and the mother’s birth mother helped him clean it up immediately afterwards.

5. Soon after the mother returned to the home in Brisbane after her training course in Sydney concluded, the father moved out of the home and the former couple separated. They have lived separately and apart ever since.

6. At that time, before she would agree to let the children spend unsupervised time with the father, the mother required him to undertake an anger management course. She was concerned about what she perceived was his inability to control his anger around the girls. Without ever conceding that he needed to do such a course before having the girls in his care, the father did do such a course. The former couple undertook some family dispute resolution counselling and reached agreement in respect of the time that the girls were to spend in the father’s care. Though the father said that he wanted the agreement to be confirmed in the form of a Parenting Plan or a Court Order made by consent, he did not want to press the issue to the point of commencing proceedings at the time and acquiesced in the mother’s apparent unwillingness to join in a formal Parenting Plan or Court Order by consent.

1. For five years from February 2014 until February 2019, the children lived with their mother and spent regular time with their father. That consisted of time with him from after school on Fridays to before school on Mondays on alternate weekends and also on at least one overnight stay during each week and sometimes more than that. Often, the mid-week overnight stays would be arranged on an ad hoc basis by the mother with the father as she needed the girls to be looked after by him. Despite their difficulties, such was their relationship that they could do that. In school holidays, the girls would stay with the father for a week during the end of term holidays and then usually week about with their mother and father in the Summer school holidays. In the Summer school holidays of 2018-2019, the girls travelled with the father overseas to Country N to holiday with him at the home of his sister and her family in Country N where she lives. They were away together for about three straight weeks. That was arranged by agreement. There were no Court orders in place requiring that. Clearly, the relationship between the mother and the father was good enough for that to be agreed upon without a Court Order.

2. Sadly, things changed dramatically in February 2019. Explaining that requires some detail. The mother says that on Saturday 2 February that year, she and the girls were sitting in the mother’s bedroom and the girls were sitting on the end of her bed patting the cat and talking among themselves. The mother says she was not participating in the conversation until she heard Y say something to X “about how [the father] had put his hands down the back of X’s pants, and patted her on the bottom”. The mother says that she froze for a moment when she heard Y say that but then “decided to intervene to obtain further information”. She said that she took up her telephone and recorded some conversation that she then had with the girls. She maintained in her affidavit and in her oral evidence that she did not think the girls knew she was recording this part of their conversation.

3. The recording was adduced into evidence. The mother also put her own transcript of it into evidence. I have listened to the recording many times. I listened to it in Court and again in my chambers, multiple times. It starts with the girls speaking quietly about something unrelated before the mother then says quite firmly and pointedly “but X, he’s still not trying to put his hands down your pants and pat you on the bottom now?”  A child, who sounds like it might be X, says softly and rather shyly “he is”. The mother then asks “what does he do?” to which the sister, Y, replies with words that sound like “that exact thing”. One of the girls, and it sounds to me like Y again, though I might be mistaken, then says “he’s like this”. The mother then, with a sound of stunned surprise says “but when you, … like have you … like down your pants? When you’re wearing pants?” X says “yes”. The mother then says “and what do you say to him?” Y then says something that I cannot make out but which apparently upsets X who says angrily as if she has been challenged “I pull it out and say “don’t do that””. The mother then quickly responds “pull, you pull your hand ... his hand out of your underpants?” The child, X, says firmly “yes” and the mother says “and say don’t do that?” X says “aaa ha” affirming what her mother just said. The mother then says “and what does he say?” X says “nothing” to which Y calls out “no, he does, he says “oh, but you’re so cute””.  The mother then says, without hearing from X further “and he says “oh, but you’re so cute?””  Without the child X responding further, the mother then just instructs X as follows “You say “stop, I don’t like you putting your hand down my pants. I’m nearly nine years of age””.  X then says words that sound like “yes, I will say that” to which the mother says, as if she has not heard the child’s response, “sorry?” and the child says “I have said that”. Y then calls out “you haven’t said that”. X then seemingly tries to talk about something else by saying “mummy, mummy” and the mother then says “you have or you haven’t?” Y then jumps in straight away and says “she hasn’t”. X then says “but I will. I’ll say that”. Interestingly, the mother then says to X in an accusatory, questioning manner “so, you, you like it?”  Then X says in a whiny, defensive, upset tone “no”. Y jumps in again and says “you let it happen”. X says “and then I pull my… No, I don’t, I pull his hands out and say “stop it””. Y then says in a sarcastic tone “yeah, well you secretly do”. X then says pleadingly “Y stop saying lies”. Y then says “you stop telling lies”. X then cries pleadingly to her mother “mummy, I’m telling the truth”. The mother then says “it’s, it’s, X, I’m sorry, it’s not the normal thing for a grown man to be putting their hand down a nine year old girl’s pants”. X cries again and then again says pleadingly “I’m telling the truth”. Y quickly retorts in a teasing fashion “no, you’re not”. The mother goes on “and like trying to pat your bottom. It’s not normal, ok.” X again says, pleadingly “I’m telling the truth, ok”. Y again retorts “no”. The mother then says firmly “go and wash your hands after patting the pussycat. No more”. That is the end of the recording.

4. The mother says that on the following Monday, 4 February, she made an appointment to see a psychologist to discuss this information with her so as to be able to “process” it. She was able to get an appointment for Wednesday, 6 February. Quite significantly, given that recorded conversation, the mother says that later that same day, Monday, 4 February, the girls asked her if they could go and spend the night at their father’s house as they wanted to see their new pet that the father had recently purchased. The mother says “I reluctantly agreed” for them to go. She says she was “still processing the information they had told me”. The mother says she “felt completely sick the entire time they were at their father’s house that night”. However, what she had heard did not stop her sending the girls for an overnight stay with the father.  

5. The mother says in her affidavit that on Tuesday, 5 February, after the girls were back in her care, Y told her that that she had woken up early that day and walked into the father’s bedroom where “she had seen X asleep in [the father’s] bed with no clothes on”. Interestingly, considering the apparent significance of that, the mother says nothing more about it.

6. The mother then says that she went to the psychologist on Wednesday, 6 February and played the recording of her conversation with the girls that I have just referred to. The psychologist told the mother that she considered that she had to make a mandatory notification to the Department of Child Safety, Youth & Women (“the Department”) but that she would discuss it with her clinical manager first. The mother says that the next day, Thursday, 7 February, the psychologist rang her and told her that she had to report the matter to the Department and that she advised the mother to “act protectively” and to contact Legal Aid and the Department herself. The mother says the psychologist contacted her on Friday, 8 February and informed her that she had reported the matter to the Department. The mother says that on Saturday, 9 February she obtained some legal advice and later that morning received a telephone call from a police officer who said he wanted to speak with her. The mother says she arranged to attend the police station on the following Monday morning after the girls had gone to school. She says she did that and spoke with a police officer and played him the same recording that I have referred to. She says the police officer asked her to bring the girls in for interviews. On Tuesday, 12 February, the mother took the girls to the Suburb S Police Station where they were both individually interviewed and their interviews recorded on video pursuant to s 93A of the Evidence Act 1977 (Qld).

7. Those interviews were adduced into evidence. They were played in Court. I have listened to them again in my chambers. In the interview with X, despite being given ample opportunity to tell the police if something happened at her father’s place that she was unhappy about, X does not refer to anything like the father putting his hand down the back of her pants until one of the police officers directly puts to her the following:

   I heard that your mum walked into your room the other day and heard you and Y talking and you said that Dad sometimes puts his hands down the back of your pants and slaps you on the bum. Can you tell me about that?

8. Giving the perception that she feels like she might be facing trouble with the police, X’s immediate response is:

   I don’t like it and I tell him to stop.

9. The police officer asks her to tell everything there is to tell about the last time it happened and to start at the beginning, but the child simply says “I pulled his hand out and I said “stop” … and then he just stopped.” The police officer tells her to tell more about it. The child says:

   So, I was getting ready for bed and then when I hopped into bed he did what, um, you just told me he did. And then I pulled my hand out and said stop, and then he just stopped straight away.

10. X does goes on to actually say “he just put his hands down my pants” but very quickly again says “and then I pulled them out and said “stop””. She says she was wearing pyjama pants and that his hand just went “on [her] bottom” and “was just patting [her] there”. The child could not remember when it had happened or whether that was the last time it had happened. When asked if anybody else knows about it, X says her sister does and that she does not know how her sister knows about it and she says that her sister told their mother. She expressly says when asked that there is nothing else she can remember about it.

11. In her interview, Y is given every opportunity to tell the police about anything that might trouble her at her father’s place and makes no reference to anything like her father putting his hand down the back of her sister’s pyjama pants. Well into the interview, one of the police officers then directly says to her:

    So, we heard that you and X were talking about, X was saying that Dad put his hand down her pants and touch her on the bum.

    The child responds:

    Oh yeah.

12. Y tells the police that she had the conversation about that with her mum, not with her sister and that X gets angry with her for telling their mother. Y then tells a long story about X waking up in her father’s room, seemingly being critical of X for the behaviour. Eventually, Y says to the police:

    X just, like hugs him and he’s like, “oh you’re so cute” and stuff to X. And um, and then he like, just does it and, like.

13. She is then asked “what does he do though?” and Y says:

    He like puts his hand um, down her pants and just like, taps her on the bum and stuff.

14. She tells police she has seen it happen in the father’s bedroom and that she has seen it happen more than once, but that she could not remember when the most recent time it happened was.

15. Then, seemingly not wanting X to get into any sort of trouble, Y says that X said “like stop and stuff”. Her answers then are very vague and uncertain and she says she was on the iPad and was not looking but did see it.

16. When asked how many times she thinks she saw it happen, and that it then narrowed down to the period since Christmas, Y says a very unconvincing “um, maybe like five times”.

17. Later, Y firmly asserts that nothing like that has happened to her and again she tells the police that she told her mother and that when she told her mother about it, X came in and interrupted and said “it’s not my fault”. She appears not to accept the idea, put to her by the police, that she and X were having a conversation about it which her mother overheard.

18. The mother provided the police with her own statement later that same morning that the girls were interviewed.  There is absolutely no record of her telling police that she let the girls go and spend the night with the father only a couple of days after she learned of the bottom patting. The police officer involved gave evidence at the trial. He could not recall the mother mentioning that at all.

19. After the mother gave her statement, she then undertook what is known as a “pretext call” to the father in the presence of police that was recorded by police. It was also adduced into evidence and played in Court. I have listened to it multiple times. The father was, presumably, at work when he took that call as it was during work hours on a week day. Of course, whilst the mother knew she was going to be putting allegations to him with a view to have him make admissions against interest that would be secretly recorded, the father was oblivious to that.

20. Very early in the conversation, the mother asks him directly why he would put his hand down the back of X’s pants and pat her on the bottom and asks him has he done that. He straight away concedes that when she lies in bed next to him and snuggles up to her he might have done that when he was half asleep. His immediate answer seems to be quite innocently given with some consideration by him, as he appears to be actually trying hard to answer the mother’s questions about the matter. The mother then tells him it is inappropriate and that she is not happy with it at all and the tone of the conversation begins to change. She asks does he put his hand “down her underpants” and pat her on the bottom and the father says “I don’t think so… I give her a little pat on the bum sometimes”. When the mother again says “down her underpants?” the father says “no, … down her under… no way, absolutely not”. The father then clearly begins to understand that the mother is pointedly challenging him on doing something sexually inappropriate and he says “I definitely do not put my hand, listen, listen, I definitely do not put my hand inside her underpants ever”. The call deteriorates but he still concedes that he possibly may have put patted her through her pyjama shorts on her bottom when they have been laying together in his bed. It continues to deteriorate into a fairly heated discussion about X’s sleeping routine, but the father stresses that he has done nothing inappropriate with the girls and that there is nothing for the mother to worry about. He again concedes he may have given X a little pat and he even concedes that he has “probably patted her on the bare bottom a couple of times” but assures the mother there was nothing inappropriate about it. He even expresses doubts that X would have been talking about this with Y as he could not think that X would have thought it inappropriate. He goes on to say, reassuring the mother, “ok, I won’t give her a pat on the bum again, ever in her life.” It sounded sincere, I must say.

21. A few days later, on 15 February, the father was called in and interviewed by police. He had his stepfather with him during the interview for support. That record of interview was also adduced into evidence, played in Court and I have listened to it in my chambers. It was a long interview. Well into the interview the subject of the father touching X’s bottom is raised and the father concedes that there are times where his hand has “probably touched her bottom” but he cannot specifically recall such a time. He concedes he has probably given her a little pat on the “bum” or something like that. He concedes he has probably given her a “little whack on the bum” when she has run past him without any clothes on and told her to go get her pyjamas on. When the police officer told the father that X had told him that he had put his hand down her pants and tapped her on the bum a number of times, the father thoughtfully says “… I may have actually done that. I may have done that, I don’t know.” He firmly denies the assertion that X has grabbed his hand and told him to stop, saying that is not something he has ever experienced. Whilst he went on to again admit that he has patted X on the bottom, he actually denied that he had put his hand down her pants. He did say though, that in the context of them lying next to each other in bed, he may have patted her on an exposed part of her bottom when she had ‘shorty’ pyjama pants on. He again denied that X had ever grabbed his hand and told him to stop it. He told the police that if he had any inkling that X felt uncomfortable with his patting her on the bottom he would have stopped it straight away. He also denied that he had ever said words like “oh, you are so cute” to X at a time of patting her on the bottom.

22. Having heard all of this recorded evidence multiple times and seen the father cross-examined at the trial, I was satisfied that the father had done his very best to give honest recollection of the events. I am satisfied that he honestly accepted that he had patted X on the bottom before, more than once, and that it had happened on her exposed bare bottom. I am satisfied that he was being honest when he said that he did not consider that there was anything inappropriate about it when he was doing it and that he saw and heard nothing that made him think that X was uncomfortable with it. I am satisfied that he had, through the process of the mother’s “pretext call” and the police interview with him, become aware of the fact that the mother and the police certainly considered his actions inappropriate and I am satisfied that he would not do it again, conscious of this. Indeed, at the trial, the mother herself gave evidence that she did not think he would do it again after having gone through everything that he has.

23. I accept that Y had certainly told the mother at some point in time that she had seen her father patting X on the bottom. She has probably even told her that she had seen the father put his hand inside X’s pyjama pants to do this. However, I do not make a finding that the father has actually done that. With all due respect to the mother, I am quite satisfied that there was a little bit of sibling rivalry between Y and X that was causing Y to create a bit of mischief for X with her mother around this issue. I do not consider that X ever had a feeling of being uncomfortable at being patted on the bottom by her father as I do not accept that there was any improper motive involved on the father’s part other than being playful and affectionate in a parenting way with his little girl. I am satisfied that X, upset at her sister’s reporting and commenting on the subject, that she, X, otherwise had no cause to be concerned about, quickly realised that her mother and sister considered such behaviour inappropriate on her father’s part and sought to avoid any personal responsibility that might attract opprobrium by denying that she liked it and asserting that she had told her father to stop it. She was even more determined to assert that when confronted by police about the issue. I accept the father’s assertions that X had never told him to stop it. I am satisfied X was saying that she had just to deflect any responsibility for what she had learned her mother and police considered was inappropriate conduct to be on the receiving end of.

24. It is unsurprising that after the police charged the father with the offence of indecent dealing with X and bail conditions were imposed that prevented him from having contact with the girls that their time with him ceased. In that immediate aftermath, the mother organised for the girls to start counselling with a psychologist that they had not seen before and they saw her regularly up until the trial, at least. The mother says she also continued to attend upon her own psychiatrist “to make sure that [she] was appropriately managing [her] own stress from the situation.” She has been attending upon psychiatrists for many years.

25. That psychiatrist provided a report that was adduced into evidence and gave oral evidence at the trial. His report cast quite a deal of light on the whole circumstances of the matter. Dr B has been treating the mother since November 2018 after she was referred to him after the two previous psychiatrists she had been seeing over an extended number of years had retired or gone on long leave. When referred to Dr B, the mother had been seen by her previous psychiatrists for “mixed anxiety and depression and severe insomnia causing cognitive disfunction (sic) and general anhedonia [that is inability to feel pleasure in normally pleasurable activities]”.  

1. In his written report, Dr B pointed out that the mother had a neuropsychological assessment in late 2012 and that it demonstrated that she had “mild to moderate deficits in phonemic fluency, most aspects of her visual memory and some aspects of executive functioning, including unstructured reasoning and inhibitory control.” He said it also demonstrated “a moderate to severe deficit in one executive functioning task assessing mental flexibility”. When the doctor started seeing the mother he recorded that she presented with symptoms of low grade anxiety and mood disturbance of longstanding with her being unresponsive relatively to the medications she had been prescribed in the past. He also recorded that she had had “various engagements with Psychologists.” He reports that he diagnosed Major Depressive Disorder that was mild but chronic with mixed anxiety features. He treated the mother with Sinequan and Valium and supportive psychotherapy on a fortnightly to monthly basis.

2. Dr B wrote in his report that she was still experiencing low grade anxiety and mood and that it had been exacerbated by “concerns regarding her ex-husband” and the litigation. He said that she was “a regular and conscientious attender” at his rooms and that he considered it his role to “provide supportive therapy to assist her in managing her specific concerns and to assist her in optimizing her functional capacity with regard to the children.” He said that he anticipated her mood disturbance would be longstanding and persistent, though of low grade.

3. Dr B expressed the view that he did not consider the mother’s mood disturbance has impacted on her capacity to be a parent for the girls, noting that she reported normal functioning with regard to the children in terms of their nutrition, educational and medical needs. I have seen no evidence that suggests that is an incorrect assessment.

4. Interestingly, Dr B was asked to provide his opinion on the mother’s ability to give evidence in these proceedings. He reported the opinion that she was capable of instructing legal counsel and giving evidence in Court though she has difficulty with word finding when anxious and may give somewhat expansive answers, needing to be brought back to the topic. He went on to say that within the stressful environment of the Court that he thought the mother might at times have some difficulties organising her thinking to provide a logical sequential and coherent response to questions but that she was capable of providing appropriate answers to the Court if given time. He was correct about all of that, in my observation. Ultimately, he expressed the opinion that he did not consider her to pose a risk to the physical or psychological wellbeing of the girls. He even expressed the opinion that the mother “believed she was doing the right thing following concerns she had observed in regard the children’s conversations involving their father.”

The Father’s Position

1. The nub of the father’s case was that the mother’s refusal to return to a parenting regime of unsupervised, overnight visits for the girls with their father once the DPP had decided not to prosecute the father around the middle of 2019 was malicious and deliberately designed to alienate him from the girls. Indeed, it was submitted on his behalf that the Court should “find that the mother has intentionally and mischievously prosecuted her case”. Whilst it was submitted for the father that the Court would consequently find it in the best interests of the girls for the father to have sole parental responsibility for them, the father only pressed for the girls’ time with him to be increased so that they lived with him for the same time that they lived with their mother. So, despite urging the Court to find that the mother was deliberately and maliciously maintaining her case so as to consciously alienate the girls from their father, he nevertheless urged the Court to determine that it was in the girls’ best interests to live with their mother for half of the time and with him for the other half.

2. I consider that I must say here that I do not find that the mother mischievously and maliciously prosecuted her case or that she has some deliberate design to alienate the father from the girls. I am satisfied that the state of her mental health, particularly her chronic anxiety, contributed significantly to her concern about the wellbeing of the girls after she was told that the father has been seen patting X on the bottom and she believed that he was doing that with his hand inside the child’s pants.

3. I considered, after watching the mother give her oral evidence, that she was very committed to the process of having the Court carefully consider the evidence that was before it to determine whether or not the father’s behaviour placed the children at an unacceptable risk if they were to spend unsupervised time with him. It became apparent during the course of the trial, having heard and considered the evidence, including the father’s oral evidence, whether aided by the advice of her solicitor and counsel or not, that the mother came to accept that the father did not pose an unacceptable risk to the two girls if they again started spending unsupervised time with him, including overnights. The mother still wanted that to be conditioned upon X having some protective behaviours counselling, but she was nevertheless of the view that the girls could start to spend unsupervised time with him again. That was, indeed, an appropriate positional course for the mother to take, in my judgment, as the evidence, as it was adduced, did not satisfy me that the father had sexually abused his daughter or that either of his girls faces an unacceptable risk of being sexually abused in his unsupervised care.

4. Before I move on, I should just observe that Counsel for the father put a great deal of time and energy during the trial into highlighting and pressing some particular factual issues with a view to seeking support for his submission that the mother was acting maliciously. In particular, he referred to the fact that Senior Registrar Spink had made an Order on 19 September 2019 restraining each parent from “discussing adult issues and evidence which is in dispute between the parents before the Court with or in the presence of the children”. Counsel submitted, with some factual foundation, that the mother had indeed apparently “disregarded” that order and had at least one further discussion with the girls (or at least one of them) after that injunction.

5. The mother included in affidavit evidence reference to a conversation that she had with the girls about the allegations in June 2019 (before the September Order) but also a reference to a further conversation that she had with X only on 11 December 2019 (after the September Order). She was, she said, speaking with X about the idea that “a problem shared is a problem halved” when she recalled something that X had said in the June conversation that the mother had not, in that June conversation, followed up. She said that she asked X “was it only one time Dad put his hand down the back of your pants in the dark?” She said that X replied “no”. The mother pursued it and asked “twice?” she said in her evidence. X did not respond, she said. The mother said she then asked X “many times?” to which X replied “yes”.

6. I make two observations about this evidence. Clearly, it is correct that the mother acted in contravention of the September Order of Senior Registrar Spink not to discuss “adult issues” with the children. Secondly, I was not moved by the mother’s evidence that X responded “yes” like the mother said she did. I was no more convinced by this that abuse had happened to X than I was by the assertions I heard X make that she had told the father to stop and had taken his hand and pulled it out of the back of her pants. She was a nine year old child being put under some pressure from her mother to answer questions. They were leading questions, too. I do not accept the mother’s evidence of the answers given by the child as representing the truth of the matter.  The child may have answered that way, but I am not convinced such answers could be considered reliably true.

7. However, the mother’s own action that was in contravention of the Order does not persuade me that the case maintained by the mother was truly motivated by an intention to stop the children spending time with the father as was submitted by counsel for the father. I consider it was just another example of the mother, struggling with her own anxiety issues, trying to come to terms in her own mind with what it was that Y had told her she had seen happen and that X, under some pressure in February, had quickly conceded had happened and had not been able to explain in a fashion that dispelled the mother’s concerns any time the mother spoke about it.

8. Counsel also pointed to the fact that the mother had in the first affidavit she filed as well as in her trial affidavit on 7 February 2020 deposed positively to having no other discussion with the girls about “their disclosure” of 2 February, 2019 other than on 9 June and 11 December 2011. He then pointed out that she then changed that evidence and filed a fresh affidavit on 24 February 2020 that was the one she relied upon at the trial before me. In that affidavit, the mother referred to 17 July 2019 (again before the September Order) as another time that she had actually tried to speak to the girls again about the February 2019 “disclosures”. She said that the girls had not responded to her efforts to talk about the subject and that she had dropped it as a result. She said that when she swore her 7 February affidavit she had “completely forgotten” about that attempted conversation.

9. Counsel for the father submitted that I would reject the mother’s evidence that she had forgotten about that occasion and would find that she “intentionally omitted it” until she was “caught out misleading the Court”. He submitted that this dishonesty supports the accuracy of the submission that the mother’s motives were malicious and improper.

10. With respect, I do not reject the mother’s evidence about that. I do not consider that she was deliberately lying or that she “intentionally omitted it” from her first filed trial affidavit so as to mislead the Court. I do not accept the submission that the mother was intentionally trying to “remove the father from the children’s lives.” This former couple, though having their difficulties with each other, had been able to co-parent the two girls over several years, with the father plainly being satisfied enough with the time that the girls were spending in his care whilst principally living with their mother, without any apparent determination to bring the matter to Court to pursue parenting Orders that he considered more appropriate until after they were withheld from him in February last year. There was no dispute that the time they were spending with him included quite a lot of midweek overnight stays that were arranged on an ad hoc basis, sometimes at short notice. That, and the agreed three week Country N holiday, does not sit with a malicious intention to remove the father from the girls’ lives.  

Why Order Equal Shared Parental Responsibility?

1. There is a statutory presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility for that child (s 61DA of the Family Law Act 1975 (Cth) (“the Act”)). That presumption does not apply in certain circumstances (eg if there has been family violence) and may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child.

2. In this case, I am satisfied that before the parties’ separation the father did punch the back door to their home in anger after an argument with the mother and busted a hole in the door. That meets the definition of “family violence” contained in s 4AB of the Act and, accordingly, the presumption just referred to does not apply. However, that does not mean that an equal shared parental responsibility order cannot be made if I consider it in the best interests of the children.

3. The mother wants sole parental responsibility. The father wants sole parental responsibility. The ICL’s submission is that it should be conferred equally on the parents.

4. I have always considered that an important consideration in respect of deciding to confer parental responsibility equally on parents is the statutory requirement imposed by s 65DAC of the Act. Where parental responsibility is conferred equally and the exercise of that responsibility involves making a decision about a major long-term issue in relation to the child (as that term “major long-term issue’ is defined in s 4 of the Act) the order is taken to require three things, namely:

   (i)     The parents who share parental responsibility to consult with each other in relation to the decision to be made;

   (ii)    The parents to make a genuine effort to come to a joint decision about the issue; and

   (iii)   The parents to make the decision jointly.

5. Such a decision cannot be made unilaterally by one of the parents if they cannot agree and come to a joint decision.

6. For the mother, it was submitted that the mother’s depression and anxiety is a major reason as to why she needs sole parental responsibility. It was submitted that the father is just too difficult for the mother to negotiate with. For the father, effectively the same submission was made but with emphasis on the difficulty being caused by the mother’s anxiety and depression.

7. I accept that there are difficulties in the communications between these two parents and that the mother’s anxiety causes her difficulties when negotiating with the father, contributed to by the fathers’ personality style, as well. In some cases, this might be sufficient for me to determine against an equal shared parental responsibility order being in the children’s best interests. In this case, I have formed a different view. As is already clear, I will be making parenting Orders that have the two girls continuing to live principally with the mother and spending substantial and significant time with the father. Generally, where I consider communication is so bad that equal shared parental responsibility Orders would just create more problems, I would confer sole parental responsibility on the parent with whom the children are principally living. In this case, I am not convinced that would be in the best interests of these two girls.

8. There was evidence before the Court that satisfied me that the mother had acted unilaterally and without regard to the father’s views when she determined to move herself and the girls from inner south side Brisbane to the outer western suburbs of Brisbane, a move that effectively forced a change of schools for the girls. At the time, the mother did not have sole parental responsibility for the girls yet she did not seek input and approval from the father before these significant decisions were made. It is not good enough for the mother to try to justify that simply by asserting that it is too difficult to try to discuss and negotiate these sorts of decisions with the father.  Particularly because of her anxiety and depression and the fact that she has acted unilaterally on decisions relating to “major long-term issues” for the children in the past, and because she has acted contrary to court Order as she did when she discussed matters with X again after being ordered not to do that, I consider it is important that decisions relating to “major long-term issues” for the children in the future are subject to the statutory obligations discussed above in this particular case. I consider that this will be in the best interests of these two girls. I was satisfied, despite some concerns I had about some aspects of the father’s judgment and co-parenting behaviour, that he will still earnestly and with sincerity discuss and negotiate in good faith with the mother when it comes to decisions about major long-term issues. Of course, if they cannot resolve any disagreement on such matters, they will have to seek out family dispute resolution counselling to assist them and, if that fails, bring the decision back to this Court to be made.

9. Counsel for the ICL did submit that I should make a specific Order on one issue that is usually in the remit of a decision about a “major long-term issue”. That was in respect to the high school that the two girls will attend. There was evidence that the mother plans to send them to H School. Counsel for the ICL submitted that I should simply make an Order now that the girls go to that High School saving any dispute from arising about that later in time in the exercise of equal shared parental responsibility. As the father appeared to be content with that decision about the high school during the trial, though I acknowledge he was not at all happy with the mother’s original unilateral decision to move the girls to the M Town area, I consider it in the girls’ best interests to do as the ICL submits. I will include a specific Order that the girls go to H School when each reaches high school age.

Why decide that the girls continue to live with the mother?

1. This was a relatively easy part of the decision. Though the prospect of the girls living principally with the father was one that the father had considered asking the Court to order, by the time of the trial, even though, as I have said, he was running the case that the mother was maliciously acting to try to prevent the girls spending time with him, the father did not ask the Court to make an order that the girls be moved to his principal care. That was a sensible concession on his part. The Court was not likely to make such an Order on the evidence that was before it. The ICL submitted that the girls should continue to live principally with the mother also.

2. The mother has been the parent principally responsible for caring for the girls for most of their lives. The Family Consultant who did the family report for the Court considered the girls’ principal attachment to be with the mother. All the evidence about the views expressed by the girls was supportive of them continuing to want to live principally with their mother. Some weight should be given to those views. The mother is not working and is available full-time to care for the girls. The father works full-time in the city, Monday to Friday, and he lives in the outer western suburbs of Brisbane. It would be problematic for him to get the girls from his home to M Town for school and then home again each day if they were to live with him or even if they were to live on an equal time basis with each parent.

3. There is evidence that satisfies me that from time to time the father has difficulty in some of the finer aspects of parenting. On one occasion in recent years, the girls went over to the father’s home to stay on a Friday night at the start of school holidays, to be ready to get up quite early the next morning to travel with the father to Victoria to spend some of the holidays with him there. Well into the evening, problems arose, particularly between the eldest girl, Y, and the father. The fathers’ mother was also present at the father’s home with the father and the girls. There were telephone calls from the girls (at least from Y) to their mother that night. The mother says that Y was almost hysterical when she spoke to her on the telephone. Neither the father, nor his mother, were able to bring things to a settled situation so that all could go to bed to sleep the night to be ready for the travel the next morning. Things deteriorated to the point where the father packed the girls up and drove them back to their mother’s home at around 9:00 pm, so they could stay the night with their mother and return to his care the next day. Clearly, the father was dependent on the nature of the girls’ relationships with their mother to the extent that he had to return them to her care for the night so that things could be brought back to a state satisfactory for them to travel with him the next day.

1. I do not consider it would be in the girls’ best interests to move them to the father’s principal care and the Orders I will make will leave them living with their mother.

What of the time that that the girls should be in the father’s care?

1. Because I have decided to make an equal shared parental responsibility Order, s 65DAA(1) of the Act requires me to consider whether the children spending equal time with each parent would be in the best interests of the children and also whether it would be reasonably practicable. Reasonable practicality is to be determined by reference to matters set out in s 65DAA(5). Those are:

   (a)How far apart the parents live from each other; and

   (b)The parents’ current and future capacity to implement an arrangement for the children spending equal time with each of the parents; and

   (c)The parents current and future capacity to communicate with each other and to resolve difficulties that might arise in implementing an arrangement of that kind;

   (d)The impact the arrangement would have on the child; and

   (e)Such other matters as the Court considers relevant.

2. I do not consider that the children spending time with each parent would be reasonably practicable by reference to those matters. I consider the parents live too far apart and that the father lives and works too far from the schools the children attend and will attend in the future for it to work well. Despite ordering equal shared parental responsibility which will require agreement on matters relating to “major long-term issues”, I do consider that the parents’ capacity to communicate with each other and resolve difficulties associated with an equal shared care arrangement is not as good as such an arrangement would require to work reasonably well. Additionally, the girls do not wish to live in an equal time relationship with the father, both expressing the view that they want to continue to live with the mother and to spend each second weekend with the father. An equal time arrangement would be contrary to their expressed views and would not help to improve their relationships with their father. Given that I do not consider it to be a reasonably practicable arrangement, I also do not consider that it would be in the best interests of the girls to seek to implement it by order.

3. As such, I must then consider whether the children spending substantial and significant time with each parent would be in the best interests of the children and also whether it would be reasonably practicable. The term “substantial and significant time” is defined in s 65DAA(3) to include days that fall on weekends and holidays and days that do not fall on weekends and holidays (ie weekdays on which the children are going to school) and the time the children spend with the parent allows the parent to be involved in the children’s daily routine as well as occasions and events that are of particular significance to the children and also occasions and events that are of particular significance to the parent.

4. I am quite satisfied that despite the distance between the father’s home and the schools the girls will be going to that providing for them to spend each second weekend during school term from after school on Fridays to before school on Mondays is something the father will learn to manage appropriately. Such time, plus half of all the school holidays and some time with the father on special days such as the Christmas and Easter festive days, Father’s Day, the father’s birthday, the girls’ birthdays and on school days when the parents otherwise agree for the girls to go and spend time with their father (as the evidence satisfies me they used to be able to do in the past) will satisfy the definition of substantial and significant time. I consider making Orders for the girls to spend that time with the father is in their best interests. That is what the girls said they wanted. They are old enough and mature enough for those wishes to carry substantial weight, even if not determinative weight in this case.

5. The girls were reported by the family report writer to have told him that their father’s anger worried them sometimes. They said similar things to the police in their recorded interviews in February last year. I accept that the consistency of those reports and the evidence of their mother supports a finding that indeed their father does sometimes get a bit too angry with them. The mother thought as much years ago after they separated. She still thinks the same. I heard the pretext telephone call. I heard the father’s recorded interview with the police. I saw the father cross-examined by experienced counsel in the Court. I was satisfied when I made the interim orders at the end of the trial that the father should, for the sake of his own relationships with his girls and also to provide the mother with some comfort that might assist her anxiety, undertake another anger management course before his time with the girls progressed to overnight stays. Whilst I expect that he has probably done that course by now, I will still put that requirement in my final orders to make it clear that if he has not and his time with the girls has not already progressed to overnight time that it is not to so progress unless and until he has done that course as ordered in March.

6. I also made Orders for each of the parents to undertake a Triple P Positive Parenting Program, though I made nothing conditional upon that being done. I expect each has done that course by now and I hope each has learned positive things in that course that will assist their parenting and their co-parenting relationship. I will not include such an order in my final Orders.

7. I also ordered that the father have no less than four sessions with his psychologist to help him better understand the issues around age appropriate and developmental boundaries for children, particularly in respect of female children when they are staying in the same home as their father. I considered some assistance in respect of emotional regulation in dealing with children and disciplining them, as well as his own emotional regulation in their presence would be in his interests and the best interests of the children. Though nothing else was made conditional upon the father completing those sessions, I expect the father has completed them by now and is implementing strategies that his psychologist helped him understand better during those sessions. I will not include such an order in my final Orders.

8. I also ordered the mother to continue to attend Dr B for counselling and treatment, satisfied that was necessary and that it was in her interests and the best interests of the girls that she do so. I expect she has been continuing to do so and I will include an order that it continue in the final Orders as well.

9. I made an Order in the interim Orders that X not be taken to any protective behaviours therapy by either parent without the prior written agreement of the other parent and the ICL. I made that Order after hearing and accepting the opinion expressed by the psychologist the girls had been seeing throughout 2019 and the early part of 2020 that if I did not find there was an unacceptable risk to the girls in the unsupervised care of the father that it would not be in X’s best interests for her to have specific one-on-one protective behaviours therapy or counselling as an outcome in this case. The psychologist gave evidence that X had been struggling emotionally with the notion that she was somehow partly responsible for the fact that the girls’ time with their father was being supervised and that such counselling or therapy would not help. I will make another Order to that same effect but will leave out the requirement for the ICL’s approval as the ICL will be discharged upon delivery of this judgment.

10. My March interim Orders dealt with telephone communication between the children and their parents. I will make the same Orders on a final basis. Specifically, there was evidence that the girls sometimes do ask their father when they are with him to be able to call their mother. That was, on the evidence, the subject of some difficulties between the father and the girls as the father considered it was a privilege being overused and particularly against him. However, I considered it a proper Order for each parent to facilitate any reasonable request by the children to communicate with the other parent or any other family member when the children are in their care and to facilitate that communication with the other parent when requested.

11. I also consider it appropriate for the father to be able to communicate by telephone with the girls each Tuesday and Thursday evening during school term when they are in the mother’s care and have ordered that. The same opportunity will be available during school holidays to each of the parents during the time the girls are with the other parent. I also consider it in the girls’ best interests for the parent with whom they are living at the time to ensure that the girls have privacy during their telephone conversation with the other parent and to ensure they are given that privacy.

12. Exchange of information Orders were actually made on an interim basis with the consent of the parties and I will make those Orders again. Those Orders also deal with parental involvement in school events and extra-curricular activities, the facilitation of the girls’ attendance at school, extra-curricular activities, medical appointments and the like.

13. I also made interim Orders in March that restrained each parent from doing certain things such as denigrating the other parent in the presence of the children, discussing these proceedings or any of the evidence in these proceedings with the children or in their presence, making recordings of the children being questioned about the other parent or such matters, discussing with the children’s school or care provider any details of the alleged abuse of the children. I also ordered that each of the parents be restrained from presenting either of the children for the purpose of medical examinations or police interview in respect of any allegation of sexual abuse without the written agreement of the other parent or without an Order of the Court. I consider that Order appropriate in the circumstances of this case. The level of the mother’s anxiety does give me some cause for concern that there is potential for precipitous action in this respect. Such an Order will ensure that unless the father agrees, there will be some judicial oversight before anything like this happens again.

14. I also made Orders that I considered appropriate that restrained physical discipline and set certain standards in respect of the girls’ privacy, sleeping arrangements and personal grooming and hygiene behaviours. Those Orders are appropriate to make on a final basis, too.

15. Finally, I will also make a final Order restraining each parent from removing the children from Australia without the express written consent of the other parents. I made that Order on an interim basis in March and will make it again.

16. I make the Orders set out at the commencement of these written reasons.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 2 October 2020.

Associate: 

Date:  2 October 2020

Annexure “A”

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT BRISBANE   File No. (P)BRC5995/2019

BETWEEN

Mr Denford   (Applicant)

AND

Ms Manville  (Respondent)

AND

INDEPENDENT CHILDREN'S LAWYER

11 March 2020

Before The Honourable Justice FORREST

UPON APPLICATION made to the Court AND UPON HEARING Mr Alexander of Counsel appearing on behalf of the Applicant, Mr Linklater-Steele of Counsel appearing on behalf of the Respondent, and Ms Lyons of Counsel appearing on behalf of the Independent Children’s Lawyer

IT IS ORDERED UNTIL FURTHER ORDER

1. That paragraphs 2 to 5 inclusive and paragraphs 9 to 11 inclusive of the Orders of Senior Registrar Spink made on 19 September 2019 be discharged.

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER

1. That commencing Saturday, 14 March 2020, the children shall spend unsupervised time with the father, each alternate Saturday and Sunday from 9.00 am until 5.00 pm with changeovers to occur at the J Shopping Centre (K Street, Suburb L).

IT IS ORDERED UNTIL FURTHER ORDER

Parental Responsibility

1. That each of the mother and the father shall have equal shared parental responsibility for decisions in relation to all major long-term issues affecting the children, Y born … 2008 and X born … 2010, (“the children”) including but not limited to all of those matters specifically set out in the definition of “major long-term issues” as defined in s 4 of the Family Law Act 1975.

1. That within two weeks of the date of these Orders the father shall enrol in and provide evidence to the mother of his enrolment in an anger management course through P Serviceswith the father to provide the course convener with a copy of the Family Report prepared by Dr F and a copy of these Orders. The father shall thereafter complete the course and provide to the mother a certificate of completion as evidence of compliance with this Court’s Order.

1. That the child, X born … 2010, shall not be taken to any protective behaviours therapy by either parent without the prior written agreement of the other parent and the Independent Children’s Lawyer.

1. That upon the completion of the anger management course referred to in paragraph (4) above, the children shall spend time with the father:

(a) from 9.00 am on Saturday until 4.00 pm on Sunday each alternate weekend for one visit;

(b) from 3.30 pm (or after school) on Friday until 4.00 pm on Sunday each alternate weekend for one visit; and

(c) from then on, from 3.30 pm (or after school) on Friday until 8.00 am (or before school) on Monday each alternate weekend thereafter.

School Holidays

1. That upon the completion of the anger management course referred to in paragraph (4) above, and provided overnight contact has already commenced pursuant to paragraph (6) above:

(a) the children shall also spend equal time with the mother and the father during school holiday periods on a week about basis with the parent who would ordinarily have care of the children from the afternoon of the last day of school term pursuant to alternative weekend arrangement, to collect the children from school on the last day of the school and to deliver them to the other parent after their week of holiday time;

(b) alternate weekend time is suspended during school holidays and shall recommence on the first weekend of each school term.

Special Days

1. That notwithstanding any other orders to the contrary, the children shall spend time with each parent on special occasions as follows:

(a)On either child’s birthday when the birthday falls on a weekend, the children shall spend time with the parent who does not have the children in his or her care that weekend from 9.00 am to 4.00 pm on the other day of the weekend (ie Saturday if the birthday falls on a Sunday, or Sunday if the birthday falls on a Saturday);

(b) On Mother’s Day, should this fall on a day when the children are not in the Mother’s care, the children shall spend time with the Mother from 10.00 am to 4.00 pm on Mother’s Day;

(c)On Father’s Day, should this fall on a day when the children are not in the Father’s care, the children shall spend time with the Father from 10.00 am to 4.00 pm on Father’s Day;

(d)      Over Easter:

(i) In even numbered years, the children shall spend time with the Mother from after school (or 3.30 pm on a non-school day) the day prior to Good Friday until 6.00 pm on Easter Monday; and

(ii) In odd numbered years, the children shall spend time with the Father from after school (or 3.30 pm on a non-school day) the day prior to Good Friday until 5.00 pm on Easter Monday.

Courses and Counselling

1. That within four (4) weeks of the date of these Orders, the mother and the father shall each enrol in and provide evidence to the other parent of his or her enrolment in a Triple P Positive Parenting Program, and each parent shall thereafter complete the course and provide to the other parent a Certificate of Completion as evidence of compliance of the Court’s Order.

1. That the father shall attend his treating psychologist, Dr G, for counselling and assistance for no less than four (4) sessions specifically in relation to providing education to the father regarding:

(a) Age appropriate and developmental boundaries for children;

(b) Emotional regulation in dealing with children and disciplining the children; and

(c) Emotional regulation in the presence of the children.

1. That the mother shall continue to attend for counselling and treatment by her treating psychiatrist, Dr B.

Telephone Communication

1. That the parent who has the children in their care shall facilitate any reasonable request by the children to communicate with the other parent or any other family member and shall facilitate the children’s communication with the other parent when requested.

1. That during the school term, the father shall communicate with the children by mobile telephone, with the father to telephone the mother’s nominated mobile number each Tuesday and Thursday evening between 6.30 pm and 7.00 pm.

1. That during school holidays, the parent with whom the children are not living shall be at liberty to call the other parent’s nominated mobile telephone number to speak to the children each Tuesday and Thursday evening between 6.30 pm and 7.00 pm and the resident parent shall facilitate that telephone call.

1. That both parents shall each ensure that the children have privacy during their telephone communication with the other parent and shall use their best endeavours to ensure other persons give the children this privacy.

IT IS ORDERED BY CONSENT (AS BETWEEN THE MOTHER AND THE FATHER) UNTIL FURTHER ORDER

Exchange of Information

1. That each parent will keep the other informed of his or her mobile telephone and email address and will, within 48 hours of a change, advise the other parent of such changed information.

1. That the mother shall continue to keep the father informed of the name and contact details of any medical specialist and/or allied health professional upon whom the children attend.

1. That each parent will inform the other as soon as reasonably practicable of any injury, medical condition, significant health issue and/or significant illness suffered by the children when they are in that parent’s care.

1. That the parents shall communicate with each other in writing in relation to the children via the “School” portal save for in the case of an emergency.

1. That this order authorises each parent to request and obtain from any medical or allied health professional providing treatment to the children and/or any school, educational institution or extra-curricular organisation upon which the children attend, information and reports relating to the children’s health, medical care, education or participation as may be requested by that parent from time to time, at the requesting parent’s sole expense.

1. That the parent who has the children in their care shall facilitate the children’s attendance at school, extra-curricular activities including sport activities at the D Sports Centre, medical appointments, therapist appointments and other special events including but not limited to organised social functions.

1. That each parent may attend any school event or extra-curricular activity relating to the children to which parents are invited or normally attend during the time that the children are in that parent’s care.

1. That from the date of these Orders, neither parent shall enrol the children in any extra-curricular activities which impacts on the time the children spend with the other parent without the written consent of the other parent.

1. That each parent has leave of the Court to provide a copy of these Orders to any school, other educational institution or extra-curricular organisation upon which the children may attend.

IT IS ORDERED UNTIL FURTHER ORDER

Injunctions

1. That the parents are each restrained and an injunction is hereby issued restraining each parent from:

(a) denigrating the other parent or any member of that parent’s family to or in the presence or hearing of the children;

(b) discussing with the children these proceedings or the contents of any document or recording filed or used in these proceedings, or with any other person in the presence or hearing of the children;

(c) making or allowing any one else to make any audio or video recordings of the children at any time in which the parent is questioning the children about the other parent, anything that is happening in the other parent’s care, or any preference or view that the children may have in respect of their living arrangements, save for medical purposes and only in circumstances where the children are being recorded whilst they are asleep;

(d) discussing with the children’s school or care provider or any other facility that the children attend, any details of any alleged abuse with regard to the children;

(e) presenting either of the children (either personally or by an agent) to any hospitals, medical practitioners, allied health professionals or Queensland Police for the purpose of medical examinations and/or Police interviews in respect of any allegations of sexual abuse without an Order of the court or the written agreement of the other parent.

1. That the parents shall each:

(a) save for in the case of the child being unwell, ensure that both children sleep in their own beds and that each parent shall not sleep in the children’s beds with them when the children are in his or her care, including returning the children to their own beds should one or both children attempt to sleep with the mother or the father;

(b) ensure that both children are afforded privacy when showering, changing or using the bathroom including allowing both children to close the bathroom and bedroom doors while the children undertake those tasks;

(c) respect the children’s personal boundaries and not engage in behaviour toward the children which is not age appropriate including continuing to deal with children’s physical person if the children have expressed discomfort, dislike or aversion to the behaviour; and

(d) not physically discipline or swear at the children when they are in his or her care.

Overseas Travel

1. That neither parent shall remove the children from the Commonwealth of Australia without the express written consent of the other parent.