Fontes & Bernik (No 2)
[2025] FedCFamC1F 68
•13 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fontes & Bernik (No 2) [2025] FedCFamC1F 68
File number(s): PAC 535 of 2019 Judgment of: SMITH J Date of judgment: 13 February 2025 Catchwords: FAMILY LAW – CHILDREN - Where mother alleges father poses an unacceptable risk of sexual harm to the children – where the father and the Independent Children’s Lawyer submit the mother fabricated disclosures and represents an unacceptable risk of harm to the children – finding father had not sexually abused the children – finding father does not pose a risk – finding that mother fabricated disclosures and presents an unacceptable risk – accept father’s and ICL’s submission that risks can be made acceptable by change of residence, the imposition of certain injunctions and making compliance with injunctions a condition precedent to mother’s time and communication with the children – Orders for the children to live primarily with the father – Orders for the father to have sole decision making responsibility for major long term decisions – Orders for a moratorium after change of residence – Order for injunctions on the mother restraining the promotion or maintenance of the false narrative - mother’s time and communication conditional on her compliance with injunctions. Legislation: Evidence Act 1995 (Cth), s 140(2)
Family Law Act 1975 (Cth), Pt VII, XI, ss 60CA, 60CC, 65AA, 68B, s 102NA
Cases cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Isles and Nelissen (2022) 65 Fam LR 288; [2022] FedCFamC1A 97
Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84
Division: Division 1 First Instance Number of paragraphs: 456 Date of hearing: 8-10 February 2023; 11-14 April 2023; 24-26 July 2023 Place: Parramatta Counsel for the Applicant: Mr Keserovic Solicitor for the Applicant: Khalil Family Lawyers Pty Ltd Counsel for the Respondent: Mr Trost Solicitor for the Respondent: Genuine Legal Counsel for the Independent Children's Lawyer: Ms Edwards Solicitor for the Independent Children's Lawyer: Venus & Smart ORDERS
PAC 535 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FONTES
Applicant
AND: MR BERNIK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
13 FEBRUARY 2025
THE COURT ORDERS THAT:
Parental Responsibility
1.MR BERNIK (born in 1987) (“the father”) shall have sole parental responsibility for long term decisions about the care, welfare and development of the children X (born in 2014), Y (born in 2016) and Z (born in 2018) (jointly and severally “the children”).
2.The father will notify MS FONTES (born in 1982) (“the mother”) in writing of any major long-term decision within 7 days of the making of any long-term decision.
3.For the avoidance of doubt, the father has sole parental responsibility in relation to all educational, medical and religious decisions, and the mother is not to involve the children in any religious activities or practices without the father’s prior written consent.
4.For the avoidance of doubt, the parties are not required to consult each other when making decisions about day-to-day issues that are not major long-term issues while the children are in their care.
Changeover of primary residence at court
5.To facilitate the children’s change of primary residence, the mother shall bring the children to the Court Child Services, Federal Circuit and Family Court of Australia Registry on 13 February 2025 at 11.00 am in accordance with Order 1 of the Orders dated 7 February 2025.
6.Pursuant to s 65L of the Family Law Act 1975 (Cth) (“the Act”) a Court Child Expert of the Federal Circuit and Family Court of Australia shall:
(a)Explain to the children these Orders;
(b)Effect a changeover of the children such that the children shall come into the care of the father once the Orders have been explained to the children.
7.The father shall attend Court Child Services, Federal Circuit and Family Court of Australia Registry 13 February 2025 at 11:30 am to collect the children after the Court Child Expert has explained the orders.
Mother to vacate area and not to approach children
8.The mother will leave the Court precinct by no later than 12.15 pm on 13 February 2025 and is to take all reasonable steps to avoid coming into contact with the father or the children when they depart.
Live with and spend time arrangements for the children
9.The children shall live with the father.
Moratorium on time and communication with mother
10.Unless the father determines otherwise, and subject to any agreement in writing between the parties to the contrary, the children shall spend no time and have no communication with the mother for a period of three (3) months from the date of these Orders.
11.During the period of three (3) months from the date of these Orders, pursuant to s 68B of the Act, for the protection of the children, and unless the parties otherwise agree in writing, the mother is restrained by injunction from:
(a)Spending time with, communicating with, or contacting or attempting to contact, the children, whether in person or by way of telephone, email or any other means of communication, including through an agent; and,
(b)Attending upon the children’s school or residence, or coming within one hundred (100) metres of the children’s school or residence, including through an agent; and,
(c)Removing the children from any place where they may be residing or attending, including through an agent.
Post moratorium time with mother
12.After the three (3) month period from the date of these orders the children shall spend time with the mother as agreed between the father and the mother in writing, but failing agreement as follows:
(a)Each alternate weekend from 3.00pm/after school Friday until 9.00am/before school Monday commencing on the first weekend after the end of the moratorium.
(b)for one-week periods during school holidays, totalling four weeks per calendar year, with the mother to advise the father at least 8 weeks in advance of the proposed week, and the father not to unreasonably reject that proposal.
13.That for the following special occasions, the above Orders are suspended, and the children shall spend time with the mother if not otherwise with her:
(a)in even years from 6:00 pm Christmas Day to 6:00 pm on Boxing Day;
(b)in odd years from 6:00 pm Christmas Eve to 6:00 pm on Christmas Day and;
(c)in even years from Thursday 6:00 pm the day before Good Friday until 6:00 pm on Easter Saturday;
(d)in odd years from 6:00pm on Easter Saturday to 6:00pm on Easter Monday.
(e)on Mother’s Day and on the mother’s Birthday, if orders stipulate the children are to spend time with the father, from 9:00 am with the children to spend the rest of that day with the mother until 6:00pm (but they are not to miss school if the mother’s Birthday falls on a school day).
(f)On each child’s birthday, if on a weekend or holiday day from 9.00 am to 1.00 pm, and otherwise from after school till 6.00 pm.
14.That for the following special occasions, the above Orders are suspended, and the children shall spend time with the father if not otherwise with him:
(a)on Father’s Day from 9.00 am to 6.00 pm;
(b)on the Father’s Birthday, if on a weekend or holiday from 9.00 am to 1.00 pm, and if on a school day from after school until 6.00 pm.
Changeovers
15.Unless otherwise agreed between the parties in writing, changeover will occur on school days at the children’s school.
16.Unless otherwise agreed between the parties in writing, changeover will occur on non‑school days at the carpark of Suburb B McDonald’s, located in the State of New South Wales.
17.The mother and the father may arrange for another person to attend changeover on their behalf provided that the person is known to the children, and the other parent is notified no later than 24 hours before changeover unless in an emergency, when the parent will give as much notice to the other parent as possible in the circumstances.
Post Moratorium communication with mother and father
18.After the three (3) month period from the date of these orders the children shall communicate with the mother as agreed between the father and the mother in writing, but failing agreement as follows:
(a)The mother may contact the children every Tuesday and Thursday at 6:00 pm, and the father must make all reasonable efforts to make the children available for the call.
19.When the children are with the mother, the father may contact the children every Tuesday and Thursday at 6:00 pm, and the mother must make all reasonable efforts to make the children available for the call.
Communication between parents
20.The parties shall communicate about the children by SMS, unless there is an emergency in which case the party attending to the emergency will telephone the other party as soon as reasonably practicable.
21.All communication is to be courteous and respectful.
Keeping informed
22.The father will keep the mother informed of:
(a)The schools the children attend.
(b)The medical and allied health practitioners and practices the children attend.
23.The parties will keep each other informed of:
(a)Residential addresses, telephone / SMS and email contact details.
(b)Any medical problems or illnesses suffered by the children whilst in their care.
(c)Medication that has been prescribed for the children, including details of administering same.
(d)Details relating to new persons entering the children’s lives on a more than transient basis.
(e)Other relevant matters related to the children’s welfare.
24.The parent with whom the children are with will provide the other parent relevant information concerning the children including but not limited to any changes in routine, and the other parent will ensure any reasonable recommendations are implemented while the children are in their care.
Access to medical or school information
25.Each party is hereby authorised to request and obtain from any medical or allied health practitioner any updates or reports relating to the children’s health, at their own expense.
26.Each party is hereby authorised to request and obtain from the children’s schools all notices, letters and school reports usually provided to parents, at their own expense.
Mutual restraints
27.The parties are not to criticise or denigrate the other parent or the other parent’s family, nor allow any other person to do so, in the presence of or within hearing of the children.
28.The parties are to encourage, and are not to undermine, each child’s relationship with the other parent.
29.The parties are not to allow the children to refer to any other person as “mum” or “dad” or similar.
Injunction on mother
30.The mother is restrained by injunction from promoting to the children the belief that the father has sexually or otherwise assaulted or abused any of the children, or that the father poses any risk of harm to any of the children.
31.The mother is restrained by injunction from supporting the children in maintaining any belief they may currently hold that the father has sexually or otherwise assaulted or abused any of the children, or that the father poses any risk of harm to any of the children.
Mother’s time and communication conditional on compliance with injunction
32.The mother’s compliance with the injunctions in orders 30 or 31 is a condition precedent to the mother spending time with or having communication with the children pursuant to these Orders.
33.The children’s time with and communication with the mother is conditional upon her ongoing compliance with these injunctions.
Time and communication with Mother to cease if Father alleges Mother does not comply with restraint
34.In the event the father forms the belief that the mother has breached the injunction on her in orders 30 or 31 the father may give a written notice to the mother alleging that a breach or breaches have occurred (“the Notice”).
35.On the giving of the Notice all of the children’s time and communication with the mother pursuant to these Orders shall be suspended.
36.Thereafter the children will only spend such time and have such communication with the mother, if any, as the father agrees to, and on such terms if any as the father agrees to, in the exercise of his sole parental responsibility.
If the mother disputes the alleged breach of injunction
37.If the mother disputes the Notice she may file an Initiating Application to determine the alleged breach.
38.Until any contrary orders are made in any fresh Application these orders will continue to have effect.
Provision of orders/judgement
39.The father has leave to provide a copy of these Orders to any educational institution, or treating medical practice or medical practitioner attended by the children.
40.The father has leave to provide a copy of the written reasons for Judgement to any counsellor or medical provider attended by the children or to the Department of Communities and Justice (DCJ).
Costs
41.Any application for costs may be made in accordance with the Rules.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Fontes & Bernik has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
These proceedings are to determine the parenting orders in the best interests of three children. X (born in 2014) aged 10, Y (born in 2016) aged 8, and Z (born in 2018) aged 6 (“the children”).
The orders are to be determined in accordance with the principles in Pt VII of the Family Law Act 1975 (Cth) (“the Act”) as in force at the time of trial. For convenience X and Y will be referred to as the “older children” and all three together as “the children”.
The applicant mother, Ms Fontes (born in 1982) aged 42 (“the mother”) says that Y made disclosures of sexual abuse by the father. The respondent father, Mr Bernik (born in 1987) aged 37 (“the father”) denies he sexually abused Y, or X. The father says the mother maliciously and knowingly fabricated false disclosures and maintained a false allegation.
The parents commenced their relationship in 2012, began cohabitating in 2013, married in 2018,[1] separated and reconciled on several occasions during a tumultuous relationship,[2] and separated on a final basis on 11 November 2018 when Z was two weeks old.[3]
[1]Father’s affidavit filed 19 November 2021, paragraph 9; Mother’s affidavit filed 4 November 2021, paragraph 4.
[2]ICL 14, Magellan Family Report dated 22 April 2021, paragraph 9; Father’s affidavit filed 19 November 2021, paragraph 9.
[3]Father’s affidavit filed 19 November 2021, paragraph 9; Mother’s affidavit filed 4 November 2021, paragraph 8.
The parents entered into final consent orders on 30 July 2019 (“the 2019 orders”). These provided for equal shared parental responsibility, for the children to live with the mother, and for the older children to spend time with the father from Friday 6.00 pm to Sunday 2.00 pm alternate weekends, with Z to spend increasing time with father until her time matched the older children from 3 years of age. No Rice & Asplund (1979) FLC 90-725 issue arose in the context of subsequent allegations of sexual abuse.
The Family Consultant Ms C identified in the Family Report:[4]
99.The central issue in this matter appears to be whether or not [Mr Bernik] sexually abused [Y] and/or [X] and, therefore, whether the children are at risk of harm in his care.
[4] Exhibit ICL 14, Magellan Family Report dated 22 April 2021 at paragraph 99.
That remained the central issue at trial, along with allegations of family violence.
It is common ground that if the father did sexually abuse either child then he presents an unacceptable risk of harm to the children and that the orders sought by the mother for sole parental responsibility, and for no time and no communication with the father, would follow.
The trial was heard across three separate sittings and nine days over many months due to the matter repeatedly not finishing within the estimated times. I do not make any criticism of any legal representative for that, and the transcript explains, if necessary, why this occurred. However, it has been necessary to both take out and review the transcript, and the voluminous documentary evidentiary material.
I apologise for the delay in delivery of Judgment.
At the conclusion of the trial the mother maintained the primary position that the father posed an unacceptable risk of sexual harm to the children.[5] Her submission was that this finding would be made even if the evidence did not establish sexual abuse to the civil standard.[6]
[5] Isles and Nelissen [2022] FedCFamC1A 97.
[6] Evidence Act 1995 (Cth), s 140(2); Briginshaw v Briginshaw (1938) 60 CLR 336.
The Independent Children’s Lawyer (“ICL”) and father both submitted that the mother had fabricated evidence of disclosures of sexual abuse, and that she represented an unacceptable risk of harm to the children of continuing that false narrative if they continued to primarily reside with her.
On that basis the ICL and father sought a change of primary residence and that the father exercise sole parental responsibility. Even submitting that risk, rather than a no time or no communication order, both the ICL and the father proposed a moratorium, then supervised time, and then comparatively limited time and communication to ameliorate the risk whilst balancing that against the risks of a complete termination of the maternal relationship.
For reasons set out below, in overview, I find that the father did not sexually abuse either Y or X, and that the father poses no risk of sexual or other harm to the children.
I find that the mother’s suspicion that the father posed a risk of sexual abuse was long standing, genuine, erroneous and without any rational foundation.
In the context of certain events in around late 2019 to early 2020 I am comfortably satisfied to the requisite standard, noting the gravity of the finding, that the mother, who was seeking evidence to support her concerns, asking and leading the children to make disclosures, and being told there was no sufficient basis for action to be taken about her concerns, decided to fabricate disclosures from Y of sexual assault by the father.
I find that the mother subsequently transmitted to Y, and to X, the false narrative that the father had sexually abused Y, which eventually led to Y conveying the disclosure to others and to Y and X being negatively psychologically affected by this belief.
I accept the Family Consultant’s opinion that, as the damage and trauma of sexual abuse is primarily psychological, the creation of a false belief in a child that they have been sexually abused is, or may be, akin to sexually abusing the child. I find that the mother has conveyed a false belief to Y and X that Y has been abused. That harming Y and X was probably not her intention does not change the gravity of what she has done.
I am comfortably satisfied and find that the mother repeatedly lied in oral evidence and fabricated additional evidence to support her claims, notably concerning Y’s use of a doll to masturbate.
I find that I can have no confidence that if allowed to reside primarily with the mother that she will not continue to convey this false narrative to the children. To the contrary, given her past behaviours and the injunctions I intend to impose on the mother, I find there is a significant risk that she will continue to promote the false narrative to the children.
On that basis I find that the mother represents an unacceptable risk of psychological harm to the children and accept the opinion of the Family Consultant, and submissions of the ICL and father, that on that finding the children’s best interests require their primary residence be moved to live with the father.
It would be difficult to overstate the immense short and long-term psychological trauma this will cause the children. The mother has been their primary carer their entire lives. Z in particular has only really known the father in a supervised setting. However, while that trauma will necessarily have major and potentially dramatic long term negative impacts on the children’s psychological health, I find moving their primary residence involves less risk of long-term harm than the risks associated with their continuing to live with the mother and the false narrative being perpetuated, and so is in their best interests.
This is a tragic result for the children which is entirely a consequence of the mother’s malicious fabrication.
The parties all submitted that it was not feasible for there to be sharing of parental responsibility. I agree. On my findings sole parental responsibility must be with the father.
On my findings, and accepting the opinion of the Family Consultant, there is a strong argument that the children’s best interests require that they spend no and have no communication with the mother.
However, the father and the ICL both ultimately sought orders for time and communication given the extent of the psychological devastation the children could suffer from a complete termination of the maternal relationship.
In these circumstances, and in particular respecting the father’s assessment as the person to exercise sole parental responsibility, I will make orders for the children to spend time and have communication with the mother largely as proposed by the father.
However, given the risks posed that the mother will again seek to convey this false narrative, as outlined by the Family Consultant and accepted by me, I will make the children’s time and communication with the mother conditional on compliance with the injunction, discussed in more detail elsewhere, that she not communicate to the children or reinforce in them in any way the idea that they have been, or might be, sexually abused or otherwise mistreated by the father, and make orders addressing what is to occur if it is alleged the mother has breached that injunction.
I will make ancillary orders based on the proposals of the ICL and father, with the orders discussed in detail elsewhere.
BACKGROUND OVERVIEW
It is convenient to provide an overview of the main factual matters and history before embarking on an analysis of the issue of the alleged sexual abuse.
Relationship
The parents commenced a relationship in 2012 and from 2013 commenced cohabiting, initially in a dwelling behind the father’s siblings house in Suburb D before moving to another suburb. After X was born the parents moved to Suburb E, living with the mother’s sister Ms F. The parents had some conflict with Ms F and trouble in their relationship. The father alleges the mother accused him of infidelity in about mid-2015. Some months later in 2015 the father moved out to live with the paternal grandfather until late 2015.
It first emerged during the mother’s oral evidence that in about 2015 she saw X laying, fully clothed, on the father’s fully clothed chest partially under a blanket. She considered this so unusual she pulled back the blanket to check to see whether the father had a “hard-on” as a consequence of X laying in what the mother considered a sexual position. The mother’s concern that the father had a sexual interest in X as far back as 2015 was not raised prior to her oral evidence. The mother’s oral description of what she observed was reminiscent of the pictures of infants and toddlers laying on parent’s chests commonly shown on greeting cards and in calendars.
In late 2015 the father again moved out to live with his mother, and then his father, and then a friend, after an argument which the mother alleges involved family violence. In early 2016 the father rented an apartment in Suburb D and initiated mediation. He had weekly visits with X from 9.00 am to 5.00 pm Saturdays. There is a dispute as to why this time was limited.
The relationship recommenced in mid-2016 however the parents remained living separately, though were nearby to one another and the father’s evidence was he would regularly stay with the mother and X during this time. The father’s evidence was that this was about three nights a week.[7] The parents became pregnant with Y. Y was born in 2016. In 2017 the parents became engaged and in 2018 married.
[7] Father’s affidavit filed 19 November 2021, paragraph 32; Transcript 14 April 2023, p.575.
The parents became pregnant with Z. The father says in about mid-2018 the mother again accused him of infidelity, which she denies. The father said there was a dispute about a medical procedure in late 2018 due to the mother’s alleged religious beliefs, which the mother denies she holds. Z was born in 2018.
It also first emerged in the mother’s oral evidence that in about 2018 the maternal grandmother had witnessed X laying on the father’s chest, and apparently had the same concern as the mother.
Similarly, the mother raised in oral evidence that the maternal grandmother heard X tell the father that they could have a secret, and the mother also considered this possible evidence of a sexual interest in X by the father.
Final separation
In late 2018 the father took the older children to a family barbecue at his parent’s house. He said a dog snapped at Y, who was startled but not injured.[8] The mother maintained Y had been bitten leaving a visible mark. She denied she told the father never to take the children to his parents again or that he would never be allowed to look after them on his own again.[9]
[8] Father’s affidavit filed 19 November 2021, paragraph 46.
[9] Transcript 8 February 2023, p.28-29.
On 11 November 2018 the parties finally separated when the father decided to leave. The father said the mother held her fists up and pushed him, and that he decided to take the children.[10] There was a dispute when the father tried to take the older children with him. The police were called and attended and the children stayed with the mother.[11]
[10] Father’s affidavit filed 19 November 2021, paragraph 47-48.
[11] Exhibit ICL 15, COPS entry dated November 2018.
The father moved to live with his mother Ms G and stepfather Mr H in Suburb J. He was spending time with the older children between 10.00 am and 3.00 pm each Saturday. The mother said they agreed to daytime visits. The father said the mother refused overnight time. The parents agreed that Z was too young to be away from the mother for long periods.[12] That arrangement appeared to work without significant issue until about early 2019.
[12] Father’s affidavit filed 19 November 2021, paragraph 49; Mother’s affidavit filed 4 November 2021, paragraphs 9-12.
In early 2019 X and Y were assessed by their General Practitioner, Dr K as having anxiety. X was also assessed as having depression and compulsive behaviours.[13]
[13] Exhibit ICL 2, Mother’s affidavit filed 6 February 2019, paragraph 55.
Mother’s relocation and father’s withholding of older children
In early 2019 the father says the mother told him she intended to relocate to Region L in NSW to be closer to her family.[14] The mother says the father had taken money from their account and she had limited options due to lack of funds.
[14] Father’s affidavit filed 19 November 2021, paragraphs 52-53.
On a date in the following month the father came to collect the older children from Suburb E. He saw packed moving boxes. He says the mother denied she intended to move and that she was just putting things into storage. He did not believe her. There was a dispute about whether or not X wanted to go. The mother alleges the father was yelling and swearing. The father took the older children as planned and the mother did not seek to withhold them.
Because he believed the mother intended to relocate, the father and paternal grandmother made enquiries with police as to his rights to retain the children. The father then sent the mother a text message on the same date saying she had left him no choice but to keep the children, and that as there were no orders in place, there was nothing she could do to stop him.[15] The mother said she had engaged with the mediation process.[16]
[15] Mother’s affidavit filed 4 November 2021, paragraph 13; Father’s affidavit filed 19 November 2021, paragraphs 54-55.
[16] Transcript 8 February 2023, p.38.
The mother called police. They attended and advised that absent court orders they could only do a welfare check, which they did. The children appeared to be happy. The parents did not speak, with police acting as a mediator between the parents. Police advised the mother to seek family law orders.[17] The mother denied that X was happy, as she said when she returned X told her “I was crying Mummy. I was crying.”[18]
[17] Exhibit ICL 15, COPS event dated February 2019.
[18] Transcript 8 February 2023, p.40 line 44.
The contested details of precisely what occurred in this dispute do not require determination. What is clear is that the mother’s decision to relocate to Region L, and the father’s decision to withhold the older children in the way he did, significantly further damaged the already fragile co-parenting relationship.
Prior proceedings
The mother initiated urgent recovery proceedings through Family Advocacy and Support Service (FASS) on 4 February 2019. [19] This was accepted and sealed on 6 February 2019.
[19] Mother’s affidavit filed 4 November 2021, paragraph 14.
At the first return at court on 7 February 2019 the parents entered interim consent orders for the father to return the children, for the children to live with the mother, permitting the mother’s relocation to Town M in Region L with the children, with the older children to spend time with the father each alternate weekend from Friday 6.00 pm until Sunday 3.00 pm and speak with the father by telephone on Tuesdays and Thursdays between 7.00 and 8.00 pm.
In early 2019 the mother relocated with the children to Region L, with her sister and mother living nearby.[20]
[20] Mother’s affidavit filed 4 November 2021, paragraph 17.
Observations of sexualised behaviours
In early 2019 the father commenced spending time with the older children pursuant to the consent orders. There were no orders for Z to spend time with the father at that time.
The mother’s evidence was that starting from early 2019 the older children started to behave in a sexualised way after returning from the father’s care.
She recorded this in an electronic diary which she says was contemporaneous. The first entry describing these behaviours is in late March 2019. It was first reported to a counsellor, Ms N, at their first meeting in late March 2019. A report was made to the Department of Communities and Justice (“DCJ”) on the same day in March 2019.
The mother made various reports of observing what she considered to be sexualised behaviours to DCJ, the police, and to others including a different counsellor, Ms O, in April 2019.
In this period the mother said she had concerns but was not sure who might be a danger to the children because a number of people had access to them when they were staying with the father at his parents’ house. She says she was advised by legal aid and a duty solicitor that she had to continue complying with the interim orders despite her concerns.[21]
[21] Mother’s affidavit filed 4 November 2021, paragraph 21.
The mother did not raise her concerns with the father, despite saying that she was concerned another adult in the paternal grandparent’s household might be abusing the children.
Mid-2019 – Early 2020
The parents entered into final consent orders on 30 July 2019. Time occurred in line with the 2019 orders. However, during this time the mother continued to make reports to DCJ, and to others including a counsellor named Ms P, and Dr Q and Dr R.
Late 2019 – parents sleep together
The parents’ relationship was improving and in late 2019 the parents slept together, and the parties then exchanged messages about their relationship.
Mid-January 2020 – possible sexually transmitted disease
By about mid-2020 the mother sought medical advice regarding concerns she might have contracted a sexually transmitted disease from the father.[22]
[22] Transcript 9 February 2023, p.130 lines 10-18.
Mid-January 2020 – Dr S
In mid-January 2020 the mother and X saw Dr S, a paediatrician. Dr S provided a report that same day considering the mother’s concerns about X’s sexualised behaviours. There were no disclosures, although the doctor noted the mother had “already had multiple conversations, trying to convince [X] to disclose any events”. The doctors said that X’s observed movements on a mattress “could be a picture of self-exploration or masturbation too. This is usually benign, not sexualised and improves with time.” [23]
[23] Exhibit ICL 15, Report of Dr S dated mid-January 2020.
Late-January 2020 – Y’s disclosure
The next day, in January 2020, the mother says that Y made a disclosure of sexual abuse by the father.
The mother said she made a report to DCJ in late January 2020, but it is not recorded in DCJ’s records.
The mother reported Y’s disclosure to Dr T in late January 2020 and to Ms O four days later in January 2020.
Two days later in January 2020 the father disclosed to the mother that when they were separated, he had slept with someone else which may have caused her to have an STI. This conversation terminated their rapprochement.
A further two days later in January 2020 the mother reported Y’s disclosure to DCJ.
The mother ceased the children’s time with the father, and he has not spent time with the children in an unsupervised setting since late January 2020.[24]
[24] Father’s affidavit filed 19 November 2021, paragraph 68.
The mother filed a further Initiating Application on 20 April 2020 seeking urgent interim parenting orders suspending the 2019 orders.
The parents entered into interim consent orders on 15 October 2020, on a without admissions basis, suspending Order 3 of the 2019 orders and agreeing for the children to spend supervised time with the father each alternate Saturday from 10.00 am to 2.00 pm with the father to pay the cost of the supervision. The parties also agreed to customary non-denigration orders and that the children continue to attend upon their counsellor. Those are the orders that remained in place at the time of trial.
Position at Trial
The mother and children reside in Town M NSW. The mother is reported to be self-employed and states that she in not presently in a relationship.[25] The older children attend a local school, and Z was to start school in 2024.
[25] ICL 14, Magellan Family Report dated 22 April 2021 at paragraph 3.
The father resides in Suburb U with his mother and stepfather.[26] The father is employed full‑time in the automotive industry. He has not re-partnered since final separation.[27] He said he paid assessed child support.[28]
THE PROCEEDINGS
[26] Father’s affidavit filed 19 November 2021, paragraph 4.
[27] Father’s affidavit filed 19 November 2021, paragraph 11.
[28] Father’s affidavit filed 19 November 2021, paragraph 12.
Procedural history
The prior proceeding commenced on 6 February 2019 and the 2019 orders, made by consent, were for the parties to have equal shared parental responsibility, for the children to live with the mother and for the children to spend time with the father. Under those orders X and Y were to spend time with their father each alternate weekend and, in accordance with provisions, on special occasions. The orders further provided for Z’s time with the father to increase incrementally until her third birthday, whereupon spend time with arrangements were to mirror those in place for X and Y.
The mother commenced the current proceedings on 20 April 2020. She sought urgent interim parenting orders suspending the 2019 orders and listing the matter on an urgent basis.
On 20 April 2020, the matter was transferred to the Family Court of Australia (as it was then known) and referred for consideration into the Magellan Protocol. On 24 April 2020, the matter was entered into the Magellan Protocol and an ICL was appointed to represent the children. A Magellan Report dated 27 May 2020 was prepared and submitted on behalf of the Secretary of the NSW Department of Justice which was released by the Court on 14 July 2020.
On 15 October 2020, the matter came before a senior judicial registrar where the parties entered into interim consent orders on a without admissions basis, as set out above. Those are the orders that continue to remain in place at the time of final hearing, providing for the children to live with the mother and spend supervised time with the father each alternate Saturday from 10.00 am to 2.00 pm with the father to pay the cost of the supervision.
On 14 May 2021, the court released the Magellan Family Report prepared by Family Consultant Ms C (“Family Consultant”) dated 22 April 2021.
On 11 April 2022, the matter came before me and was confirmed for a four-day final hearing commencing Tuesday 19 April 2022 to be conducted via Microsoft Teams.
On 15 April 2022, the court received correspondence from the legal representative of the mother advising that her counsel was unwell. On 19 April 2022, the matter proceeded before me at 10.00 am and an oral application for the adjournment of the proceedings was made. The matter was stood down until 2.15 pm to ascertain whether the mother could find alternative counsel on a legal aid grant. At 2.15 pm the court was advised that they were unable to retain alternative counsel. An adjournment was granted, and a short oral judgment was given noting that the parties advised the court that they did not require a judgment on the application.
The court made a discretionary s 102NA order as the court formed the view that it would be inappropriate for the mother to be subjected to cross-examination by the father personally.
The final hearing was adjourned to 19 July 2022 and was listed for three days as the parties were all of the view that four days was not required.
On 8 July 2022, the three-day final hearing listed for 19 July was vacated and the matter was listed for a three-day final hearing commencing 4 October 2022.
As a consequence of the unavailability of the Family Consultant, the hearing listed for 4 October 2022 was vacated. The matter was set down once more, for three days, commencing 28 November 2022.
On 28 November 2022, solicitors for the applicant mother sought leave to withdraw from these proceedings. Leave was granted by the court and the matter was adjourned to 30 November 2022 for the mother to seek that her grant be transferred to another practitioner on an urgent basis.
On 30 November 2022, this matter was once again set down for a three-day final hearing listed to occur in person at the Parramatta Registry and commencing 8 February 2023.
Given the complexity of the matter and extent of the evidence, the matter went part-heard and was relisted for a further four days from 11 April 2023 through to 14 April 2023.
Unfortunately, the evidence was unable to conclude and was adjourned part-heard once more, to three days from 24 July 2023 to 26 July 2023.
Trial and Evidence
Each of the parents and the ICL (jointly “the parties”) were legally represented, including by counsel.
The parties submitted a joint court book comprising of two volumes. Part one of the parties’ joint court book was comprised of 342 PDF pages and was marked for identification (MFI 1). Part two of the parties’ joint court book was comprised of 780 PDF pages (MFI 2).
The applicant mother relied upon the following material at trial:
(1)Amended Application for Final Orders filed 31 August 2021;
(2)Trial Affidavit of Ms Fontes filed 4 November 2021;
(3)Updating Affidavit of Ms Fontes filed 7 February 2023 (MFI 7);
(4)Financial Statement of Ms Fontes filed 16 August 2021;
(5)Notice of Risk of Ms Fontes filed 15 April 2020 (and sealed on 20 April 2020);
(6)Case Outline filed 7 February 2023 (MFI 3);
(7)Written Submissions for the mother (38 pages) dated 26 July 2023 (MFI 30).
The respondent father relied upon the following material at trial:
(1)Response to Final Orders filed 22 May 2020;
(2)Trial Affidavit of Mr Bernik filed 19 November 2021;
(3)Supplementary Affidavit of Mr Bernik filed 11 November 2022;
(4)Updating Affidavit of Mr Bernik filed 30 January 2023 (MFI 14);
(5)Financial Statement of Mr Bernik filed 13 August 2021;
(6)Notice of Child Abuse, Family Violence or Risk filed 22 May 2020;
(7)Case Outline submitted to Chambers on 3 February 2023 (MFI 4);
(8)Affidavit of Ms G filed 15 April 2020 (MFI 18).
The ICL relied upon the following material at trial:
(1)The Project Magellan Report prepared by Ms V dated 27 May 2020;
(2)The Magellan Family Report prepared by Ms C dated 22 April 2021;
(3)Case Outline submitted to Chambers on 7 February 2023 (MFI 5);
(4)Amended Minute 3 (MFI 31).
The witnesses required to give evidence at trial were the mother, the father, the paternal grandmother Ms G and the expert, Ms C (through AVL).
There was extensive material tendered from various tender bundles and subpoena documents which will be referenced to throughout the judgment.
It is noted that the entirety of MFI 25 was tendered in ICL 15 following correspondence received by the court on 4 September 2023, noting that the page ranges referred in the list did not correlate as such.
MOTHER’S CONCERNS ABOUT RISK OF SEXUAL HARM
Mother’s evidence in chief
The principal issue in the trial was risk of sexual harm by the father.
The mother’s trial affidavit evidence was that:[29]
23.For the period of or around March 2019 to January 2020, I observed that the girls' behaviour was becoming sexualised whenever they returned from their father's care. During this time, I kept a contemporaneous diary of all the events that I considered were inappropriate and every time the girls disclosed something to me that I considered to be not right.
[29] Mother’s affidavit filed 4 November 2021, paragraph 23.
Mother’s pre-separation concerns of risk of sexual harm
During the course of cross-examination the mother gave evidence that showed she had held concerns that the father posed a risk of sexual harm prior to separation.
In oral evidence the mother said:[30]
My mum overheard [X] saying something about keeping secrets and then she said in front of [Mr Bernik], “We don’t keep secrets, [X]. You don’t keep secrets with anyone”. The other time is I remember going – and she – my mum saw in our lounge room that she was lying like this on his belly, face-to-face, like, his face to her face, and then I remember we were at my friend’s holiday house and the same thing – we had the pull out bed open and again, [X] was lying like on top of his body. Like, fully stretched on top of – not on the side, like, you know when you hug a kid, and you get them in there and they’re still close but they’re not lying physically on top of you. And I was like, “[X], get off, you don’t lie on anyone like that.” I had to kind of say to her – and then what I did was I kind of lifted the blanket to see if he had a hard-on. Like, I was just, like, going, “What is going on here?”
[30] Transcript 11 April 2023, p.335 line 36 to p.336 line 3.
These three events, later established in chronological order to be the mother pulling back a blanket to see whether the father had an erection when X was laying on his chest, the maternal grandmother seeing X laying on the father’s chest, and the maternal grandmother hearing X say something to the father about keeping secrets, and a fourth event which the mother later mentioned where the maternal grandmother came home unexpectedly and the father looked surprised, although nothing untoward was happening, were explored with the mother in cross examination.
The pulling back of the blanket event was initially said to be at about the time X was born, however, the mother later said:[31]
No, she was – she wasn’t a baby at that stage. She was older. We were living – this is when we were in [Suburb W]. So we lived – when we lived in [BB Street]. That’s when she was lying on him like that.
[31] Transcript 11 April 2023, p.339 lines 3-7.
The issue was explored further.[32] The mother said that at the time that event occurred they were at a friend’s holiday place in Region L. The mother initially said that X and Y were both there, but then said she was not sure if Y had been born yet, or if she may have been pregnant with Y.
[32] Transcript 13 April 2023, p.456 and following.
The mother eventually said that X was about two years old and was a toddler. Given X was born in 2014 and Y in 2016, the event appears to have occurred in either 2016 or 2017.
The mother said she saw the father lying flat on a pull-out bed. X was laying on the father so “the width of her body was just on his body”.[33] The mother confirmed that the father and X were both clothed and laying under a blanket. The mother said:[34]
She wasn’t sleeping. Her head was on his chest and everything else kind of just was past his groin area, her body was long enough to be past his groin area from her resting on his chest.
[33] Transcript 13 April 2023, p.457 line 32.
[34] Transcript 13 April 2023, p.457 lines 45-47.
The father is over six foot tall.[35]
[35] Transcript 8 February 2023, p.70.
In further cross examination for the ICL the mother said:[36]
I’m sorry?--- - - - walked down the stairs and then I had seen them lie like that.
Okay?---And then I was kind of, like, shocked. I was kind of taken aback and I was, like, “[X], why are you lying like that? Get up.” I said, “You don’t lie like that on anybody.”
[36] Transcript 13 April 2023, p.458 lines 20-24.
The mother then helped X get off the father. She said that this was the first time she had seen X laying on the father in this way. She said:[37]
And then I kind of put her down and then I went back and I just kind of went to his body and lifted the blanket and to see if he had an erection and then I just – he didn’t at the time and then I just put the blanket down and I kind of took [X] into the other room.
[37] Transcript 13 April 2023, p.459 lines 16-19.
In relation to why she acted this way the mother was asked and said:[38]
[38] Transcript 13 April 2023, p.459 line 28 – p.460 line 19.
As best you can, what made you want to check the father of your child for an erection when he was lying on her – and this is obviously four years before the disclosure is made by [Y]?---It just is not something you would see a father do with a child. I’ve never seen anybody have a child lie like that on their body before. It was just very unusual. Like generally if you hug your child or something, I’ve never seen someone have contact like that, like, face-to – like, it was, like – like, I was lying on top of him like we were about to have sex. That’s the kind of positioning it was. It wasn’t her body on the side - - -
Say that again? It was the kind of positioning that you would lie on him to have sex?---Yes. It wasn’t like a - - -
So you thought, because that is a position that you would take with him to have sex, that - - -?---It’s just not a normal position. I’ve never – and he would never do that – whenever we were in the loungeroom together, he would never have her like that.
So you had never seen it before?---Never. Never seen it.
And so it was the unusual sight of it for the first time - - -?---Yes.
- - and then - - -?---It caught me off guard.
And then, in your mind, there was something potentially wrong with that?---Yes.
Okay. So when [X] was a toddler, she wouldn’t lie on her father’s chest or your chest like that?---Yes, she would, but not – as I said yesterday, when the kids lie on me, even today, it’s not body-to-body, it’s, like, they will have their head on my chest, I will have my arm around them and they’re lying in my nook, they’re not lying directly on my body like that.
Okay. Understood. So your first thought was, “This is very strange”, and you lift up the blanket to see if he had an erection?---Yes.
Now, I just want to go to – you were talking about the fact that you discussed this at some point with your mother and she mentioned, “Yes, I’ve seen her lie like that on him” - - -?---No.
- - - “another time”? Okay. So just – if you could - - -?---It was – I had never – as I said before, I was very – I didn’t tell a lot of people what was going on in our house.
When asked later why she had jumped to the worst possible case scenario the mother said:[39]
THE WITNESS: No. I was just – I don’t know why. As I said, I was like – I didn’t even do it straightaway. I turned and then I kind of went and checked. It was just something that happened. And then I didn’t press the situation. This is the problem. I didn’t press anything that I’ve seen to date. That’s why we’re here, I think, because I willingly gave these kids access to their father. I was pushing them to have access to him.
[39] Transcript 13 April 2023, p.542 lines 8–13.
The mother said the maternal grandmother had seen X lying on the father’s belly, at their residence in 2018. The father was lying on a couch in the TV room with X on him. She said the maternal grandmother told her:[40]
So my mum was walking through and she said the door was ajar and then she’s walking through to the kitchen, she can see [X] lying like that and she said she – [X] looked uncomfortable. So she walked in and she said to [X], “[X], don’t lie like that. Come on.” And she kind of got her out of the room. And then - - -
[40] Transcript 13 April 2023, p.461 lines 40-46.
And also: [41]
Okay?---And the same trip that my mum was down, she was with – I think [Mr Bernik] and [X] were in the girls’ bedroom and they were playing with [toys]. At the time they were doing those [promotional toys] that you would kind of get. When you did a certain amount of shopping you would kind of get a [toy] in a case to kind of collect the whole set. So then they were kind of [playing with the toys] together and she was like – putting the girls aside, she was, like, “Daddy, I’m going to put all the girls aside for you, the good looking girls aside for you.” And then my mum said – she said something along – said something else and she said, “It will be our secret, daddy”, is what she said to her. And my mum was like - - -
She said to her or to him?---She said to him - - -
Okay?--- - - - “It will be our secret, daddy”, and then my mum goes, “[X], we don’t tell secrets.”
…
And then what happened after that?---And she said to me that she looked at him and she said, “[X], we don’t tell secrets.” She made it very – because she said, “Daddy, this will be our secret”, she made it clear to him that she now knows that he was telling her to tell secrets but without – doing it in a way that she was telling [X] not to do that but also to make him aware that she now knows he’s telling her to tell secrets and it wasn’t discussed with him after that ..... was – kind of unloaded on me all the time and I was – had all these things that people were seeing and I was just kind of processing everything.
[41] Transcript 13 April 2023, p.462 line 1 to p.463 line 2.
The mother said there was another event, which occurred on the same trip with her mother:[42]
Okay?---So I had [Y] in a capsule and we were going to do grocery shopping together and [Mr Bernik] said he would watch [X] for us so we didn’t have to take the capsule, [X], and then trying to do the groceries. And I had already gone down to the car with the capsule, put the – put [Y] in the seat, and then my mum had forgotten something and she went back up the stairs into the house and she said she couldn’t see [X] anywhere. And then as she opened the door, he was fully clothed, but she said the look on his face was, like, shocked that someone had returned home. And she said – now looking back, she would have said, “[X], [X], where are you? Come out? Where are you, [X]?” But she just thought it was unusual with his reaction and she couldn’t see anything but then she has just grabbed what she needed and then we went to do shopping.
And did she tell you about that in the car?---No. She told me about it at the same time she was telling me everything else.
[42] Transcript 13 April 2023, p.463 lines 15-28.
In cross examination for the ICL the father said that he would cradle the older children and sometimes lay down with them, until they were about three years old. The father said he had no recollection of the specific event and did not recall the mother lifting the blanket to see if he had an erection, but said “there were plenty of times where we would cradle the kids to sleep and lie down with them. So there’s a – yes, it could have happened”.[43] He said he regularly held his daughter laying across the front of his body. He said the mother would do that too and she never expressed any concerns. He said he did not think it was at all inappropriate.[44]
[43] Transcript 24 July 2023, p.45 lines 45-47.
[44] Transcript 24 July 2023 p.687 line 25 to p.688 line 28.
The mother’s description of X laying fully clothed on the father’s full clothed body was entirely unremarkable, and indeed common place. The fact that X’s body was faced downwards, rather than having her laying on her side, was unremarkable. As described, and demonstrated by the mother in the witness box, it was similar to the pictures of mothers or fathers with newborns or toddlers laying on their chests commonly shown on greeting cards or in calendars.
I consider the mother’s evidence on this event to be significant. Accepting the mother’s oral evidence at face value, the fact that she immediately experienced “shock” at seeing X laying clothed on the father’s clothed chest and body, the same word she used to describe later observations and disclosures, to the point that she removed the blanket to see if the father had an erection, indicates that as early as 2016 the mother clearly believed the father posed a significant risk of sexual harm to X and was obtaining sexual gratification from holding X. It also suggests that this fear was triggered by behaviours which were, and which I find a reasonable person would consider to be, innocuous. The mother made it clear that her shock was contemporaneous to the event and not something that she had reconsidered in retrospect.
The mother also said that she had never told the maternal grandmother about the incident at a friend’s holiday place. Thus, the maternal grandmother held her own suspicions of sexual impropriety which she conveyed to the mother.
The mother referred to the issue of secrets in early 2019 when speaking with her counsellor Ms N in the context of detailing her suspicions of sexual abuse, noting Ms N told the DCJ, as part of her report, set out more fully elsewhere, that:[45]
The mother told the caller that [X] was with her maternal grandmother [in 2018] and said to her father "it's okay daddy we won't tell mummy it can be our secret".
[45] Exhibit ICL 15, DCJ Helpline Assessment dated late March 2019.
Having reviewed the evidence as a whole, and noting the gravity of the finding, given its consequences for the mother and the children, I am satisfied that for unknown reasons the mother had a genuine but groundless suspicion that the father posed a risk of sexual harm to the children from 2015-2016.
Y inserting a doll into her vagina
During the course of cross examination by the ICL about the change in behaviours observed in the children in the period after the father withheld them, the mother gave evidence that she saw Y inserting her cousin’s doll, based on the main character from a children’s movie “up her vagina”, so that she had to replace that doll.
This evidence of sexualised behaviour was not raised prior to the mother’s oral evidence.
When asked whether she “noticed that something was going on with [Y]?” the mother said: [46]
[46] Transcript 11 April 2023, p.343 line 3 to p.344 line 11.
---Yes, and then my sister was down on a holiday. She was still in [Suburb CC], but I remember we were there maybe a week together. I was relocating down, and she was still there, but she came down for a week holiday, and she saw as well the change in the kids.
And what – as best as you can recall, what were the kind of conversations you had between yourself, your mother, [Mr DD] and your sister about the change in the behaviour?---A lot of it was – [Y] would do things like get my niece – [EE’s] – [EE] was born, and she had these toys that were bought for her. [Y] would grab a [doll] and just start shoving a [doll] up her vagina to my niece’s – my niece’s toy.
A what doll?---Like – it’s like [a character from a children’s film].
[A character] Got it?---Yes.
[The character from a children’s film]?---She would do things like that, and it was more like
discussed -- everyone was like, “What is she doing?” not thinking, “Why is she doing that?” Like, it was kind of like things like that. Then she would lie on the – she would lie on the floor and have her legs in a V and just start thrusting her fingers up and down in her vagina.
And this is while you were just relocated after the first court proceedings?---This is, like, in the middle of my mum’s lounge room floor – takes her nappy off, lying there, thrusting her fingers inside her vagina. [X] was, like, you know, planking. We were in the bedroom one night getting them to sleep, and she was on the mattress – air mattress. She was on the single mattress, and she started, like, thrusting into the mattress.
And your mother saw this?---No. It was in – I was in the room.
You were in the room?---So I was – I was the one getting them down to bed, so I was- - -
So your mother saw what was happening in the lounge room?---Yes.
And [Mr DD] saw that too?---Yes.
And [Ms F]?---Yes. Yes.
And they saw the [doll] that you’re - - -?---Yes.
- - - talking about?---And I had to replace the toy, and it was just – yes, they saw that. And then the thrusting in the mattress – I said to [X], “What are you doing? Where – where have you seen that? Why are you doing that?” And I said, “Who does this to you?” Like, and she goes – the first thing she said to me – she looked at me, and she goes, “I can’t tell you,” and she just started crying.
So it was the first time - - -?---Yes.
- - - that type of disclosure was made?---That’s the first time that [X] ever opened up, and I said, “[X], you can tell me.” I said, “I’m trying to keep you safe.”
So in March or April 2019, she says to you, “I can’t tell you”?---Yes. And she was crying, and that’s the first thing I said to the person, [Ms N], who was assigned through – through Victim Services.
There was no evidence in the extensive subpoenaed notes produced that the mother disclosed this to Ms N at any stage. It would be a surprising omission by Ms N, who recorded the mother’s other alleged observations.
The ICL returned to this evidence concerning the doll:[47]
[47] Transcript 12 April 2023, p.390 line 6 to p.391 line 24.
When we were talking about putting everything in an affidavit, there was something you said yesterday that I had never heard before about the [doll], and I want to make sure that I got this right. You were saying that she owned [a doll], who’s the character from [a children’s film], and that she was laying in the living room taking the putting it in and out of her vagina?---It wasn’t her doll. It was my niece’s doll.
Your niece’s doll?---Yes.
Okay. And she was putting it in and out of her vagina?---Yes. Like she was kind of pushing it in there.
The doll with - - -?---It’s like a soft doll but it had like a – a plastic head, so it wasn’t- - -
So not a wooden doll?---No. It’s like – you know [from the film]?
..... – yes. No, I - - -?---The - - -
I know who [the character] is - - -?---Yes.
- - - very well, but I just wasn’t sure if you were referring just to [the character] - - -?---It was not [the main character it] – was [another character in the film]. Like, it was [a doll based on another character], who is the partner of [the main character]. Like, they had a series of things and I don’t - - -
So it wasn’t - - -?---I – I don’t know at the time, actually. It was one of the – one of the two. It was either – I don’t know if it was [the other character] or the wooden doll, but I remember she was there and she put it in her vagina and I had to replace – I’m pretty sure I said [the character] yesterday, your Honour. Did I say [the character]?
HIS HONOUR: I think you said [the main character]?---Okay.
MS EDWARDS: Yes. I wrote down [the main character]. So you think now it was actually [another character]?---I think so, yes, because that’s the doll I replaced. I remember replacing – having to buy my sister a new doll because the other doll was up my daughter’s vagina.
Understood. So that – that’s something that was not in any of the affidavits that I – so did you just remember that yesterday when you were - - -?---No. I did actually tell [FF Lawyers] that. There were certain things as well I noticed when we were going through, when you asked me about the differences in the – I don’t think it was you. Maybe it was Mr Trost asked me about [a date in January] – whether it was [that date or a previous date in] January. In my notes that I actually sent through, my diary recollation when I was telling – like documenting things that were happening, on [that date in January], if you actually look, it says that [Y] had told me that – it was – her mouth was covered. Everything else I had said. But I also said that she remembered saying that he had separated them and he did something to her under a blanket. So I feel like, when – when I was telling my solicitor these things she didn’t put everything in. She was just like – like, she just put it in that he would cover her mouth and he touched her vagina. So he didn’t – she did say that – add on that, you know, he had – he was segregating the kids, and that’s actually in one of my diary notes that was there. And then, in another affidavit, you will see that I did say that he actually did segregate the children.
And just – when you reviewed the draft affidavit that [FF Lawyers] prepared for you, did you say to them, “I’m not going to sign this because it’s not correct and” - - -?---At the time - - -
- - - “there’s some things missing”?--- - - - you’re just kind of reading everything. Like there was so much involved. I was – essentially, had a timeframe from, like, 2 till 3 – I had to get the girls at 3 o’clock – and I was just reading everything briefly and, because it looked right, I just kind of signed it. Yes.
So your evidence is that, at the time you did an [FF Lawyers]-related affidavit, you did remember about the - - -?---I did tell her, yes.
You told her about [the doll] - - -?---Yes.
(As per the original)
FF Lawyers were the mother’s prior solicitors of record. This was not included in any affidavit or document and if notified to them would have been a serious omission.
The mother was taken to the diary entry in March 2019, which was the mother’s first dairy entry of sexualised behaviour. The first entry for mid-March 2019 was titled “[X] HYSTERICAL & DISTRESSED”.[48] The entry for late March 2019 said:[49]
Both children took quite a while to settle this evening 10pm and they were still not asleep!! Staying at my mums […] while waiting for approval of rental application after recently relocating [to Region L] from Sydney. While patting [Y] (on main queen bed in our room) to sleep see [X] who is sleeping on single mattress next to our bed in planking position (resting all her weight on her elbows) and she starts to thrust into the mattress. My reaction was on of shock. I ask her "[X] what are you doing? Why are you doing that? Where did you see that? Tell me please. Straight away she responded crying hysterically "I can't". I asked my mum to keep [Y] as [Z] was already asleep and took [X] into tv room away from everyone else to speak to her. Asked her what was wrong she responded by saying to me: "she doesnt want to go to her dads place. She missed me" while sobbing, hugging me, wouldn't let go. I said she could tell me anything that I would believe her reiterated I loved her, wanted to protect her and keep her safe but couldnt do that if she didnt tell me what was wrong.
[Y]: "look at my boobies", "look at my bum bum", spreading her legs like a 'V' in the air while lying down, spreading her vagina and putting her index fingers in and out of her vagina.
[48] Exhibit ICL 7, Diary entry of the mother dated mid-March 2019.
[49] Exhibit ICL 7, Diary entry of the mother dated late March 2019.
Then:[50]
Counselling [Ms N] (1st counsellor assigned by victim services)
[50] Exhibit ICL 7, Diary entry of the mother dated late March 2019.
And:[51]
Advised [Ms N] of what had happened with both children - their increased sexual behaviour and my concern. She said I needed to tell somebody in Docs and she said she would do the same by making a mandatory report. She said she would ring me in a couple of days to follow up to see how I went
(As per the original)
[51] Exhibit ICL 7, Diary entry of the mother dated late March 2019.
Noting the absence of any reference to the doll the ICL asked:[52]
[52] Transcript 13 April 2023, p.479 line 1 to p.480 line 14.
MS EDWARDS: So the more detailed entry, I just want you to read that. It starts
with:
Both children quite a while to settle this evening. 10 pm were still not asleep.
Two exclamation points. And then it talks about you’re staying at your mum’s […] while waiting approval for rental application. And I believe that this is what we discussed yesterday and this entry appears to be [from late] March?---Yes. I’ve read that. Thank you.
So is this the event that you were discussing. I just want to know if it’s the same event or a different event where you were at your mother’s house and [Y] was lying in the loungeroom with what I think you said was [a doll based on the main character of a children’s film] but now it’s [a doll based on another character in the film]. It’s - - -
HIS HONOUR: Well, hang on. I - - -
MS EDWARDS: I’m trying to find if it’s the same event or a different event?---It was a different event. It wasn’t the first – [Y] didn’t just, one time, stick her fingers in her vagina. There was a series of events where she did that.
Okay. So what I’m trying to understand is is this the first – [in late] March, is this the first event that you’ve entered into your diary of when you observed this behaviour happening?---Yes.
And the event with [the doll based on the main or another character] – I think it was [another character], we’ve clarified – that happened after this event?---I – yes, I believe so.
So that’s not this event. That’s – it’s a different event?---No, it’s a different event.
Okay. So the first time that you ever saw sexualised behaviour and documented it, or the first time you ever saw sexualised behaviour, period, was this day?---Yes.
Meaning – I’m just trying to get a timeframe. Was this the first time you ever saw sexualised behaviour or was it the first time you documented it?---I think it’s the first time I documented it.
So before [late] March 2019, when you were staying at your mother’s, you saw sexualised behaviour?---Yes. I noticed it after the – no, sorry. I noticed it – I only noticed the sexualised behaviour – I don’t know why it’s this date – is because during the time of the recovery process, [Mr Bernik] had the kids for a few days. I noticed it after they were returned to me that time. It was the very first time that they had overnight visitation with him.
And when was that?---When he kept them.
Yes. Can you, as best as you can, estimate - - -?---I think it was - - -
February 2019 or January?---[…] February, he took the kids, I think. [On a date in] February. And I got them back within two or three days […]. I think they were returned to me […] and from that moment – from that moment on, I realised – like, I saw the sexualised behaviour.
So from February 2019 was the first time that you actually saw sexualised behaviour?---Yes.
And is it different than the sexualised behaviour you described in this diary entry?---It was pretty much the – it wasn’t – it wasn’t as graphic. Like, they would just do things like they would lie on each other like how I was saying before, how they were lying on [Mr Bernik], and they would kind of do things they – I made an entry where they were saying let’s kiss with tongues, and they were lying on each other’s bodies.
(emphasis in original)
Significantly, there is no evidence that prior to her oral evidence the mother had ever referred to Y inserting a doll into her vagina. It is not contained in in her contemporaneous diary notes which recorded sexualised behaviour, nor recorded as something observed and reported by the mother in the notes of her various counsellors and medical practitioners, nor in her reports to DCJ or the police. The Family Consultant confirmed it was not mentioned in her interview.[53] It was not contained in any affidavit filed by the mother.
[53] Transcript 26 July 2023, p.768.
In the context of all of the evidence I do not accept that if the mother had observed Y inserting a doll into her vagina, she would not have recorded this observation in her contemporaneous diary of sexualised behaviours, or that she would not have reported it to the various counsellors, or authorities. Nor is it believable the mother did report this but that none of these counsellors or authorities recorded that detail, given their careful recording of the other details set out in her diary. I do not believe the mother would not have told the Family Consultant, who confirmed it had not been raised.[54] That is so even given the relatively short time frame in which the Family Consultant spoke with the mother about the specific disclosures.[55]
[54] Transcript 26 July 2023, p.768.
[55] Transcript 26 July 2023, p.796.
None of the alleged witnesses to Y inserting the doll into her vagina were called. That included the mother’s sister Ms F who was sitting in court for much of the trial.
Taking into account the totality of the evidence, and noting the gravity of the finding, I am comfortably satisfied that when pressed on the details of the sexualised behaviours in cross examination the mother chose to fabricate Y’s insertion of a doll into her vagina to bolster her case of sexualised behaviour, and so likely sexual abuse.
MARCH 2019 TO LATE JANUARY 2020 - SEXUALISED BEHAVIOURS
As set out elsewhere, the mother’s evidence was that from March 2019 she observed the girls’ behaviour becoming sexualised whenever they returned from their father's care. [56] She said the sexualised behaviour was being displayed through to January 2020 when Y made her disclosure, and that it was constant throughout.[57]
[56] Mother’s affidavit filed 4 November 2021, paragraph 23.
[57] Transcript 8 February 2023, p.96 line 7-12.
The father’s evidence was that in mid-March 2019 he advised the mother he planned to take the older children to his sister’s Ms GG’s house in Town M for his weekend. He said the mother told him she did not consent and would disobey the orders if he did. He said he did not understand the refusal at the time.[58] The father maintained this in oral evidence.[59]
[58] Father’s affidavit filed 19 November 2021, paragraph 70.
[59] Transcript 14 April 2023, p.595 lines 19-28.
Late March 2019
The mother’s first diary entries from late March 2019 record her observations and her meeting with Ms N and are set out above.
A DCJ Helpline Assessment note of a call contains greater detail than the mother’s diary note. “The caller” is, inferentially, Ms N. She gave a history of the separation, of alleged domestic violence in the relationship, of the father taking and withholding the children. The record continued:[60]
[60] Exhibit ICL 15, DCJ Helpline Assessment dated late March 2019.
…
The caller stated that she has concerns for sexualised behaviours of the girls. The caller stated that the girls have had two access visits with the father since they separated and there are Family Law Court (FLC) interim orders stating the father has the children every second weekend from Friday-Sunday.
The caller stated that after the last visit two weeks ago [Y] (2) was saying "look at my boobies, look at my bum bum" and lying down and spreading her vagina lips with her fingers. The caller stated that two nights ago [X] and [Y] were in the bath together and [X] laid on top of [Y]. [The responder] asked if anything else happened at this time and the caller said no.
The mother has told the caller that [Y] and [X's] behaviour has changed and is out of control. The caller stated that the children were due for access today with their father but the mother went to the Doctor yesterday and told them this information and the Doctor gave her a medical certificate so the children do not go this weekend. The mother stated to the caller that the father has accepted that.
The caller stated that [X] is lying on her hands in plank position and humping the bed. The mother told the caller that when she asked [X] "where did you see that?" [X] responded "I can't tell you" and started crying.
The caller stated that the mother told [X] "you won't be in trouble it is okay if someone has done something you can tell me". The mother told the caller that she played with [X] for a while and went through the names of the people in house with dad as he lives with his parents and when she named [Mr HH], [X] started shaking, her legs were shaking and she was really upset. [The responder] asked if there are any details for [Mr HH] and the caller said no.
The caller stated that the mother is suspicious but she is not sure.
The mother told the caller that [X] was with her maternal grandmother [in] 2018 and said to her father "it's okay daddy we won't tell mummy it can be our secret". [The responder] asked what this comment was in relation to and the caller stated that [X] was in trouble for naughty behaviour which the grandmother knew about and that is what she said.
…
The mother said she had sought advice from Legal Aid, and despite raising her concerns, was advised to continue sending the children to the father in compliance with the orders.[61]
[61] Mother’s affidavit filed 4 November 2021, paragraphs 25-26.
March to 30 July consent orders
In late March 2019 the mother made a report to DCJ telling them she observed X planting and thrusting and Y spreading her legs in the air and touching herself. She said this was reported to police who attended the maternal grandmother’s house to take a statement from the mother.[62] The DCJ note of late March 2019 records: [63]
They were to be with the father this weekend but the mother didn't send them due to behaviour the children have been exhibiting.
This behaviour began 2 weeks ago after the last visitation. [Y] said "look at my boobies and my bum bum" [Y] would lie on the floor and spread her legs or stands up and spreads her vagina with her fingers. Caller said [Y] has never done this before. Caller said her behaviours are out of control, she wants attention, she is not listening which is different behaviour. Caller said this is not "parent separation" because they separated in November 2018.
On Tuesday evening [X] couldn't sleep - she was awake until 10pm when she lay on her tummy and thrust into the mattress. Caller said what are you doing, where did you see that. Child said "I can't". Then [X] cried into her pillow. On the same night [Y] had to be settled for sleep which is unusual.
[Y] went out of the room to m/g/mother. Caller could spend more time with [X] who was sobbing into the pillow. Caller asked "has anything happened, talk to me, I'm your best friend you can tell me anything".
[X] kept sobbing. Caller said you have to tell me and asked "has anything happened at Daddy's house. I can't protect you, I 'm sorry I wasn't there to protect you. You have to go to daddys this weekend and I can't keep you safe if you don't tell me what's going on". Caller asked "do you want to talk about it". [X] said "No". Caller asked if she wanted to draw. Child said yes.
Caller said the father moved in with p/g/mother and her partner.
…
(As per the original)
[62] Mother’s affidavit filed 4 November 2021, paragraphs 27-28.
[63] Exhibit ICL 15, DCJ Helpline Assessment dated late March 2019.
The DCJ note also recorded that the mother was asked if she had spoken with the father about the children’s behaviour and that she said she was “not telling the father at this time because she is not sure who the person is.”
The mother reported sexualised behaviours to Ms JJ from KK Services and obtained a referral to the Region LL Family Counselling Service after her first session with Ms N. It was noted that as there were no disclosures JIRT would not be involved. The mother was said to be very upset by that result, and a reference to MM Community Services was suggested.[64]
[64] Exhibit ICL 15, Region LL referral notes dated late March 2019.
In late March 2019, the mother completed the intake process with MM Community Services for X and Y to see a counsellor.[65] The notes from the intake session recorded the mother’s history:[66]
[Ms Fontes] stated that her two eldest children have been displaying highly sexualised behaviours, prompting immediate concerns for her children's safety. Reports have been made to the Child protection Hotline (See attached referral at case level)
At present the children are required to have visitation with their father every second weekend. [Ms Fontes] stated that there has only been 2 sleep over visitation's since the interim orders were made, and that the two eldest children are displaying changes in behaviour when returning to mum. [Ms Fontes] also stated that the children sleep in the same room as dad during visitation as her ex lives with his parents.
The children were withheld from mum by their father and [Ms Fontes] had to obtain emergency recovery orders. In Feb 2019.
[Ms Fontes] is very concerned about sending her children back to stay with their father and is seeking counselling with her children.
(As per the original)
[65] Mother’s affidavit filed 4 November 2021, paragraph 31.
[66] Exhibit ICL 15, MM Community Services case report dated late March 2019.
In cross examination the mother agreed that she had asked that the children sleep in the father’s room. When asked why she said “I saw sexualised behaviour from my children within two weekend visits. I did not believe it was their dad, but I believed someone was interfering with our children.”[67]
[67] Transcript 8 February 2023, p.60 lines 38-40.
In early April 2019 the mother told police about X’s thrusting and Y’s spreading of her vagina. Police advised the mother that children may be inquisitive with their private parts when young. They also recorded their opinion that the mother might be making vexatious allegations to get full custody.[68] I give no weight to the police’s opinion of the mother’s motive in reaching my conclusion.
[68]Exhibit ICL 15, COPS entry dated April 2019.
In this context it was submitted there was no inconsistency with the mother rekindling her relationship with the father in late 2019/early2020. Her submission was that this continued until mid-January 2020 and ceased after the disclosure. [244]
[244] MFI 30, paragraphs 21 – 25.
The mother submitted that whilst she was at times a combative and difficult witness her demeanour was consistent with her stated concerns in the context of a hotly contested hearing, citing Fox v Percy (2003) 214 CLR 118. While the mother’s behaviour in the witness box was distinctive, her presentation is not a factor I consider. It is the substance of her evidence in the context of the totality of the evidence before me that has caused me to make the adverse credit findings I make.
SUMMARY OF KEY FINDINGS
Taking all of the evidence into account, in summary, while the mother’s evidence in chief was that she observed the older children’s behaviour becoming sexualised whenever they returned from their father's care from about March 2019, and that was consistent with her reports to various authorities around that time, it became clear from her oral evidence, and I find, that the mother had suspicions that the father posed a risk of sexual harm to the children during their relationship.
I find there was no rational basis for the mother’s suspicions or concerns prior to separation.
In the context of an acrimonious separation, and in particular, in the context of the heightened conflict around the father withholding the children when the mother sought to relocate, I find that the mother’s groundless but genuine concerns caused her to then misinterpret developmentally normal actions as being sexual in nature, and that she considered this evidence which confirmed her pre-existing suspicions the father posed a risk of sexual harm.
I find there was no rational basis for the mother’s suspicions or concerns post separation.
I find that the mother then questioned and led the children to try and obtain disclosures from them to confirm her suspicions, without success.
I find that the mother fabricated a disclosure by Y in circumstances where she had had sex with the father in late December 2019, and by mid-January 2020 came to believe he had given her a sexually transmitted disease, indicating he had had sex with another person.
I find that she fabricated the disclosure as she was informed by Dr S that the children’s behaviour was not indicative of sexual abuse in mid-January 2020 and was aware that she would be required to comply with the then final orders that the children spend unsupervised time with the father unless and until a clear disclosure was made.
This is a grave finding. However, unfortunately, I am satisfied that the mother was willing to tell serious lies on oath to substantiate her allegations of sexual abuse, in particular about the doll, and that the evidence as a whole leads to this serious finding.
I find that it took some time for the mother to convey this false narrative to Y and to persuade Y to repeat the disclosure to third parties, which Y eventually did.
While I have no doubt the mother fabricated the disclosures, and that this was motivated in part by the belief that the father may have given her a sexually transmitted disease, it may be that the mother viewed the possibility of a sexually transmitted disease as further evidence that the father was a sexually dangerous person and supportive of her view he posed a risk of sexual harm to the children .
It is possible, in the context of her prior genuine but groundless concerns, the mother may have fabricated the disclosure in the genuine belief that the father did pose a risk of sexual harm, and that it was necessary to lie and fabricate a disclosure to protect the children from the risk of sexual harm which DCJ and others did not consider substantiated, absent a disclosure.
The alternative is that, in a fit of unhappiness about the father possibly giving her a sexually transmitted disease, the mother fabricated a disclosure purely maliciously.
It is not possible to know with any certainty which of these was the case.
Either way, I am satisfied the disclosure was fabricated.
The mother was asked “what if you’re wrong” about the father sexually abusing the children and replied, “I’m not the person that has created this narrative, so – it’s something that my children have said.”[245] The ICL’s submission was that the mother expressed an “unshakeable” belief.[246] There is no doubt that viewed as a whole the mother refused to acknowledge any possibility other than that the father had sexually abused Y. This evidence was consistent both with a genuine belief and with falsely maintaining the position of a genuine belief.
[245] Transcript 13 April 2023, p.548 lines 45-46.
[246] Transcript 26 July 2023, p.819 line 37.
In summary, either the mother has a fixed but false belief that Y was sexually abused, and has fabricated the disclosure to prove her belief to the satisfaction of others including the court, or the mother knows that Y was not sexually abused and falsely fabricated the disclosure and the abuse allegation for the purposes of excluding the father from the children’s lives for her convenience.
On either scenario the mother has conveyed a false narrative to Y and to X.
On either scenario, I find that there is a significant risk that the mother will continue to promote and maintain that false narrative to the children.
On either scenario, accepting the Family Consultant’s opinion as to the psychological harm of a child adopting a false narrative of sexual abuse, I find that the mother poses an unacceptable risk of psychological harm to the children of continuing to promote that false narrative.
BEST INTERESTS CONSIDERATIONS
The paramount consideration is the child’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in ss 60CC.
The two primary considerations, in order of weight, are firstly the need to protect the children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence, and the benefits to a child of having a meaningful relationship with both parents.
In this case, for the reasons set out above, I find that the mother poses an unacceptable risk of psychological harm to the children of conveying a false narrative to them that Y has been sexually abused by the father and that therefore the father poses a risk of sexual harm to the children.
While I have considered an order that the children spend no time and have no communication with the mother, taking into account of the father’s and ICL’s proposals, I have not made that order.
As I understand it, the father and ICL hope the mother will abide by the injunctions not to convey the false narrative in future, and on that basis seek positive orders for time and communication between the mother and the children, noting the potentially psychologically devasting impact of no time and no communication orders on these children given the mother’s role as long term primary attachment figure and carer.
While the starting point is that the mother represents an unacceptable risk, I accept the implicit submission of the ICL and the father that the risk can be sufficiently ameliorated by the children living primarily with the father, by injunctions directed to the mother restraining her from conveying the false narrative, and by making the children’s time and communication with the mother conditional on her compliance with the injunctions, noting conditional orders were raised in oral submissions in relation to the mother’s compliance, so that a no time and no communication order is not necessary and will only be necessary if the mother is unwilling, or unable, to comply with the injunctions.
The other risk, which has weighed heavily on my mind and which made me consider leaving the children living primarily with the mother even though I find her an unacceptable risk of harm, is the very real risk that the children will reject the father, that the trauma of the change will overwhelm his parenting capacity, and that the change of residence may effectively fail, causing the children not only the inevitable short term psychological harm which must arise from the orders I make, but which may lead to devastating long term psychological harm of equal or greater magnitude to that which would come from the long term maintenance of a false narrative of sexual abuse likely if they live with the mother.
These children are caught between the likelihood of major long term psychological harm if they stay with the mother, and the very real risk of equally grave long term psychological harm if the change of primary residence fails.
That is not a criticism of the father, whose parenting capacity appears sound and who I consider to be a child focussed and sensible parent who will have the support of his family, including the paternal grandmother who I found impressive. It is rather an acknowledgement that the change is dramatic, and will involve a change of school as well as residence, that the children will be traumatised, that the father’s parenting capacity is untested, and that the change of residence may fail dramatically.
It would be difficult to overstate the gravity of the psychological risks to the children if the change of residence fails and the children maintain a long term belief that they are being required to live, against their will, in constant fear of and with a person who has abused them and poses an ever present risk of sexual or other abuse to them.
There is no option which is not high risk and unfortunately I must choose between these two grave risks.
On balance, I find the risks associated with the orders I make for a change of residence are less grave than the risks of allowing the children to reside primarily with the mother and in the children’s best interests.
The other statutory considerations have been taken into consideration in formulating the orders.
The children’s ages, and the false information Y and X have had conveyed to them, means that only limited weight can be given to such views as they have expressed. To the extent the older children expressed views about the father to the Family Consultant they were broadly positive, and the mother told the Family Consultant that the older children said they missed the father and said they wanted to see him when time ceased.[247] That does not, of course, deal with the issue of a change of residence.
[247] ICL 14, Magellan Family Report dated 22 April 2021, paragraphs 40-45, 48, 77, 79, 83-85, 88.
The nature of the relationship of each child with the father is necessarily extremely limited. The Family Consultant said that:[248]
96.…[X] and [Y] have established and significant relationships with [Mr Bernik]. The parties’ accounts regarding [X’s] and [Y’s] relationships with each parent appeared largely consistent with the children’s assessed relationships, with [X] and [Y] presenting as having positive and established relationships with each parent and eager to engage with each parent…
[248] ICL 14, Magellan Family Report dated 22 April 2021, paragraph 96.
She also noted that: [249]
97.It also does not appear to be in dispute between the parties that [Mr Bernik] is a familiar person to [Z] but that [Z] has not, thus far, established a relationship with [Mr Bernik]….
[249] ICL 14, Magellan Family Report dated 22 April 2021, paragraph 97.
In oral evidence, having reviewed the supervision reports the Family Consultant stated of Z that:[250]
Certainly she seems to have progressed in her relationship with him. He’s clearly now a much more familiar person and the distress that was evident both at the time of the family report and that the parents described in early sessions seems to have resolved.
[250] Transcript 26 July 2023, p.765 lines 35-38.
The Family Consultant said that there was no indication in her discussions or observation session with X that “[X] had a perception that her father hated her or even that he favoured her siblings over and above her.”[251]
[251] Transcript 26 July 2023, p.775 lines 10-12.
The lack of unsupervised time with the father is clearly likely to have had an impact on the older children’s pre-existing relationship with the father and on Z’s ability to build a relationship with him. To the extent to which it was possible to ascertain, at the date of the Family Report it appeared that the older children had maintained a relationship with the father and that Z had developed some level of relationship with him.[252]
[252] ICL 14, Magellan Family Report dated 22 April 2021, paragraphs 41, 74-75.
When asked by counsel for the ICL if having only had supervised time over the last three years would impact the children, the Family Consultant said:[253]
I imagine it would have, in terms of their capacity to build a relationship – a meaningful relationship with him. His involvement in their lives has obviously been limited by the supervision. For example, he hasn’t been able to attend any of their school activities, their extracurricular activity; they haven’t visited his home; he has not been involved in things like morning routines, bedtime routines; their relationship is purely limited to leisure activities in a very structured environment where a third party is also present. So yes, I would image that has had an impact on the children’s relationships with him, the extent to which I can’t comment.
[253] Transcript 26 July 2023, p.779 lines 18-26.
The Family Consultant considered that if there were no issues of risk, she had no indications of any issues with the father’s parenting capacity.[254]
[254] Transcript 26 July 2023, p. 799.
The children’s relationships with the mother are strong, consistent with her role as primary carer and attachment figure but are affected by the mother’s conveying false information to them.
The evidence indicates that, within the context of the parental dispute and family court orders, each parent has taken the available opportunities to participate in making decisions about major long-term issues in relation to the children and to spend time and to communicate with the children.
On the same basis, each parent has fulfilled their parental obligations to maintain the children.
The likely effect of the changes in the children’s circumstances these orders make, and in particular, their separation from the mother as primary carer, cannot be overstated. They will be extremely traumatised and it is likely to cause significant and potentially long term harm. It is only the extent of the psychological harm they will sustain if they stay living primarily with the mother, and if the false narrative is continued, that unfortunately requires the orders I make to change their primary residence.
I have no doubt these orders will also be devastating for the mother, but that is a result of her conduct, and it is the children’s best interests that are determinative.
Given the distance between the parties residences there will be an element of practical difficulty and expense of the children spending time with and communicating with the mother, however, that distance is not so great that it will create difficulty or expense that will substantially affect the parties ability to comply with these orders and maintain a relationship with the mother.
I am satisfied that the father has the capacity to provide for the needs of the children, including their emotional and intellectual needs. I am not satisfied the mother has the capacity to prioritise the children’s psychological or emotional needs over her own, but otherwise she has the general capacity to provide for their basic needs.
The issues relevant to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents, and the children’s relevant characteristics, are considered elsewhere.
The children are not Aboriginal child nor Torres Strait Islander children.
The father has demonstrated a good attitude to the children, and to the responsibilities of parenthood. The mother has prioritised her own needs over the children’s best interests as set out elsewhere.
The issues of family violence have been addressed elsewhere.
The order that would be least likely to lead to the institution of further proceedings in relation to the children would be a no time and no communication order with the mother, but weighing the likely long term negative effects of such an order, and giving due weight to the view of the father as the person who will exercise parental responsibility, I will not make that order and will instead make the orders sought.
PARENTAL RESPONSIBILITY
At the time of the Family Report the Family Consultant indicated that despite the identified concerns around communication it was not clear that it would be advantageous for one party to have sole parental responsibility.[255]
[255] ICL 14, Magellan Family Report dated 22 April 2021, paragraph 108.
The mother submitted that equal shared parental responsibility would be unworkable and the ICL and father also submitted the same, though for different reasons. It is clear that the parents could not work together to make decisions, and that parental responsibility must lay with one party only. On my findings, parental responsibility must lay with the father.
I note the ICL’s and father’s proposals include consultation provisions, with the father to have ultimate decision making authority. I consider the potential delays in decision making, the creation of a requirement to interact, the creation of further friction points, and potentially the creation of an avenue for further litigation around processes, despite the father having ultimate decision making authority, all mean that a consultation mechanism is not in the children’s best interests in this case.
As there is not to be equal shared parental responsibility, I do not need to consider equal time, nor substantial and significant time, but note that on my findings that would not in any event be in the children’s best interests.
ORDERS
For the reasons set out above I will make orders, largely in line with the father’s proposal.
I will discharge all extant parenting orders.
I will an order for the father to have sole parental responsibility for the children. The father is to notify the mother of any long-term decisions within 7 days. I will not order a consultation mechanism as I consider the potential for conflict and the risk of further litigation around consultation would not be in the children’s best interests. I will note the parties shall not be required to consult about day-to-day decisions when the children are in their care.
The children shall live with the father.
I make orders that the hand-over take place immediately at the registry of the court with the orders to be explained to the children in a child appropriate manner by a Court Child Expert. The mother was ordered to have the children at the registry today in accordance with chambers orders last week.
The children will depart today with the father. I will order the mother to depart the court precinct by no later than 12.15 pm to avoid the parties coming into contact, and the children seeing the mother which will only add to the significant trauma they will suffer today.
The father and ICL both proposed a moratorium on the children spending time with or communicating with the mother to allow the children to transition, supported by injunctions directed to the mother pursuant to s 68B. I will make the father’s proposed moratorium order and s 68B injunctions for the period of the moratorium.
I will modify the father’s proposal so that it will be open to the parents to agree to vary that order if the father considers it in the children’s best interests to have communication or time with the mother. That means such time or communication may occur at the father’s discretion if the children’s distress persuades the father that is appropriate and in their best interests. The father will be entitled to determine, in his absolute discretion and exercise of sole parental responsibility, the terms on which any such time or communication is to occur in the moratorium period.
The ICL proposed an extended process of supervised time after the moratorium. The father did not propose supervised time after the moratorium. Given the Family Consultant’s opinion that even professional supervision was unlikely to be sufficiently close and continuous to address the relevant risk, which was that the mother would continue to the convey the false narrative to the children, I accept the proposition implicit in the father’s proposal that there is no benefit to supervised time in relation to the relevant risk and that after the moratorium period time should be unsupervised.
I find that the risk can only be addressed by a change of residence, to reduce the mother’s position as primary carer and her dominant opportunity as such to convey and maintain the false narrative, supported by the imposition of injunctions directed to the mother prohibiting her from conveying or maintaining the false narrative, and the making of the mother’s time with and communication with the children pursuant to these orders conditional on her compliance with those injunctions. These orders are made acknowledging that there is a real risk there will be further litigation, but in the hope that the mother will be able to comply with the injunctions as this will be the best result for the children given the dramatic impact a complete termination of the maternal relationship would have on them. I make those orders.
I note that the mother having specified time and communication was both the father’s and ICL’s proposal, and they were aware of the risks of further litigation inherent in such orders.
I will make orders that, should the father believe the mother has breached the injunctions, he may give her a notice, the effect of which will be the immediate termination of the time with and communication with orders. That would in effect be a no time and no communication order, subject to the father’s absolute discretion as the parent with sole parental responsibility to allow time or communication. I will make provision for the mother to file an application in a proceeding to determine the issue if the breach is disputed as a matter of fact.
The father’s proposal for time with the mother provides for alternate weekends and for four by one-week blocks in school holidays per year, together with special occasions.
Given my findings, the father proposes a relatively substantial amount of time between the children and the mother. Together with the father’s proposal for twice weekly communication that should be sufficient to allow the children to maintain a meaningful relationship with the mother.
I will make an order for change overs as proposed by the father, at school where possible and at a specified fast-food chain where not.
I will make the father’s proposed communication order, for SMS and for telephone only in an emergency, as well as orders for the father to keep the mother informed of schools and medical providers, and for the parties to keep each other informed of standard information. I will make the father’s proposed orders for access to medical and school information.
I will make orders that the Orders may be given by the father to educational institutions, and that the Judgment may be given to any of the children’s medical and allied health practitioners, as it may be necessary for them to understand the background and the court’s findings to address the false narrative, and to the Department of Communities and Justice for the same reason if further allegations are made.
I will make mutual standard restraints.
I will make specific injunctions directed to the mother not to promote, or support the children in maintaining, the false belief that the father has sexually or otherwise assaulted or abused any of the children, or that the father poses any risk of harm to any of the children.
As noted, I make orders that compliance with the injunctions is a condition precedent to the orders for the mother’s time and communication with the children having effect and provide a mechanism for addressing any alleged breach.
These are my reasons.
I certify that the preceding four hundred and fifty-six (456) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 13 February 2025
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