Fitzwater & Fitzwater
[2022] FedCFamC1F 645
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fitzwater & Fitzwater [2022] FedCFamC1F 645
File number(s): MLC 11465 of 2016 Judgment of: WILLIAMS J Date of judgment: 30 August 2022 Catchwords: FAMILY LAW – PARENTING – Where there are two children of the marriage aged ten and six – Where the mother seeks orders for sole parental responsibility, the children live with her and for the children to continue to spend supervised time with the father – Where the father and Independent Children’s Lawyer seek orders for equal shared parental responsibility, the children to live with the mother and spend significant and substantial time with the father – Unacceptable risk – Allegations by the mother that the father poses an unacceptable risk to the children – Where the mother, maternal aunt and maternal grandmother allege the daughter made disclosures between 2015 and 2016 to them that the father sexually abused her – Where the mother fervently believes the daughters allegations and has an inability to consider innocent or other alternatives which are contrary to her own view – The mother’s categorisation of the children’s alleged sexualised behaviours is demonstrative of her hypervigilance – Where the daughter has not made disclosures to the police, family consultant, child protection officers, treating doctors and psychologists and has otherwise made contradictory statements – Where the father denies the allegations – Where the daughter is very positive in comments about her father – Where the father has only spent supervised day time with the children since separation in November 2016 – Where the Independent Children’s Lawyer holds the view that the father does not pose an unacceptable risk – Finding that the father does not pose an unacceptable risk to the children – Orders made substantially in accordance with the proposals of the father and ICL. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA
Cases cited: Blann & Kenny [2021] FamCA 322
Fitzwater & Fitzwater [2018] FamCA 1013
Fitzwater & Fitzwater (2019) 60 Fam LR 212; [2019] FamCAFC 251
Isles & Nelissen [2022] FedCFamC1A 97
M v M (1988) 166 CLR 69
Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 336 Date of hearing: 12 July 2021, 31 January, 1–3 February, 28–31 March, 13 May 2022 Place: Melbourne Counsel for the Applicant: Ms Harris Solicitor for the Applicant: Pearsons Lawyers Pty Ltd Counsel for the Respondent: Mr Whitchurch Solicitor for the Respondent: Lampe Family Lawyers Counsel for the Independent Children's Lawyer: Ms Treyvaud Solicitor for the Independent Children's Lawyer: Victoria Legal Aid ORDERS
MLC 11465 of 2016 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FITZWATER
Applicant
AND: MR FITZWATER
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
WILLIAMS J
DATE OF ORDER:
30 August 2022
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother and the father have equal shared parental responsibility for the children, X born 2012 and Y born 2016 (“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father as follows:
During school terms
(a)in week 1 of a two-week cycle on Thursday from the conclusion of school (or 3.30 pm if a non-school day) until the commencement of school Friday (or 9.30 am if a non-school day);
(b)in week 2 of a two-week cycle:
(i)for the first three periods from 10.00 am Saturday until 5.00 pm Sunday;
(ii)for the following three periods from the conclusion of school Friday (or 3.30 pm if a non-school day) until 5.00 pm Sunday;
(iii)for the following three periods from the conclusion of school Friday (or 3.30 pm if a non-school day) until the commencement of school Monday (or 9.00 am if a non-school day);
(iv)thereafter, from the conclusion of school Thursday (or 3:30 pm if a non-school day) until the commencement of school Monday (or 5.00 pm if a non-school day);
During school term holidays
(c)for the Term 3 2022 school holidays, time to continue in accordance with the term time referred to paragraphs 4(a) and (b);
(d)thereafter, for one half of the school term holidays as agreed between the parties and failing agreement, for the second half of the school term holidays in even-numbered years and the first half of the school term holidays in odd-numbered years, with changeover to occur at 5.00 pm on the middle Saturday of the school term holidays;
During long summer holidays
(e)for the 2022/2023 long summer holidays on a week about basis, with the father’s weeks to commence at 5.00 pm on the last day of the 2022 school term;
(f)thereafter, for one half of the school long summer holidays, as agreed by the parties and failing agreement, commencing with the second half in even-numbered years and the first half in odd-numbered years, with changeover to occur on the middle Saturday of the long summer holidays.
Special occasions
5.All other arrangements be suspended on special occasions and the children spend time with each parent as follows:
(a)with the mother from 5.00 pm on the Saturday prior to Mother’s Day until the commencement of school on Monday;
(b)with the father from 5.00 pm on the Saturday prior to Father’s Day until the commencement of school on Monday;
(c)on each of the children’s birthdays, on a school day they spend time with the parent with whom they would not ordinarily be spending time with from the conclusion of school until 6.00 pm and on a non-school day from 2.00 pm until 6.00 pm;
(d)with the father from 5.00 pm on the day prior to the annual Fitzwater Family Christmas gathering until 5.00 pm on the day after the annual Fitzwater Family Christmas gathering, noting that this occasion usually occurs in November each year;
(e)from 4.00 pm Christmas Eve 2022 until 4.00 pm Christmas Day 2022 and each alternate year thereafter with the father and from 4.00 pm Christmas Day 2022 until 4.00 pm Boxing Day 2022 and each alternate year thereafter with the mother;
(f)from 4.00 pm Christmas Eve 2023 until 4.00 pm Christmas Day 2023 and each alternate year thereafter with the mother and from 4.00 pm Christmas Day 2023 until 4.00 pm Boxing Day 2023 and each alternate year thereafter with the father;
(g)from 4.00 pm on Easter Saturday 2023 until 4.00 pm on Easter Sunday 2023 and each alternate year thereafter with the father and from 4.00 pm Easter Sunday 2023 until 4.00 pm Easter Monday and each alternate year thereafter with the mother;
(h)from 4.00 pm on Easter Saturday 2024 until 4.00 pm on Easter Sunday 2024 and each alternate year thereafter with the mother and from 4.00 pm Easter Sunday 2024 until 4.00 pm Easter Monday and each alternate year thereafter with the father;
(i)any other alternate arrangements as agreed in writing by the parents.
6.Unless otherwise agreed in writing between the parents, changeover will occur as follows:
(a)wherever possible on a school day, at the children’s school;
(b)on a non-school day at Location N Carpark; and
(c)and otherwise agreed in writing between the parents.
7.The children have telephone and FaceTime communication with both the mother and the father at all reasonable times and both the mother and the father facilitate the children’s communication with the other parent.
8.Both parents shall facilitate the children’s attendance at their extra-curricular activities which fall within their time with the children and each parent shall be at liberty to attend the children’s extracurricular activities.
9.Both parents forthwith advise the other parent of any serious injury or illness affecting the children together with the details of the medical practitioners and allied health services and authorise the children’s medical practitioners to provide information to and liaise with the other parent.
10.Both parents be at liberty to attend the children’s school for any event to which parents are usually invited.
11.Both parents forthwith authorise the children’s school and other care providers to provide all information and documentation about the children to both parents, including but not limited to the children’s progress, newsletters, reports, photographs, and details of any activities.
12.Both parents advise the other and keep each other advised of their address and telephone numbers and any change/s thereto within 48 hours of a change.
13.The parents, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or discussing the parenting arrangements and/or future litigation proceedings in the presence or hearing of the said children or any of them and from permitting any other person to do so.
14.The father is restrained by injunction from:
(a)permitting the children being exposed to the slaughter of animals;
(b)permitting the children to ride motorbikes and/or quad bikes until they are legally able to hold a learners permit for a motor vehicle/motor-cycle;
(c)using or permitting any other person from using firearms in the presence or hearing of the children.
15.Pursuant to s68Q of the Family Law Act 1975 (Cth) the Court declares that, to the extent that any of these Orders conflict with an extant Family Violence Intervention Order, then the Family Violence Intervention Order is invalid but only to the extent of the conflict.
16.The order appointing the Independent Children's Lawyer be discharged upon the later of the expiration of the appeal period in respect of these Orders, or the determination of any appeal that may be brought therefrom.
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 Fitzwater & Fitzwater has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
Introduction
The applicant is the mother and the respondent is the father of the children X born in 2012 and Y born in 2016 (“the children”). Following separation, the children have lived principally in the mother’s care and have spent various periods of supervised time with the father.
A final hearing was conducted over 12 days in 2018 with final orders being made by the primary judge on 18 October 2018 (Fitzwater & Fitzwater [2018] FamCA 1013). Those orders provided for the children to live with their mother and to spend supervised time with the father.
Subsequently, by Notice of Appeal on 15 November 2018, the father appealed the orders of 18 October 2018. On 17 December 2019, the Full Court allowed the father’s appeal and ordered a re-trial (Fitzwater & Fitzwater [2019] FamCAFC 251).
The rehearing of this matter has been affected by the Covid-19 pandemic. The matter initially commenced as an in person trial in July 2020 for one day. It recommenced as an electronic trial in January/February 2022 and then resumed as an in-person trial in March and May 2022.
Issues in Dispute
The parties agreed the mother should retain her role as the children’s primary carer and that the children should continue to live with her.
The following issues were the subject of dispute between the parents:
(a)should the mother have sole parental responsibility for the children, or should the parents have equal shared parental responsibility;
(b)does the father pose an unacceptable risk to the children so that his time with them should remain supervised; and
(c)if the father’s time is not supervised, the amount of time the children should spend with him.
Synopsis
I have determined:
(a)there should be an order for equal shared parental responsibility;
(b)the father does not pose an unacceptable risk to the children; and
(c)the father’s time with the children should not be supervised and should be substantially in accordance with the father’s proposals.
Background
The father is aged 42 and the mother is aged 41. They met in late 1999 and commenced cohabitation in 2000/2001, prior to marrying in 2010. Their first child, X was born in 2012.
In mid-2015, the mother alleges X, at age 3, disclosed to her “daddy touched my privates”. The mother says she confronted the father about X’s comments, however the father denies that he was confronted about the allegation. Between August and October 2015 the child complained her vagina was sore and irritated and the mother obtained medical attention.
In 2016, the parties’ second child, Y was born.
In June 2016, the mother asserts X disclosed to her that “daddy touched my privates”. In September 2016, the mother alleges she observed the child in front of the mirror with her underpants down touching herself.
In November 2016, the maternal grandmother told the mother the child said “nanny, daddy touched my privates”. A few days later, according to the mother, the child disclosed to her “daddy touched my privates” and the next day the child complained that her father again touched her privates and demonstrated how he had done so.
During the next few days the mother attended a psychologist with the child, had a conversation with her sister and requested the father to leave the home and go to their investment property.
On 18 November 2016, the parties separated with the mother remaining in the former family home with X and Y.
Since that time, the father’s time with the children has been supervised, and since 28 May 2020, by his partner.
The proposals of the parties
The mother’s proposal
The mother proposes:
(a)she have sole parental responsibility for the children;
(b)the children live with her;
(c)the father spend time with the children as follows:
(i)each Thursday from 4.30 pm to 6.30 pm;
(ii)each alternate weekend on Saturday from 10.00 am to 6.00 pm and Sunday from 10.00 am to 4.00 pm;
(iii)special occasions;
(iv)such time to be supervised by the maternal grandmother or father’s partner or any other suitable person agreed in writing conditional upon a signed undertaking;
(d)the father communicate with the children by way of telephone/FaceTime as agreed between the parties in writing and failing agreement each Sunday of the weekend the children do not spend time with the father between 5.00 pm and 5.30 pm;
(e)the father be entitled to receive a copy of the children’s school reports and school photographs of the children directly from the children’s school at his own expense;
(f)in the event that the mother proposes to take the children on a holiday (“holiday period”), she provide no less than two weeks’ notice in writing to the father and the father’s supervised time shall be suspended for the duration of the holiday period;
(g)changeovers shall take place at a location not more than 10 km from the mother’s residence with the supervisor implementing changeover.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Second Further Amended Initiating Application filed 15 June 2021;
(b)Affidavits of the mother filed 12 February 2020, 16 March 2020 and 15 June 2021;
(c)Affidavit of Ms R (maternal grandmother) filed 10 February 2020;
(d)Affidavit of Ms F (maternal aunt) filed 7 February 2020;
(e)Affidavits of Dr S (general practitioner) filed 7 February 2020 and 15 June 2021;
(f)Affidavits of Dr T (paediatrician) filed 7 February 2020 and 24 May 2021;
(g)Affidavits of Dr U (mother’s psychologist) filed 24 February 2020 and 15 June 2021;
(h)Affidavit of Ms UU (X’s psychologist) filed 7 February 2020;
(i)Affidavits of Professor V filed 10 February 2020 and 24 February 2020;
(j)Outline of Case document filed 8 July 2021;
(k)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The mother’s witnesses
The mother, Ms F, Ms R, Ms UU, Dr T, Dr U and Dr S gave evidence and were cross-examined by both counsel for the father and the Independent Children’s Lawyer (“ICL”).
The mother’s evidence in her affidavits was voluminous and detailed. I was urged to consider her evidence and affidavit material in the context of the impact on the mother of her experience of the previous trial and the father’s successful appeal.
The mother gave evidence in a manner, which was correctly described by her counsel as loud and pressured. At times she was dismissive of questions put to her, particularly by counsel for the husband and presented as definite and not open to any alternative narrative, other than her own. Her counsel described her as highly emotionally involved and as living the case for some 5 ½ years, which impacts on her capacity to objectively give evidence in the witness box. I agree that the mother presented as lacking any objectivity. During in-person hearings, whilst the father was being cross-examined, she continually paced around the Court and attempted to provide further instructions to her counsel, so much so, counsel for the ICL complained about her intrusive conduct. Counsel for the mother agreed her client’s conduct in court was highly unusual. When the father was being cross-examined electronically, the mother had a continuous narrative about her view of the father’s evidence, which was apparent from the video but of course was unable to be heard. She presented as if she was the only one who really understood what had happened in the case and any attempts to deviate from her narrative and belief that her daughter had been sexually abused, was almost contemptuous. She frequently did not answer questions directly and gave long winded responses to questions. Despite her deficiencies as a witness, I have no doubt she has excellent recall of events which suit her narrative, even when the events occurred many years ago.
The maternal aunt presented as holding a firm belief that the child had been sexually abused by the father. She seemed slightly more equivocal in her attitude towards the father than either the mother or the maternal grandmother. She was generally responsive to questions and attempted to tell the truth, as she perceived it.
The maternal grandmother also presented as having a myopic view of past events and her fundamental belief that the child had been sexually abused by the father. Her evidence must be viewed through that prism. She was generally responsive to questions asked, although it was obvious she regarded the father with contempt and disdain.
The medical witnesses called by the mother, Dr S and Dr T were both impressive and I accept their expert professional opinion and recollection of events, with reference to their reports and in some cases, professional notes. Similarly, I accept the evidence of Ms UU and Dr U, psychologists.
The father’s proposal
The father proposes:
(a)there be equal shared parental responsibility for the children;
(b)the children live with the mother;
(c)the children spend time and communicate with him as follows:
(i)in week 1 of a two-week cycle on a Thursday from the conclusion of school (or 3.30 pm if a non-school day) until the commencement of school Friday (or 9.30 am if a non-school day);
(ii)in week 2 of a two-week cycle from the conclusion of school Thursday (or 3.30 pm if a non-school day) until the commencement of school Monday (or 9.30 am if a non-school day);
(iii)for one half of the school term holidays;
(iv)for one half of the school long summer holidays;
(v)special occasions;
(d)for the purpose of changeover, unless otherwise agreed in writing between the parents, changeover will occur as follows:
(i)wherever possible on a school day, at the children’s school; and
(ii)on a non-school day at Location N Carpark;
(e)the children have telephone and FaceTime communication with both the mother and the father at all reasonable times and both the mother and the father facilitate the children’s communication with the other parent;
(f)each parent will facilitate any extra-curricular activities of the children that fall within their time with the children and each parent shall be at liberty to attend even if the activity falls outside of their time with the children;
(g)each parent advises the other immediately of any serious injury or illness affecting the children together with the details of the medical practitioners and allied health services and authorise the children’s medical practitioners to provide information to and liaise with the other parent and each parent shall follow the directions of the children’s medical practitioners;
(h)each parent be at liberty to attend the children’s school for any event at which parents usually attend;
(i)the children’s school and other care providers be authorised to give all information and documentation about the children to both parents, including but not limited to the children’s progress, newsletters, reports, photographs, and details of any activities;
(j)each party advise the other and keep them advised of their address and telephone numbers and any change/s thereto within 48 hours of a change;
(k)the parents, their servants and agents be and are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other party or discussing the parenting arrangements and/or future litigation proceedings in the presence or hearing of the said children or any of them and from permitting any other person to do so.
Documents relied upon by the father
The father relied upon the following documents:
(a)Second Further Amended Response to Initiating Application filed 4 June 2021;
(b)Affidavits of the father filed 5 March 2020 and 4 June 2021;
(c)Affidavit of Ms MM filed 4 June 2021;
(d)Family Reports of Ms M dated 12 May 2017 and 31 March 2020;
(e)Outline of Case document filed 4 June 2021.
The father’s witnesses
Both the father and Ms MM gave evidence and were cross-examined by both counsel for the mother and ICL.
The father was a far less sophisticated witness than the mother and was not a particularly good historian. Unlike the mother, he was unable to remember specific events, which had occurred many years ago. Counsel for the mother was critical of the father’s inability to recall and described it as avoidant. I do not agree with that characterisation and accept the proceedings, including the first trial, the appeal and this trial have been overwhelming for both parties. The father’s inability to recall specific conversations which occurred over five or so years ago did not strike me as avoidant. The father was generally responsive to questions asked, but my overall impression was that he simply could not understand how the allegations against him have arisen and his evidence was also clouded by his frustration and grappling to understand events which did not occur when he was present. I regard him as generally truthful.
Ms MM, the father’s partner was a responsive and candid witness. She gave direct answers during cross-examination and did not attempt to embellish her responses. She deposed to her observations of the father’s positive interaction with the children and if continuing supervision was ordered, she would be unable to continue in that role. I accept her as a witness of truth.
The Independent Children’s Lawyers proposal
The ICL supported the final orders proposed by the father.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
(a)Family Reports of Ms M dated 12 May 2017 and 31 March 2020;
(b)Affidavit of Ms K filed 20 June 2017;
(c)Documents tendered by counsel, including documents produced pursuant to subpoenae.
The Independent Children’s Lawyers witnesses
Ms K, is a psychologist who provided therapeutic counselling for X on four occasions between March and April 2017, gave evidence and was cross-examined by all counsel. I accept her expert evidence and that she is a witness of truth.
Ms M was previously employed by the Court as a family consultant. She conducted assessments of the family on two occasions to enable her to prepare two family reports, dated 12 May 2017 and 31 March 2020. She gave evidence and was cross-examined by all counsel. Ms M impressed as highly experienced as she has prepared many family reports for the Court during her employment and has given evidence on multiple occasions. Her evidence was highly responsive and demonstrated considerable insight into the dynamic of the family.
Counsel for the mother in her final submissions sought to impugn the impartiality and credibility of the family consultant. She submitted the family consultant’s interaction with X in relation to the allegations was problematic and caution needs to be adopted. She was critical of the lack of recording in her notes of the questions she asked the child and submitted she had recorded selective answers from which the consultant drew conclusions. During cross-examination, the family consultant’s evidence was she had a “free-flowing conversation” with the child and her notes captured the “elements of the conversation”, although she admitted “errors can occur”, “things get lost in translation” and “of course things can go wrong” (Transcript 30 March 2022, p.52 line 1 to 53 line 12). I do not accept that criticism, as it is entirely unrealistic to assume a family consultant could conduct a free-flowing conversation with a child during an interview and at the same time assiduously note down every single question asked of the child. It would be impossible to obtain a flowing narrative from a child or build rapport, if that is expected practice. I have every confidence Ms M’s professional practices evolved over many years of experience as a family consultant. The concessions made by her were appropriate.
Counsel for the mother submitted the report was inconsistent and did not permit a judicial officer to draw their own conclusion as it did not present all of the information. Specifically my attention was drawn to paragraph 38 of the second report, which was submitted was inconsistent. I do not accept that submission and it demonstrates the mother’s attitude of dismissing and criticising comments by professionals which are inconsistent with her own view.
Counsel for the mother sought to criticise the impartiality of the family consultant, submitting that she appears to have been influenced by her interpretation of X’s statements and behaviours, based on her view of the mother, which was demonstrated in each of the two reports. The lack of impartiality was apparent in the following respects:
(a)the reference to the mother’s repeated questioning of the child, was inconsistent with the mother’s view of the evidence that the child had raised the issues with her;
(b)the assumption that because of the mother’s employment with AE Services, she knew how to deal with similar allegations, was inconsistent with the evidence and the family consultant did not question the mother about that matter;
(c)the assertion the mother was not consistent in her history of family violence and timeline of events was inconsistent with the mother’s affidavit material;
(d)the assumption that the mother consumed alcohol to excess as did the father prior to the children’s birth because they met on a cruise when they were young, was never put to the mother by the family consultant;
(e)the statement the mother did not generally play with the children based on her limited observations at the end of the first interview, should be seen in the context of her concession during cross-examination that the children were tired and that she did not observe the children for a long period and indeed invited them to leave;
(f)the allegation the mother had lied about her relationship status during the 2020 report interviews, was inconsistent with her evidence that she was not in a relationship;
(g)allegations in the 2020 report of frequent forensic examination of the children was contrary to the evidence and her concessions in cross-examination, that may have been an error;
(h)her allegation that the mother had inappropriately schooled X in body awareness when she was unfamiliar with the book used by the mother;
(i)the family consultant’s failure to consider other interpretations of what X told her in the first interview about what her mother had said to X. Specifically, what her mummy had told her to say in the first interview, the reference to the secret with her mummy in the second interview, and that the mother had told X she could stay with the father when she was grown up.
I do not accept the submissions that the family consultant lacked impartiality. The mother’s detailed criticisms and trawling through the reports to attempt to impugn impartiality, is consistent with her dismissing and failing to contemplate any view contrary to her own. The matters complained of do not significantly impact the observations between the children and their father and X’s failure to directly disclose to the family consultant that her father had behaved inappropriately with her. The child’s statements to the family consultant are another example of her contradictory comments, which I refer to subsequently in these reasons and must be put in the context of the child’s young age at the time of both interviews.
Counsel for the mother was also critical of the family consultant’s statements that there were indications that the child had been coached, and in particular the discrepancy between the evidence of Ms K and the family consultant about whether the child had made admissions that the mother had directed X to report claims “daddy touched my privates”.
During cross-examination, Ms K’s evidence was X did not make that statement to her and she denied that she had ever told Ms M that X had done so. During cross-examination, Ms M’s evidence was that she thought it was most likely to have been Ms K’s error than her own.
Both Ms K and Ms M impressed me as highly competent professionals and I am unable to make a finding, to the requisite standard, about this particular conflict of evidence. In any event, whether or not X told Ms M she had been coached by her mother, does not necessarily impugne Ms M’s professional observations and opinions about other matters. Whether X was coached by the mother was not the seminal issue upon which the family consultant based her opinion. It was but one of multiple factors informing her professional opinion. In any event, X’s comments in this regard are similar to her statement to her parents on 19 June 2016, when she told them, “Daddy, mummy told me you touch my privates”. It could not possibly be surprising to the mother that X may have said a similar thing to the family consultant, which could readily be construed as maternal coaching.
I accept the family consultant as a credible and competent professional witness.
The following documents were tendered during the course of the trial:
Exhibit Number Description M-1 List of corrections to mothers affidavits sworn 11 February 2020 and 15 June 2021 M-2 Text messages between mother and father pertaining to Christmas 2015 M-3 Text messages between the parties dated 15 November 2015 and 8 October 2015 M-4 Text messages between the parties dated 24 and 25 June 2015 M-5 Text messages between the parties dated 17 August 2016 M-6 Proof of evidence of the father dated 1 March 2018 (for final hearing) M-7 Handwritten notes of Ms K M-8 DHHS notes of the interview of the father at his home on 20 December 2016 (2 page document) M-9 Notes from BB Hospital pertaining to Y dated 10 December 2017 M-10 NAPLAN Student Report 2021 for X M-11 Documents produced pursuant to subpoena to Victoria Police (tendered by consent)
ICL-1 Medical report of Dr XX dated 10 December 2017 regarding Y ICL-2 DHHS Interview with X on 20 December 2016 – pages 13–16 of DHHS Response to Subpoena dated 31 October 2017 ICL-3 Documents produced pursuant to subpoena to Dr T – Cover letter dated 14 March 2017 ICL-4 Notes of Ms K dated 17 July 2017 Preliminary Matters
Electronic Trial
The first day of the trial was conducted in-person with the following four days heard electronically during the COVID-19 pandemic. The father and the ICL were agreeable to the matter proceeding electronically and did not seek an adjournment until the Court resumed in-person trials. The mother opposed the trial being conducted electronically during the 2022 hearing dates and initially sought reasons for my decision to continue with the trial electronically. The trial proceeded electronically for four days, from 31 January 2022 to 3 February 2022.
The balance of cross-examination of the mother, her sister, the maternal grandmother, Ms UU, the child’s psychologist, Dr T, the child’s paediatrician, Dr U, the mother’s psychologist and Dr S, the child’s GP was all conducted electronically. Cross-examination of the father proceeded electronically for one day, prior to recommencing in person on 28 March 2022.
The trial was then conducted in-person on 28–31 March 2022 and 13 May 2022. The mother’s counsel eventually advised the Court she no longer required reasons for my determination to proceed with the trial.
I am confidently satisfied that the matter was appropriate for an electronic trial and that justice and equity, and procedural fairness were afforded to all parties.
The applicable law
Evidence
The standard of proof in this case, as to what did or did not happen in the past, is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).This standard of proof does not apply when hypothesising about future possibilities: see Isles & Nelissen [2022] FedCFamC1A 97.
Section 140 of the Evidence Act 1995 (Cth) provides:
(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.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
It is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial nor make findings of fact on every factual dispute between the parties. That principle is well established in a number of authorities.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
As far as parental responsibility is concerned, Section 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person. In this case, the mother seeks an order for sole parental responsibility and the father seeks an order that the parents have equal shared parental responsibility.
How the Court approaches allegations of sexual abuse
The primary focus of this dispute was the mother’s allegations the father has sexually abused X and thereby poses an unacceptable risk of harm to the children, if he spent unsupervised time with them. Notwithstanding the allegations of sexual abuse, the Court’s obligation is to determine what orders are in the children’s best interests.
The High Court in M v M (1988) 166 CLR 69 (“M v M”), at 76 said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interest of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abuse by the parent whom seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive impact, on the resolution of that issue.
In M v M, at 76, the High Court also said it is not necessary to resolve in a definite way the disputed allegations of abuse, although in appropriate cases the court can and should make such findings.
…But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
(Citations omitted)
As to how the Court should assess allegations of sexual abuse, the High Court said at 76–78:
…In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A.), "an element of risk" or "an appreciable risk" (Marriage of M.), "a real possibility" (B. v. B. (Access)), a "real risk" (Leveque v. Leveque), and an "unacceptable risk": In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Recently, in Isles & Nelissen, the Full Court of this Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin & Tree JJ) at [50], agreed with and adopted the commentary of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”). At [132]–[142] of Fitzwater, his Honour said:
132.Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother’s case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children’s permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother’s case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136.In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
(Bold emphasis added)
Macmillan J observed in Blann & Kenny [2021] FamCA 322 at [24], the consequences of a court’s decision in cases involving allegations of sexual abuse by a parent are momentous and likely to have a long lasting impact on the lives of children. The risk is not limited to the risk that children might be abused by a parent, but also the risk of not having a meaningful relationship with a parent and perceiving themselves as a victim of sexual abuse, whether or not there is any veracity in the allegations. The Full Court in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 said:
18.…Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19.The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN
The mother asserts that the father’s time with the children should remain supervised because he poses an unacceptable risk of harm to the children if they spend unsupervised time with him. She makes that assertion for the following reasons:
(a)she asserts the father has sexually abused the child, X when the parents lived together;
(b)subsequent to separation, X has made verbal disclosures of inappropriate touching and physical demonstrations of digital penetration by her father, which have been made to two members of the mother’s family, the maternal grandmother and the maternal aunt;
(c)X’s medical and behavioural history are consistent with the child having suffered trauma and/or otherwise suffering from significant anxiety, for which the mother has sought assistance and advice from medical and therapeutic advisors;
(d)the father has perpetrated family violence arising from his impulsive behaviour, lack of boundaries and lack of insight into his usage of alcohol;
(e)the father lacks insight into his own parenting capacity and, in particular, around safety boundaries.
The mother contended that supervised time between the father and the children as proposed by her, will permit the children to have a meaningful relationship with their father, whilst ensuring they are safe from ongoing risk of sexual abuse by him. She proposes that supervision of the father’s time continue until the children attain 18 years of age.
The father denies the necessity for his time with the children to be supervised and is at a loss to explain how the allegations against him have arisen, although he did briefly postulate a conspiracy between the mother and maternal family members.
I will now turn to the alleged comments made by X in mid-2015, June 2016 and November 2016 which the mother characterises as disclosures of sexual abuse.
Alleged sexual abuse disclosures in mid-2015
According to the mother, in about mid-2015, when she was not quite three years old, X told her mother that her vagina was sore and “daddy touched my privates”. She then asked the father about it, took him into the child’s bedroom, where they had a further conversation in X’s presence, during which the father said “that’s not happening” and he asked the child why she would say such a thing.
The mother deposes although she was aware the allegations were serious, she did not want to reach any hasty conclusions, as the child was three years old, she wasn’t sure whether she could rely on what the child had said and because the father had denied any wrongdoing.
The father denies there was any basis for X to make the allegation, or she said the words her mother has attributed to her, denies any such allegation was put to him in 2015 and that any such conversation took place between himself and X, as alleged by the mother.
Subsequent to that incident, the mother purchased cream for the child’s nappy rash and taught the child how to apply it to her vaginal area.
In August 2015, when she was just over three years old, the child complained again her vagina was sore. As it appeared red, the mother took the child to her GP, Dr S, on 12 August 2015, where she was advised to keep using the cream and to take a sample of urine to the doctor, if the child continued to complain about burning.
Later that same day, there was an altercation between the parents when the child was having a tantrum, which resulted in the husband leaving the home for a night and telling the mother he wanted to end the relationship. Each of the parents had a different perspective of the altercation, with the mother accusing the father of grabbing her around the front of the neck and the father accusing the mother of charging at him which resulted in an injury to his face from her ring. I refer to this incident during my consideration of the mother’s allegations of family violence.
In the course of attempting to work out their differences, the father supposedly told the mother to leave him and X alone and thereafter the father and X began spending time together in a separate room of the house.
In October 2015, X again complained about soreness to her vagina, burning and itching, whereupon the mother took her to a doctor on 20 October 2015. She was diagnosed with thrush and cream was prescribed to treat her.
The mother’s evidence was that around October 2015, X started to have more frequent and intense tantrums, particularly when she was going out and leaving the child at home with her father.
Alleged sexual abuse disclosures in June 2016
According to the mother, on 17 June 2016, when she was three years old, X had a tantrum when the mother left her at home with the father in the evening, so she could do the shopping. The following day, 18 June 2016, in response to the mother’s enquiry about what she had done with the father the previous evening, X replied she had watched football from the couch with her father and “daddy touched my privates”. According to the mother, she asked X to show her, whereupon she “patted the top of her genitals [sic] area below her stomach, over her clothes” and asked “is nanny [Ms C] (the paternal grandmother) going to find out”. Thereafter, the mother said words to the effect “she did not need to find out and maybe you should not go in the front room with daddy anymore”. A few moments later, X volunteered to her mother “I lied”.
The mother further deposes on 19 June 2016, the parents and X were sitting around the table and out of the blue X said “daddy, mummy told me you touched my privates” whereupon the father said to the mother “what are you saying to her?” The mother asserts that in response, she then said to X “no, [X]. You said daddy touched your privates, then you said that you lied”.
The mother also alleged the father then stated X had said he had touched her at swimming and it was embarrassing. Furthermore, the mother alleged that later that evening there was a conversation between the parents where they discussed X’s disclosures and the mother told the father he needed to be accountable for what he did. She told the father that X did not want to be left alone with him at home and the father responded that she did not want to be left with his mother either and that he was stricter with bedtime routines than the mother was.
The father agrees that X made the comment and that he responded by asking what was the mother saying to her. The father did not specifically deny the mothers allegations about swimming, although he did specifically deny that there was a conversation later that evening between the parents, when they further discussed the child’s comments.
Alleged sexual abuse disclosures in November 2016
During November 2016, when X was four years old, the mother alleges X made a series of comments to her, the maternal grandmother and the maternal aunt.
On 11 November 2016, the maternal grandmother was caring for the children when the mother was out. Upon her return home, the mother went into the backyard whereupon the maternal grandmother muttered words to her to the effect “this touching thing has come up again”.
According to the maternal grandmother, X said out of the blue “nanny, daddy touched my privates”. She then asked X whether it was accidental and the child responded by saying “no…he touches my privates” and was “quite definite”. She also “seemed annoyed” at the suggestion it was accidental. The child was not upset during the conversation and made the comment in an “informative tone” and as a “matter of fact”.
On 14 November 2016, the mother left both children in the care of the father when she went to the gym in the evening. At about 1.00 am, X went into the parental bedroom crying hysterically claiming she had a nightmare.
The following night, 15 November 2016, X woke up screaming, was hysterical and aggressive. After the mother had calmed her down, X then went to get the Bepanthen cream. The mother enquired if everything was alright and X replied “I’m sore” and “no, daddy touched my privates”. The mother asked the child how, and X demonstrated by patting the top of her genitals over her clothes.
According to the mother, the following conversation then occurred between her and X:
Mother: How many times has it happened?
[X]: I told you before, twice
Mother: But you told me last time that you lied
[X]: I’m not lying, daddy is
Mother: Are you sure?
[X]: Yes, I just want it to stop. That’s why I never want to stay with him at night
Mother: But you go to the shops with him and to swimming
[X]: Yes, but he would not want people to see
Mother: Did you tell him to stop, it’s not nice, he is not allowed to do that?
[X]: No
Mother: He doesn’t do that when I’m around
[X]: No, but when you leave
[X]: I told Nan
(Mother’s affidavit filed 12 February 2020, paragraph 35)
Later that day after the family returned home from X’s swimming lesson, X ostensibly said to her mother “are you going to tell him off about touching my privates?” The mother’s evidence is she did not know how to respond and said to X “I am not sure who is lying, don’t bring it up now”. After that conversation, the mother went into the garage to telephone the maternal grandmother, who was at work and was unable to talk.
On the following night, 16 November 2016, during evening story time, X pulled down her dress, showing her chest and said “daddy can’t touch my privates” prior to rubbing her chest and pointing to her nipples. The mother then asked the child if she had fun playing with her father on the trampoline and playing catch, to which she responded “yes but I’m upset…because it hurt when daddy touched my privates”. In response to the mother’s request to show her, X then propped her legs up on her bed rail, put her finger near her vagina area and moved her finger up and down near her vagina, and said “he put his finger in and out of the hole”.
X asked her mother “can daddy get into trouble?” The mother replied it was “very bad and daddies should not behave in that way”. Subsequently, X said “daddy told me you would be cross with me. That’s not right is it mummy? Wouldn’t you be cross with him?” The mother replied she was not cross with X and that she loved her. According to the mother, she then went into the backyard to telephone her aunt, so the father could not hear her. Her aunt advised her to seek urgent counselling for the child and herself and she was in a state of shock and horror about the child’s disclosure.
On Thursday 17 November 2016, X attended kindergarten and the mother arranged an appointment at a local psychology service for herself and the child. After kindergarten, the mother and X went to the maternal grandmother’s home, where X said in the joint presence “I want to talk to dad about touching my privates”. When asked by the mother why, the child said “because it is rude”, whereupon the mother told her they were not going to talk about it at that moment and not to mention it to her father. According to the maternal grandmother, the child went outside to her grandmother and mother and said “let’s go and tell daddy he has to stop touching my privates”.
The mother did not confront the father that night before they went to bed as she was shocked and confused, although she believed what the child had told her. During the night, X went into the parental bedroom crying and refused to get back to bed, crying, thrashing her arms and legs and screaming to the point of hysteria. Neither parent was able to console her. The mother contends that she said to the father in the heat of the moment, “[X] told me you did terrible things to her when I went to the gym”. The mother asserts she then told the father to move out and that she would be changing the locks, getting an intervention order and he was not to return. The father then asked “what terrible things” and the mother repeated “terrible things and you need to leave the bedroom”.
The father’s evidence about the events of the evening of 17 November 2016 is in direct contrast to the mother’s. According to the father, X, in the early hours of the morning, woke up upset and went into the parental bedroom. She did not wake up Y who was sleeping in his parent’s room. The father was unable to recollect whether he tried to comfort X on that occasion or if the mother did so. In any event, once the child had calmed down, the father decided to go to sleep on the couch in another room as he had to get up for work about two hours later and wanted to get some more sleep. He told the mother that was his intention, which was usually what he did if X wanted to sleep in the parental bed.
On Friday 18 November 2016, the mother contends X told her “daddy calls my privates platypus…when you were in the garage and you went to check the paper that [Y] ate”. The mother then questioned X about telling the truth and the child confirmed that she was telling the truth about her father touching her privates.
On 18 November 2016, the mother attended a counselling session with Ms W at Z Psychology. She provided Ms W with notes she had taken of X’s disclosures and background of the child’s development. Other than discussing a safety plan, Ms W was unable to assist her and referred the mother to Dr U, psychologist, for an appointment on the following Tuesday, 22 November 2016.
The mother says she called the father immediately after her appointment with Ms W to tell him he needed to go to the country to stay with his family for the weekend, and upon his return he should move into the investment property.
The father’s evidence is that the mother told him she wished to spend time with the children over the forthcoming weekend, and he was free to spend time with his family in D Town. He was surprised by that offer as the mother did not usually allow him to go to D Town and was generally critical of the father wanting to spend time with his father. He told the mother he would leave after work that day and return sometime on Sunday, 20 November 2016.
Both parties agree, on the evening of 18 November 2016 they decided to swap cars, as the father needed a better car to drive the distance to the country and later that day the father sent a text to the mother “are you going to tell me what all of this is about”, with the mother replying “we will talk later on in the week”.
The maternal aunt Ms F slept overnight at the family home as the mother wanted emotional support because of X’s asserted disclosures and assistance to care for Y so she could investigate what had occurred between the father and X. The maternal aunt’s evidence was she received a text message from the mother on 18 November 2016 which stated, “hey come to my house after work. Sleepover if you can”. When she arrived at the mother’s home, the mother told her about the disclosures X had made and that she had asked the father to leave the house.
On Saturday 19 November 2016, the mother rang the Sexual Assault Crisis Line to find out what she needed to do and was advised to contact SOCIT, child protection and either the VV Centre or WW Group. She subsequently reported the alleged disclosures to SOCIT and made arrangements for X to be interviewed later that day and for the locks on the family home to be changed. She also contacted VV Centre who scheduled an appointment for her on 22 November 2016. I discuss X’s interview with SOCIT later in these reasons.
According to the maternal aunt, on that day when she was at the family home pulling blinds down, X turned to her and said “this is my police teddy bear, I went to the police today, daddy touched my privates but I forgot to tell them”.
On the morning of Sunday 20 November 2016, whilst having breakfast, according to the maternal aunt, X said to her “daddy did a bad thing to me, but I didn’t tell the police, I was a bit shy and I wanted Mummy to tell them”.
On the evening of Sunday 20 November 2016, both parties agree that whilst the father was returning from his parent’s home to Melbourne, he received a phone call from the mother. The father’s evidence is that he received two phone calls from the mother. During the first telephone call, the mother asked the father how far away from Melbourne he was and he told her two hours away. The second conversation took place a little later and according to the father, the mother told him he should not go to the family home, she wished to separate, she had changed the locks on the family home, insisted he stay in the investment property and that she had already moved his belongings there. The mother told the father she would call the police if he persisted in going to the family home.
According to the mother, she asked the father if he had anything to tell her because she had asked him to go to his parent’s home in the country. He responded he had not done anything wrong. The mother told him to move into and stay at their investment property, if he went near the family home she would call ‘000’ and if the father did not agree to stay away from the family home she would be forced to go to court.
According to the maternal aunt, Ms F, she was present in the mother’s car when she called the father on Sunday, 20 November 2016, and the father was on the loud speaker. During cross-examination, it transpired that the call had been recorded by either the mother or the maternal aunt without the knowledge or consent of the father. The maternal aunt’s evidence about the call was similar to the mother’s evidence. The father’s version of events was the mother told him she wanted to separate, had changed the locks on the family home, insisted he stay at the investment property and that she had already moved his belongings there. In response to the father’s statement that he wanted to go and see the children, the mother told him she would call the police, which caused him concern. The father’s oral evidence was consistent with his affidavit to the effect that at that time the mother had still not directly discussed with him what X had allegedly asserted.
On Monday 21 November 2016, the maternal aunt took X to a café for lunch, when X said daddy had done a “really bad thing to her”. Later that day whilst in the car with her aunt and her partner, X said her daddy had done a bad thing to her and she went to the police.
On Tuesday 22 November 2016, after the mother attended a counselling session with Dr U, the maternal aunt accompanied the mother and X to McDonald’s for lunch. The father located them there and picked up X to kiss her and said he missed her. After his departure, the mother asserts X said words to the effect, mummy, daddy can come home, you just don’t go to the gym, ok deal ok? The mother replied “no [X], daddy cannot come home. Daddy and I are no longer together”. X then said, “mummy, I lied about daddy touching my privates. Can daddy come home?” The mother said no and changed the subject.
On Tuesday 22 November 2016, X made a comment to the maternal grandmother that “daddy touches my privates”, denying it was accidental and subsequently when asked, demonstrated how by grabbing the underside of her vagina and saying it felt “like you are getting poked in the eye”.
Allegations of X’s behaviour and sexualised behaviour attributable to sexual abuse
In her trial affidavit, the mother deposed to X’s conduct which she categorised as sexualised behaviour. These included pulling up her dress to expose her breasts, pointing to her nipples and moving her finger up and down near her vagina area whilst wearing underpants and commenting “he put his finger in and out of the hole” (16 November 2016), touching her vagina (3 December 2016), touching her vagina and asking when she was going to see her father as well as commenting she was itchy (4 December 2016), touching her genital area over her clothes whilst talking to the father on the telephone (5 February 2017), removing her clothes and dancing around before a bath, including straddling her mother’s knee and said she “sits like this on dad’s knee when he puts my bathers on” and that Y “has a penis” and she doesn’t “like the smell of penis” (25 October 2017).
The maternal grandmother also deposed in her affidavit to X’s sexualised behaviour. She referred to a couple of incidents, the first of which occurred in about March 2017 when X asked her grandmother if she could play the honeymoon game, whereupon the child pulled the top of her dress down to her waist and started dancing around holding the dress down.
On 31 January 2018, whilst she was looking after the children in their home, the maternal grandmother observed X sitting on the lounge room couch with her knees bent and her legs apart, forcibly rubbing the TV remote controller up and down on her vagina over the top of her pyjamas. She deposes to having observed X masturbate on other occasions, including touching and rubbing her vagina with her fingers for a minute or so while she was watching children’s programs on an iPhone. On 17 February 2018, she observed X masturbate with a TV remote controller, by rubbing it on her vagina.
Neither the mother nor the maternal grandmother were prepared to accept any alternative explanation for the child’s behaviour and directly attributed this conduct to the father’s asserted sexual abuse of X.
When asked for alternative possible explanations for the child’s conduct with the remote control and the assertions by the maternal grandmother of the child masturbating, the family consultant said without hesitation the child may have been itchy and innocently rubbed herself to alleviate discomfort. That explanation is consistent with the mother’s own evidence of the child’s response on 4 December 2016, when she told her mother she was itchy when she was touching herself.
In addition to X’s behaviour which the mother described as sexualised, the mother sought to link X’s defiant and oppositional behaviour and her assertions she did not want to be left alone with the father, to the allegations the father had sexually abused her. Both the mother and the maternal grandmother in their affidavits refer to some of X’s behaviour as sexualised. They also attribute X’s mood changes and sleep disturbances to the sinister influence of the father.
In the context of possible causes for X’s defiant behaviour, Ms K, in her report at paragraph 13, noted “DHHS practitioners considered [X] and her brother to be at risk of emotional harm should their parents continue to engage in a conflictual parenting relationship”. She opined as follows:
21.… [Ms Fitzwater] impressed as having an unrealistic understanding of [X’s] developmental stage and ability to manage her own behaviour. [Ms Fitzwater] showed a limited capacity to understand that her responses to [X’s] behaviour would be the significant factor in supporting [X’s] ability to learn to stabilise her emotions and develop strategies other than tantrums to respond to events in the future.
…
23.… [Ms Fitzwater] impressed as limited in her understanding of possible alternative explanations for [X’s] behaviours. She appeared preoccupied by her fear that [Mr Fitzwater] had acted in an inappropriate manner with [X] and consequently she understood the genesis of [X’s] behaviours as a consequence of this past abuse.
I do not accept any inference can be drawn that X’s behavioural problems arise from sexual abuse by the father. There are a myriad of other possible explanations, which were canvassed by both Ms K and the family consultant, which I accept as inherently plausible. These include X being acutely aware of parental conflict and the disintegration of X’s family, after the departure of her father from the family home. The SOCIT notes (Exhibit M-11), when referring to the mother say, “that her husband and her relationship are not going well since being pregnant with their last child”. This indicates the parent’s relationship had been conflictual for an extended period and is contrary to the mother’s evidence that as at June 2015, the time of the first alleged disclosures, the relationship was intact. X, as a bright and articulate child, could hardly have been unaware of the tension in the household, particularly as the seminal incident of family violence relied upon by the mother, which happened in August 2015, occurred, to some extent, in the presence of the child.
The cumulative effect of the considerations referred to in the preceding paragraph, satisfy me that the father does not pose an unacceptable risk to the children during unsupervised time with them.
Having found that the father does not pose an unacceptable risk to the children, I will now consider what parenting arrangements are in their best interests. In order to do so, I will now address the primary and additional considerations.
Primary considerations
Section 60CC(2) of the Act requires the Court to consider the benefit to the children of a meaningful relationship with both parents and the need to protect children from physical or psychological harm. When applying the primary considerations, the Court is required to give greater weight to the second consideration. I am satisfied orders for the children to spend unsupervised time with the father would not expose the children to an unacceptable risk of harm by the father.
It was common ground the children had prior to separation and subsequently have and benefit from a meaningful relationship with their father, albeit his time with the children since separation has been supervised. The family consultant observed the positive relationship between the children and their father.
Additional Considerations
The primary focus of this case has been the need to protect the children from harm arising from asserted sexual abuse, family violence and sub optimal parenting capacity on the part of the father. However, I am also required to consider other relevant statutory considerations in reaching my decision about what parenting orders are in the children’s best interests. I will now address the additional considerations.
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
The second family report was conducted some years ago in March 2020. X reported that time with her father and his partner was good and explained that she did not want to sleepover at her father’s house because she did does not have permission, and was unable to do so until she was a teenager.
X was emotional during the interview, however, regained her composure when advised by the family consultant that her father would be meeting her in the playroom. According to the family consultant, she became enthused and excited about the prospect of seeing her father and reported how upsetting it was for her that she had not seen him in a long time.
Apart from X’s statement, there is no direct evidence about her wishes other than the observations of her interaction with her father. The observation session between X and her father was unfailingly positive, with the family consultant noting (at [105] of the second report) that when the father entered the room, “the formerly quiet children became energised, calling to him and each leaping into his arms smiling and chatting” and “their mood lifted considerably”. I place greater weight on the observations of interactions between the children and their father than X’s statements, as it is obvious her statements are not independent of her mother’s views.
The family consultant attempted to interview Y, but he failed to engage with her and in response to a request for interview there “was a resounding ‘…no’ and he then refused to speak.” The family consultant recorded that his words were contrasted with his observed behaviour with the father, which raise questions about the nature of Y’s preparation for the interview and his refusal to speak to the family consultant.
I place greater weight on the observations of interaction between the children and their father than X’s statements, or Y’s refusal to engage with the family consultant. It is obvious X’s statements are not independent of her mother’s views.
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)
I have already found that the children have a meaningful relationship with each parent. The observation sessions of the father and children in the second family report reflected “a warm loving and appropriate relationship” (at [108]), with both children being distressed on their father’s departure.
The family consultant observed there was no sense of fear or hesitation on the part of the children towards the father, their displays of affection, seeking his attention and chatting freely reflected a well-established relationship between father and children, one that has been nurtured over time and of sufficient quality that it has survived extended separations.
The relationship between the children and other persons was not a significant issue during the trial.
It was accepted during the trial that the maternal family have a strong presence in the lives of the children and have appropriate relationships with them.
The father’s partner gave evidence and as the mother has accepted that she is an appropriate supervisor for the father’s time with the children, I am able to infer she has confidence in the father’s partner and her relationship with the children. Likewise, I am able to infer that the children have a positive relationship with the paternal grandmother, who has also supervised time.
Since the date of the first final parenting orders, 18 October 2018, the mother has exercised sole parental responsibility for the children, in accordance with the orders. Consequently, the father has had limited opportunity to participate in making decisions about major long-term issues.
Subsequent to those parenting orders, the father has availed himself of all opportunities to spend time with the children, subject to disruptions caused by Covid-19. The mother did not raise any criticisms against the father about failure to avail himself of time with the children.
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 mother has provided for the financial support of the children as they have lived primarily in her care since separation. The father has paid child support in accordance with his assessment obligations.
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 mother’s proposal for the children to spend time with the father, if the Court found there was no unacceptable risk of harm, was for very limited time. The mother proposes the children spend time with their father for one night a fortnight for a period of six months and thereafter two nights a fortnight during school terms.
Her proposals for time during the holidays were similarly limited. She proposed for the first six months the children spend no additional term holiday time with the father and thereafter for a further 12 months, the children spend four nights overnight in the first week and three overnights in the second week of school holidays, with the time increasing to one week at the expiration of that 12 month period. Her proposal for the long summer holidays were similar and culminated in week about time.
The reasons proffered on her behalf for such restricted time include the significant impact on the children of extended unsupervised time with the father given the circumstances since November 2016. It was submitted a gradual period of introduction would be required as the children have never spent overnight time with the father since separation. The children have had very limited time away from their mother who has been their primary carer, albeit with family support, since the end of November 2016, X has a history of anxious behaviours which may be empty impacted by the change and the mother will also be impacted by the introduction of unsupervised time and that this may impact on the children, although the mother will continue to seek psychological support.
The father’s formal proposal for the children to spend time with him differed from his evidence during cross-examination. His formal proposal was that the children spend time with him in week one of a fortnight from Thursday until Friday and in week two from Thursday to Monday, a total of five nights per fortnight, and what would be termed usual school holiday arrangements. During cross-examination by counsel for the ICL, the father said initially he had concerns that a more gradual introduction for the children would be appropriate, however he was cognisant of the recommendations of the family consultant that increased time between the children and the father should happen as soon as possible. His evidence was the children may need some psychological assistance to transition into his care and that if the children were upset he would not force them to remain with him. He thought an appropriate regime would be to commence with an overnight on a Thursday night, as Y could attend sports on a Thursday night and X could attend a drama school or creative writing class at the Suburb AD library, which would provide an easy transition for the children during a school night. In the second week of the fortnight, overnight on Saturday would probably be appropriate for a couple of visits and then transition to a Friday and Saturday night. He considered the orders which he proposed would be achievable within a six to eight week period of the children spending time with him. As to his proposal for holiday time, he thought time should commence during the school term so that the children became accustomed to spending time with him, prior to holiday time. The long summer school holidays should be graduated as he considered three weeks in the long summer holidays would be too long for the children, although he ultimately sought half of the summer holidays because a week about would not provide sufficient time for the father and children to go away for a holiday. The father’s evidence demonstrated insight into the possible adjustment issues the children may face. In terms of his capacity to supervise the children, the father’s evidence was he had four weeks annual leave per annum with five weeks accumulated annual leave and 6.2 weeks accumulated long service leave which he could use to spend time with the children during school holidays. He currently worked from home and has no plans to go back to the office, which would enable him to be available for the children during holiday time.
The Independent Children’s Lawyer supported the father’s proposal for the children to spend time with him for five nights a fortnight and half school holidays, as did the family consultant.
The family consultant recommended if the court found the father did not pose an unacceptable risk of harm, the children should immediately spend five nights a fortnight with the father and school holiday time. She did not think the children needed to be gradually introduced into spending unsupervised time with their father. Nor did she identify risks other than the risk of physical or sexual abuse associated with the re-introduction of unsupervised time. Whilst I accept the validity of her recommendations, I intend to progress the time on a slightly more limited basis than formally proposed by the father to address the possible initial adjustment issues, which he contemplated during his oral 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
This consideration was not actively pursued throughout the trial. The parents live within reasonable proximity of each other and there is no difficulty or expense which would affect the children’s rights to maintain personal relations and direct contact with both parents on a regular basis.
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
As to the mother’s capacity to provide for the needs of the children including emotional and intellectual, she is reluctant to embrace orders for the children to spend overnight time with their father. She was quick to accept that the father had sexually abused X and has held that belief for many years. She has been reluctant to turn her mind to other possibilities and that has had a significant impact on the children’s lives. Specifically, neither child has spent overnight time with their father since separation nor any unsupervised time. I very much doubt she will abandon her deep-seated and entrenched beliefs about the father and the threat he poses to the children or freely give the children emotional permission to pursue an unfettered relationship with their father and freely discuss with each parent their day to day experiences in the other parent’s household. If she does so, and I am proven wrong, then the children will benefit enormously from her support and encouragement to spend time with and enhance their relationship with the father. I have no concerns about her physical care of the children.
The father presented as much less sophisticated than the mother. However, the insight demonstrated by him as to the children’s circumstances and relationship with their mother during the interviews for the second family report, and his insights as to possible adjustment difficulties for the children upon implementation of his proposed orders, gives me confidence that he has the capacity to provide for the needs of the children including their emotional and intellectual needs.
Clearly the parents have significantly different parenting styles and expectations of what is appropriate for the children. Such an example is a different attitude towards ownership of firearms, exposing the children to animal slaughter and riding of quad bikes. As I intend to make orders regulating some of these activities which have caused the mother concern, I have no concerns about the father’s capacity to provide for the needs of the children.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The respective attitude of the parents towards the children and the responsibilities of parenthood are also referred to extensively in these reasons.
Any family violence involving the child or a member of the child’s family
This has been considered earlier in these reasons in my discussion about the mother’s allegations of risk.
If a family violence order applies, or has applied, to the child or a member of the child's family - any relevant inferences that can be drawn from the order
There is an interim intervention order between the parties, however I do not draw any inferences from the order. Having found that the father does not pose an unacceptable risk of harm to the children, I intend to make orders providing for the children to spend unsupervised time with him.
Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The family consultant commented on the pressure the proceedings have placed upon the child X in particular, and I consider also on both parents and the other child. It is highly likely these proceedings will impact on both the parents and the children in the future, as they have done for the last four or five years. The parties have been subjected to a lengthy trial, an appeal and a further trial which has no doubt taken its toll emotionally on both of the parents and the children. It is obviously a preferable to make orders that would be least likely to lead to further proceedings so the parties and children are able to get on with their lives without the shadow of further litigation hanging over them.
Whether or not there are further proceedings will depend to a large extent on the mother’s acceptance of my findings that the father does not pose an unacceptable risk to the children and her ability to promote and encourage a relationship between the children and their father, rather than just saying she does so. Further proceedings should be avoided to the extent it is possible.
There are no other facts or circumstances that I consider relevant to the dispute between the parties.
Having considered the submissions of all parties, I accept the recommendations of the family consultant about the time the children should spend with their father as being in the children’s best interests. Having said that, I consider some transition period for the children would be appropriate prior to spending five nights a fortnight with their father and half school holidays. Whilst I accept the evidence of the family consultant that there is no impediment to an immediate resumption of time, I am mindful of the father’s evidence and his considered insight into the impact of change on the children and any anxiety they may have.
I do not accept that the time between the children and their father should be as limited as sought by the mother and in any event such time would not be considered substantial and significant time. The mother’s proposals are more focused on her rather than the best interests of the children and are in stark contrast to the recommendations of the family consultant.
The orders will provide stability and continuity of the children’s principal place of residence with their mother and will enable them to experience and normalise their relationship with their father. Over time, through their experience of being immersed in their father’s household, they will learn that he does not pose a threat to their well-being and that there is no necessity for another adult to be present to regulate their father’s conduct. The children spending overnight time with their father will promote and encourage the relationship between father and children, without detracting from their relationship with their mother or destabilising the principal home base. I am confident X’s residual anxieties will dissipate over time and she can enjoy a relationship with both of her parents. For the children to enjoy a devoted and loving relationship with both their parents, not clouded by fear, divided loyalty or risk to personal safety, is clearly in their best interests.
Parental Responsibility
I will now consider parental responsibility.
The mother sought an order that she have sole parental responsibility for the children, whereas the father sought an order for equal shared parental responsibility.
Section 61DA provides, when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
The mother, in seeking an order for sole parental responsibility of the children, asserts the Court should find that the presumption of equal shared parental responsibility should be displaced because the Court should make findings the father has engaged in family violence.
Having regard to my findings about family violence and whether the father poses an unacceptable risk to the children, I do not consider there is any evidence sufficient to displace the presumption of equal shared parental responsibility because either parent has engaged in family violence or abuse of the child or it is not otherwise in the best interests of the child for the parents to have sole parental responsibility.
An order for shared parental responsibility requires decisions about major long term issues to be made jointly in consultation with the other person.
It is a very serious matter to exclude a committed and involved parent, with whom the children will be spending five nights a week, from the rights and responsibilities of equal shared parental responsibility.
In this case, I accept the parents have difficulty communicating and that the mother considers she is better placed to make decisions about long-term issues affecting the children. Notwithstanding potential communication difficulties, it is incumbent on two competent parents who will share parenting of two young children to put aside their differences to enable communication about long term issues affecting the children.
Where the presumption applies, s 65DAA requires the Court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable.
In this case, as neither parent sought an order for equal time, I do not propose to consider orders for the children to spend equal time with each parent. I am satisfied that the orders I propose to make fall within the provisions of s 65DAA(3)(a), (b) and (c) of the Act for the children to have substantial and significant time with the father.
I shall make orders substantially in accordance with the father’s proposal, subject to a slightly delayed implementation timeframe for both term time and holidays. For the reasons set out herein, I consider these orders to be in the children’s best interests.
I certify that the preceding three hundred and thirty-six (336) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams. Associate:
Dated: 30 August 2022
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