Figone & Lowe - [2022] FedCFamC1F 932

Federal Circuit and Family Court of Australia
(DIVISION 1)
Figone & Lowe [2022] FedCFamC1F 932

File number: SYC 2075 of 2020

Judgment of: REES J

Date of judgment: 29 November 2022

Catchwords:
FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility – Where the child has exhibited behavioural difficulties and disturbed behaviour – Where the mother alleges the child is sexually abused by the father – Where the mother’s evidence is unreliable and not supported – Where the mother has subjected the child to a number of professional interventions and medical examination – Where the single expert says children who are exposed to interparental conflict can exhibit behavioural difficulties – Where the father has been a perpetrator of family violence towards the mother – Where the father minimises his violence and abusive behaviour – Where the father is observed to have a positive relationship with the child – Where the parents are incapable of co-parenting and communicating – Where the child has never spent overnight time with the father –Orders made for the mother to have sole parental responsibility – Orders made for the father to spend time with the child.

FAMILY LAW – INTERIM ORDERS – Where the father currently has supervised contact with the child – Where the contact supervisor is no longer available – Orders made for the father’s sister to be the supervisor until such time as judgment is delivered – Where the father’s sister has a positive relationship with the child and is cognisant of the family court proceedings.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth)

Cases cited: Bant & Clayton (2019) FLC 93-924

Division: Division 1 First Instance

Number of paragraphs: 280

Date of hearing: 7 – 9 November 2022

Place: Sydney

Counsel for the Applicant: Ms Seric

Solicitor for the Applicant: De Saxe O’Neill Family Lawyers

Counsel for the Respondent: Mr Havenstein

Solicitor for the Respondent: Swifte Law

Solicitor for the Independent Children's Lawyer: Mark MacDiarmid Family Law Specialist
ORDERS

SYC 2075 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR FIGONE

Applicant

AND:
MS LOWE

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

REES J

DATE OF ORDER:

29 november 2022

THE COURT ORDERS:
1.That the mother have sole parental responsibility for the child X born 2016 (“X”).
2.That X live with the mother other than as provided in these orders.
3.That the mother advise the father forthwith by text message on any occasion when X is either late for school, partially absent or wholly absent and advise the father of the reason for the absence.
4.That the mother authorise and cause any school that X attends to send to the father any information, notices or reports that are usually provided to parents and that the father is permitted to meet with X's teachers at their discretion and attend any school events usually attended by parents.
5.That the mother forthwith provide the father with the name and contact details of any medical or allied health professional who consults with X and authorise those professionals to provide to the father any information he seeks.
6.That X spend time with the father, during school terms, as follows:
(a)Commencing on the first Saturday following the making of these Orders, each Saturday from 10.00 am until 4.00 pm;
(b)From the start of Term 1 in 2023, from after school on Friday afternoon or 3.00 pm if X is not at school, until Saturday at 4.00 pm.
(c)From the start of Term 2 in 2023, each alternate weekend from after school on Friday, or 3.00 pm if X is not at school, until Sunday at 4.00 pm, commencing on the first weekend of the school term.
(d)From the start of Term 3 in 2023, each alternate weekend from after school on Friday, or 3.00 pm if X is not at school, until school starts on Monday, commencing on the first weekend of the school term.

7.That X spend time with the father during school holiday periods as follows:
(a)In the Christmas holidays in 2022/23, in accordance with Order 6(a).
(b)In the school holidays at the end of Terms 1 and 2 in 2023 in accordance with Orders 6(b) and (c).
(c)In the school holidays at the end of Term 3 of 2023, on the middle weekend of the school holidays from Friday afternoon at 3.00 pm until Sunday at 4.00 pm.
(d)In the Christmas school holidays in 2023 and in each holiday period thereafter, for second half of the holiday period ending at 4.00 pm on the day which is two days before the first day X attends school in the next term.

8.That, in the event that X is not spending time with the father on Fathers’ Day pursuant to these orders, she shall spend Fathers’ Day with the father from 4.00 pm on Saturday until 6.00 pm on Sunday.
9.That, in the event that X is not spending time with the mother on Mothers’ Day pursuant to these orders, she shall spend Mothers’ Day with the mother from 4.00 pm on Saturday until 6.00 pm on Sunday.
10.That from 2023 and each alternate year thereafter, X spend time with the father from 6.00 pm on Christmas Eve until 6.00 pm on Christmas Day.
11.That from 2024 and each alternate year thereafter, X spend time with the father from 6.00 pm on Christmas Day until 6.00 pm on 26 December.
12.That changeovers that do not take place at the child's school shall occur as agreed between the parents and failing agreement at the Coles supermarket at B Street, Suburb C, and both parents shall ensure that during changeovers a third party will attend on the father’s behalf and the father shall not go within 100 metres of the mother.
13.That other than in an emergency, the communication between the parents about X be conducted by text message and that each parent ensure that the other, at all times, has his and her residential address and phone contact number.
14.That when the child is in his or her care, each parent is restrained from:
(a)Consuming any prescription medication other than as prescribed;
(b)Consuming any illicit substance;
(c)Physically disciplining the child or permitting any other person to do so;
(d)Questioning or interrogating the child about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the child;
(e)Denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship in the presence or hearing of the child, or permitting the child to remain in the presence or hearing of any other person denigrating the other parent, the other parent's extended family, or person with whom the other parent is in a relationship, with the parent’s knowledge or in their presence;
(f)Discussing the proceedings or any allegations raised in these proceedings with the child or permitting any other person to do so with their knowledge or in their presence;
(g)Permitting the child having access to any of the documents filed in these proceedings;
(h)Communicating any information intended for the other parent through the child; and
(i)Causing the child to be a medium in any way between the mother and the father or between the mother and the father and any other person.

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

Mr Figone (“the father”) and Ms Lowe (“the mother”) are the separated parents of X who was born in 2016 (“X”). These proceedings concern X’s future parenting arrangements and, specifically, whether she will spend any time with her father.
The mother alleges that the father has been physically and verbally abusive towards her and that there is an unacceptable risk that the father has behaved towards X in a sexually inappropriate manner. It is her case that, even if I find that there is not an unacceptable risk of abuse, the father’s violent behaviour requires that there be no further contact with X.
The father, for his part, admits that there were two episodes of family violence towards the mother and that he called her abusive names on occasions. However, he disputes the balance of the mother’s allegations in relation to family violence.
The father denies that he has ever behaved inappropriately in relation to X and seeks regular, unsupervised time with her including weekends and school holidays.
The relationship between the parents was sporadic. They did not live together for most of the time and it seems that they lived together for only for about a year before their final separation. The father asserts that they finally separated in October 2016. The mother asserts that the separation was in February 2017. Nothing turns on that dispute.
After separation, X spent time with her father, by agreement between the parents, each Tuesday and Thursday afternoon, each Sunday and on alternate Saturdays. X did not stay with the father overnight.
In late 2019, an Apprehended Domestic Violence Order (“ADVO”) was made against the father for the protection of the mother for a period of one year.
In March 2020 the mother declined to facilitate further contact and X did not see her father in person for some six months although they had FaceTime contact.
The father commenced these proceedings on 2 April 2020. On 1 September 2020, interim orders were made which provided for X to spend time with her father with professional supervision. Thereafter, commencing on 19 September 2020, the father and X spent supervised time together. The reports of the supervisor are in evidence. Professional supervision continued until orders were made on 21 October 2021 which provided for the time to be supervised by Ms D, X’s aunt. At the time of the hearing, X was still having supervised time with her father.
There have been numerous reports made to both the New South Wales police and the Department of Communities and Justice (“DCJ”) but neither organisation has found the mother’s allegations of inappropriate sexual behaviour on the part of the father to be substantiated.
the trial
The father relied on an affidavit by himself and affidavits of his sister in law, Ms D who has supervised X’s time with her father since 19 September 2021, his sister Ms E and his brother Mr F. None of Ms E, Ms D or Mr F was required for cross-examination.
The mother relied on an affidavit by herself and an affidavit of her mother, the maternal grandmother. The maternal grandmother was not required for cross-examination.
The court was assisted by and Independent Children’s Lawyer (“ICL”) and by a report from a single expert psychologist, Ms G.
the allegations of sexual abuse
With one exception, which will be examined in due course, the allegations upon which the mother relies are of things that X has said to her from time to time and things she has observed X do.
The reliability of the mother’s evidence, specifically of her reporting of what was said and what happened, was the subject of extensive cross-examination of the mother by counsel for the father. In summary, it is the father’s case that the mother’s account cannot be relied upon, that she has fabricated some evidence and that her evidence in relation to crucial matters is unreliable and not supported by material produced by third parties including the New South Wales police and DCJ.
If I find that the mother’s evidence cannot be relied upon, then it is necessary to consider what other explanations might be available for X’s behaviour which both parents agree is difficult. Both parents report that X is physically aggressive towards her parents and, in the father’s care, towards other children.
The reliability of the mother’s evidence in relation to the sexual abuse allegations is also relevant to any determination I might make about the reliability of her allegations of violence.
The allegations are first raised by the mother, under the heading “Sexualised Behaviour” at paragraph 230 of her trial affidavit where she deposed that around January 2020 (X was three years old) X began to take her underwear off and spread her legs and “display herself”. When the mother told X to put her underwear back on, the mother asserts that X said “Daddy likes it when I take my knickers off.” The evidence does not establish whether X said this on one occasion or more than once.
At paragraph 233 of her trial affidavit the mother deposed,
On or about 25 January 2020, I found [X] in her room and she appeared to be recreating missionary sex. I went to [Suburb H] Police station that day.
The records of the police were available to the court. The mother made no contact with the police on that day and there is no record of her ever reporting that allegation to the police. The mother gave no evidence about what she saw X doing or why she concluded that X was demonstrating sexual intercourse.
The mother deposed that on 20 January 2020, X said to her “Daddy slapped me really hard and it hurt”.
When the mother, in fact, first contacted the police in relation to concerns about X, on 2 February 2020, there was no mention by the mother of the alleged incident on 25 January 2020 or the complaint by X on 20 January 2020. Rather, the mother complained about a bruise on X’s back.
In her affidavit, the mother deposed,
On or about 18 January 2020 [X] came home from spending time with [the father] and I found a noticeable red mark about three quarters of the way down on her back. I asked [X], “What happened to your back?” [X] didn’t want to talk about it at first. Later she said, “Daddy bit my back”.
The record produced by the police notes that the mother said that on 20 January 2020 the mother noticed that X had a small/medium sized bruise on her lower back which the mother believed was caused by the father. The mother said she asked X how she got the bruise and X said “Daddy did it to me”. The mother asked X whether her father had done this before and X said “Yes, he hits me and slaps me when I’m with him.” The records note,
As a result, [the mother] at a later time that afternoon audio recorded her conversation with [X] asking her how she received the bruise to her back. Similarly, [the mother] also took two (2) photographs of the alleged bruise to [X’s] lower back.
The police attended at the mother’s home. The record states,
Whilst discussing the incident with Police [the mother] conceded to police that she had no evidence that [the father] had caused the bruise other than the fact that [X] told her. Similarly, when Police listened to the audio recording it was noted that at no state did [X] mention that she was assaulted by [the father]. She stated “When I’m bad, daddy gets angry at me”.
The police asked the mother if there was any other possible cause for the bruise and the mother said “She could have got it from day care or swimming in the pool”. She went on to say, “But my ex-partner is a fucking arsehole. He’s teaching my daughter to hurt me”.
The police spoke briefly to X who did not mention any assault or injury caused by her father.
In cross examination, the mother agreed that the most likely explanation for the mark on X’s back, whether it was a red mark or a bruise, is that it happened when X was playing.
On 9 February 2020, the mother sent to the police three audio recordings and one photograph. I infer that these are in addition to the audio recording and photograph provided on 2 February 2020. This suggests that on three further occasions after 2 February 2020, the mother spoke with X about the incident. The police listened to the recordings which were not in evidence before me although the mother said that she had them. The police records state,
Police reviewed the audio recording(s) and photograph and determined the following. Firstly, in respect of all three audio recording(s) it was established that the recordings are between [X] and [the mother] and does not contain any conversation from [the father]. Moreover, the audio recordings have been recorded by [the mother] with [X] at an unknown time/date following the alleged incident(s). Point One (1) – Audio recording #1 does not contain any evidence/inference to an assault on [X] by [the father] and as such [X] specifically stated in the recording, “Daddy put his fist in my face so I couldn’t scratch it”. The Audio recording went for 27 seconds in duration and appears to be a shorten [sic] version of a more complete audio recording. Point Two (2) – Audio Recording #2 contains a conversation between [the mother] and [X] concerning an incident, in which [the father] allegedly slapped [X’s] chest and neck. Throughout the conversation, [X] is guided by [the mother], specifically in relation to location of her alleged injuries. Point Three (3) – Audio Recording #3 contains information regarding [X] being slapped on the cheek by [the father] whilst eating dinner at an unknown restaurant. [X] does not state why she received the slap across the [cheek] or how [hard] the slap was…
None of the three audio recordings to which reference was made in the police records was in evidence before me.
The mother deposed that on 1 March 2020, when X returned home from time with her father, there was “what looked like a scratch or a bad Chinese burn on X’s left upper inner thigh close to her vagina”.
On 3 March 2020, the police went to X’s kindergarten and spoke to staff who said they could not rule out the possibility that X gained the red mark or bruise playing.
In cross-examination, the mother said that she could see nothing wrong in recording conversation with X where she makes complaints about her father and she denied that she had not provided any of the recordings to the court because she was concerned they might demonstrate that she was coaching X.
The mother deposed that on 5 March 2020 when X returned from time with her father she took off her underwear and the mother saw a discharge and she reported the matter to the police.
The mother’s evidence does not accord with the records of DCJ which contain a report by the mother that she noticed the discharge on 28 February 2020, although X did not spend time with her father on that day, having been with him the day before.
The mother took X to see her general practitioner (“GP”) on 4 March 2020. The GP’s notes are in evidence.
In cross-examination, the mother denied that she took X to the GP because she was concerned about the possibility that X had been sexually abused but the doctor’s record states “suspected child abuse from father” and “mother is concerned about father physically and sexually abuse [sic] [X]”. The GP noted that the mother noticed a yellow discharge on X’s underwear.
The notes record, “mother also found two bruise [sic] on [X’s] back and showed me the photo, a skin abrasion on [X’s] inner left thigh about 3 cm long”.

The notes also state “mother has recording on her phone about the conversation with [X] where [X] said father likes her to take off her pants”. The doctor asked X if her father ever hit her and she said “sometimes”. X said she plays games with her father but did not elaborate.
The GP examined X and noted,
no apparent bruise on her skin at the moment
vaginal area looked normal
no apparent discharge at the moment
the skin abrasion around inner left thigh is healing well
(As per the original)
The mother, in cross-examination, denied that X had been physically examined but there is no other explanation for the GP’s note.
On 6 March 2020, the mother went to the police and made a number of complaints including a complaint in relation to the discharge that she said she observed on X’s underwear. She had the underwear in a plastic bag which she gave to police. The notes record,
On 1 March 2020 the mother noticed a cream/green coloured discharge on the underwear of the child. At this time the mother also noticed a bruise on inner left thigh of the child, the child disclosed to the mother that “daddy did it, it was on purpose and he didn’t even say sorry”.
As at 6 March 2020, the mother had said that she saw the discharge on X’s underwear on 28 February, or on 1 March or, according to her affidavit, on 5 March.
The mother told the police that she had taken X to the GP on 4 March 2020. She did not tell the police that the GP has examined X’s genital area and found no abnormalities. The notes record that the mother said, “The child tried to hide this bruise which the mother claims is out of character for her…” The notes of the GP do not support the mother’s assertion that X tried to hide the bruise from the GP. The notes conclude “The Mother has a number of recordings on her phone of the Child making disclosures in response to questioning from the Mother”.
X was interviewed by the police on 7 March 2020 but did not say anything which led to concerns about her safety.
On 10 March 2020, an incident occurred about which evidence is given both by the mother and the maternal grandmother. The grandmother deposed that she and X bathed together “at least once a week”. The grandmother deposed that, while she and X were in the bath together,
…she asked me to lie back and close my eyes and relax. I thought this was a new game so I complied. [X] started to slide her torso up and down mine. I immediately lifter her off me as I felt uneasy. I asked her why she was doing that and she said “Daddy likes it”.
It is clear that the mother did not witness this incident from the next paragraph of the grandmother’s affidavit where she deposed,
At that point [the mother] walked into the bathroom and I gestured to record what was happening. Without taking any notice of her mother [X] tried to repeat the previous performance. Again she repeated that Daddy liked it and that it was love. I was horrified and left the bath immediately. For me it represented something very sexual and something a four year old would have no knowledge of.
It is not obvious from the grandmother’s description of X’s action that the action was sexual in nature.
The mother’s evidence is found at paragraph 242 of her trial affidavit.
On 10 March, I thought I heard my mother call out to me from the bathroom. She and [X] were having a bath together and mum motioned to me to record what was happening. Afterwards, my mother got out of the bath and said to me words to the effect of:
“Something really concerning happened. We were having a bath when [X] said to me close your eyes […]. She then told me to lay back, close my eyes and relax. I thought she was playing a game so I closed my eyes. She then rubbed her body against my body. I lifted her up and asked her what she was doing. [X] said daddy likes it.”
The recording that the mother made was not in evidence so it is not possible to make any independent assessment or interpretation of the incident.
At 10.29 pm on 10 March 2020, the mother sent an email to X’s preschool director, Ms J. She stated,
I’m so sorry, this is a disturbing email, for me to write and for you to read, so brace yourself.
FYI [X] didn’t see her Dad for 1wk until today.
{Handover with [X]’s dad … was today at 5pm. It took place at the main entrance of [the preschool]. [The father] returned [X] to our home just after 6pm.}
The disturbing part..
Earlier tonight [X] wanted my mum to lie still and shut her eyes, so she could slip up and down on top of her body…she the simulated having missionary sex. It was without any doubt a sexual act that was being re-enacted by [X], as though she were a man and my mum was the woman.
When asked who likes to do that she said “daddy”
The [X] went batshit crazy, she was absolutely hysterical – out of her frickin mind – going savage.
This was all out of the blue, like knockers up and down shenanigans, it’s not something she could of been exposed to at school or in her home – this is an abc kids household, I’ve been single for years.
I’ve rung Facs to report & informed [Ms K] via a text message as well as my DV counsellor [Ms L], who works for NSW health & has been emailing [Suburb H] police DV unit and trying to encourage action from them.
[Ms K] the caseworker will be out at 10am for a ‘tea party’ with [X], then I’ll take her to school. To keep her day as normal as possible, whilst I’m dealing with the police. {unless otherwise advised, babes I’ve absolutely no idea what I’m doing}
…
(As per the original)
Nothing in the evidence of the maternal grandmother supports the mother’s conclusion that X was simulating missionary sex.
It is not clear whether X was interviewed by Ms K on 11 March 2020. If there was an interview, there is no record of it in evidence.
The records produced by the police indicate that a report was made about this incident on 11 March 2020 and both the mother and the grandmother were interviewed. The record states that the grandmother provided the following narrative,
About 7.00 pm on 10 March 2020, the child was having a bath with her maternal grandmother. The child said in a slow, quiet voice; “close your eyes and relax”. The child seductively slid her body up and down her grandmother’s body. The child’s grandmother said: “why are you doing that?” The child said; “Daddy likes it”. At that point the mother walked in and the child repeated the behaviour. The grandmother got out of the bath and the child became hysterical and lashed out at her mother, biting her on the shoulder.
It is readily seen that there are a number of discrepancies between the report to police and the sworn testimony of both the mother and the grandmother. Further, there is no record of the mother telling the police that she had a recording of the incident or offering the recording to the police so that an independent assessment could be made of the alleged event.
X was not formally interviewed by police but they spoke to her and noted,
Police observed the child to be chatty and happily playing with her toys. The child sat with Police and set up a tea party. The child did not appear to be upset or distressed in any way. The child did not disclose anything to Police.
The police advised the mother not to allow X to have contact with her father.
The mother does not depose that she, herself saw X do anything. There is no evidence that X has ever bathed with the father. She has not had any overnight time with him since the parents separated.
I am unable to conclude on the evidence before me that this incident was sexual in nature.
On 25 March 2020 the mother sent another email to the preschool stating,
Babes, an update.
20+ recordings, demonstrating sexual behaviour, returning from contact with marks on her body, mine and mums accounts of behaviour before and after contact, a history of ongoing family & domestic violence, oodles of reports made to facs {by different people}.
W/out an external source to corroborate…they’ve insufficient evidence.
[Suburb W], child abuse squad said “new information is irrelevant. [X] said nothing to indicate there’s any cause for concern”
Case Closed
Police note
*advise mother not to allow access
(As per the original)
None of the more than 20 recordings to which the mother refers was in evidence before me.
The mother acknowledged in cross-examination that her solicitors were advised by letter from the father’s solicitors that he did not consent to her taking X to be assessed by further medical practitioners. Nevertheless, she did so.
On 7 November 2020, X was taken by the mother to see a psychologist, Ms N who reported that the mother “disclosed concerns around sexualised behaviours recently increasing in their frequency”. There is no suggestion in the mother’s affidavit that X was displaying increasing sexualised behaviours at that time. Ms N did not suggest that X should see her again.
On 9 November 2020, X was taken by the mother to see Dr P, a consultant paediatrician. Dr P in his report noted that X did not exhibit any disturbed or sexualised behaviour in his presence and was “quite calm”. Dr P recommended that if X exhibits sexualised behaviour, she should be distracted rather than stopped. Dr P did not recommend any follow up appointment with him.
The mother does not depose that there were any further incidents of concerning behaviour by X until March 2021. The mother deposed,
On about 24 March 2021 I prepared [X] for the possibility that [the contact supervisor] would be leaving one day. [X] looked wide-eyed and said, “Daddy used to be a little bit naughty, he used to touch me, he hasn’t done it in a long time.” I said “Where did he used to touch you?” [X] kneeled down and patted the front of her genitals and bottom and said “here and here” …
I said, “Do you know no one’s allowed to touch you there?”
[X] said, “Yes but I love my Daddy.”
I held [X] as she cried. She suddenly sucked back her tears and said, “I know, I’ve an idea. I can use my dolls clothes to smack my daddy’s hands away when he’s being naughty and wants to touch me down there.”
I said, “Do you feel you could say these things to anyone else?”
[X] said, “Daddy told me not to tell anyone about the yucky stuff, I only told Mumma you’re safe.”
(As per the original)
On 25 March 2021, X’s counsellor, Ms K, attended the mother’s house “and did a body safety session”. The mother in cross-examination said that Ms K did a “body safety session” with X about every third time they met.
The mother deposed “[Ms K] told me that [X] had made a disclosure and she would have to report it to DCJ”. There is no record in evidence of any disclosure made by X to Ms K or any report made by Ms K to DCJ of a disclosure to her on 25 March 2021.
There is no evidence that the mother reported the asserted conversation to the police.
X attended a supervised contact session on 11 April 2021. This was the first contact with the father after 25 March 2021. The supervisor’s report notes that she took X to the toilet and there was a conversation in the absence of the father in the following terms,
[X] then stood against the wall with her head down, she then looked up and asked me, “… are you not always going to be here?” I said, “not always, is that OK?”
To which [X] sulked and looked down. I knelt down to her eye level and she replied, “Well my mummy said that Daddy might touch my vagina”. [X] said, “He has done it before and it was scary”…
The supervisor commented that X returned to her father “acting normal to her Dad”.
The supervisor noted that, in a contact visit on 16 May 2021 in conversation with her father,
[X] then said that Dad was bad and that mummy said he does bad things. Dad asked what things and she said that he once hurt her mum. He said that’s not true and she said “you’re lying!” and that she will tell her mummy. [X] said “no more lying, no more dobbing and naughtiness.”
Dad defended himself by saying that he isn’t lying or dobbing or naughty. [X] said that she doesn’t think he is good, that she thinks he is telling lies and that her Mum told her that when she was giving [X] a bottle as a baby, that he was hurting her mummy.
The mother, in cross-examination, denied having a conversation with X in those terms but conceded that X may have overheard her in conversation about those matters.
At the end of the visit, X told the supervisor that she wished she had more time with her father and that she did not want to leave.
The mother deposed that on 24 May 2021, Ms Q, a “colleague” of the police detective in charge of the case spoke to X at school. There is no record of that conversation in evidence.
The next contact visit was on 30 May 2021. The supervisor noted,
At the end, [X] didn’t want to leave and began hitting me and biting her Dad. This was the first time that [X] had ever hit me out of anger/frustration. Her Dad explained she shouldn’t hit and she should express her feelings with her voice. Leaving the park frustrated her. Dad offered [X] some praise throughout the day and they laughed a lot together.
Overall it was a positive contact.
The mother deposed that on 10 July 2021, during a FaceTime call with her father, X pulled her pants and tights down, turned her back and bent over looking over her shoulder. The father denied that happened. No one else was present.
The mother deposed that on 16 February 2022,
[X] repeated a conversation she had heard: “penises belong in vaginas and in my bum”. I asked her if she had heard this in a boy voice or a girl voice. She said it was a boy voice. I asked her if she recognised the voice. She said “yes it was daddy”.
The evidence does not disclose the circumstances in which X was said to have heard this comment. The mother does not assert that X said the comment was made to her.
On 8 March 2022 X was assessed at R Medical Centre by Dr S. The report states,
[The mother] describes today, ongoing threats from [the father] via [X], including violent threats.
There is no evidence in the mother’s affidavit that the father has made any such threats.
The mother deposed,
On Friday 8 April 2022, [X] and I went to have dinner and a sleepover at my parents’ house. That evening, my mother sat with [X] whilst she had a bath. Afterwards my mother sat with me on the balcony and started to tell me what happened. I hit audio record on my phone with my mother’s consent. My mother told me that while having her bath, [X] took a toy crab and had it up around her vulva, toying with herself. My mother asked, “Why?” [X] said, “That’s where it tickles.” Mum said, “you’d get better tickles under your arm”. [X] said, “That’s where daddy does it”.
The mother was not present during the conversation with X. The recording of the conversation between the mother and the grandmother is not in evidence. The assumption that X’s reference to “where daddy tickles” is a reference to her genital area rather than to her arm pit is not supported by any evidence.
The grandmother did not give any evidence about this alleged conversation with X and no explanation was given for her failure to do so. I was told that the grandmother was available for cross-examination.
On 11 November 2021, a report was made to the police. It is not clear who made the report. The notes record:
[X] has suggested that during the last contact on Sunday, her father threw her in a room, covered her mouth and touched her on the vagina. [X] said that the contact worker was on her walk.
The last contact before 11 November 2021 was on 7 November 2021. Ms D, who was supervising the contact, deposed that she and X and the father went to a shopping centre, had lunch at McDonalds and played in a park.
A report was made to DCJ on 23 November 2021 in the following terms:
[X] attended a session with therapist for the first time today. [X] volunteered the following information within the first 10 minutes of the session. [X] said that she does not like it when her aunty [Ms D] goes on walks during her visits with her father. She said that when [Ms D] is on walks, her father touches her vagina. [X] said that it happens on Sundays when she sees him and that it happened last Sunday…
X was interviewed by the police on 29 November 2021 as a result of this disclosure.
The police produced a number of recordings. Two of these recordings were audio recordings of the mother and X talking.
The recording titled “Dad crazy [Ms D] walk” appears to have been made at around the time of the counselling session on 23 November 2021 although the evidence does not establish when the recording was made. The recording begins with the mother saying “Just say that again for me honey” and shows the mother trying to elicit information from X and X not wanting to talk. X does not make any disclosure.
The recording titled “Daddy going crazy” also appears to have been made at the same time. X is recorded as saying that her father shoved her into his room and locked the door. She made no disclosure of a sexual nature.
Also tendered is a video recording of an interview with X on 29 November 2021 conducted by a police officer and in the presence of an officer from DCJ.
Asked about the last time she saw her father, X said she played in the park and had fun. She said her aunty Ms D was there the whole time. The police officer said to X “Someone told me that aunty [Ms D] went away for a walk”. X nodded and asked to see her mother. The recording was paused.
When the recording resumed, the police officer said, “So [X], just before, you told me that you were visiting daddy with aunty [Ms D] and aunty [Ms D] went for a walk. Where were you when this happened?” The interview continued in the same manner, with a number of questions beginning with “Someone told me…” Despite being repeatedly pressed, X said she didn’t remember what her father had done. The interview was paused again when X wanted to see her mother.
On resumption, the interviewer said to X, “Someone told me that you told mummy that someone touched you on the vagina”. In response to the leading propositions put to her, X identified that whatever occurred it was in her father’s home.
The interviewer also said “Someone told me that you told mum that you were locked in a room and someone covered your mouth” and “Someone told me that you saw somebody’s penis.” Where the interviewer sourced that statement is entirely unclear. There is no reference in the mother’s affidavit or in any report in evidence before me that X saw a penis.
Counsel for the parents and the ICL all agreed that this interview was grossly leading and inappropriate and that no conclusions or inferences can be drawn from anything that was said by X.
The supervisor, Ms D, swore an affidavit in these proceedings on 30 March 2022. She first supervised contact between X and her father on 19 September 2021. Before 23 November 2021, there was only one occasion when X was at the father’s home, on 10 October 2021. Ms D deposed that she was present, that he father showed X the room he had prepared for her, that they did craft activities, had lunch, watched some cartoons and went to the park to feed the ducks.
Ms D’s evidence about the contact on 7 November 2021 has been set out earlier.
Ms D was not required for cross-examination. The allegations that the father had touched X inappropriately while under her supervision, or that she went for walks and left X alone with her father, were not put to Ms D.
Having regard to the unchallenged evidence of Ms D, I cannot accept that the father did those things that X told her therapist. I do not accept that anything contained in the interview with the police on 11 November 2021 could be relied upon.
The mother was in possession of a large number of recordings of X allegedly making disclosures. Her email to the preschool in March 2020 referred to “20+” recordings. Two further recording were produced by the police which seem to relate to the period of November 2021. There is no reason to assume that the mother stopped recording X between March 2020 and November 2021. However, not one recording was put into evidence in the mother’s case.
It follows from the narrative above that I have doubts about the mother’s accuracy as a reporter and about the reliability of her evidence.

Section 140 of the Evidence Act 1995 (Cth) applies to a determination of whether a child has been subject to sexual abuse or inappropriate sexual conduct. That section provides:
140     Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account –
(a)       the nature of the cause of action or defence, and
(b)       the nature of the subject‑matter of the proceeding, and
(c)       the gravity of the matters alleged.
A finding that a child has been sexually abused or subjected to sexually inappropriate behaviour cannot be made based on inexact proof or indirect inference.
I am not persuaded, on the balance of probabilities, that X has been subjected to inappropriate sexual behaviour by her father.
are there other explanations for X’s behaviour?
I accept that X has exhibited disturbed behaviour as observed by both of her parents, including, biting, hitting, scratching and pulling her mother’s hair. I also accept that X has removed her underwear and touched her own genitals.
The single expert stated,
Although it is difficult to understand the direct cause of children's behaviour, children exposed to interparental conflict including verbal abuse, hostile body language or direct conflict, can exhibit behavioural difficulties, including escalating aggressive and at times sexualised behaviours. It is possible that [X]'s behaviours (not including simulating sexual acts), if these reports are accurate, may be related to her exposure to interparental conflict, conflict in the maternal home, the loss and change she has had to cope with regard to her relationship with her father, and her confusion regarding the family situation. [X] is likely to have intuited her mother's stress and anxiety in relation to her concerns about the father and I think that this had a deleterious impact on her.
I do not accept the mother’s evidence that X has simulated sexual acts and the evidence of the single expert that I have set out above was not challenged.
The single expert, in her report, referred to the hypervigilance of the mother and the maternal grandmother. She stated:
[X] has been exposed to psychological harm as a result of the ongoing hostility, aggression, and conflict between her parents. [X] has also been exposed to [the mother’s] hypervigilance in the context of the possibility of coming into contact with [the father].
She also stated:
My impression is that any difficulties that arise in preparing [X] for her to spend time with her father may be an artefact of [X] observing her mother's response and consequently [X] is aware of her mother’s hesitation in her spending time with her father. Furthermore, given my observations and [the mother’s] account of incidences of violence, it is also possible that [X] has expressed hesitation in seeing her father at times of increased conflict or after an incidence of aggression or the aftermath where the maternal family are hypervigilant (e.g. locking doors).
Further she stated:
During this assessment, it became increasingly apparent that there is significant dysfunction in the maternal home. I have concerns about [X]'s wellbeing in the maternal family home, however I am unable to comment on the extent of this. Upon my further interviewing of [the mother] on 5 January 202l, [she] sounded distressed, vague and closed when she was asked questions about the safety of her current home environment although she confirmed that there was conflict and it was not a healthy environment for [X] and she was seeking to relocate. The impact on [X] of any conflict in the maternal home cannot be excluded and the effect of her current presentation is important to be considered.
In cross-examination by counsel for the father, the single expert said that the multiple investigations to which X has been exposed, including the interviews with police, recordings made by the mother in which the police referred to “guiding and questioning” by the mother and participation in body-safety sessions would “prime” X to implicate her father. She said:
It would be psychologically damaging to – to [X] that she would be undergoing so many investigations. Certainly, if there is a – a reason for her to see a doctor, paediatrician or any specialist, then, of course, that would be reasonable for her to do that. But that would be very psychologically damaging for – for [X] to have to go through multiple investigations. It would also have an effect on her sense of safety in the world if her mother is also primed to believe that any behaviours/concerns that are raised in regards to [X]’s behaviour are in some way directed or caused by the father as well.
The single expert agreed that the multiple investigations raise concerns about X being guided or having a false narrative reinforced in relation to her father.
The single expert was asked to consider the scenario where the mother records what X says about her father. She said:
[X] is aware that there is significant conflict between her parents and they don’t get along, so [X] may be more likely to want to appease her mother, especially if she has seen her mother is anxious or upset about something, so that will be concerning in that scenario.
I asked the single expert whether, to appease her mother, X makes statements that suggest her father has behaved inappropriately. She said:
Not the statements. I have never heard any of the statements, from my understanding, but the behaviours themselves might be misinterpreted by the mother being sexualised. It’s not unusual for children to want to be – especially young children of that age under five, to walk around the house nude or to run around the house nude, to want to take their clothes off, and it’s not around – until the child is around six years old when they start to understand the concept of privacy. That is something that then is modelled by family as well. But in that scenario, I think, the mother may have misinterpreted the child’s behaviours. The child might be aware of the mother’s concern and she might be responding in a way that the mother – that she might think her mother is, I guess, in some way supporting that behaviour. So I don’t think that that was malicious in any way, but I do believe that in that scenario there may have been some misinterpretation of the behaviour. But certainly, those comments that the mother is raising are made by [X] would be concerning if those are accurate, that Daddy likes it. Those kind of comments, that kind of flavour would be concerning if those comments were accurate, and I would be concerned about where they’re coming from, about whether they’re coming from her experience with her father or whether they are something that the mother has possibly fabricated.
I note that, at the time the single expert saw X, the child had not made any complaint of sexual touching by her father.
Asked about the incident on 24 March 2021 where X told the supervisor “…my mummy said that Daddy might touch my vagina”, the single expert said:
It does raise concerns that there is [sic] conversations between [X] and her mother about instances that she’s worried about that might be happening and the mother then acting in a way that she think is protective to try to protect [X] in some way from her father.
The single expert considered the conversation between X and her new therapist in November 2021 to be unusual. She said the event raised concerns that,
…there is a narrative from the mother that the father is a bad and unsafe person, and that is something that [X] is internalising.
Further she said:
It could be seen as appeasing her mother and meeting her mum’s emotional needs. Especially now that [X] is older, she would be more likely to notice more, as she gets older, what is happening between her mother and her father when there are changeovers, when there is talk about her father, and if that hypervigilance is still continuing, [X] is going to notice that more and is going to be worried and confused about that, especially if her experience with her father is something different.
The single expert was asked whether, having regard to all of the evidence of which she was aware, and the matters that had been put to her in cross-examination by counsel for each parent and the ICL it is likely that X’s reported statements about her father have occurred because there, “has been a degree of reinforcement by the mother with [X] of the fact that her father is a danger?” She said:
Absolutely, your Honour, yes. That is a narrative that the mother is presenting, either directly or indirectly to [X], and that is something that [X] is picking up on very, very strongly and something that I observed when I was preparing the mother for observations during my assessment process, is that she did look nervous preparing to conduct the changeover. She was hypervigilant. She wanted to be in a safe space. So those are behaviours that [X] witnesses, likely on a regular basis, and that impacts on the way that she views her mother, the way that she views her father, and that is something that has been going on for a very long time for her, and that narrative would be ingrained in her that dad is not a safe person.
The single expert was then asked, “And does the narrative include that there is some aspect of him being sexually unsafe?” She said, “Yes, absolutely. Yes. Yes.”
The single expert said that there is a risk that if X spends no time with her father, or continues to spend supervised time, X’s behavioural difficulties will continue.
is there an unacceptable risk that X will be subjected to sexual abuse in the care of her father?
In Bant & Clayton (2019) FLC 93-924, the Full Court stated:
…the assessment of the risk of an event occurring is a conclusion reached by reference to the facts and circumstances established by the evidence…
I do not accept that X has been exposed to sexual abuse in the care of her father.
It follows that I am unable to find that there is any unacceptable risk that such behaviour might occur in the future.
family violence
The mother deposed to a number of instances where the father was physically violent towards her and to a number of instances where he was verbally abusive towards her.
The father conceded that there were two occasions where he was physically abusive towards the mother but initially denied that he had been verbally abusive. Faced with text messages where he referred to the mother as a “pig” and a “manipulating pig” the father maintained his denial that he had used other abusive language towards her.
Annexed to the mother’s affidavit is a text conversation which is undated but from a time when the mother and X lived with the maternal grandparents. The mother deposed, in relation to that exchange,
[The father] would taunt me about my mother being sick […] His texts would write words with the following effect: “[maternal grandmother] fukd with [illness], real happy place for [X] to be living”.
(As per the original)
What the mother deposed is not a complete account of the exchange. The annexure to the mother’s affidavit shows that the father sent a text to the mother about the grandmother taking X to swimming lessons saying, inter alia, “…if I knew your mum bring her swimming I would not worry about it”. The mother texted the father in reply “How can she when the woman is fukd with [illness] u playing dick games”. The father responded “Perfect environment for [X].. [maternal grandmother] fucked with [illness]…” (As per the original)
As is so often the case, the exchanges between the mother and the father that she alleges were verbally aggressive and abusive occurred when only they were present and there is no evidence corroborative of the position of either of them. However, having regard to the evidence of the maternal grandmother and of the text messages sent by the father, I am satisfied that it is likely that the father was verbally aggressive and abusive towards the mother. However, I cannot make a finding about the nature and extent of the violence or the precise words used, other than the specific findings which I have set out.
The father admits that there was an incident between them on 5 September 2019 although he does not admit that the incident occurred as the mother alleges. On an occasion when the father was collecting X from the mother, the father was agitated. She deposed,
[The father] came up to me and [X]. He immediately said words to the effect of “[X] am I a good dad?” [X] was unsure how to respond to this and [the father] kept repeating the phrase to her becoming mire agitated and aggressive. I said words to the effect of: “… that’s not appropriate. This isn’t the time”. He then came up close to me and placed his face about 10 centimetres from my face. He placed his fist right against my face and said words to the effect of: “Am I a good dad?” in an aggressive manner. He then swung his fist at my head like he was going to punch me in the head. He missed. I think he did this to scare me. It did scare me…”
The mother reported this incident to the police. The father was interviewed and a provisional ADVO issued.
In late 2019, a final ADVO was made against the father for the protection of the mother for a period of one year.
The father deposed:
I received a text and phone call from [the mother] where she called me a bad father. I recall I was annoyed when I arrived at [the mother’s] house. I was upset by this accusation and label. I recall that when I arrived, [the mother] came down the stairs and I noticed she had her phone pointed towards me and was filming me. I am embarrassed and ashamed by the fact that this caused me to lose my temper. In response, I walked up to [the mother] and [X] and asked [X] if I was a “good Dad”. Understandably, [X] was confused, and I did repeat the question. [The mother] said to me “… that is not appropriate. This isn’t the time”. I recall that I then stopped questioning [X] and moved closer to [the mother]. I deny I raised my fist to her face. I do recall I pointed my finger at her and said “don’t call me a bad Dad. I’m a good Dad”. This was an inappropriate way to behave on my part and something that I deeply regret.”
In an affidavit filed on 2 April 2020, the father deposed, in relation to that occasion,
… I lost my temper. I went and stood very close to [the mother] and raised my fist to her. I did not hit her.
In an intake interview with T Counselling recorded on 10 September 2020, the father is noted to have said, in relation to the incident on 5 September 2019, that he “got in her face” and “fist in her face”.
In cross-examination, the father conceded that, on that occasion, he was frustrated, agitated and aggressive and that he “got in her face”. He maintained his denial that he had raised his fist to the mother but conceded that he stood next to her and pointed between her eyes. He accepted that the mother was frightened and that his behaviour was aggressive.
There is little difference between the father raising his fist to the mother’s face and his pointing between her eyes. Each is violent and aggressive. However, I accept that the father raised his fist to the mother as she alleged and that, before me, he sought to minimise the seriousness of the event.
I do not accept that this was the only occasion on which the father behaved violently towards the mother. In cross-examination, he told counsel for the mother that he reacts violently.
The single expert reported,
[The father] said that he has been charged with two offences. He was charged with [an offence] in around 2012. This occurred in the context of him [having an accident] and waking up to find [emergency services] around him [...] He reportedly responded by [committing an offence]. He was subsequently taken to [U Hospital] and charged […].
When [the father] was 18 years old he was charged with [an offence]. He said that he was upset. He could not recall any further details
There was a further incident on the following day, 6 September 2019 when the father went to the preschool to collect X. He knew that it was not his regular day to collect her. The father denied that he was aggressive on that occasion. The preschool staff withheld X and contacted the mother. The director, Ms J, told the single expert that the father was verbally aggressive to the staff. I accept that he was.
The maternal grandmother, who was not challenged, deposed that on 6 September 2019, at X’s preschool, the father shouted, calling the mother “a fucking manipulative bitch” and that when she told him that his behaviour was not conducive to X’s welfare he said to her “you can put your conducive up your ass”. The grandmother described the father’s behaviour as “agitated, aggressive and losing control of his temper”.
The mother sent the father a text saying that there would be a “break” from contact. On the following Sunday, the father went to the mother’s home. The father, in cross-examination, said “I was seeing my daughter on Sundays… I would have gone there”. He said “I didn’t see a problem with the visit going ahead.” He said he was frustrated when the mother didn’t answer her phone and that he “probably” called the land line. He conceded that he continually called the landline, and the mother’s mobile phone even after he was told that the police would be called. He did not remember how many times he phoned but he remembered yelling or screaming X’s name. He did not remember holding down the car horn although he deposed “I tried to connect with X by calling her name from outside the house and honking my horn”. He denied that he intended to intimidate the mother and grandparents. He denied that his behaviour on that occasion was inappropriate.
The maternal grandmother, who was not cross-examined, gave her version of the event which is similar to that of the mother.
The mother’s version of that event is set out in her affidavit. She deposed that the father called the land line at least six times and called her mobile phone “about 28 times” and that he held his car horn down for long periods. I accept that the incident occurred as the mother alleged.
After that incident, the mother asked the grandparents to hand X over to the father but they declined. She deposed, and I accept, that the father was verbally abusive on handovers.
The father in cross-examination said that there was a second incident between the parents some time later when he brought X home after visiting his parents’ property and she had fallen asleep in the car. X refused to get out of the car when they arrived at the mother’s house and they argued.
I do not accept that this was the only occasion on which the father behaved violently towards the mother. In cross-examination, he told counsel for the mother that he reacts violently.
There are a number of allegations made by the mother of violence which are denied by the father. I do not propose to deal with every allegation. The examples below will illustrate the difficulty in making findings based on the mother’s evidence.
The mother deposed,
On one occasion, in or around 2014, [the father] put his hands around my throat during a bad argument. After the argument [he] seemed to have a moment of reflection and said words to eh effect of: “… my hands were around your throat. I don’t know what I could have done to you.”
That allegation was denied by the father.
The mother made a report to the police on 17 October 2014, telling police that the relationship had ended in January 2014. She complained that the father had phoned her more than 40 times on 16 October 2014 and that he came to her home on 17 October 2014 and “begun to rant about their relationship”. She asked him to leave and he did so. He then sent her a text message saying he could see she had moved on and he would stop contacting her. She had not received any further contact. The mother made no complaint of choking or of any other physical violence to the police on that occasion.

On 29 October 2014, the mother sent an email to the father asking,
You said you’d do anything for me…
Did you mean it?
The father responded,
…I did. U asked me to leave u alone. I have erased your number. I’m seeking professional help like u said. I’m facing my demons to become a better person. So things like this never happen again.
(As per the original)
I interpret the father’s email to be an acknowledgement that he had behaved inappropriately towards the mother.
The mother alleged that on an occasion in November 2014, the father threw an object at her. She does not allege that the object hit her but that it made a hole in the wall. Annexed to her affidavit is a photograph of a hole in a wall which is date stamped 16 November 2014. The father denied that allegation but I am satisfied on the balance of probabilities that the event occurred as the mother described.
The mother alleged that in 2015 there was an incident where the father “waved a [weapon] around at me”. The father denied that incident ever occurred.
The mother alleged that on 31 January 2017, there was an argument. She deposed,
…he bounced off the lounge and came over to me. He towered over me and held his fist against my jaw. He snarled at me, talking through his teeth “I hate you”. He fist punched the air several times. I was petrified…
The father denied the incident occurred as the mother alleged but the mother was not challenged about that evidence. This behaviour is similar to the mother’s evidence of the event on 5 September 2019 and I accept, on the balance of probabilities, that the incident occurred as she alleged.
The mother alleged that the father accused her of poisoning X in several text messages. Those messages were not in evidence and I am unable to find that allegation proved.
The mother alleged that, in 2018, the father punched her in the stomach. Again he denies that allegation.
The mother deposed that in or around 17 April 2019, the father pushed her down the stairs on a changeover and her knee was injured. A photograph of the wound on her knee was annexed to her affidavit. The father denied that he had pushed the mother. He said that she had fallen on the stairs and had picked herself up before he could react. He did not dispute that she was injured. I am unable to find that the father pushed the mother on that occasion.
The incident on 5 September 2019 was an incident of family violence.
The mother bears the onus of proving her allegations of family violence on the balance of probabilities. That task is made more difficult because these are events that do not occur in public and usually only the protagonists are present. Corroboration can be in the form of contemporaneous complaint, for example to a medical practitioner or a relative or a friend.
In relation to the mother’s allegations about verbal abuse, I note that on 17 April 2019, the mother made a complaint to the police in which she reported that the father called her a “bitch” and a “whore”. The record notes, “Police made enquiries if there was any threats was made, [the mother] stated she has made numerous records on a journal and texts messages however was unable to provide any evidence to police at this time”. (As per the original)
In relation to the allegations of physical violence, there is no such corroboration here.
I concur with the statement made by the single expert that:
I have no real way of knowing the nature, source or type of violence that may or may not have occurred during the relationship, however it is clear that the relationship was volatile. In interview, the father does not present as a very introspective person who has the ability to self reflect.
Having said all of that, I do not think that the mother has developed her concerns about [X] in a vacuum, because the father has behaved in inappropriate ways and the father has displayed lack of judgement, defensiveness and lack of insight into some of his behaviours and the impact of these on [Ms Lowe] and [X]…
The father has been a perpetrator of both physical and verbal family violence towards the mother.
THE EVIDENCE OF THE SINGLE EXPERT
The single expert saw the family in late 2020 and prepared a report dated 19 February 2021. At the time of the interviews, the mother and X were living in the home of the maternal grandmother. They have since moved into independent accommodation.
In the course of the preparation, she spoke with the mother's counsellor, Ms V and with the director of X's pre-school, Ms J.
The single expert asked the mother about her drug use. She denied illicit drug use.
The single expert recorded,
[The mother] said that she has random experiences of panic where she has felt cornered or attacked, for example, when [X] is pulling her hair, but that the panic attacks stopped in 2019 or beginning 2020. [The mother] said that she has difficulty sleeping the last 2-3 years where she wakes up screaming at night and her sleep is disturbed when she worries, for example, with Court proceedings. She said the Court proceedings are physically affecting her in that she defecates more frequently and this was her reason for her regular use of Gastrolyte during this assessment. She said that she was also drinking the Gastrolyte because she has been feeling hot and suffering from headaches. She said that her concentration can be cluttered and she has noticed this occurs when she is considering legal documentation. Despite the above mentioned difficulties, she enjoys spending time with [X]. She said that she does not spend time with friends (she said that she has one good friend) but she does not have the headspace to do so.
The single expert noted that the father, in interview, did not raise any concerns about the mother's use of illicit substances.
Of her interview with the maternal grandmother and her husband (“Mr M”), the single expert reported,
I asked about any exposure to violence, mental health and drug and alcohol in the family. They denied any history of violence and they denied any drug and alcohol issues between the two of them. They said they suspect that [the mother] sporadically uses [an illicit substance]. [The maternal grandmother] said that about eight years ago when [the mother] was living in [Suburb Y] and they had noticed that [the mother] was not maintaining her job, her home, and looked like a "druggie"' in that she was very angry towards her and verbally aggressive. [The maternal grandmother] said that she noticed that [the mother] was “scabby” on her face and legs. [The maternal grandmother] said she has expressed her concerns about drug use to her daughter but she has denied this. She said that she had found drug paraphernalia […] in [the mother's] drawer at one point and she spoke to [the mother] about this. [The mother] reportedly admitted she had it but insinuated that it was not hers. She said that [the mother] had to do a drug and hair test for these proceedings and during this time she noticed that [the mother's] mood and personality had improved but that in recent times (currently) [the maternal grandmother] has become suspicious that she is using [illicit substances] again. She said that her suspicions centre around [the mother's] poor skin, and her temperamental, paranoid, and confrontational manner. She said that she is not saying these things to get her daughter in trouble but because she is concerned for her. She believes that her daughter is an “on and off” user although [she] repeated that her daughter has never admitted to anything.
The single expert asked the maternal grandmother about her relationship with the mother and noted,
[She] said that her relationship with [the mother] has been difficult. She said that [the mother] knows how to “press buttons with me” and that [the mother] blames her for everything and that [the mother] has “serious problems with me”. She said that she did her best to try to go to counselling for the both of them and they went to one session and that it was “an assault on me” and she was not prepared to go back. She said that [the mother] would have a go at her about something that happened in the past and she does not have positive memories.
The single expert reported,
I asked about whether they had any concerns for [the mother’s] mental health. They said it has been a very stressful time for [the mother]. They understand that [she] feels unsupported and she does not have a range of friends as her friendships have been on and off.
Of her observations of X, the single expert reported,
[X] appeared confident upon arrival with her mother and immediately engaged in conversation about her dolls and various toys she had. She moved to the observation room with her mother with ease and settled to play with her toys. The doll house in the corner of her room captured her attention and she invited her mother to play. They chatted enthusiastically and [the mother] appeared attentive, amused, and enthralled by [X] during play. [The mother] sat on the floor next to [X] for the duration of the observation and they appeared comfortable and relaxed with one another as they interacted. [X] sought physical proximity and affection from her mother and her mother reciprocated appropriately and without hesitation. Upon conclusion of the observation, I asked [the mother] what she had told [X] about why she was here. [The mother] said that she told [X] that she would be having a play with her father. [X] asked if her father was “really here” and she appeared excited when I confirmed that he was. [The mother] appeared nervous and asked about where she would be waiting while I conducted the observation with [X] and [the father]. I ensured that [the mother] was placed in a separate room with the door closed and [X] and I went to greet her father who was waiting in a separate office space.
Observations of [X] with [Mr Figone]
[X] ran to her father when she sighted him and excitedly said “Daddy!” and gave him a hug. She talked excitedly about showing her father the toys she was playing with and she showed him the way back to the observation room whilst picking up a toy pram and doll and accessories such as nappies, a potty, and baby bottles on the way back to the observation room. [The father] came prepared with toys for her to play with. [X] fed the doll and she invited her father to pretend play, which he responded to with enthusiasm. He had brought with him “The Lion King” Ooshies and they played with those and he commented that [X] must ensure they are given back to him so [X] can play with them when he sees her again. [X] spoke about a movie which [the father] had not seen and he asked whether they could watch it together one day and [X] laughed in response. [X] blew her nose in her hands and her father attended to clean it up with some wipes. [X] also noticed that there was a piece of food fallen on the floor and she picked it up. [The father] grabbed [X]'s arm abruptly and [X]'s eye appeared to widen when this occurred. [The father] explained himself and [X] appeared to understand by nodding. He asked [X] for a hug which she reciprocated, and they continued to play. On a couple of further occasions [the father] asked for a hug from [X] and [X] reciprocated. On one occasion [X] called her father “Papi” (which it is understood is the nickname [X] uses to refer to [Mr M] and [the father] corrected her with “Daddy”. Upon conclusion of the observation, I advised that it was time to finish play and say goodbye. [The father] commented on what he perceived to be time passing by quickly. [X] asked her father why he had to leave. [The father] said that she had to go back to her mother and he has to go back to work. [The father] asked for a hug and [X] reciprocated and she held her father's hand.
When the session with the father concluded, X ran to Mr M and hugged him.
Ms J told the single expert that X had hit other children a lot when she first started at the centre but had now settled. The single expert noted,
She said that [the mother] raised concerns about [X]’s sexualised behaviour such as posing provocatively and pulling her underwear down, and also biting her mother. She said that they have observed [X] in play and playing with dolls and they have not observed any sexualised behaviour from her. She noted that it can be developmentally appropriate for younger children to hit but not so in a preschool child. She said that on a couple of occasions [X] wet herself, which was unusual, and it seemed to occur when [X] was frustrated. [Ms J] wondered whether [X] was picking up on turbulence between her parents.
Ms J told the single expert that on the occasion when the father came to the preschool to collect X on 6 September 2019 he was verbally aggressive towards staff. She also said that on occasions, the father followed the mother to the centre in his car.
Ms J said that X has never spoken negatively about her father and has made positive comments about him.
The single expert spoke to the mother’s domestic violence counsellor, Ms V and reported,
[Ms V] said that she has not observed any issues about [the mother’s] mental health or signs of substance use. She said that [the mother] is coping with a lot and she comes from a complicated family. She opined that [the mother’s] expectations of relationships are low due to her being treated poorly by her mother in that she feels and felt insignificant unvalued, and uncared for as a child and this is something that [Ms V] is working on with [the mother].
In relation to the mother’s statements about X touching her genital area, the single expert stated,
Whilst it is not uncommon for a pre school child to: discover sexual self stimulation at a young age, where they may touch or rub their own genitals (when going to sleep, when tense, Excited, or afraid); like to be naked and show others their genitalia; put something in their own genitals for curiosity or exploration. It is not age typical for a pre school child to mimic or simulate sexual acts with other people. Simulating sexual acts with another person is unlikely to be accidental learning and could be indicative of sexual grooming of a child by an adult.
She stated,
[X] has been exposed to psychological harm as a result of the ongoing hostility, aggression, and conflict between her parents. [X] has also been exposed to [the mother’s] hypervigilance in the context of the possibility of coming into contact with [the father].
Further she said,
Although it is difficult to understand the direct cause of children's behaviour, children exposed to interparental conflict including verbal abuse, hostile body language or direct conflict, can exhibit behavioural difficulties, including escalating aggressive and at times sexualised behaviours. It is possible that [X]'s behaviours (not including simulating sexual acts), if these reports are accurate, may be related to her exposure to interparental conflict, conflict in the maternal home, the loss and change she has had to cope with regard to her relationship with her father, and her confusion regarding the family situation. [X] is likely to have intuited her mother's stress and anxiety in relation to her concerns about the father and I think that this had a deleterious impact on her.
The single expert stated,
During this assessment, it became increasingly apparent that there is significant dysfunction in the maternal home. I have concerns about [X]'s wellbeing in the maternal family home, however I am unable to comment on the extent of this. Upon my further interviewing of [the mother] on 5 January 202l. [She] sounded distressed, vague, and closed when she was asked questions about the safety of her current home environment although she confirmed that there was conflict and it, was not a healthy environment for [X] and she was seeking to relocate. The impact on [X] of any conflict in the maternal home cannot be excluded and the effect of her current presentation is important to be considered.
The single expert said,
If the Court finds that there is no risk of sexual abuse in the father's care, then I do not think there would be any need for [X] to have any further therapeutic intervention. However, I think that the mother may need professional support and education in order to accept this outcome. The mother may also need some education with respect to normal behaviours with young children. I am concerned if the Court finds that there is no risk of sexual abuse in the father's care, that the mother may continue to scrutinise [X]'s behaviour and comments on return from the father's care.
Of the relationship between X and her mother, the single expert reported,
Given [the mother’s] allegations about [X]’s behaviour, I have considered the possibility that there is a significant attachment disruption between [X] and [the mother]. Upon my observations of interactions between [X] and her mother and collateral information from [X]'s day care and from [the mother’s] current therapist, I have formed the view that there is no evidence for this. [X] clearly delights in spending time with her mother and her mother similarly is enamoured by her daughter. On observation, [X] was affectionate and confident with [the mother] and [the mother] responded to [X] with appropriate warmth, sensitivity, humour, and kindness. I think that [X] regards her mother as a consistent adult in her life and someone to whom she can turn to for comfort and reassurance, however [the mother’s] ability to provide this for [X] is diminished when [X] is preparing for time with her father or upon [X]'s return from her father.
It was evident during this assessment that the mother's response to [X] preparing to spend time with her father and the mother’s ability to facilitate a changeover was challenging. [The mother] appeared particularly nervous as she looked around the room. I noted that [X] was very excited to see her father and seemed to be extremely confident with her father as she took charge of activities and invited him to play with her. Given my observations, I have not seen any evidence of any “dissociative” behaviour as described by [the mother] from [X] in preparation for seeing her father. My impression is that any difficulties that arise in preparing [X] for her to spend time with her father may be an artefact of [X] observing her mother's response and consequently [X] is aware of her mother’s hesitation in her spending time with her father. Furthermore, given my observations and [the mother’s] account of incidences of violence, it is also possible that [X] has expressed hesitation in seeing her father at times of increased conflict or after an incidence of aggression or the aftermath where the maternal family are hypervigilant (e.g. locking doors).
Of X’s relationship with her father, the single expert reported,
With respect to her relationship with her father, [X] presented as having a loving and affectionate bond with him. Despite the disruptions to their contact, [X] has been able to maintain an attachment to her father. I think the early history of time has meant that [X] has been able to maintain this attachment relationship, despite the periods of no contact or supervised contact. However, there are times when I think the father is insensitive and dismissive of [X]'s emotions such as referring to her as a “sook”, has been emotionally needy with [X], and has interacted with [the mother] in the presence of [X] in an aggressive and intimidatory manner. My impression is that [the father] is understandably eager to have [X] stay at his home and talks about her room and engaging in activities outside the confounds of supervision. Whilst it is understandable that the father misses [X] and wishes to spend more time with her, I think he perhaps at times, has failed to understand the emotional demands that these exchanges place on a very young child. Overall observations with [X] and her father were positive. Since the time of [X]’s observations for this assessment. [X] has started to question her family circumstances and the restrictions place on her relationship with her father. This would be very confusing for [X] to make sense of the restraints in her relationship with her father.

The single expert noted that the maternal grandmother and Mr M are likely to be significant attachments and important to X’s sense of identity and family.
The single expert considered the parents’ respective ability and willingness to encourage X’s relation with the other parent. She stated,
My impression is that prior to the cessation of contact between [X] and her father that [the mother] encouraged and facilitated their relationship but she currently does not due to her allegations of risk of harm she makes against [the father]. It appears that the parents argued about the parenting arrangement and particularly about the commencement of overnight time with [X]. It appears that there was no real predictability in routine for [X] and what [the mother] describes is the culmination of a lack of parental understanding about the importance for routine for a toddler/young child and poor parental communication and interparental conflict and aggression, leading [X] being overtired and distressed upon return to her mother. This would then lead to behavioural difficulties for [the mother] to manage. Toddlers can be aggressive where they hit and bite others when angry, frustrated, tired or overwhelmed, but this usually subsides by the time a child enters school age. The difficulty in this family is that they have no skills in coparenting and that any attempt to discuss matters escalated catastrophically, leaving young [X] floundering.
With respect to the father, I have rather mixed views about his willingness and capacity to facilitate [X]'s relationship with the mother. The father may have a good capacity to facilitate and encourage [X]'s close and continuing relationship with her mother, but at times this may be difficult for him, particularly if he feels alienated or excluded from [X]'s life or disrespected by the mother. [The mother] alleges that [the father] denigrates her to [X] and subsequently [X] repeats comments to her. [The father] denies this. I have no way of determining the accuracy of these allegations. If the Court finds that [the father] has in fact made such nasty and cruel comments to [the mother] and [X] about [the mother], then this would not bode well for his ability to facilitate and encourage a close relationship with between [X] and her mother and would be cause for significant concern about [X] spending unsupervised time with her father in the future.
The single expert stated,
[X] has limited capacity to tolerate poor communication between the parents and any errors in parental communication may cause her harm. [X] is also highly sensitised to the tone and nature of the interactions between the adults I am very concerned about the lack of trust and poor communication between the parents about basic aspects of [X]'s care, such as communicating about injuries that may have received. The parents have been unable to shield [X] from the conflict between them and both parents report significant conflict at changeovers. The father asserts that the mother does not communicate with him regarding important matters. The mother asserts that she cannot properly communicate with the father because he is dismissive of her concerns and is hostile and aggressive in communication with her.
The single expert stated,
If the Court finds that [the father] and his family do not pose a risk of harm to [X] and if the mother does not resile from her position that the father and his family represent a risk of harm to [X], then it would be untenable for [X] to have a meaningful relationship with both parents as she will continue to be caught in the conflict between their parents, be subject to inappropriate forensic and other investigations which will have significant and adverse psychological effects on her.
In cross-examination, the single expert did not support X spending no time with her father. She said:
But, the concern for me is that, ceasing a child from a relationship with the other parent because the mother has that mistaken belief is a significant issue, and, not one to be taken lightly. She – when I met with her, [X] had a positive relationship with her father. There were no indications that there were any negative interactions in that scenario. Of course that was two years ago so I can’t comment on now. But, I can only tell you my observations at that point in time. But that would be a significant concern if a child’s relationship with her father was ceased because the mother had a mistaken belief that the child was sexually abused by her father.
Further, the single expert said:
Given the risks that the father’s representative raised today, I would be concerned about a no contact, given the risks that were raised by them this morning, a little bit earlier than now. Yes. So in that regard, I would be concerned about there being no accountability to the mother in terms of parenting if there were concerns about the mother’s mental health, her drug use, [X]’s attendance at school. That would all be very concerning if there was no other person involved in [X]’s life to make sure that she was attending to her basic needs, that she was going to school, that she was thriving, if there was another person involved in that.
She also said:
… the worst case scenario would be that the child then live with her father and spend time, or some limited time with her mother because of that mistaken belief. In that regard there will be a significant cost to [X] and her relationship with her mother and I wouldn’t want to see that occur…
because the child has been living with her mother primarily since she was an infant. She had a good relationship with her mum from when I met with her and she adored her mother. I would not want to see – I would prefer to see a situation in this – in this matter where she can continue to live with her mother and spend some time with her father. Because that would be best placed to serve her needs in regards to maintaining a relationship with both parents and would be best for [X] in that situation.
In response to the proposition by counsel for the mother that X spend no time with her father, the single expert concluded:
I think there’s two factors there, the first one being the family violence, the second being the mother’s belief that [X] has been sexually abused. In regards to – it does appear that there has been family violence in regards to this relationship. But in regards to the belief that [X] has been sexually abused by her father, I have not – got no evidence that has been substantiated in anyway, and for [X] to grow up in a family where she is being raised and the victim of sexual abuse is very damaging to a child when there is no substantiation for that. And, that is a big concern for me in the instance when there is no contact with the other parent because of that reason….
I predict that it will be very difficult for [the mother] to facilitate those orders and to not act – continue to act in a hypervigilant manner, especially when there’s unsupervised. That will be very difficult for the mother to do that. But, the concern for me is that, ceasing a child from a relationship with the other parent because the mother has that mistaken belief is a significant issue, and, not one to be taken lightly. She – when I met with her, [X] had a positive relationship with her father. There were no indications that there were any negative interactions in that scenario. Of course that was two years ago so I can’t comment on now. But, I can only tell you my observations at that point in time. But that would be a significant concern if a child’s relationship with her father was ceased because the mother had a mistaken belief that the child was sexually abused by her father.
(As per the original)
The single expert confirmed that it was her view that X living with her father would, for X, be the worst case scenario and said, further,
I would prefer to see a situation … where she can continue to live with her mother and spend some time with her father. Because that would be best placed to serve her needs in regards to maintaining a relationship with both parents and would be best for [X] in that situation.
consideration
I accept the evidence of the single expert that X is subjected to risk of psychological harm both as a result of there having been violence from her father towards her mother in the past; because of the inability of her parents to communicate in any civil way; because of the mother’s propensity to believe that the father is the cause of any difficult behaviours that X might display and because of the mother’s hypervigilance in leading X to believe that her father is not safe.
The single expert stated, and I accept:
[X] is a young child and depends heavily on her parents and adult caregivers to meet her basic needs. Due to her young age, she also relies on her parents communicating properly to ensure her safety, development, and well-being. She has limited capacity to tolerate poor communication between the parents and any errors in parental communication may cause her harm. [X] is also highly sensitised to the tone and nature of the interactions between the adults I am very concerned about the lack of trust and poor communication between the parents about basic aspects of [X]'s care, such as communicating about injuries that may have received. The parents have been unable to shield [X] from the conflict between them and both parents report significant conflict at changeovers. The father asserts that the mother does not communicate with him regarding important matters. The mother asserts that she cannot properly communicate with the father because he is dismissive of her concerns and is hostile and aggressive in communication with her.
The father presented as critical of the mother. I do have concerns about the father's capacity to accept responsibility for many of his behaviours, to accept feedback or properly address concerns that the mother has raised in the past with respect to [X].
None of those risks is mitigated by the proposals of either parent.
The father, for the first time in the case outline document which was filed on Friday before the trial started on Monday, sought orders that X live with her mother, provided that the mother comply with a scheme of drug testing and a specified therapy regime to address her mental health issues. At the commencement of submissions, the father handed up a Minute of Orders where his primary position was that X live with him.
I do not accept that the father’s alleged concerns about the mother’s use of illicit drugs were genuine. The father told the single expert that he had no concerns about the mother using drugs. Those concerns were raised with the single expert by the maternal grandmother. The father had had the report of the single expert since February 2021. There is no evidence that the father, having received the report of the single expert, asked the mother to do any testing or otherwise raised the issue of drug use. It was not until days before the commencement of the hearing that the father’s solicitors asked the mother to complete both hair follicle testing and urinalysis testing.
The father denied that the request for testing, so close to the commencement of the trial, was simply harassment but it is difficult to posit an alternate motive when no request had been made for drug testing in the previous 21 months.
The father is a tradesman who is permanently employed. Although there is no evidence from him of his working hours, it is reasonable to assume that he works from Monday to Friday for about 40 hours each week. There is no evidence at all in his affidavit about how he might, consistently with full time employment, be also available to care for X.
X was less than a year old when her parents finally separated. The father has never had X’s care overnight or for more than a day.
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
There is no evidence that X has ever contemplated living with her father or that she has expressed any views about where she lives.
It is, however, clear that X has said that she wants to spend more time with her father and I accept the unchallenged evidence of the contact supervisor, and of Mr F, Ms D and Ms E that X does not want to leave at the end of the time with her father.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
It is the unchallenged evidence of the father’s witnesses that X has a close and loving relationship with him and that she enjoys her time with him and often wants to extend the time.
The observations of the professional contact supervisors were of a loving interaction between father and daughter. The supervisor also reported that X was often reluctant to leave her father at the end of the session and that, on the first occasion, when she had not seen her father for about six months, she ran to him when she saw him. The supervisor commented, “It was as if no time had passed”. During the session, X said that she wanted to “stay with daddy forever”.
The single expert observed X to have a loving and affectionate bond with her father.
Similarly, the single expert observed that X was affectionate and confident with her mother.
I accept the evidence of the single expert that X’s relationship with her maternal grandmother and Mr M is both affectionate and important to her.
There is no reason to doubt that X has an equally affectionate and important relationship with her extended paternal family.
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The father has paid child support as assessed.
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The single expert was very definite in her opinion that it would not be in X’s interests to remove her from the care of her mother and place her in the care of the father. She described that proposition as the “worst case scenario”.
In relation to separation from the mother, the single expert stated,
I also think that [X] may significantly suffer if she were to be separated from her mother for lengthy periods of time. [X] has a secure and significant relationship with her mother and I think she may not initially cope with long periods of time away from her mother. However, her capacity to independently separate from her mother will improve over time and I think if [X] was in the care of other family members then she would be able to manage longer periods of time away from the mother.
In relation to the proposal that X spend no time with her father, the single expert stated,
I have considerable concerns about the impact on [X] of having no contact or very limited contact with her father. Despite the conflict to which I think she has been exposed, it was clear to me that [X] loves her father, has benefited from their interactions with him and sought his affection and attention. I think that [X] would miss her father immensely if she did not see him. [X] presents as a child who is [sic] derives great pleasure from her relationship with her father and has come to understand him to be a loving adult in her life. [X]'s identity formation is also linked to her father and her paternal family, including her grandparents, aunts and uncles and cousins with whom she reportedly had close relationships prior to these allegations. It is of great concern to me that [X] has lost almost all contact with her paternal family, including her [cultural] heritage and I think in the long term this will have a significant and deleterious impact on her sense of security in the adult world, her sense of identity and her sense of belonging.
Further, I think that [X] may wonder why she is no longer seeing her father and may either come to believe that her father has abandoned her or believe that she is somehow at fault in having no further contact with her father whom she loves. I am concerned that in the long term [X]'s sense of security may be at risk and give way to feelings of abandonment and/or distress if she were to have no contact with her father. As [X] approach adolescence, she may also develop an idealised view of her absent father and/or may blame her mother for the lack of contact with her father.
If the contact between [X] and her father remains supervised, there are ongoing risks to [X] also. Supervision, over time, will become intrusive for [X] and she will question why her contact with her father has to be limited to short time periods in contrived settings.
I accept that evidence.
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parents live within reasonable proximity and there is no real practical impediment to X’s spending time with her father.
However, I do not consider that it is appropriate for the parents to meet on occasions when X either goes to her father or is returned by him to her mother.
I accept the evidence of the single expert that the mother is genuinely afraid of the father, because of the way that he has behaved towards her in the past. Nothing in the father’s evidence before me gave confidence that, if a dispute arises in the future between the parents, he will not be similarly abusive to the mother and that abuse may extend to physical abuse.
For that reason, the father will be required to organise for a third party to collect and return X unless change over occurs at a place where the mother is not present. The third party can be a member of the father’s family or a paid professional. The father gave evidence that he was prepared to pay significant amounts for the mother to engage in therapy and have drug testing. He clearly has the financial ability to pay for assistance in changeovers.
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs; and the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
There are significant concerns about the parenting capacity of both of the parents.
The single expert considered the respective capacities of the parents and stated,
My impression is that the parents have never had a solid and stable foundation for their relationship and this has made it difficult for them to co parent. It has always been conflictual, volatile and hostile. [The father] has not had the opportunity to have a meaningful relationship with [X] and his capacity to provide for her needs is largely untested. He has spent time with [X] so far as to engage in fun activities with her but he has also been responsible for exposing [X] to parental conflict and aggression.
[The mother] has also struggled to provide for the needs of [X]. She reported that she has difficulty in managing [X]'s behaviour and emotions but there was no evidence of misbehaviour during this assessment. Collateral information suggests that she tries her best to manage and attend to [X]’s aggressive behaviour when it arises. However, it appears that the maternal home environment is playing a role in [X]’s presentation however it is difficult to comment on the nature of it due to [the mother’s] ambiguity regarding the dynamics of her home environment. Given this concern, it would be wise for [the mother] to consider finding alternate accommodation so that [X] has a stable and conflict free primary home environment.

The single expert stated,
I found the mother to be a difficult person to assess in that she was anxious, overwhelmed, and at times verbose in interview and she appeared to have difficulty with recall of events. [The mother] presents with a long standing history of mood instability, anxiety and interpersonal difficulties. This likely developed in the context of an invalidating and abusive childhood, an insecure attachment with her own mother, a genetic loading for mood instability, low self esteem and self worth, and dependency in relationships. This is maintained by ongoing conflict in her relationship with her mother and a lack of social support and managing the effects of the volatile relationship with [the father]. She presents with personality traits indicative of difficulties in interpersonal relationship and she is prone to view others as persecuting her. I am very concerned about the hostile environment that [X] is engulfed in - in the maternal home and the parental relationship. In addition, [the maternal grandmother’s] disclosures about [the mother’s] substance use were surprising as they will undoubtedly have deleterious consequences for her daughter and [X] and their relationship. However, it is clear that the maternal grandmother disapproves of her daughter but also supports her daughter in the concerns raised about [X] and [the father]. In the context of which the maternal grandparents described [the mother] as paranoid, [she] does not present as acutely paranoid with a psychotic disorder or any other disorder, but rather [she] has deep seeded suspicion about her parents, which may be considered valid in the context of the nature of the relationship between her and her mother.
There were a number of significant matters which were not known to the single expert at the time she prepared her report, relating to the mother’s medical records and to X’s school attendance.
In the care of her mother, X’s school attendance has been sporadic at best. In the first term of 2022, X was absent or partially absent from school on 22 days out of a total of 55 days. In the second term, out of a total of 50 days, X was wholly or partially absent on 35 days. In the third term, out of a total of 50 days, X was wholly or partially absent for 32 days. In the fourth term, up to and including 2 November, out of 18 days, X was wholly or partially absent for 13 of those days.
The mother gave no evidence about X’s school attendance. Her record was produced on subpoena by the school. When cross-examined about the issue, she gave no explanation.
The other issue of concern about the mother’s parenting is her compliance with medical advice in the context of a long history of being treated for depression since she was about 16 years old.
On 20 September 2018, the mother is recorded by her general practitioner (“GP”) as seeking medication for depression and anxiety, noting that she had not seen a psychologist for two years. She was given a referral to a psychologist, Ms Z. She did not act on the referral.
On 18 April 2019, the GP noted,
Discussed counselling but not ready for it now.
Will return for this when she is more ready. Importance of counselling reiterated.
She mention that she knows about it and has seen multiple counsellors in the past but none helped.
(As per the original)
The GP further noted “Declined seeing psychologist today” and increased the dose of antidepressant medication.
On 30 July 2019, the GP noted that the mother sought a referral to a psychologist and referred the mother again to Ms Z and to a psychiatrist, Dr AA. The mother did not act on either the referral.
On 10 October 2019, the mother again attended her GP wanting an increased dose of medication and a referral to a psychologist. A further referral was provided.
On 18 November 2019, the GP noted that the mother’s symptoms were not very well controlled and that she had not seen the psychologist. The GP offered to review the mother’s medications and treatment plan but the mother declined.
On 24 March 2020 the GP noted that that the mother was seeing a domestic violence counsellor. The GP noted “eligible for phone consults due to mental health issues”.
On 22 June 2020, the GP noted that the mother had been on a high dose of medication for three months “without much relief” but that she reported that she was “seeing psychologist with very good effect”. I infer that the “psychologist” was her domestic violence counsellor. An anxiety medication was prescribed in addition to existing medication.
On 30 July 2020, a further referral was made for the mother to consult Ms Z in relation to ongoing depression and to see Dr AA. The referral to Dr AA stated that the mother had no relief from medication and was seeking a psychiatric diagnosis. The mother did not act on either referral.
On 14 August 2020, the GP recorded that the mother had given some of prescribed anxiety medication to the maternal grandmother and that she continued in counselling.
On 24 August 2020 the GP noted that the mother complained of poor sleep and reduced concentration and “discussed about mental health plan and psychologist intervention”. A Mental Health Care Plan was prepared noting the diagnosis as stress/anxiety and she was referred to a psychologist, Ms BB but did not act on the referral.
On 17 September 2020 the mother presented to the GP upset and crying and requesting medication.
On 12 October 2020 the mother told the GP that the medication was not helping her anxiety and depression and the dosage was increased.
The mother presented to another GP on 15 October 2020 complaining of stress.
On 15 January 2021, the mother asked the GP for anxiety medication. She was advised that she should see her regular GP and not seek prescriptions from other doctors. She was given a prescription for anxiety medication, one tablet to be taken at night.
On 10 February 2021 the mother’s usual GP noted that the mother was taking antidepressants and that,
…has been taking extra dose of [anxiety medication], some days 4 per day, some days none finished 50 tabs in 26 days.
(As per the original)
The GP recorded,
informed her if she keeps taking lots of it, will have to stop supplying
(As per the original)
On 15 May 2021 the GP notes record that the mother requested a prescription for anxiety medication and the GP refused.
On 5 November 2021, another GP recorded,
long discussion Re: ISSUE WITH [anxiety medication]
suggested to get psychiatrist input in need long term [anxiety medication]
I prescribed 10 tablets of [anxiety medication] (5mg) today and suggested her to see her regular GP for further consult
I will not give a further script of [anxiety medication] to her in the future (I clearly informer [her] today).
(As per the original)
There were no further medical records available. There was no evidence in the mother’s case about her current mental health or prescription drug use.
The single expert was asked about the effect on the mother’s parenting capacity of the recorded use of anxiety medication. She said,
That is a substantial amount of [anxiety medication] in the days that you described there. It is addictive and is intended for short-term use – is – is my understanding of [the anxiety medication]. I think it would be important for – and I don’t know the reasons why she was prescribed for it and why she was taking it, but I guess my concern would be that she would need perhaps a clinical psychologist that could support her with various challenges that she has, including her medication use, if that is something that is a current issue, because [anxiety medication] is not an appropriate way to manage any distress that she might be feeling in the long term, and she would need some more adaptive skills to be able to manage whatever distress that is causing her. It would also raise concerns about her ability to attend to [X] in that case, if she was obviously having [X] in her care at that time when she was using the – the [anxiety medication], because it can have a sedative effect on – on a person, and that would then raise concerns about her ability to attend to [X]’s everyday needs.
The single expert was also concerned that the current therapy in which the mother is engaged was not sufficient to address all the mother’s difficulties and she recommended that the mother engage with a clinical psychologist. However, she did not recommend that the court make orders that mandate the mother’s attendance at specified therapy. The evidence of the single expert, taken in conjunction with the evidence from the records of her GP’s about her reluctance to engage with therapists they recommended, raises concerns that the mother’s mental health difficulties are not being properly addressed.
I have already made findings about the father’s violent and abusive behaviour towards the mother.
The father minimized his violence and abusive behaviour and I do not accept his evidence as to the extent of that behaviour. I accept the evidence of the single expert about his capacity to accept responsibility for his own behaviour. His answers in cross-examination demonstrated that he had no understanding of the effect on X of his behaviour towards the mother.
The father has had no involvement with X’s school and did not know that she had not been attending. He has not sought copies of her school reports spoken with her teachers, both of which might have alerted him to X’s significant absences.
I have serious reservations about the capacity of each of these parents to properly provide for X’s physical, emotional and intellectual needs.
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
The single expert stated:
[X]'s identity formation is also linked to her father and her paternal family, including her grandparents, aunts and uncles and cousins with whom she reportedly had close relationships prior to these allegations. It is of great concern to me that [X] has lost almost all contact with her paternal family, including her [cultural] heritage and I think in the long term this will have a significant and deleterious impact on her sense of security in the adult world, her sense of identity and her sense of belonging.
I accept that evidence which was not challenged.
any family violence involving the child or a member of the child’s family;
I have already set out my findings in relation to the father’s perpetration of violence against the mother.
I do not accept the mother’s assertions that the father has been physically violence towards X.
In cross-examination, he said that he had smacked her on occasions and that he had smacked her hard when she pushed her younger cousin towards a glass table. It does not appear from the evidence that the mother objected to X being smacked.
Annexed to the mother’s affidavit is a text conversation between the parents on 19 October 2018 where the father stated, inter alia,
You get me to give [X] a smack to discipline her when she has been naughty with you so that means you agree that a smack is good to put her in line …
Had there been a response from the mother indicating that smacking was inappropriate, I infer that response would have been included in the annexure. There was no such response.
The father smacked X when she scratched him. In cross-examination, he said that when he smacked X he told the mother in a text. On 22 March 2019 the father sent a text to the mother saying, “I gave [X] a smack yesterday… she was scratching my face and biting…” The mother responded “I’m glad you told me. Why was she scratching & biting?” The mother gave no indication that she objected to the father smacking X.
The father said in cross-examination that he no longer uses smacking to discipline X.
I do not accept that the level of family violence that I have found is such as to justify an order that X does not have a relationship with her father. In coming to this conclusion, I have given significant weight to the evidence of the single expert both in relation to the effect on X of the father’s behaviour and to the X’s need, notwithstanding that behaviour, to have a relationship with him.
parental responsibility
The mother seeks sole parental responsibility. The father seeks equal shared parental responsibility.
I accept the evidence of the single expert that these parents are quite incapable of any reasonable communication and that they will not be able to make joint decisions about X’s welfare. Matters where parental responsibility is relevant are limited to those major long term issues specified in the Family Law Act1975 (Cth) as:
(a)       the child's education (both current and future); and
(b)      the child's religious and cultural upbringing; and
(c)       the child's health; and
(d)      the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
There is no evidence that there is, or is likely to be any dispute about X’s name or her religious upbringing, she is young and there will be decisions to be made about matters of education, health care and the like.
The ICL, recognizing the difficulty of placing sole parental responsibility in the hands of the mother, having regard to her appalling failures in X’s school attendance and concerns about X being subjected to multiple investigations and assessments, proposed that the mother be required to consult the father before making any decision.
Having regard to past history, a requirement for consultation is likely to lead to further acrimony between the parents.
I propose to order that the mother have sole parental responsibility for X but to provide some checks.
The mother will be required to advise the father on each occasion when X is either partially or wholly absent from school. Further, she will be required to cause X’s school to provide to the father any information, notices or reports that are usually provided to parents and the father will be permitted to meet with X’s teachers at their discretion. In relation to medical procedures, the mother will be required to provide the father with the names and contact details of any medical or allied health professional who consults with X and to authorise those professionals to provide to the father any information he seeks.
conclusion
X will continue to live with her mother and spend time with her father without supervision in a regime broadly in accordance with the proposal of the ICL. Until changeovers can occur to and from school, and for holiday purposes, the father will be required to have a third party effect the changeover.
interim orders made on 9 november 2022
After submissions had concluded on the last day of the hearing, the ICL advised the court that the contact supervisor, Ms D, was leaving Australia that day for an extended holiday in Europe and would not be available to supervise. The father proposed that his sister, Ms E, supervise the contact until such time as judgement was delivered.
That proposal was not acceptable to the mother who proposed two alternates, neither of whom was a witness in the proceedings. Neither of those persons was acceptable to the father.
I ordered that Ms E be substituted as supervisor and indicated that I would provide short reasons. These are the reasons.
Ms E was a witness in the proceedings. She was not required for cross-examination so her evidence was unchallenged. She deposed that she has regularly spent time with X since she was born, both at her own house and at the family property; that she loves X dearly and believes X loves her and that she is aware of the allegations made by the mother in these proceedings.
In relation to the supervisors proposed by the mother, there is no evidence that either person is aware of the allegations; that either has a relationship with X or that either is prepared to undertake the responsibilities of supervision. Neither is there any evidence of the relationship between the father and either proposed supervisor.
It is preferable that the supervisor be a person who has a good relationship with X and the father and who is cognisant of the allegations.

I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees.
Associate:
Dated: 29 November 2022

File number:	SYC 2075 of 2020
Judgment of:	REES J
Date of judgment:	29 November 2022
Catchwords:	FAMILY LAW – PARENTING – Application by the father for equal shared parental responsibility – Where the child has exhibited behavioural difficulties and disturbed behaviour – Where the mother alleges the child is sexually abused by the father – Where the mother’s evidence is unreliable and not supported – Where the mother has subjected the child to a number of professional interventions and medical examination – Where the single expert says children who are exposed to interparental conflict can exhibit behavioural difficulties – Where the father has been a perpetrator of family violence towards the mother – Where the father minimises his violence and abusive behaviour – Where the father is observed to have a positive relationship with the child – Where the parents are incapable of co-parenting and communicating – Where the child has never spent overnight time with the father –Orders made for the mother to have sole parental responsibility – Orders made for the father to spend time with the child. FAMILY LAW – INTERIM ORDERS – Where the father currently has supervised contact with the child – Where the contact supervisor is no longer available – Orders made for the father’s sister to be the supervisor until such time as judgment is delivered – Where the father’s sister has a positive relationship with the child and is cognisant of the family court proceedings.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth)
Cases cited:	Bant & Clayton (2019) FLC 93-924
Division:	Division 1 First Instance
Number of paragraphs:	280
Date of hearing:	7 – 9 November 2022
Place:	Sydney
Counsel for the Applicant:	Ms Seric
Solicitor for the Applicant:	De Saxe O’Neill Family Lawyers
Counsel for the Respondent:	Mr Havenstein
Solicitor for the Respondent:	Swifte Law
Solicitor for the Independent Children's Lawyer:	Mark MacDiarmid Family Law Specialist

SYC 2075 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR FIGONE Applicant
AND:	MS LOWE Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	REES J
DATE OF ORDER:	29 november 2022