Farnell and Farnell and Anor

FAMILY COURT OF AUSTRALIA

FARNELL & FARNELL AND ANOR

[2020] FamCA 277

FAMILY LAW – PARENTING – Where the father was found not-guilty of indecent assault and common assault perpetrated against the children – Where the allegations do not give rise to an unacceptable risk of harm in the father’s care – Where the children are strongly opposed to spending time with the father – Where the mother refuses to support a relationship of any kind between the children and the father or paternal family – Order made for sole parental responsibility to the mother – Order for the children to spend time with the father according to their wishes.

Family Law Act 1975 (Cth).

Ebner v Official Trustee in Bankrupcy (2000) 205 CLR 337

APPLICANT:

Ms Farnell

1st RESPONDENT:

Mr Farnell

2nd RESPONDENT:

Ms Pelino

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

SYC

659

2018

DATE DELIVERED:

24 April 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

17, 18, 19, 20 & 21 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Beazley Lawyers

COUNSEL FOR THE 1ST RESPONDENT:

Ms Lawson

SOLICITOR FOR THE 1ST RESPONDENT:

Nicole Evans Lawyers

COUNSEL FOR THE 2ND RESPONDENT:

Ms Shea

SOLICITOR FOR THE 2ND RESPONDENT:

Gordon & Barry Lawyers Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Blackman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers to 19 April 2020 and Legal Aid NSW from 20 April 2020

Orders

IT IS ORDERED

That the children X born … 2004 and Y born … 2007 live with the mother.
That the mother have sole parental responsibility for the children, save that the mother must advise the father of the name and contact details of any mental health professional, counsellor, counselling organisation or therapist engaged for the children.
That the mother forthwith cause the father and the second respondent to be provided with the children’s email addresses and their postal address.
That the father, the second respondent and the paternal grandmother shall communicate with the children by email, letters, cards and gifts without interference from the mother.
That the mother ensure that any item of correspondence or gifts sent to the children by the paternal family is passed on to them without interference.
That the mother do all things necessary to ensure that the father receives from the schools attended by the children, any notices, letters or reports which are usually forwarded to parents.
That the mother notify the father as soon as possible of any medical emergency involving either of the children.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 Farnell & Farnell 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 SYDNEY

FILE NUMBER: SYC 659 of 2018

Ms Farnell

Applicant

And

Mr Farnell

Respondent

And

Ms Pelino
Second Respondent

REASONS FOR JUDGMENT

Ms Farnell (“the mother”) and Mr Farnell (“the father”) are the separated parents of two daughters, X aged 15 and Y aged 13. These proceedings concern the parenting arrangements for the children and the division of their property. After the hearing had concluded, the matter was relisted in relation only to financial matters and it was agreed that a judgment in relation to parenting would be delivered separately.
It was also agreed that the judgement in relation to parenting matters would be published to the Independent Children’s Lawyer (“ICL”) before it was published to the parents so that the parents would receive the reasons at the same time as they were explained to the children by the single expert.
The parents commenced living together in 1998 or 1999 and married in 2001. They separated in January 2017 when the children made allegations that they had been exposed to behaviour, which the mother categorised as sexual abuse, at the hands of the father. Since the separation, the children have lived with the mother and have not spent time with the father.
The parties to the parenting proceedings are the mother, the father and the father’s sister, the second respondent.
The mother seeks sole parental responsibility, that the children live with her and that they do not spend time with the father or members of his family.
The father seeks equal shared parental responsibility and the opportunity to engage in family therapy with the children for a minimum of six sessions with the aim of effecting a reintroduction with him. He proposes that the mother, the children, the father and the second respondent participate in the therapy. After six sessions of therapy, he proposes that the children spend time with him, initially in the presence of the second respondent. It was also the father’s position that the Court could deal with the matter on an interim basis and reconsider the position after family therapy had been completed.
The second respondent seeks contact with the children for four hours once a month, if the children are not otherwise spending time with the father.
Each of the parties relied on one affidavit. The parties are the only lay witnesses.
An ICL has been appointed for the children.
A single expert psychologist, Dr C, has prepared a report dated 18 February 2019 and an addendum report dated 9 February 2020.

HISTORY

In order to understand why these two children are estranged from their father and refuse to have anything to do with him, it is useful to consider the history provided by the parties and by the children.
Very little of the relevant history can be found in the mother’s affidavit and it was only at the commencement of submissions, that, at my request, a document was provided that set out the allegations upon which the mother relied and the evidence upon which she relied to support those allegations.
After X was born in 2004, the mother was her primary carer, undertaking some freelance and part time work. When Y was born she became a stay at home mother. The father was a professional and also engaged in consulting to private and government agencies.
The father left his employer in 2014 to concentrate on his consultancy work. He then worked from home.
In 2015 he was appointed to a government position.
The father asserts, and the mother denies, that until the end of 2016, he had a close and loving relationship with the children and was well involved in their care.
The mother asserts that the relationship between the children and the father deteriorated markedly in 2016.
The mother asserts that the father bathed with the children and insisted that they shower with him into 2016. He denies that he bathed with them after they reached an age where that was inappropriate.
The mother asserts that, in late 2016, the father pinched Y’s breast. The circumstances of that event will be examined later in these reasons.
On 27 December 2016 the father took Y, then aged nearly ten years, to the local swimming pool. That evening the mother asked Y about the pool and Y said “Fine, except Daddy made me go into the men’s change rooms”.
The father asserts that the next day there was a conversation between the parents where the mother alleged that the children had disclosed abuse to her.
The father deposed that he and the mother sat down with the children and agreed about some family rules about his not entering the bathroom when the children were in the shower.
On 11 January 2017, the mother took the children and moved to live in her father’s house. The father deposed that he and the mother maintained a loving and affectionate correspondence and that he received loving messages from the children. The text messages were in evidence.
The father was served with a Provisional Apprehended Violence Order for the protection of the mother and the children on the evening of 18 January 2017. It is unclear on what evidence the order was extended to the protection of the mother.
On 24 January 2017 the father was charged with five offences of indecent assault in relation to Y and two of common assault in relation to X. The substance of those charges is not set out here as the events do not form part of the allegations to which the mother deposed in her trial affidavit.
The father was detained for 28 hours without bail.
The children changed to new schools for the 2017 school year, leaving schools where they had been well settled.
The criminal charges were heard in the Local Court commencing on …June 2017. The children were both cross-examined.
The charges were dismissed on …December 2017. The father agreed, without admissions, to extend the ADVO to 29 April 2018.
The father instructed his solicitor to write to the mother’s solicitors asking for contact with the children when the ADVO expired. The request was refused.
In April 2018 the father sent letters to the children through the mother’s solicitors. The mother, in cross-examination, said that she passed the letters on to the children. The letters contained the email addresses of the second respondent and the paternal grandmother. There was no response from the children to the father or to their grandmother or aunt.
In June 2018 the second respondent wrote to the mother asking for contact with the children. The mother refused.
By the time this matter came to trial, the children had not seen the father for more than three years.

THE TRIAL

The mother, the father and the second respondent each relied on one affidavit.
An ICL had been appointed for the children.
A report and an addendum report had been prepared by a single expert psychologist, Dr C.

APPLICATION TO DISCHARGE THE ICL

At the commencement of the hearing, an application was made by counsel for the second respondent to discharge the ICL.
After hearing submissions, I dismissed the application and indicated that I would provide my reasons in the substantive reasons for judgment.
The basis of the application was an email from the ICL dated 14 February 2020 to the solicitor for the second respondent. That letter was a response to an email to the ICL earlier the same day indicating that Dr C was available to see the children at 2 pm on the first day of the hearing and stating that “The Court will be assisted by evidence of the children’s wishes and that ought to occur by direct discussion between the children and Dr C...”
The ICL in her response stated:
As discussed with you previously, when the issue of your client joining the proceedings was discussed some 8 months ago I indicated that I had already canvased with the children their relationships with the extended paternal family. That is my usual practice when there is no contact with a parent. And, although I didn’t see it as helpful for your client to be joined, she had standing and it couldn’t really be opposed which was what I advised her Honour at the time.
…
From my meeting with the children and my discussions with Mr B, combined with Y declining the latest gift from your client, I don’t see that my recommendation would change if Dr C were to meet with the children again...
It really does concern me that there is so much focus on the Father and the Paternal Aunt and way less on the children. They have really been through enough already...
Counsel for the second respondent submitted that the contents of that letter gave rise to the apprehension that the ICL was not objective or lacks impartiality.
All counsel approached the application on the basis that the test to discharge an ICL was analogous to the well-known and often quoted test in relation to apprehended bias on the part of a judicial officer in Ebner v Official Trustee in Bankrupcy (2000) 205 CLR 337. I am not here required to determine whether that is the appropriate test.
However, I do not accept that the ICL’s response indicated a lack of objectivity. Rather, I interpret the ICL’s statements about the children’s views as her indication that she had canvassed the children’s views on the subject of their paternal aunt and could see no purpose in their being further canvassed.
The ICL’s perception of the children’s views coincides with Dr C’s.
Dr C, in her report at Paragraph 97 warned of the danger of repeated interviews of children, leading them to respond, “in a way that they believe they are expected to respond”.

THE MOTHER’S ALLEGATIONS

It was the mother’s position at trial, stated and repeated by her in cross-examination, that the father was a sexual predator and, for that reason, could not have any contact with the children.
In a document tendered by her counsel at the commencement of submissions, her allegations as to the father’s behaviour were set out:
·At paragraph 54 (the first allegation) of the mother’s affidavit she stated:
I tried to protect them from his disturbing inclination to cross sexual boundaries as the girls grew into puberty, touching them in intimate ways (“accidentally” touching their breasts while they were getting changed, pulling down pants or swimmers) and making jokes about it. When I tried to talk to him about these incidents he would say I couldn’t take a joke and I was exaggerating, making something of nothing. I always left these interactions feeling confused and inept, and as though I had let the children down.
·At paragraph 55 (the second allegation) the mother stated:
[The father] continued to bathe with the girls naked and insist they shower with him into 2016, when Y was nine and X 11-12. When the girls refused, he would react angrily and continue to seethe afterwards. I would defend the girls’ decision, but these moments were intimidating and made me feel fearful and anxious.
·At paragraph 57 (the third allegation) the mother stated:
In late 2016, [the father] pinched Y’s bosom in an incident in the lounge room. I said to him “That is inappropriate... Please don’t do that.” and he replied “She’s my daughter. I can do what I want”…
·At paragraph 59 (the fourth allegation) the mother stated:
On 28 December 2016 our youngest daughter, Y made disclosures of a sexual nature involving her and [the father]. It was the day after he took her to the Pool. That night I asked her “How was the pool today?” She replied in an angry voice, “Fine, except Daddy made me go into the men’s change rooms”. The next day [the father] went to Melbourne for the day. Whilst he was away, she opened up to me about what had happened. She kept repeating “He made me feel uncomfortable”. I asked her “Has he ever made you feel uncomfortable before?” I took the girls to [my friend’s home].
Counsel for the mother, at the commencement of his submissions, conceded that the evidence upon which the mother relied could not base a finding that the father posed an unacceptable risk to the children.
I propose to examine the evidence upon which the mother relied in relation to each allegation.

THE FIRST ALLEGATION

It is relevant to note that, when the mother took the children and left the home, Y was nine years old and, the mother conceded, not “growing into puberty”.
The allegations are so vague and devoid of detail that it is difficult to analyse them.
Other than the “pinching” incident which will be examined later in these reasons, there is no evidence given by the mother of any specific occasion on which she alleges that the father touched the breast of either child. Neither was any specific allegation of touching put to the father.
Y was interviewed by the Joint Investigation Response Team (“JIRT”) on 18 January 2017.
I am unable to find any reference by Y to any occasion, other than the “pinch” incident, where her father touched her breast or touched her in any intimate way.
X was interviewed by JIRT on 19 January 2017. I am unable to find any reference by X to her father having touched her breast or touched her in any intimate way.
X referred to her father pulling down her pants in the pool “when I was really little”. She later said that this happened when she was about six (X was 13 when she was interviewed) and that there were “heaps of people there” and her father laughed.

THE SECOND ALLEGATION

On 18 January 2017, Y, in the JIRT interview, said:
…when I have a shower, and I’m just a little bit older now that I don’t feel really comfortable with anyone coming in when I have a shower. Um, so I just told him that I really wouldn’t like for him to come into the shower, or, like, the bathroom when I am showering.
Later in the interview, Y said that she preferred to use the “upstairs” shower which is the parents’ shower. She said:
…I just don’t really like it when he comes in... if he’s going to have a shower he’s obviously going to be naked. And if I’m having a shower when he’s getting in the shower... I don’t feel comfortable. And he’ll usually tell me that he’s having his shower... I just kind of hurry it along.
Y said that the father would come into the shower with her and she would finish her shower and leave. She said that no part of her father’s body had ever touched her in the shower and that the reason he came into the shower when she was in there was “because it’s his shower”.
Y did not suggest at any time that the father insisted she shower with him but rather that she chose to use the parents’ shower rather than the one set aside for the children.
X was interviewed by JIRT on 19 January 2017.
The question asked of X immediately before X spoke of the shower was “OK. Um, do you want to move on to, you talked to me about, um, sexual abuse.” I am unable to find any reference, in the transcript of the interview, to sexual abuse until that point. The interviewer then said:
OK. So you can either talk about the, if there’s one incident, just talk about that, if there’s multiple incidents, you can talk about the last one or one that comes to mind that stands out in your head.
X said:
Uh, one that comes to mind, I think it’s an ongoing incident when I’m having a shower and Dad often likes to come in and say hi and it’s, like, it’s really freaking me out...
X said:
…whenever I’m in the shower and he’s in the house... nine times out of ten he will come in and say Hi. And, like, just go ‘Oh, Hi, you’re in the shower.’ And I’ll be like, “Yes I am in the shower”.
X said that she left the door opened while she showered so the cat could come in but she had now started to close the door.
X said, “I told Mum and she had a word with him and so now he knocks before coming in.”
X referred to one occasion when she had new body wash and her father asked her if she wanted him to wash her back.
The father deposed that, on 27 December 2016, there was a conversation between him and the mother where the mother said “X said that you walked in on her when she was in the shower”. He deposed that after that conversation, both parents sat down with the girls and the father said:
“Mum has told me that you feel like I am always walking in on you in the shower? That’s not what happens, I went in the other day because you hadn’t done your chores and you said you were going to have a shower and I could hear the shower wasn’t running. I went in to tell you to pick up your clothes on your floor, that I had asked you to pick up all day. You had a towel on and then you went and picked up your clothes. I don’t just walk in the bathroom all the time. I understand your body is changing and you need privacy. How about from now on when the bathroom door is closed I will knock first.”.

The father deposed that X said “Yes Dad that’s a good new rule”.
The mother, in cross-examination, said that she did not recall the father saying the words in italics.
X did not report that the father insisted that she bath or shower with him.
When X spoke to Dr C she said that, at the time, she didn’t think too much about her father coming into the bathroom but that she now realises that her father transgressed boundaries.

THE THIRD ALLEGATION

The mother, in cross-examination, said that she did not see this incident as she was watching television. Y was nine years old. Both parents and both children were together in the lounge room. The mother heard Y say, “Ow, don’t daddy” and then “Daddy pinched my bosom”.
Y did not mention this incident when she was interviewed by JIRT on 18 January 2017.
However, Y was interviewed again on 20 January 2017. The relevant portion of the interview commences at Question 564 when the interviewer said:
OK, so we’ll move on to the next thing that I’d like to ask you about, um, yes, there was a time when, um, someone told me... that something happened when you were sitting with your sister, your father and your mum...watching a movie... Is that something you can tell me about?
It is not clear form the transcript who it was that told the interviewer about this incident. The question is clearly leading.
Y said:
Yes there is... so we were watching a movie with my sister and Mum and Dad and I was next to my father and he was tickling me ...on my legs and on my arms and then he sat up and twisted my nipple... Dad started tickling me and he went up near by [sic] bosom and he twisted my nipple”.
Y said she was wearing her pyjamas and that she said “Ouch” and the mother said “That’s not all right, don’t do that...she’s just a child”.
It appears that X brought with her to the JIRT interview a document which she gave to the interviewer. At Question 387 the interviewer said that if X did not feel comfortable reading the document, the interviewer would read it and X said:
All of this stuff is just, like, the points, um, the stuff that Dad had done, and I was gunna, like, use this, so I don’t forget any of them.
There was no exploration in the interview of when the document was created or whether any other person had assisted in its preparation. The document was not in evidence. The mother was not cross-examined about any involvement she may have had in the creation of the document.
Apparently reading from the document, X said:
Um, in, like late September or early November last year, we were watching a movie and Dad was tickling Y on the sofa and me and mum were watching a movie and suddenly Y yelled something like “Ow, Dad” And Mum said “What happened?” And she said, Dad pinched my bosom. And Mum said, like, something like… “that’s not OK”.
At Question 394 the interviewer asks “is there anything else you want to read to me from there?”
The interviewer returned to the incident at Question 509 of the JIRT interview when the interviewer said “...So you told me about Y being pinched on the bosom... So tell me when this was, very start to finish again” and X replied “Um, I actually, I wrote it down here when it was...in late September or early November last year”. X gave the same account as before.
At the end of the interview, commencing at Question 539, the interviewer said, “So we’ve covered a fair bit here today. Um, I just want to know in regards to all these things which you refer to as abuse at the start...” and X replied “I, I actually am not, I’m not sure what it’s called, but, I mean, isn’t JIRT for, like, child abuse or something, so I’m kind of assuming it is abuse”.
The interviewer asked, “I’m just trying to get an understanding of ...what your understanding of abuse is...” and X said “I think abuse is when someone violates your rights”.
The interviewer asked X if she had talked about the things they discussed with anyone else and X said “Just Mum”. The interviewer said “And when was that?” and X said “Like whenever it happened”.
In cross-examination the mother accepted that there might be an innocuous or innocent explanation for the incident but that she saw the incident as sexually inappropriate.

THE FOURTH ALLEGATION

There is no dispute that the father took Y into the men’s dressing room at the pool.
In cross-examination he said that he did so because he could not take her into the women’s dressing room and he was concerned about her safety if she were unaccompanied by an adult.
Both Y and the father said that she undressed in a cubicle with a closed door but the father conceded that there had been men and boys in the dressing room in various states of undress.

JIRT INTERVIEWS

In addition to the allegations upon which the mother relies as detailed and considered above, I propose to examine the events which Y related in the JIRT interviews to which no reference is made in the mother’s affidavit.
The evidence does not explain why these allegations do not form part of the mother’s evidence. One possibility is that she was not aware of them although that is unlikely since they formed the basis for the criminal charges. Another possibility is that she did not contend that, taken at their highest, the allegations could base a finding that the father posed an unacceptable risk to the children.
Y was interviewed by JIRT on 18 January 2017 and again on 20 January 2017. In cross-examination in the Local Court, Y said that the second interview occurred because “...mum thought it was a good idea to have another interview...”
Y told the interviewer, on 18 January 2017:
...I’m just trying to think what I told Mum. I think when, there’s another one when I’m in bed and he comes and says goodnight. I just feel a little uncomfortable if Mum’s not there because it just doesn’t really feel right because anything could happen in a situation like that.
Some 200 questions later, the interviewer returned to the subject. Y said, “He just says goodnight, gives me a kiss and goes back out and goes to bed or watches a movie with Mum”.
Pressed for more, Y said:
Um, well I’m lying in bed, um, and, well, oh, yeah, I forgot about that, sorry. Why I feel uncomfortable is that, because when he... gets into bed he just lies on the side... I’m going through some changes with my body. And, um, I feel weird around, just when I go to bed. And so when he gets into bed with me, just to say, like, goodnight or do something, um, and he just puts me to bed and it just feels uncomfortable...
Y said she feels more comfortable with her mother because she is the same gender.
Y said that she feels uncomfortable because “He could say something or he could do something wrong..”. Asked if her father had ever done anything wrong, she said “no”.
Y said “...I don’t feel comfortable with him lying in bed because, it just feels uncomfortable because he’s a man and I’m, I’m a woman and I don’t really know what he could do...”
Y said she would lie on her side cuddling her soft toys and her father would lie behind her and “he usually does good night songs ...and tickles on my back, and then he takes his hand off and says goodnight and then he gets out.” She said her father does not do anything else. She said the entire encounter of her father saying goodnight usually took around two minutes.
When Y was interviewed again on 20 January 2017, she added that when her father put her to bed, he got into bed with her and put his arms around her and “wiggled against me”. She said “His penis was touching my bottom”. There is no suggestion from Y that her father was other than fully clothed and she was wearing her pyjamas.
The father deposed that, in the conversation with the mother on 27 December 2016, the mother said, inter alia, “Y has said that...you cuddle her in bed...”
The father deposed that when he and the mother spoke to the children together he said to Y:
Mum said to me that you felt my penis in bed when I was reading to you one night. I think you are getting too tall and I am getting too fat to lay on your bed for reading, how about the new rule is that I will sit on the floor next to your bed for bedtime books.
The father deposed that Y agreed.
The mother gave no evidence about this incident in her affidavit.
It is unremarkable that a child might feel her father’s penis when he cuddled her as she described and I draw no sinister connotation from this allegation.
In her second interview Y talked about a further complaint, not mentioned in the first interview, arising out of her father taking her to the pool. The interviewer introduced the visit to the pool and Y said, “...I told you about how we got changed and when we were in the water I was swimming and then my father came behind me and pulled down my pants”. Y told the interviewer that she was wearing a two piece swimming costume.
When Y was asked why she remembered this incident occurred on a Wednesday, she reported “um, well I remember that Mum said, just now it jogged my memory and I just remember Mum said that he was leaving on Thursday to go to Melbourne.”
In cross-examination, in the Local Court, Y said that she was wearing the swimming costume that was in the bag in her father’s car which was a one piece costume. The cross-examiner said to Y, “Your dad didn’t pull your pants down in the pool that day” and Y replied, “No he didn’t. He did it somewhere else”.
Y also told the interviewer, in the second interview, that, in the water at the pool, her father, standing behind her, had pulled her close and put his arms around her. He was wearing a Speedo swimming costume and she was wearing a swimming costume and she felt his penis against her.
Y also told the JIRT interviewer about two occasions, apparently on the same day as she went to the pool with her father, when he rubbed her legs. On each occasion, once at the cinema with her father and X, and the second in the car with her father after they left the pool, X complained of being cold. She said that her father rubbed her legs, over her clothes, and “he got near my vagina”.
It would be inevitable that, if her father had rubbed her legs between her knees and her hip to warm her up, his hands would have come close to her groin. I do not accept that the father, by rubbing Y’s thighs, was engaging in conduct that could be characterised as sexual in nature.

DOES THE FATHER POSE AN UNACCEPTABLE RISK TO THE CHILDREN?

I do not consider that the allegations which have been considered could give rise to a concern that the father poses an unacceptable risk to the children.
The concession made by counsel for the mother was, on the evidence, properly made and was adopted by counsel for the ICL.
However, that is not the end of the consideration.
The mother repeatedly in her oral evidence said “I believe my daughters” although about what she believed, and about which of them, is less clear.
She has formed the view that the father’s interactions with the girls in 2016 were sexually inappropriate although when she formed that view is not clear. Similarly, she was adamant that the father is a “sexual predator” although, again, when she formed that view is unclear.
In cross-examination, the mother said that when, on 12 January 2012, she took the children to the home of the maternal grandfather, it was not her intention or her wish, to end the marriage. She said that she wanted the family to attend counselling or therapy and to mend the relationship.
The mother did not give evidence of the children’s making any allegation relating to the father’s behaviour after 12 January 2017.
The mother, on the recommendation of her solicitor, contacted a counsellor, Mr B on 12 January 2017 and made arrangements for herself and the children to see him. She did not tell the father.
The mother did not contact the police until she spoke to a friend who, it would seem, suggested that she do so. The mother does not suggest that her friend had spoken to the children about the issues and it is assumed that the friend acted on the mother’s version of the events.
The text messages between the father and the children between 12 January 2017 and 17 January 2017 are numerous and affectionate.
When X was interviewed by the Department of Family and Community Services (“FACS”) on 19 January 2017, the notes record:
X said she wants things to stop and when discussion was had about ensuring that future contact with her dad is positive she said that this is what she would like.
The children were interviewed by JIRT in late January 2017, X once and Y twice.
The children were taken out of their schools and started new schools in the area closer to the residence of the maternal grandfather.
They did not see their father again.
The children and the mother started counselling with Mr B weekly. Weekly sessions continued for a time, becoming fortnightly and then every three weeks. Because Mr B’s objection to producing his notes was upheld, it is not clear what Mr B was told about the reasons for the separation. However, it is clear that, whatever Mr B was told, he only had the mother’s version of the events and the mother, it would appear, unshakeably, maintains that the children have been victims of abuse by the father.
While they were living in the home of their maternal grandfather, at least one of the children made allegations about his conduct. In about May 2017, a report was made to FACS by a treating psychologist that Y said the maternal grandfather was coming into the shower and looking at her and coming into her room while she was getting changed.
In cross-examination, the mother was dismissive of those allegations. She said that the children had not made complaints to her about the maternal grandfather and that the notification to FACS was made by “[DD Group]”. When it was put to the mother that the complaint was similar to X’s complaint about her father, the mother disagreed. The mother said that she had not spoken to the children about the allegations concerning their maternal grandfather and that she was not interested to see if they were “making it up”. She agreed that she had said to FACS in relation to the allegations that “Granddad was just being granddad”.
When the father was acquitted of the criminal charges, a judgment was handed down which stated, inter alia, that Y’s evidence was unreliable and inconsistent and somewhat implausible. The mother did not give a copy of the judgment to Mr B.
Mr B is not the only counsellor to see the children.
Although the mother gave no evidence in her affidavit about the other counsellors, it emerged in cross-examination that, at the same time as the children and the mother were seeing Mr B, they had been interviewed by the Department of Family and Community Services; discussed the allegations with friends of the mother; been interviewed by JIRT; had counselling with “DD Group” and X had been referred to the BB Psychiatric Unit (“BB Unit”). With the exception of BB Unit, it appears that all of those entities counselled the mother and the children.
In addition, the children were cross-examined in the criminal proceedings.
It also emerged in the course of the trial that X was being counselled by an organisation called “CC Group” and had been attending at CC Group for some six months. Only after the evidence had been completed and shortly before submissions commenced did it also emerge that Y had started counselling at CC Group.
There is no evidence that any person or organisation who counselled the children made any critical evaluation of the allegations or had access to any information other than from the mother.
In cross-examination, the mother said that she had never asked Mr B to “reality check” the allegations and that she was aware that Mr B’s counselling proceed on the basis that the events, whatever they were said to be, had occurred.
The mother has not allowed the children to have any contact with their paternal grandmother or aunt. She told them that, unless they acknowledged the children’s allegations and stated that they believed the children, there would be no contact. It is not clear to what allegations the mother was referring.
In cross-examination, she said that she had also told the children that they could not see their paternal relatives unless those women acknowledged that they believed the children’s allegations. She said that she was “utterly astonished” that the paternal grandmother and aunt offered undertakings not to discuss the allegations with the children and their offer was “utterly inappropriate”.
Without explanation, in the course of submissions, counsel for the mother withdrew her objection to the children’s receiving correspondence from their paternal grandmother or their aunt.
It appears that, at least, Mr B accepted that both of the children had been sexually abused by their father.
In his letter dated 4 December 2018, referring X to BB Unit, Mr B stated:
I have known [the mother] and her daughters X and Y since late December/early January 2017/18 when they were referred to me on the advice of a solicitor. The referral was triggered by an allegation that Y had been inappropriately touched, by her father, in a swimming pool and subsequent allegations that both girls had been subject to inappropriate sexualised behaviours.
Mr B stated:
Although both girls were initially traumatised by the (alleged) sexual assault, the seemed to have recovered quite well in this regard.
It is entirely unclear to what sexual assault Mr B was referring. Taken at their highest, Y’s statements do not allege sexual assault. There is no evidence that X has ever made a complaint in relation to her father that could be construed as sexual assault.
The mother repeatedly has told the children that she believes they have told the truth.
She has also told the children about other aspects of her relationship with their father. She told them that their father had affairs during the marriage and that he had been financially controlling. In cross-examination, she said that they needed to know that information and that she would continue to share with the children information that they needed to know. She said words to the effect “I thought they deserved to know the truth – I had supported him and given excuses for him for years”.
The mother did not accept that she had coloured or influenced the children’s views of their father, rather, she said “I just told them the truth”.
The mother said that the children had seen her upset and crying and that it was not reasonable to expect they she should shield them from her emotional hurt, saying “I don’t know how you would expect me to hide it” but she dismissed the suggestion that the children’s views of their father were likely to be affected by her distress.
The children live with their mother’s unrelenting negative view of their father.
Asked about X’s comments to Dr C that she was afraid that her father would come to her school after the AVO expired in April 2018, her mother said that she had not reassured X or challenged her. She said that she told X that she accepted X was afraid and that she didn’t tell her there is no need to be concerned because “I couldn’t tell her something I wasn’t sure of”.
The children have also been exposed to the mother’s negative views of the extended paternal family. Although the mother denied that she had spoken to the children about the second respondent, who is their aunt and whom the mother had named in her will as their testamentary guardian, it is likely that X’s statements to Dr C that her aunt is “obsessed with status and having the right friends” derive from the mother. The children have not seen their aunt since the end of 2016. The mother agreed in cross-examination that they had no source of information about their aunt other than the mother. She said, “We’re a family. We discuss things”.
The mother allows the children to refer to their father by his given name rather than referring to him as “Dad”, saying in cross-examination “That is their choice” and that she did not correct them.
The overall tenor of the mother’s evidence was that she does not support the children’s having any relationship with their father and there was no real indication in her evidence that her attitude was likely to change.

THE RECORDS OF MR B

Mr B’s file and notes in relation to the children were not before the Court and not in evidence.
A subpoena for the production was issued and served on Mr B. He objected to production.
The objection was upheld. Orders and reasons were delivered in relation to the objection on 18 December 2019.

DR C’S REPORTS

Dr C prepared two reports. Her primary report was dated 19 February 2019. She prepared an addendum report only in relation to the application of the second respondent for orders seeking time with the children, and interviewed only the second respondent for the purpose of that report.
Dr C interviewed both of the children separately. She did not interview the children with either parent because of their objection to seeing the father. She reported that the father agreed that it would be premature for him to see the children without any “groundwork being laid”.
In relation to her interview with X, Dr C reported:
X stated that her memories of her family life prior to the separation were that her father was never around as he was working and it was her mother who was there for her. She listed a number of criticisms of her father. X stated that when her father was home, he was often controlling and horrible to her. She asserted that he was frequently stressed and angry. She accused him of finding fault with everything she did and constantly putting her down. X also said that he always wanted to watch the programs he chose. She added that they argued and it seems to her he got his way. X said that she remembers going to an Asia country as a family and the holiday was ok, except that she, her mother and her sister did not get to choose what they did and rather had to “revolve” around her father. X reflected that at the time, she did not question whether that was ok. In addition, X commented that now she realizes her father transgressed boundaries when he came into the bathroom several times while she was in there although at the time, she did not think about that too much. Finally, X asserted that her father perpetrated emotional abuse by telling her that she was bullying Y in front of Y. She claimed that is the reason why she does not get along with her sister at times. When asked if there was anything that she liked about her father, she acknowledged that he was “techy” and helped them with their computer.
X told Dr C that she did not know, until after the parents separated, that her father “cheated on her mother and he was controlling of her.”
X told Dr C that she does not want a relationship with her father “and simply wants answers to her questions so she can move on”.
Dr C reported:
She stated that she feels sad not to have a dad and wished she could have had a father who was himself and not trying to be someone he wasn’t. When asked if there was anything that worried her, X responded that she fears her father will come to the school and do something now that the A.V.O. has expired. When this was explored further with X, she added that “there is nothing stopping him now” and she would not want him to do “anything stupid”.
X said that she misses her paternal grandmother but that her aunt, the second respondent has been “horrible to Mum after all this happened”. She added that her aunt “is obsessed with status and having the right friends.”
X discussed the hearing where the father was acquitted and said that, “irrespective of the Magistrate’s findings her opinion of her father is not going to change.”
As to her relationship with her mother, X said that:
…her relationship with her mother is “not the best it could be. We’re all over the place. I’m growing up and we’re all really stressed”. She said that her mother and Y have got closer in the last year but that has not been the case for her. When asked who is there for her, X replied “I work things out for myself. I manage it on my own”. She stated that she has been seeing Mr B and described him as “cool”.
Speaking of her sister:
X described Y as self-absorbed and a difficult person to be around because she likes to get her own way. She commented that she does not like it that Y copies her. X said that she and Y share little in common.
Of her interview with Y, Dr C reported:
Y stated that her memories of her family life prior to the separation were not very good. She said that her father and sister did not get along and that their father would take his anger out on X, scream at her, call her names and push her. She said that her mother was upset when he behaved that way but she was scared of him so rather than supporting them, she would stand up for their father if they were rude to him.
Y told Dr C:
…after she disclosed to her mother what her father had done, he said “sorry you think this happened to you”. She added that she did not really think her father was sorry and that he made her feel like she was imagining things. Y stated that she pleaded with her mother not to separate from their father and that she never thought this would happen.
Y told Dr C that she did not want to see her father. Dr C reported:
When asked to elaborate, she replied that she does not think he is capable of changing. In response to what she would like to change, she said “to spend more time with us and do things as a family. That he wouldn’t argue about what movie we watched”.
Y had other criticisms of the father. He had sent a van with furniture to her grandfather’s house after separation and accused her mother of taking jewellery he had bought her. He put family photos taken before separation on Instagram. He has a new girlfriend and they live in a “massive apartment”. Y said that when her mother found out about the father’s new relationship she cried. Y did not approve of her father having a relationship with a “young girl”.
Dr C recorded:
Y spoke quite vaguely about her father and her disappointment with him because he has moved on and has not been caring enough. She added that a father should be loving and kind and there for you, not abusive. She said that she believes her father favoured her more than X and he “made me and X not be sisters because he’d remind me that X was bullying me. He’d try to tear us apart”. Y stated that her relationship with X has improved and X has become more loving and caring since they no longer live with their father. Nonetheless, Y said that she and X still sometimes get impatient, rude and mad with each other.
As to Y’s views, Dr C stated:
Y stated that she has no intention of speaking with her father. She insisted that he is abusive, not caring, unkind and at times only pretended to be a better parent than he actually was. She claimed that she does not think she is missing out on anything by not having a father. When asked how she would feel if the Judge decided she had to spend time with her father, Y replied that she would feel pretty upset, angry and scared and would refuse to see him. Conversely, she stated that she would be excited and happy if she did not have to see him.
Y said that she is scared she might see her father “as she would be uncertain about what might happen. Y said that she would be worried if she saw her father randomly.”
In contrast, her views of the mother were entirely positive.
Like X, Y spoke positively of her sessions with Mr B.
Dr C spoke to Mr B and reported:
Mr B stated that he has provided ongoing counselling support for [the mother], X and Y since early 2017. He stated that it took time for rapport to be built and that the children and [the mother] have benefitted from the sessions. He reported that 2017 was an uncomfortable year for [the mother] and the children as they found themselves living in a situation with [the mother’s] father and were dealing with the stresses of the criminal proceedings which he described as “astonishing”.
Mr B stated that he does not consider [the mother] to have been an alienating mother. He indicated that he considers his support to the children as having been vital. He said that the children have not expressed any views to him that they wish to have a relationship with their father. Mr B did not express a lot of optimism that the children’s opinions would change.
In relation to her interview with the father, Dr C stated:
At the interview, he stated that he appreciated how difficult it would be for the children to repair their relationship with him, given that they have given evidence against him however, he does not see it as unachievable. He said that he would like to be re-introduced to his children’s lives with the support of a therapist as he realises Court Orders per se will not repair the rupture they have experienced. He commented that the children need to be informed in the safety of a therapeutic relationship that he is not angry with them.
As to the views expressed by the children, Dr C stated:
Both children now express strong views that they do not want to see their father. It seems that they have expressed similar views to their counsellor at [The Child Protective Service] and Mr B who the children and their mother have been now seeing regularly for almost two years. [The father] has not been involved in that therapy. Although the children made minimal reference to the sexual assault allegations in the course of their interviews for the purposes of this report, they had a list of other criticisms about their father and his treatment of them and of their mother.
X was critical of her father for what she believes has been his selfishness, ignoring their needs or interests, undermining her relationship with her sister and harsh treatment of her. Her views were global and pertained to many dimensions of her relationship with her father. Some of her views reflected her own experiences with her father but others mirrored her mother’s criticisms of [the father]. X’s disclosures contained little glimmer of any positivity in the relationship with her father except that he was “techy” and helped her with her technologies. She expressed no intention to make any changes in the near future.
X disclosed that she is curious to have answers to the motives for her father’s behaviour but that was not to be construed as her wishing to effect any repair in her relationship with him. The lack of resolution of these questions will possibly preoccupy X until she has a response to her satisfaction and she may reach the point where she can no longer contain her need for information and seeks her father out for a resolution. Currently, her views are strident and unbending. She believes her views and those of her sister have only been partially heard in the past and that the Judgement in the criminal proceedings was the Magistrate’s attempt to avert an appeal. Whatever the source of X’s views, given she will be 15 years old within 5 months, considerable weight needs to be given to them.
Y is even more polarized in her expressed negative views of her father and adamant that she does not want to see him. She also disclosed her perceptions that her father is self-centered, unfair to her mother, dishonest and incapable of change. She perceives herself as having been the preferred child in her father’s eyes and that he tried to undermine the sibling relationship. Like X, many of her disclosures about her father’s shortcomings mirrored those of her mother. She was critical of him for the control he supposedly exercised in the adult relationship and now for supposedly having moved on with another relationship. Although Y is younger than X, her views also need to be given weight, especially as she still perceives herself as having been a victim of abuse and the greater part of the allegations especially about sexual misconduct on the part of [the father] pertain to her. It would be impossible, given the allegations that have been made in this matter, for one child to spend time without the other.
In her evaluation, Dr C stated:
The children have, in the past two years, been interviewed by F.A.C.S., J.I.R.T. They have given evidence in the criminal proceedings and have been in counselling with CPS and Mr B and now have been interviewed for the purposes of this report. These experiences and repeated interrogations are damaging for children for a number reasons. Repeated interviewing can result in the contamination of a child’s recall, memory and emotional experiences if indeed any abuse has happened. In the absence of abuse, it constitutes a form of systems abuse and results in children becoming desensitized to the issues and fearful and pressured by the consequences of their disclosures which may then lead to them responding in a way that they believe they are expected to respond. While the Magistrate formed the conclusion that she did not believe the children had been coached and were impressive in giving evidence, she did also identify inconsistences in the children’s disclosures which illustrate that they may already be victims of the aforementioned pressures. This has significant consequences for the children’s emotional well-being.
Dr C reported that the father sees his acquittal on all charges as being a vindication of his view that the allegations were fabricated and that he poses no risk to the children. She reported, “Now that has been established, he holds the view that he and his family can commence the process of repairing his relationships with his daughters.”
However, Dr C stated:
His position, however, unfortunately lacks understanding of the damage that has occurred to the relationships as a result of the criminal court proceedings irrespective of the findings. He is dismissive of the gravity of the impact this has had on the children and the unresolved issues which still exist for [the mother] and the children. While [the father] has a history of competently navigating quite complex situations in his vocational life and this is most likely a defense (sic) he has adopted to help him deal with the vulnerability he felt from his childhood, his insight into managing relationship issues of an affective nature is comparatively unrefined.
Dr C considered the possible origins of the children’s estrangement from their father, including the possibility that the children had been abused by the father. She stated:
Another scenario which is more likely to be the case is that some confusion about intimacy boundaries occurred in this family. There were discussions in the family especially in the few months preceding the separation which would suggest that there were several behaviours with which the children felt uncomfortable and which were raised by [the mother] and were acknowledged but possibly dismissed by [the father]. Even if they were not intended to be abusive, Y changing in the men’s changing room and [the father] pulling down the children’s bikini bottoms in the swimming pool, entering the bathroom while the children were showering and squeezing Y’s bosom, if they did occur, demonstrated poor judgement, murkiness and inappropriate boundaries on [the father’s] part and do not fall into the realm of protectiveness or playfulness for pre-pubescent girls. If, as is alleged, [the father] was dismissive of attempts to rectify that behaviour and implement more well defined boundaries that is concerning and demonstrates a lack of insight on his part.
She stated:
It is noteworthy that the allegations appeared at a time when the children were entering their adolescence. There is a possibility that, as his daughters were maturing, [the father’s] lack of understanding of intimacy rendered him inclined to gain closeness and seek validation through behaviour that became more sexualized. This is a transgression of the father/daughter boundaries even if his relationships with his daughters were otherwise relatively good. If this is the case, it is imperative that he engages in some therapeutic intervention as it is likely to contaminate any further intimate relationships he forms.
Dr C did not support orders for the father to spend time with the children, even in a therapeutic setting. She stated:
Both children expressed views that they did not think their family would ever break down and that at the time they initially made the disclosures they possibly were unaware of massive consequences they would incur. Undoubtedly for each of them their image of their family was shattered and they project blame for that onto [the father]. Both children seem to be emotionally exhausted with the fall out of the past two years and simply want to move on.
Dr C reported:
The parties need to appreciate that there a likely to be a number of other factors impacting on the children’s relationship with each parent which are related to the children themselves and factors to which both parties have contributed. Such factors include the pre-separation relationships and alignments. [The parents] made reference, for example, to the closeness of [the mother’s] relationships with the children and it is possible that there was a pre-existing enmeshment of the mother and children to which [the father] was on the periphery. Children also sometimes choose to align themselves with a parent who they believe is vulnerable and needs them, who is the primary care giving parent or who is the parent the children are most afraid to reject because of the anticipated consequences. These factors certainly are pertinent in this case.
She stated that, as a consequence of their present psychosocial development, the stresses of the criminal proceedings and the separation of their family have made it untenable for the children to “walk the fine line between their parents and it is much easier to choose one parent, in this case their mother, who they perceive as loving and caring but also needy.”
She described the dynamic of “splitting” as being often adopted by children in high conflict situations and that, in such situations, children will regard one parent as wholly bad and the other as wholly good.
Dr C stated that it is extremely difficult to repair the relationship between the children and the father, even with specialised intervention, when the children have given evidence in a court and believe their allegations represent their lived experience.
She opined that both children are likely to sabotage any attempt at therapeutically assisted reconciliation with the father.
Dr C stated:
Any changes to the children’s current living arrangements, if they were to occur, would need to be canvassed and managed in the context of a well-supported, specialised therapeutic intervention and, even with that intervention, there is a likelihood that it may not eventuate. Attempts to re-introduce the children to their father if their views remain so entrenched are likely to meet with extreme hostility, anger and even more resistance because they feel they have not been heard. It is difficult to see how this would be helpful to the children and may only put even more stress on them.
Dr C’s report contained a warning for the parents and for the Court:
The parents need to be mindful that the children currently have certain needs that are consistent with their developmental stage. X is in her adolescence and developmentally as part of her quest to develop her identity, she will most likely distance herself from her immediate family and will consolidate relationships with peers who will assume greater importance in her life. Y is at the later stage of the latency period. Her energies need to be ploughed into her school and extracurricular activities which allow her to continue to feel a sense of pride and competence in her accomplishments and abilities.
Dr C stated:
There need to be some very significant changes in this matter before the option of the children spending any time with their father is considered. It is difficult to comment on the advance to significant or equal time when currently even a possibility of re-introduction is questionable.
Ultimately Dr C recommended:
·It is recommended that sole responsibility be granted to [the mother].
·It is recommended that the children live with their mother.
·It is recommended that the children spend time with [the father] as per their wishes.
·It is recommended that there be no denigration of significant others or any discussions pertaining to the adult dispute with the children.
·It is recommended that [the mother] and the children continue to seek therapy with Mr B.
·It is recommended that [the father] continue to receive personal therapy to help him deal with the grief resulting from the losses he has incurred.

For the preparation of the addendum report, Dr C did not interview the parents or the children but interviewed the second respondent. She stated:
While [the second respondent’s] intentions to provide the children with a safe place to take refuge if they need it may come from an intention to be supportive and that would have been consistent with the pre-separation relationships, her proposal needs to be considered in the light of the highly acrimonious trajectory this family has faced since the separation. Notwithstanding her proposal that any time she spends with the children would be independent of [the father], she is still by association, in the children’s view, part of that world and it is difficult to conceive how she could create sufficient distance from her brother for the children to have a trusting relationship with her.
Dr C said:
It is highly unlikely that the children, who already feel they have been unheard through the criminal proceedings, would be amenable to spending time with family members who they feel are not aligned with their views of the events which led to the family breakdown. Being expected to do this, is likely to re-trigger memories from the past and possibly set back the progress they have made in therapy.
Dr C noted that children have not expressed any wish to have contact with members of the extended paternal family and that, according to Mr B, they have not expressed such a wish to him. She concluded:
It is therefore difficult to imagine how Orders granting [the second respondent] would ever be workable under the current circumstances. However, it is also acknowledged that X is 15 years old and Y is 13 years old. The children are fast approaching ages where they are likely to exercise their own autonomy in terms of making contact with significant others in their lives including their father and paternal family if they so desired. If contact details for [the second respondent] were provided to the children, they may choose to contact her in their own time.

DR C’S ORAL EVIDENCE

Dr C said that, if family therapy were ordered, then the therapist nominated by the father would be an appropriate choice.
Dr C was not convinced that it was, on balance, likely that family therapy would be successful in mending the relationship between the children and their father and it was her view that, if family therapy were tried and failed, then the relationship would be irretrievably lost.
She accepted the possibility that the children’s views have been influenced by their mother and that the children’s views of what happened had been reframed and compounded by repeated telling.
In response to the proposition from counsel for the father that an innocuous event with a rational explanation had later been given a sinister connotation, Dr C said behaviour that at the time, may not have been prudent on the part of the father nevertheless did not have the meaning that was later attached to it and later became part of the “constellation of alleged transgressions” of the father and the “foundation stone then of the proceedings”.
Dr C said that she was somewhat puzzled that the allegations seemed to take on a life of their own after separation and after the mother had received some counselling about the meaning that might be attached to them.
Dr C agreed that, the longer the period when the children have no relationship with their father, the more difficult it is to repair that relationship but she did not agree that this time of their adolescence was the right time to begin the process.
She was conscious of the harm to the children’s future development if they “maintain a narrative that doesn’t have substance” and the danger that, at some future time, the children might massively reject their mother.
Conscious of the risks of doing nothing, Dr C nevertheless was concerned about the children’s response to “yet another round of therapeutic intervention”. Her position would have been different if the children were younger.
She encapsulated her thinking saying that these children have been through much more than probably a very small percentage of children have been through in their lives and to paraphrase her “I would say how important it is for children to have both parents in their lives, [but] on the other side I’m thinking ‘How much can these children endure’?”. That, she said, was her dilemma.
She was further concerned that a regime where the matter was adjourned part heard to trial family therapy only prolongs the experience of litigation for the children.
Dr C said that for family therapy to be successful would require “massive shifts” in the message the children would receive from their mother and “an enormous amount of work, not only with the children but with the whole system”.
I understood her to be referring to the dynamic of the family of the mother and the children.
Dr C said that the mother placed great store on the fact that FACS had supposedly substantiated the allegations and that it would be difficult to shift the mother’s beliefs. She said there would need to be “an enormous amount of realigning of the belief system in this family for three years now”.
Dr C referred to the need for the children to have “a language of permission” from their mother in order to engage in therapy.
Faced with the difficult choice between giving family therapy “one last go” and taking no further therapeutic steps, Dr C did not positively recommend further therapy. She said that she was unable to make any recommendation.
However, she said there needs to be some indication from the children that they want a relationship (both with their father and their aunt) and that, absent such an indication, pushing them into therapy may have an adverse effect. She said that, given the “enormous pressure these children have been under for several years now” expecting more of them may risk “that they will reject further”.
Dr C read the emails that the father and the second respondent had sent to the children and said that they were appropriate. She said that the children should be able to receive communications and gifts from their father and their paternal family.
Asked to comment on the possibility of successful therapeutic intervention in a situation where nothing in the mother’s evidence suggested that she would support any reintroduction of the children to their father and in circumstances where they are solely dependent on her, Dr C said:
Well, I think I said earlier that it would need – it needs to happen in the mother/daughter relationship firstly. Because, I think, for the children, there would be a massive kind of test to their loyalties. If they were not to see a change in their mother’s – in their – and, you know, my question is, even if the mother was to change, has this just gone too far down the road that it wouldn’t turn the children around?
At the end of the cross-examination, I asked Dr C some questions and the transcript is reproduced:
Question:I suppose I have three possibilities ahead of me. I can do nothing in terms of not changing the current arrangements. I can accede to the father’s position, which is the imposition, I suppose, on the children against the will of their mother of the [family] therapy with a hope towards reintroduction. Or I can simply say that the father and the paternal [family] can contact the children, make overtures and hope?
Dr C: Yes.
Question:Of the three options – and please tell me if you think there are others – which do you say is more likely – I will put it the other way. Least likely to cause harm?
Dr C:Well, I think that the one that is least – that is most likely to have wings is the last. I guess, as much as it would be the ideal for repair to happen, there would need to be so much work, and very possibly, work that would not lead even to touching the sides of a repair and, rather, would just build resentment and the children’s feelings towards their father even higher.

CONSIDERATION

The decision to be made is encapsulated in the passage of transcript set out above.
The mother urges the first option. The father and the second respondent press the second option. The third option is available.
The children were clear in their statements to Dr C that they did not want to spend time with the father.
X told Dr C that she had been left with “unresolved and unfinished questions that she would like to ask her father”. She added that this was not with a view to repairing their relationship but as a way of having her questions answered.
In February 2019, notes produced by BB Unit state that X exonerated her father of responsibility for his actions.
Dr C, reviewing all of the material, stated that X, as was age appropriate, was developing her “own narrative” of the events, separately from that of the mother.
However, none of those matters goes so far as to suggest that either of the children presently wanted to spend time with their father or communicate with him.
There is no clear evidence from the children of their views in relation to the second respondent. Dr C has not spoken to them since February 2019.
The children have had the second respondent’s email address since April 2018 but have not made contact.
The second respondent asked the mother for permission to contact the children in June 2018 but the mother refused. In cross-examination by counsel for the second respondent, the mother said that it was “extraordinarily important” to her that the second respondent acknowledge that the children have been sexually abused before she can see them and that she has told the children that the second respondent must give that acknowledgement.
Asked in cross-examination whether she would facilitate any contact with the second respondent, the mother said that she would tell the children, “You know how I feel about this” but that she would respect their wishes. Pressed, she said that she would accede to their wishes if they were “utterly insistent” and that if they were “begging and pleading” she would not stand in their way.
The mother said she did not oppose the children having the contact details for the second respondent and for the paternal grandmother but she did oppose their having the contact details for the father.
In those circumstances, it would be difficult for these children to express to their mother a wish to have contact with the second respondent or any member of the paternal family.
X told Dr C that she missed her paternal grandmother. The mother in cross-examination said that, once or twice, X has told her that she misses her paternal grandmother. Despite that, no arrangements were made for X to have any contact, however, minimal, with her grandmother.
The mother is estranged from her only sister and there is no evidence that the children have an ongoing relationship with their maternal grandfather or any member of the extended maternal family.
The children have no present relationship with their father or any member of the paternal family. In relation to contact between X and the father, the mother said that if X were to express an interest in meeting with her father, she would be “very, very concerned” and that if the second respondent was supervising she would be “extremely concerned”. She said that she would be concerned because the father is a sexual predator.
The mother, throughout her evidence, opposed any contact between the children and their paternal grandmother, or their paternal aunt, unless they both first acknowledged that they were aware of the children’s allegations and believed them. Without explanation, in the course of submissions, she withdrew her objection to the children’s receiving communication from their grandmother and aunt. It is difficult to interpret the mother’s change of position, or to accept its sincerity, given the vehemence with which her objections were expressed in the course of cross-examination.
The mother, in cross-examination, said that even passing on a birthday gift from the second respondent to Y “put me in an awkward position”. The mother said that passing that gift onto Y put her “in a position or risk” although how, exactly, is unclear.
Dr C expressed a concern that the children’s relationship with their mother may be enmeshed. In her oral evidence she said that the children had identified with and aligned themselves to their mother’s “view of the world and of the separation”.
However, there is no doubt that she is the person to whom they look for sustenance and support.
The mother, in cross-examination, made clear her resentment of what she perceived to be the lack of support for her and the children from the second respondent and the paternal grandmother. No doubt the children are aware of that resentment.
There is also no doubt that they had, in the past, a good relationship with both their paternal grandmother, whom X has said she misses, and with the second respondent with whom they spent two or three days at a time in the absence of the parents.
The father has been excluded from any participation in the lives of the children.
The mother was critical of the lack of financial support provided by the father in circumstances where it was his unchallenged evidence that, as a result of the criminal charges shortly after separation, he lost his consultancy income.
It is likely that this criticism has also been communicated to the children.
The father is currently paying child support at a rate that appears to reflect his current income.
Whilst I accept that both the father and the second respondent are extremely anxious to attempt to re-establish a relationship with each of the children, I am not satisfied that family therapy, as the father proposes, is likely to achieve that goal.
Similarly, I am not satisfied that imposing, by order, time between the second respondent and the children, however hedged around by safeguards, is likely to be productive.
In each case, the mother’s implacable opposition is the barrier.
Sadly, I accept the evidence of Dr C that the most likely productive course is for the father and the paternal family to make gentle overtures to the children and to hope that, as they become older and less dependent on their mother, the children may respond.
The mother will be restrained from any interference in the communication between the children and the paternal family.

PARENTAL RESPONSIBILITY

Dr C stated:
Given the mistrust and low ebb the parental relationship has reached along with some of the uncharitable snipes both parties allege members of the extended families made to them in the course of the criminal proceedings, it is impossible to see how there might be any chance of the parties working collaboratively in the interests of their children. This leaves [the father] even more marginalized however, there seems to be no other alternative that is not likely to leave the parties in even more distress with each other.
I accept that evidence.
However, there is one aspect of parental responsibility that cannot be left to the mother unchecked.
Since the parents separated, the children have been engaged in therapy with Mr B and that therapy has continued on a regular basis until the trial.
At the same time they have engaged in therapy with “DD Group” and, X has also been referred by Mr B to BB Unit.
Although the father was aware of the counselling with Mr B, he was not consulted about that counselling and neither was he consulted, if indeed he was made aware, of the engagement with “DD Group” or BB Unit.
In the course of the hearing, it emerged that X had started a course of counselling with CC Group some six months ago. Of more concern, in the course of submissions, the Court was told by counsel for the mother that Y had also started counselling at CC Group.
It is not appropriate for the children to see multiple counsellors and it is not appropriate that their father does not know who their counsellors are.
The orders will require the mother to advise the father of any counsellor or counselling organisation engaged for the children.

INFORMING THE CHILDREN OF THE OUTCOME OF THE PROCEEDINGS

The parties agree that it is appropriate that the children be informed of the decisions which have been made in relation to their future by Dr C.

I certify that the preceding two hundred and fifty-five (255) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 24 April 2020.

Associate:

Date: 24/04/2020

[2020] FamCA 277

24 April 2020

Key Legal Topics

Areas of Law

Family Law