Forde & Halshan - [2022] FedCFamC2F 974

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Forde & Halshan [2022] FedCFamC2F 974

File number(s): MLC 14278 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 25 May 2022

Catchwords: FAMILY LAW – parenting – young children – father seeks to progress to equal time arrangement by 2025 – mother raises concerns about father’s parenting capacity and boundaries

Legislation:
Family Law Act 1975 (Cth) pt VII, ss 60B, 60CA, 60CC,

65D, 65DAA

Cases cited: MRR v GR [2010] 240 CLR 461

Division: Division 2 Family Law

Number of paragraphs: 144

Date of hearing: 17 and 18 May 2022

Place: Melbourne

Counsel for the Applicant: Ms Dellidis

Counsel for the Respondent: Mr Scriva

Solicitor for the Applicant: Pearsons Lawyers Pty Ltd

Solicitor for the Respondent: Victoria Legal Aid
ORDERS

MLC 14278 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FORDE

Applicant

AND:
MS HALSHAN

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

25 JULY 2022

THE COURT ORDERS THAT:
1.The children X born in 2014 and Y born in 2018 (“the children”) live with the mother.
2.The children spend time with the father during the school term as follows:
(a)From the date of these orders:
(i)In week one from the conclusion of school on Thursday, or 3.30pm if a non-school day, until the commencement of school on Friday, or 9.00am if a non-school day.
(ii)In week two:
A.For X from the conclusion of school Friday, or 3.30pm if a non-school day, until 6.30pm on Sunday.
B.For Y, from the conclusion of school Friday, or 3.30pm if a non-school day, until 6.30pm and on Saturday and on Sunday from 9.00am until 6.30pm.

(b)From the commencement of Term Four 2022:
(i)In week one from the conclusion of school on Thursday, or 3.30pm if a non-school day, until the commencement of school Friday, or 9.00am if a non-school day.
(ii)In week two:
A.For X from the conclusion of school Friday, or 3.30pm if a non-school day, until the 6.30pm on Sunday.
B.For Y, from the conclusion of school on Friday, or 3.30pm if a non-school day, until 6.30pm on Saturday and on Sunday from 9.00am until 6.30pm.

(c)From the commencement of Term Three in 2023:
(i)In week one from the conclusion of school on Thursday, or 3.30pm if a non-school day, until the commencement of school on Friday, or 9.00am if a non-school day.
(ii)In week two from after school Friday, or 3.30pm if a non-school day, until the commencement of school on Monday, or 9.00am if a non-school day.

(d)From the commencement of Term One in 2025:
(i)In week one from the conclusion of school Wednesday, or 3.30pm if a non-school day, until the commencement of school Friday, or 9.00am if a non-school day.
(ii)In week two from the conclusion of school Friday, or 3.30pm if a non-school day, until the commencement of school Monday, or 9.00am if a non-school day.

3.The children spend time with the father during the school term holidays as follows:
(a)From December 2022;
(i)For X for a period of four overnights from the first Saturday at 9.30am until the Wednesday at 4.00pm.
(ii)For Y, from the first Saturday at 9.30am until the Sunday at 6.30pm and then on Monday and on Tuesday from 9.30am until 6.30pm.

(b)During the first and second school term holidays in 2023:
(i)For X for a period of six overnights commencing from the first Saturday at 9.30am until the Friday at 9.30am.
(ii)For Y from the first Saturday at 9.30am until Tuesday at 6.30pm and on Wednesday and Thursday from 9.30am until 6.30pm.

(c)During the third school term holidays in 2023:
(i)For X for a period of seven overnights commencing from the first Saturday at 9.30am until the following Saturday at 9.30am.
(ii)For Y from the first Saturday at 9.30am until Wednesday at 6.30pm and on Thursday and Friday from 9.30am until 6.30pm.

(d)From the commencement of the school term holidays in 2024 on a week-about basis.

4.The children spend time with the father during the long summer holidays as follows:
(a)From the date of these orders:
(i)For X for a period of five overnights every second week commencing at 9.30am until 9.30am on the last day.
(ii)For Y to spend overnight time for the first three nights of X’s time, and spending time during the day on the fourth and fifth day of that block period.

(b)From the commencement of the summer holidays in December 2023:
(i)For X for a period of seven overnights on a week-about basis commencing at 9.30am on the first day until 9.30am on the last day.
(ii)For Y to spend overnight time for six overnights of X’s time with the father and that time be broken up into two blocks of three; with Y returning to the mother at 9.30am after three overnights until 9.30am the next day, when she will be returned to the father for a further three overnights until the conclusion of X’s time with the father.

(c)From the commencement of the summer holidays in December 2024 on a week about basis.
(d)From the time Y turns 8 years of age:
(i)In even years the children spend time in the second half of the holidays;
(ii)In odd years the children spend time in the first half of the holidays.

THE COURT ORDERS BY CONSENT THAT:
5.The parents have equal shared parental responsibility of the children.
6.The children spend time and communicate with the parents for such further and other times as may be agreed between the parties from time to time.
7.For the purposes of facilitating the time referred to in this Order, where changeovers do not take place at school each parent (or their agent collect the children from Suburb B McDonalds at the commencement of their time with the children.
8.The parties keep each other advised of any medical or health issues relating to the children including, but not limited to providing particulars of any medication that has been prescribed to the child and ensuring that the medication is provided to the other party at changeover, and the name and contact details of the treating practitioner.
9.The parties, their servants or agents are hereby restrained from making any derogatory comments about the other parent and/or his or her relatives in the presence of or within the hearing of the children and the parties be further restrained from commenting, discussing or referring to any part of family law communications, negotiations or proceedings, or allowing any other person to do so in the presence of or within the hearing of the children.
10.The parties keep each other informed as soon as practicable of any significant injury or medical condition suffered or treatment undergone by the children while they are in their respective care and the parties are each permitted to liaise directly with the children’s treating medical practitioner, dental or other health specialist in relation to the children’s health and welfare.
11.Each party is at liberty to attend the children's school and extra-curricular activities that parents would ordinarily be able to attend including but not limited to parent teacher interviews, concerts, and competitions
12.The parties be authorised to receive directly from the school, copies of all school notices, information, newsletters and school reports, details of parent/teacher interviews and be at liberty to arrange same by telephone, copies of school photographs and order forms and any information which is relevant to the children’s education at the requesting parties expense.

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

X was born in 2014 and is 8 years old. Y was born in 2018 and is aged 3. They have lived in their mother’s primary care since the parties separated in January 2020. The father seeks to implement a shared care arrangement which would see the children spending equal time with each parent in 2025 when Y starts school at age 6.
The father’s case is that he was actively involved in the children’s care prior to the parties’ separation. He is concerned that the mother seeks to minimise his role and is not supportive of his relationship with the girls. His time has been interrupted due to an investigation by child protective services and SOCIT.
The mother’s counsel opened her case by stating that it is not a risk case. He said the mother accepts that the father does not pose a risk of sexual abuse to the children. He went on to say that nor is she trying to tie together a historical risk case, but rather the lack of communication and cooperation between the parents and lack of trust means the father’s application for shared-care is misconceived. The mother’s counsel maintained that position in closing submissions, although it did not sit well with the mother’s evidence in cross-examination.
The father’s counsel urges the Court to make a series of findings about the risk issues raised. She stressed the relatively short amount of time the father was cross-examined and aspects of his evidence that was unchallenged. She submits that the mother went beyond making a report that any concerned parent would do, enlarging the risk to authorities and that she remained fixated on X being at risk of abuse by her father in the witness box. The mother could not articulate the risk, which causes the father concern and his counsel urges the Court to find that the mother’s beliefs were not reasonably held. She further submitted that the family consultant was of limited assistance and had much more limited information than the Court. Making robust findings about the risk issues raised is the only way father’s counsel submits that his time be uninterrupted in the future. Otherwise, further proceedings are likely if the children say something benign that the mother interprets negatively.
The issues of risk and parental capacity overshadows this case despite the fact that the parties agree that they should exercise equal shared parental responsibility and that the children should spend substantial and significant time with the father. The parents do not agree on the pace of the progression of the father’s time. The father seeks an equal time arrangement from 2025, when Y commences school. The mother opposes this.
I am satisfied that issues of concern with respect to the father’s behaviour towards X were the lack of boundaries, which the father has addressed. I am not satisfied that the children are at risk in the father’s care.
GENERAL LEGAL PRINCIPLES WITH RESPECT TO PARENTING MATTERS
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations the Court must consider in determining a child’s best interests. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I must give greater weight to this second consideration.
The 13 additional considerations set out in s.60CC(3) include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
As the parents agree that they should exercise equal shared parental responsibility, and as I am satisfied that it is in the children’s best interests that they do so, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
In MRR v GR [2010] 240 CLR 461, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an order for equal time.
The Court must make a practical assessment of the reality of the situation, not what is desirable.
BACKGROUND
The father is 36. The mother is 43. The parties started living together in 2014 and separated in January 2020. Both are trained educators. The mother has been on unpaid leave since Y was born and receives the single parenting payment. She has not decided when she will return to work.
The father is an educator at Employer C. He works full-time. He says he has some flexibility with his hours.
X is in year two at D School. Y attends Suburb E Early Learning Centre. X has experienced several changes of living arrangements and educational institutions in her short life before and after her parents separated.
In March 2015 the parties moved from Suburb F to Suburb G and X started attending Suburb G Children’s Centre. In March 2016 they moved from Suburb G to Suburb H and X began to attend the Suburb J Early Learning Centre. In March 2017 they moved from Suburb G to Suburb K and X began attending L Early Learning Centre.
In 2020 the parents agreed that X should leave M School due to concerns about the quality of her education there. They intended to send her to Suburb E Early Learning Centre. She moved in the second semester of 2020. I observe that this change came soon after the parties separated. The mother then decided to move from Suburb K to Suburb D due to the commute and moved in August 2020. The distance between the parties’ homes increased from 1 kilometre to 41 kilometres.
AGREED ISSUES AND ISSUES IN DISPUTE
Despite the allegations and counter allegations made by the parties, they agree that they should exercise equal shared parental responsibility. They also agree to orders in the father’s case outline at 11, 13, 16, 17, 19, 20 and 21.
The overarching critical issue is whether or not the children are at risk in the father’s care. It is necessary to determine this despite the mother’s counsel insisting this is not a risk case because of the mother’s evidence when cross-examined.
The issues in dispute are:
(1)What was the level of the father’s involvement with the girl’s care prior to separation?
(2)Does either parties’ mental health impact on their ability to care for the children?
(3)Do the allegations and counter allegations with respect to family violence and abuse during the relationship need to be addressed?
(4)Is the father’s drug and alcohol consumption a current concern?
(5)How does the parties’ communication impact on their capacity to coparent?
(6)Are the children neglected in the father’s care?
(7)Have the children been abused in the father’s care?
(8)What is the father’s insight and parenting capacity?
(9)What is the mother’s ability to support the father’s relationship with the children?
(10)How quickly should the father’s time with the children progress?
(11)Should the children spend equal time with each parent from 2025?
Issues 8 and 9 are addressed from paragraphs 112 to 117 of these reasons. Issues 10 and 11 are addressed in the conclusion.
IMPRESSION OF PARTIES
I was troubled by aspects of the mother's evidence and presentation whilst she was being cross-examined and have carefully reviewed the evidence in light of this. The mother was keen to say that she never alleged that the father sexually abused X and simply raised concerns based on incidents that had occurred that needed investigation. At several points during the cross examination, which I acknowledge was lengthy and vigorous, the mother had to be warned to wait for the question to be asked and to focus on answering that question. The cross examination of the father was much briefer.
WHAT WAS THE LEVEL OF THE FATHER’S INVOLVEMENT WITH THE GIRL’S CARE PRIOR TO SEPARATION?
In his trial affidavit the father sets out in detail his involvement with the children’s care before the parties separated. The father took leave after X was born. The mother had an emergency caesarean and had an infected wound after surgery. As such, the father was particularly involved with X’s care when she was very little. The father returned to work full-time. The mother acknowledges the father’s assistance, particularly as she recovered after the caesarean section, but refers to his assistance as limited and says it never reached a stage where the father could be considered the children’s primary carer. The mother returned to work part time working three days a week. The timing of when she returned to work is unclear.
Y was born by way of an elective caesarean. The father took three weeks of paternity leave. Again the father provides details of assistance. He refers to Y waking frequently throughout the night for night feeds which was exhausting for the mother. The mother and Y attended sleep schools consecutively for a total of two weeks. During that time the father looked after X during the morning and night time routine with her and taking her to and from childcare.
As is common in cases like this, the father seeks to emphasise his involvement in the children’s care during the relationship and the mother emphasises her role as the children’s primary carer. It is self-evident merely from the fact that the father was working full-time, that the mother had greater responsibilities for the children’s care. However, I accept his evidence that he provided significant assistance with the children when he was not working, although the mother was, and continues to be, their primary carer.
POST SEPARATION PARENTING ARRANGEMENTS

The father says that he told the mother he wanted to separate on 9 January 2020 and that he then moved out. Between 9 and 13 January 2020 he stayed at nearby hotels and continued to spend the days in the family home, engaging in the children’s usual activities.
On 14 January 2020 the father moved into a rental property at Suburb K, a two minute drive from the family home. He continued to return to the family home regularly whilst the parties negotiated post separation parenting arrangements.
The father was keen to have X staying overnights with him straight away. The mother wanted to take things slowly and wanted X to transition before commencing overnights. The father also wanted Y to have daytime naps at his home whereas the mother wanted Y to return to her home for her naps. There is nothing remarkable about the parents having different views as to these types of issues. Neither parent was being unreasonable.
The father commenced the mediation process. After months of negotiating the parents agreed to a parenting plan in June 2020 which provided for the girls to spend 6 days a fortnight with the father. X stayed with the father overnight on 3 nights a fortnight. Y did not spend any overnights.
The father sought to renegotiate the parenting plan in October 2020. The father complains the mother refused and unilaterally changed the parenting plan reducing his time from every second day during the school holidays (noting that as he was an educator and he was on leave) reducing it to two days in every five.
The mother complains about feeling pressured by the father and being concerned that he wanted to use the quarterly reviews included in their agreement to push his agenda of having the children for equal time. It is common for separated parents of young children to agree on regular reviews for a period. Each child is an individual and young children are going through different developmental changes. It is impossible to know how children will cope with proposed arrangements until they are trialled. Even when separation is amicable and mutual it is also a difficult period for adults. The additional challenge for these parents is that their children are at different development stages. The parents acknowledged this by having different arrangements in place for the children, even though this resulted in multiple changeovers.
At the first return date on 30 March 2021 the parties, both legally represented, negotiated consent orders which provided for equal shared parental responsibility and for the children to live with the mother. It also provided for X to spend time with the father each alternate weekend, from Friday afternoon until Monday, and overnight each alternate Thursday. Y would spend time with the father on the same weekend as X, for 2 and a half hours on Friday, and 9.00am till 6.30pm on Saturdays and Sundays.
The father says they implemented those orders without difficulty and that for the most part their interactions were positive, and they would discuss children’s issues at changeovers. He says that neither of them raised any concerns over the next six months.
On 25 October 2021 the mother emailed the father inviting him to mediation to which he agreed. That mediation did not take place due to the allegations the mother raised. I will examine these events in some detail later in these reasons.
The father spent day time with the children from December 2021 to February 2022 supervised by his sister. The father recommenced unsupervised time with the children on 19 February 2022. The mother says that the children appear happy with the arrangement.
DOES EITHER PARTIES’ MENTAL HEALTH IMPACT ON THEIR ABILITY TO CARE FOR THE CHILDREN?
The father says the mother told him that she had a history of anxiety, depression and anorexia in her 30s and saw a clinical psychologist. The mother denies ever being treated for depression and anxiety and says she did receive treatment for an eating disorder when she was younger.
The father started seeing Mr N, psychologist in 2020 and re-engaged in December 2021. He swore an affidavit and annexed a report and was not required for cross-examination. He refers to having extensive experience in drug and alcohol related problems as well. In his report dated 8 April 2022 he refers to the father initially seeing him in 2020 to deal with the stress due to the difficulties in seeing his children and the conflictual and difficult relationship with the mother. He re-engaged to deal with the stress of being investigated due to allegations about his parenting. He refers to the father engaging openly and presented as insightful and that he was a consistent historian.
He assisted the father with managing emotional stress constructively, dealing with his distress about the allegations made against him, his alcohol use, and improving his communication and parenting skills.
There is no evidence before the Court that either parent has a mental health condition impacting on their ability to parent.
DO THE ALLEGATIONS AND COUNTER ALLEGATIONS WITH RESPECT TO FAMILY VIOLENCE AND ABUSE DURING THE RELATIONSHIP NEED TO BE ADDRESSED?
In his trial affidavit the father says that over time the mother became more angry and aggressive and would verbally and emotionally abuse him in front of the children. He describes her as being controlling and complaining about his messiness and chaoticness and also says she was controlling about him seeing friends and about money he spent. He says the mother frequently became angry in front of the children.
The father says he initiated separation because of the mother’s controlling behaviour. The mother says they separated because of the father’s abuse of alcohol and his abusiveness towards her and the children. She also complains of the father engaging in rough and forcible intercourse with her after he had been drinking and says he seriously injured her hip during intercourse in May 2014. The father denies this. She makes various other complaints about the father leaving X in the car alone in 2017. She says the police contacted her and when she confronted him, he said it was for a short time and was not “a big deal”. She says he would also leave the gas stove on and the front door unlocked when he had care of the children.
Both parents make allegations of abusive behaviour during the relationship. In spite of this, both seek orders for equal shared parental responsibility and for the father to spend regular, unsupervised with the children. Neither parent raises current concerns about family violence. It was not the focus of cross-examination. There is no current intervention order. I make no finding about family violence.
IS THE FATHER’S DRUG AND ALCOHOL CONSUMPTION A CURRENT CONCERN?
The mother says that the father has longstanding drug and alcohol problems. She describes his drinking in her trial affidavit. The father says he smoked cannabis regularly in his 20s but since the children were born has smoked a few times and not while the children were in his care.
In her trial affidavit the mother says the father would drink between 6 to 10 beers a night 4 or 5 times a week and would pass out on the sofa till the next morning. She says when she raised her concerns with the father he would accuse her of being controlling and became more secretive with his drinking.
The mother alleges that on or around 18 January 2018, the father left the home without explanation and stayed at a hotel overnight on an “alcohol bender”. The father denies this and says that they separated that night and he stayed at a hotel. He says the next morning they agreed to reconcile.
The father says the mother exaggerated the extent of his drinking in her affidavits. He says in the past he has used alcohol to deal with stress. He says the mother has “exaggerated and distorted” his alcohol use. He says he has no history of drink-driving or alcohol affecting his work. He sets out his drinking patterns in his 20s and says he has reduced his intake since 2018. He says on occasion in the past he would drink to excess when out with family or friends. He says he has not done this in 4 years. He says he does not drink when the children are with him. He otherwise has 1 or 2 beers after work 2 or 3 nights a week and goes out with friends once a fortnight, drinking about 6 to 8 standard drinks. He home brews low alcohol beer. He has been doing that for 15 years.
On 3 March 2020 the mother emailed the father telling him that as he provided no proof or reassurance that he was abstaining from alcohol, she would not allow the children to sleep overnight at his home. She required the father to undergo a drug and alcohol rehabilitation program first. Further, she said she now needed proof that he had not been drinking 24 hours prior to picking up the girls and during the visits, and recommended that he buy an alcohol breathalyser.
The father rejected that proposal and in particular, said that he thought her requirement for breathalyser readings was unreasonable and was a tactic to limit his involvement with girls. He said he thought her controlling behaviour would escalate if he conceded to it. Due to the impasse for three weeks the father only spoke to the girls via video.
The father complains that the mother then reduced the frequency of the video calls, as she said that they were interfering with her having a full day with the girls.
The father refers to the email exchanges in his affidavit where he discusses X asking him if he had bought a “little stick to blow in” when he said it was not for him, X became very upset saying she would never see him again. The mother responded referring to the father's history of alcoholism and her refusal to expose the girls to that. She said X had been asking why she was not seeing him and that she explained in basic terms “dad needs to blow into a stick to see if he is healthy to see you.” The mother went on to say that this was totally acceptable and that it was his choice not see them. She said she wanted the children to see him and that the children needed to see him.
I find the mother’s explanation to X somewhat concerning. She does not appear to appreciate that she was giving X the message that her father was unwell and unsafe and not able to care for them. Presumably if the father had agreed to the breathalyser that also would have taken place in front of the children at changeovers. This would have been a confusing thing for the children to see. It does not appear that anyone gave the mother advice about seeking that the father give an undertaking not to drink alcohol for 12 hours before caring for the children or during the periods the girls were in his care.
The mother emailed the father on 23 March 2020 referring to the 3 week gap since the children saw the father and, in the absence of any reassurance about his drinking, she proposed afternoon visits of up to 4 hours as the risk would be minimal even if he had been drinking the night before, as the alcohol would be out of his system. My sense from all of this is that the mother was worried about the father drinking and was anxious about letting the children out of her care. I do not think she was being malicious or deliberately obstructive of the father spending time with the children, given that she came up with an alternate proposal that was trying to balance her concerns with the children’s needs to see their father. The mother has been somewhat reassured by the father engaging in counselling.
The father produced a hair follicle test dated 21 April 2022, which showed low to moderate alcohol consumption with no further testing required. The evidence supports a finding that the father’s alcoholic consumption is not problematic.
HOW DOES THE PARTIES’ COMMUNICATION IMPACT ON THEIR CAPACITY TO COPARENT?
The mother claims that the father’s communication with her only appears to be polite and respectful on paper and was keen to say that their “text life” and “real-life” was different. When called to produce evidence supporting her contention she was unable to do so.
The evidence of the party’s communication does not support the mother’s contention and rather shows at times the mother being directive, and critical. The father appears to respond constructively rather than defensively. I accept that at times the communication has been difficult and the mother has found it uncomfortable. Even after the allegations against the father and the child protective investigations, the communication between the parties in evidence is remarkably civil and constructive, which is uncommon to see in these types of proceedings. It may well reflect what the family report writer positively observed about the parties’ intelligence and child focus.
Also, whilst the mother complained about feeling pressured by the father wanting more time, she was assertive in her views. For example the father wanted to commence overnights earlier than the mother thought was best for the girls. The correspondence between the parties on this topic reflects this and the father acquiescing in seeking future reviews in mediation.
The children were very young when the parents separated, which can make it difficult to negotiate arrangements and particularly long-term arrangements, as young children’s developmental needs change and it is impossible to predict how individual children will react and adjust to those arrangements.
To their credit, the parents worked on a joint script for telling X about their separation. They explained it to her together, and stressed that it was not her fault and that she would still be seeing both her parents.
The mother seeks to imply that there is something about the father's communication that is overbearing or unreasonable in some way but the evidence does not reflect this. I accept that the mother may well feel uncomfortable. It is common and understandable that parents, particularly early in separation, would find communicating with the other about issues concerning the children's best interests difficult to navigate. They of course have different views and are seeking to convince the other of the correctness of their position. The parties have quite appropriately sought the assistance of mediation at various points during their negotiations. On one level, the mother seems to equate the father not agreeing with her proposals somehow being unreasonable and not child focused. Although she readily conceded, and I think accepted intellectually, that the parties can have different genuine views as to the best arrangement for the children. The mother was unable to articulate what it was that she says they were unable to discuss.
The mother's persistent refrain that she cannot raise real concerns with the father as he simply denies them is not supported by the communication between the parties at various periods between them. The father's counsel cross-examined the mother about annexure -2 of his trial affidavit which contained a series of email exchanges between the parties in January 2020 when they were negotiating parenting plans.
Those exchanges are at times detailed, particularly on the mother's behalf explaining her reasoning for the positions she put at various times, including with respect to issues such as when overnight visits should start. The correspondence is substantive and is not indicative of there being difficulty in communicating about substantial issues in dispute and in fact they show the father not the mother acquiescing. On 10 June 2020 the mother emailed the father raising the FaceTime sessions, saying that regardless of the father's good intentions, the sessions were unsettling and stressful for the girls and that Y is too young to understand the concept. The father agrees and suggests that they put that aside for now and reassess and asks her if there are any other issues. This is in contrast with how the mother seeks to depict the parties’ communications and is an example of correspondence where the mother points out concerns to the father and they discuss them constructively in earlier communications.
Annexure 7 of the father’s affidavit is correspondence between the parties from September to October 2021 and includes the mother referring to the children having their worming tablets and the father needing to ensure that X's bedding and pyjamas are hot washed and the toilet cleaned. The next day she asks if Y had a nap. He said that she did but she clearly did not and the father replied saying that she might have been talking about play sleeping with X as she did not have a nap. The mother raises complaints about the father not keeping up with X's homework activities during the lockdown. The father said he is doing his best to juggle work and home schooling. The mother's responses was to say that if he cannot handle the minimum amount of activities for X, then why take her for the home-schooling.
In the text dated 16 September 2021, the mother said she had been thinking of how to support X emotionally when she is at his house and missing her mother and asked to have the option of calling her. When this happens the father responded that she could call any time. On 19 September 2021, the father texted the mother asking if X could call her and then asked her to call back when she was free. There are other examples of the father keeping the mother informed when X is feeling unwell and relaying to her when X has asked if the mother could call her.
Regular exchanges continue, including the mother chasing the father for homework he forgot to handover and so on. On 25 October 2021 there is reference to the mother telling the father that she just sent him an important email. It is not identified. On 28 October 2021, the mother gives the father an update with respect to Y’s potty training and includes a picture of the potty she prefers. The discussion continues the next day and there is no indication of the mother raising any concerns.
These exchanges show that the mother is at times critical of the father. For example with respect to completing and remembering homework and X’s ear piercings being on too tight. She writes to the father on 9 October 2021 telling him that X’s left earlobe is infected and asked if she mentioned anything to him. He replied saying that she said it started hurting when he checked it the morning before and there was no inflammation. She replied saying the piercing was on too tight and subsequently it has infected her earlobe which is bleeding, inflamed and very painful, and says it was lucky that she got onto it when she did. There is an implied criticism there of the father. When cross-examined about it, the mother said that that was because she knew that it had been there for a number of days because it does not just suddenly swell up within a couple of hours. When cross-examined further, it turns out she had a couple of days before putting on the new studs. X had her ears pierced when she was five. The mother was then asked whether she put the studs on X and the mother replied saying how she could remember that. The difficulty is that she was implying that the father was at fault and perhaps he put on the studs too tight. The mother then tried to explain that the written exchanges do not reflect their interactions in real life, and that if she had come straight out that he would have denied it. The difficulty is that in more than one exchange she raises issues which are criticisms of the father and the father's responses are constructive and indeed he follows up. Most significantly, the mother does not raise allegations of sexual abuse or the father not exercising appropriate boundaries with X.
The father's counsel then put to the mother that she takes a small thing and makes it dramatic and she replied saying that that is very convenient for his case and that if he exaggerates her case then he will get more time, she then complained that she was constantly pushed by him for more time. The mother was deflecting from the issue and as I pointed out to her, it appears to me that there is not a lot of give-and-take, and that it is more often her saying how she thinks things should be and how they should communicate. However, people can have different opinions that are legitimate. Both parents are educators and both thought it was appropriate for X to go to 6 different education institutions and do not appear to think that that would cause any disruption or upset. The mother is seeking to focus on things she supposes the father has done.

The mother then said it was a series of little things and one incident after the other, and referred to the children coming home and complaining that they had not brush their teeth, or that they were tired and had not eaten properly.
Exhibit 9 is the email exchange the mother produced showing her raising concerns about the children’s welfare with the father and his non-responsiveness. It is clear that the chain continues but she does not include further emails. In her email of 2 April 2021 the mother is highly critical of the father, assuming that what X reported to her is what had occurred. She accuses the father of failing in his responsibility to take care of her and making her feel worse and complains about Y returning from his care dishevelled and still being awake after 8.30pm at night, which she says is most probably because of him putting her down to sleep too late or too long. She ends her email by saying that she will be taking note of these incidents and any others for future court proceedings. Taking that kind of tone is not going to elicit a fulsome response from the recipient. The father referred to X being sick as he had mentioned to her and also referred to having mentioned to her that Y had her sleep from 12pm to 2.30pm. The mother responds with further criticism and it is clear that the father further responded that she does not include that. This email does not assist the mother’s case. On the contrary it shows her engaging in the type of conduct she accuses the father of.
Her complaints about the difficulties in communicating with the father was vague and not supported by the evidence. My impression of the mother was that she had somewhat rigid views and some difficulty on an emotional level of at least accepting that the father could have different views to her as to the appropriate arrangements for the girls that were still child focused, just as hers were.
There appears to be an implicit assumption by the mother that the father's parenting skills are lacking and that if the father was to disagree with a complaint made to the mother she would interpret that as him denying there being any difficulty. This places the father in an invidious position.
The parents would benefit from counselling assistance addressing their communication with each other. This would be quite a different process to mediation and would need to be carried out by a counsellor who is experienced in post separation family dynamics. The mother may also benefit from individual counselling to assist her with respect to her anxiety about the father and how she interprets what the children tell her. I will not make orders about these issues as the benefit is far greater if they are motivated to engage, rather than compelled by a court order.
The parties described their current communication to the family report writer as limited and stressful, which is hardly surprising given their interviews took place shortly after the child protection investigations. However, it is to their credit that despite this, they were observed by the report writer to interact with each other politely as the father was leaving the observation room after the observations of him with the children. It is also clear that since then the parties’ communication with each other has improved, which is a positive development and again a credit to both parties. The report writer also observed that both parents impressed as intelligent and capable with an awareness of the impact on the children of being caught in the middle of the parental conflict and changing parental arrangements.
This is clearly something that has affected X, particularly given her age. I do have concerns that the nature of her comments to the report writer about the time she wished to spend with her father and her complaints she makes reflect X being aware of the mother’s concerns and her desires for limited overnights and block periods of time. Whatever his faults, X missed her father when she did not see him and wants to spend time with him.
MOTHER’S RELIANCE ON WHAT CHILDREN SAY AT FACE VALUE
I find it concerning that the mother accepts on face value anything that the children say about the father. She confirmed as much in cross-examination. Unfortunately, this is common in matters involving high conflict.
In cross examination, the mother said that she believes what X tells her as she is her daughter. She said she accepted that not everything that children say is going to be valid, but then said that when they come home with so many incidents of complaints about the variety of things including reckless driving that she has the concern there and says it is because they are happening on a regular basis. She makes several general complaints in her affidavit. She does not disclose what the children actually said in their own words, when and in what context.
When exploring the issue of X being aware of the conflict between her parents and how the mother reacts to what X tells her, it leads me to find that the mother lacks insight into the psychological pressures that children feel when they have been placed in the middle of their parents’ conflicts and children’s natural desire to please their parents. X would be very aware of how the mother reacts when she talks about things at her father’s home and it is highly likely that she has picked up the sense that the mother is interested in hearing about the negative things. I suggested this to the mother, and she said she did not respond negatively and asks questions about how she is feeling, but that misses the point. The mother also gave evidence that she told X that she was brave when she made her disclosure, which X could see as part of her mother encouraging her to make complaints about her father. What makes this more concerning is the expanding category of complaints.
The mother gave an example, when X referred to being cold and the father not giving her a blanket. The mother says she questioned X about how she felt about that, implying that this was a positive way of dealing with this and that she was not expressing anything negative. The mother's answers cause me concern about the manner in which the mother quizzes X when she returns from her father's home and that this could in fact be putting pressure on X. The mother says she believes that the father refused to give X a blanket. When pressed on these issues, the mother stressed that she does not trust the father and referred to being unable to communicate with him about issues because of the way he would respond. The evidence of the parties’ communication simply does not support this.
I also find some of the things the mother has said to X demonstrates a lack of insight into the harm caused by the children being placed in the middle of conflict and having divided loyalties.
ARE THE CHILDREN NEGLECTED IN THE FATHER’S CARE?
The mother alleges at paragraph 40 of her trial affidavit that the children are often returned to her care dishevelled, smelling unwashed, with damaged clothing and untreated cuts and bruises. The mother does not provide any examples. She further says that X would claim they had not brushed their teeth. She does not expand on this and does not define what she means by semi regular. The father says the mother did not raise this with him and the first he knew of these allegations was upon reading her affidavit. The mother is silent in that paragraph as to whether or not she raised those concerns with the father.
Bruising October 2020
In October 2020 X returned from her father's with bruising on her private parts. The mother says they talked about it at the time and the father said to her that X bruised herself on play equipment and the mother said that X complained about being sore. She said X told her while they were out shopping and she took X to the public bathroom and looked and saw the bruising on her vulva. X also told her that she fell on the play equipment and hurt herself and the mother says she accepted that explanation at the time but took a photograph in the cubicle, not even waiting until she got home because the bruising was so big.
When asked to explain the purpose of taking the photograph the mother said the bruising was so big and things kept happening to X that she wanted a record of it all. She confirmed that this was the first time anything like that had occurred.
The mother said that there were so many things that kept happening that was causing her to question whether something else is going on. Although the bruising was concerning enough for the mother to take a photograph of it, she did not think to take X to a doctor. This would have been an embarrassing and confusing moment for X. I asked her if she had thought about what X would make of her taking a photo of her vulva in those circumstances. The mother's answer was rather discursive referring to not being her proudest moment, but that her instinct was that she did not want these incidents to keep happening and wanted to document them. She also said she was not trying to set anyone up and there was no malicious intent. When pressed further, the mother said that she brought it up with the child protection some 13 months later because after what had happened (presumably referring to X's disclosure with respect to the father's nakedness) she was not sure what had happened back then and was thinking that maybe something else had happened and she did not want to disclose it, and that she just had some concerns and doubts. The mother’s actions are more consistent with wanting to record the father’s failings rather than being concerned X was being sexually abused by him.
At page 40 of the transcript, the father's counsel squarely put to the mother that she suspected sexual abuse but was not prepared to admit it. The mother denied this and said that when those sorts of things are happening to your child you want to be rational but at the same time because she does not trust the father. There is just a fine line. Therefore, all she could say is what things were happening and that she wanted someone to investigate. X and her father gave the mother similar accounts as to how the bruising occurred and it seems from the mother's answers that she believed X, but did not believe the father. In this respect, it appears that the mother is reconstructing what has occurred to fit her current narrative.
Urinary tract infection
After returning to the mother’s car after a week of the mid-year school holidays with the father, X had a urinary tract infection. The father said he told the mother at change over that X had had a mild cough and on the last night complained about wanting to go to the toilet but then not. When questioned by the mother, the father said that X had not disclosed any discomfort to him. The father expressed concern when the mother said she would take her to a doctor the next day as she suspected she had a UTI.
The father follows up the next day with the mother and the mother told him that she has a UTI and taking antibiotics and says that X had symptoms for over five days. The mother’s comment that these don’t come on suddenly is incorrect. It is a very common experience. The father's counsel pressed the mother asking her if it was her evidence that she believes the father would have rejected seeking help for X if she had consistently complained to him that she was in pain and the mother clearly responded "yes, it is my belief". That is concerning. I do not accept that the father neglected X’s health as the mother alleges.
HAVE THE CHILDREN BEEN ABUSED IN THE FATHER’S CARE?
In her trial affidavit the mother says that in early September 2021 X was resisting spending overnights at the father’s house and would come home stressed and told her that she would cry at night. The mother says she sent a text to the father on 16 September 2021 about sleeping arrangements and X’s resistance to staying overnight. She does not annex this text message to her affidavit nor does she describe the contents. She also claims that X’s teachers told her X was tired on the days after she had spent overnights with the father. The father says he is in regular contact with X’s teachers and they had not mentioned tiredness to him.
The mother says that when they were in a relationship from the time X was 3 years of age, the father would like to sleep in the same bed as X and would lie with her as she was falling asleep and often stayed throughout the night. She says that he would often sleep naked in her bed and wrap a sheet around his private parts. The evidence in her affidavit is somewhat perplexing as the mother did not believe he wrapped a sheet around him when cross-examined about his interview with the child protection workers. The mother claims that she told him that she did not think that was a good habit but that he rejected her point of view and accused her of being controlling. There are concerning inconsistences in what the mother says in her trial affidavit and what she said to investigators and the Magistrate’s Court.
At paragraph 37 of her trial affidavit she says “on or around 29 September 2021, X told me that while she was at her father’s house, she went into his bed in the morning for a cuddle. X told me that Mr Forde was naked. X told me that Mr Forde’s ‘private parts rubbed against her’.”
X told her mother that she would ask the father to put on underpants and he would. The mother says she was alarmed by this disclosure but did not want to overreact and she spoke to her family violence counsellor. The mother says that as she and the father had trouble communicating she thought it would be best to raise these issues with the father through mediation.
From the mother’s chronology in her trial affidavit it appears that when she attended the mediation in late October 2021, the mediator found that the matter was unsuitable for mediation and she was encouraged to report her concerns about X and the family violence that occurred during the relationship.
The father says the allegations the mother made against him came as a complete surprise. He says the mother did not raise any concerns with her in the previous text exchanges. Throughout October 2021, the mother continued to send X for overnight visits.
The mother made a report to the Department of Families, Fairness and Housing on 29 October 2021. On the same day, the mother provides the girls to the father for weekend time. On 31 October 2021, she applied for an ex parte intervention order naming herself and the children as the protected parties. The police did not take out the IVO on her behalf. The Magistrate refused to grant an ex parte interim IVO. On that same day, the mother attended the father’s home to collect Y and seek to take X, saying she wants to take her trick-or-treating. The mother left X with the father.
The mother sent an email to the father’s lawyers on 3 November 2021 explaining her concerns and proposing that the father have supervised time. The father through his lawyers refused that proposal. The mother responded saying she would not be making the children available to spend time with the father. She expresses concerns about the father attending her home on two occasions despite this communication.
The mother says that neighbours told her the father was “patrolling” outside her house for 4.5 hours on 5 November 2021. The mother was not at home. The father admits attending the home. He says he was unaware of the email the mother sent to his lawyer until after he arrived at her home to collect the children. If the father was really outside the house for anything like that amount of time, it is likely that either the neighbour or the mother would have called the police.
On 10 November 2021, child protections workers visited the mother’s home and interviewed X. Exhibit 7 is the case note of this visit.
The case note indicates that before speaking to X, the mother told the child protection workers that as their relationship was breaking down the father would sleep naked in X’s bed 3 to 4 times a week and that when she asked him not to do that he began to wrap a sheet around himself. She went on to refer to X’s disclosure now and said that X complained that the father regularly touches up against her and that she has asked him to put underwear on which he did once and sometimes he does not. The mother then referred to other complaints and said there had been a gradual increase in the incidents. It is somewhat troubling that the mother’s description of X’s disclosure appears to be somewhat embellished. The case note records the mother referring to her O Services counsellor helping her work on a safety plan. X could call her any time she was at the father’s house, and the mother claiming that she discussed that with the father and that initially the father was supportive of the safety plan but then started restricting her call. I do not believe that the mother ever had such a conversation with the father given her evidence made repeatedly that she was unable to raise these types of issues with the father. I do not accept that she would have raised that in oral discussions with the father. She makes no mention of this in her affidavit and it is inconsistent with her other evidence.
The mother was critical of aspects of the child protection workers’ interview with X at her home. Interviewing young children about matters such as this are difficult and require a high amount of skill, and great care needs to be taken in the manner in which questions are asked so as not to influence the child’s answer. One thing that concerns me about the interviews is the fact that the mother was in the next room and able to hear parts of that interview. She claims not to have been able to hear when the workers started asking X about the private parts of her body. I have trouble accepting that, given it is at that moment that the mother entered the room and placed X in her lap.
Throughout her lengthy cross-examination the mother was careful not to not to accuse the father of sexual abuse, but rather that X had made a disclosure that needed investigating and that she wanted to make sure that X had an opportunity to tell somebody about it other than her. She thought that would help to stop it from happening and that she just wanted that behaviour to stop and said "I mean, what kind of mother would I be if I – I did not act on something like that?" The difficulty is not that the mother reported this concern, but the inconsistencies in her evidence and the delay in taking that action. As it is clear that the mother continued to make X available for time with the father unsupervised, including overnights for about four weeks after X made the disclosure. At one point during cross-examination, the mother described it as the worst period of her life, and stressed that she was unrepresented at the time and did not know what to do. I do not find her explanations credible. The mother’s delay is more consistent with the mother being concerned about the father’s lack of boundaries.
The mother’s actions are more consistent with her anxieties growing over the time period, and indeed the content of the letters that she sent to the father’s lawyers some weeks later, as well as the affidavit she filed with the Magistrates’ Court, supports the mother seeking to bolster her concerns by referring to a range of matters, exemplifying the father’s poor parenting capacity. By referring to bolstering I do not suggest that the mother did this in bad faith or in a manipulative way, but rather, and it may well have been unconscious, she has re-visited events and reinterpreted them through a lens of risk. The mother’s complaints about X returning to her care with a urinary tract infection and a bruised vulva are good examples of this.
What is more troubling and what she was unable to be explain away are the very serious allegations she makes in her affidavit filed with the Magistrates’ Court, which is Exhibit 5, that she makes no reference to in the family law proceedings.

In that affidavit she states that since X made the disclosure to her on 29 September 2021, she has “checked in with X”. The mother does not expand on this but it is suggestive of the mother questioning X. The mother does not particularise when this allegedly occurred, but says that X told her that she has had to remind her father a number of times and that he only listens sometimes. I am not satisfied that that is in fact the case and am concerned about the pressure this inadvertently places on X to report things to her mother. The mother then repeated a series of other complaints about the father’s parenting including with respect to the UTI X had and the father’s behaviour during their relationship and complained that the father has used the court process to intimidate her and take her money. There is absolutely no basis for those allegations. The father was perfectly entitled to commence proceedings and there is nothing in the material, nor when he was cross-examined, to suggest that he has taken any action to prolong the proceedings or increase the mother’s costs.
I am particularly troubled by what the mother says at paragraphs 27 and 28 of that affidavit which are most serious allegations to make, which she does not provide any foundation for and indeed makes no mention of in her affidavits in the family law proceedings. I will set those paragraphs out:
The father has developed a trusting relationship with another family with a little girl. This child, whom is 9 years old, is very often unaccompanied by her parents or any other adult when in the fare of Mr Forde. He has shown a strong interest in babysitting her (alone and with the children), has bathed and washed the child without her parents around whilst with our two children, and has had her sleep overnight in X’s bed. He has been looking forward to taking all three girls camping whilst no other parent or adult is present.
Other friends and family members have observed questionable behaviour from the father towards X. I can provide affidavits for this information.
The mother made a litany of complaints that she also made in her affidavit filed with the Magistrates’ Court about the father using the court proceedings to intimidate her. The father’s counsel highlighted parts of the police records, which is Exhibit 6, where the mother made a complaint to police about historical sexual abuse by the father towards her in May 2014, which she did not go ahead with making the statement. The mother referred to this and made other complaints, but said that she was prioritising her children and that the investigation had been put on hold. It is difficult to reconcile with the fact that the mother raises this with several authorities in the context of her concern for her children’s safety in the father’s care.
Exhibit 8 is further police records with respect to the disclosures and the mother’s concerns. The police categorised them as welfare issues noting that it is inappropriate for the father to remain naked when X comes into his bed in the morning but that X has not disclosed any criminal offence.
On 15 November 2021, the mother contacted the police and advised that X had been interviewed by child protection, but had closed down and become upset and refused to speak. The mother wanted the police to speak to X to see if they could get a disclosure from her. The police explained that it would be inappropriate and would traumatise her further and as it is only welfare issues and not criminal issues being disclosed, it would be inappropriate to keep presenting to authority figures in the hopes that X will eventually make disclosure.
The mother says that on 18 November 2021 the father arrived at her house to collect the children and she called 000 for assistance as she was not sure what the father would do. She saw the father taking photographs at the place and about 10 minutes later the father left.
The mother says she was concerned by X’s reaction to this situation and X disclosed to her that she was very worried that she would get into trouble with her father because the father continued to sleep with her naked. The mother does not describe what she means by X’s reaction.
It is apparent from the records that the mother was not satisfied with the first response she received, and so on 17 November 2021 the mother contacted another branch of SOCIT for another opinion and they recorded that the information the mother provided was different to what she had said to child protection, as she was now referring to the father wrapping himself in a sheet up against X. The mother was also saying that X now wanted to talk to somebody. The police spoke to child protection. They indicated that they were unable to substantiate protective concerns and that they would be closing the file. They also said that X was traumatised by the interview, and they would not reinterview her as a result. Child protection also refer to having both parties affidavits in family law proceedings and referred to the parties making allegations and counter allegations, and that child protection was going to meet with the father to discuss the matter.
There is a further conversation between the mother and police on 1 December 2021, in which she refers to the Department closing the file and that she has contacted a senior practitioner for further information. She again referred to X being willing to speak to investigators and police then determined that, given that the mother kept revisiting that subject child protection thought it was appropriate to arrange for the mother to bring X in for a VARE interview which will ensure clarity and accountability to whether X engages or not. The VARE is a recorded interview. The VARE took place on 8 December 2021. The records note that X spoke openly and freely that she was looking forward to seeing her father and generally spoke positively of him only commenting that the only thing that makes uncomfortable is him sleeping with no clothes on. She said sometimes when she gets into his bed in the morning for a cuddle she can feel his privates against her leg described as squishy. The police noted that there was no indication of the father’s penis being erect and that the father was not exercising boundaries when having children and needed to wear clothing when the children are in his care.
The mother was cross-examined about the case note summarising the interview child protection workers had with the father on 23 November 2021. The mother did not have access to that case note prior to being cross-examined. That case note should give the mother some comfort that the father was open with the protective workers and receptive to their feedback.
The father told the workers that sometimes he would sleep naked as he would get overheated in hot weather and that on occasions X climbed into his bed in the morning for cuddles. Significantly, the workers noted that without prompting the father advised that once X told him that she felt uncomfortable and awkward when she had come into his bed and he had not been wearing underwear and so he used the sheet cover himself. The father said since that occasion he has made sure that he is wearing underwear.
He took on board the advice from the child protection workers about X’s age and the fact as she goes through prepubescence and puberty there will be further changes and it will be important that X feels comfortable. They further advised him that in order to avoid any misunderstandings he should ensure that he is always wearing appropriate clothes, even when hot and that he could consider revisiting his night-time routine with the girls, such as cuddling on the couch rather than in bed.
The protective workers observed the father to be open and honest and thoughtful in his answers and acutely embarrassed when discussing sexual allegations. The father told them he would work actively on not being naked in front of the girls and be mindful of appropriate cuddling of the girls as they get older and also of their privacy
The mother conceded in cross-examination that since overnight visits have resumed with the father X has not raised any concerns.
I sought to explore the mother’s views as she was being cross-examined as I was concerned that aspects of her evidence did not gel. As I made clear to the mother during an exchange,[1] I accepted that it is perfectly appropriate for her to have concerns about the father being naked in the house when the children are staying over, and that it was necessary for their seven-year-old daughter to tell their father to put underwear on. It should be obvious to a father that his daughters would be uncomfortable seeing him naked, particularly given X’s age.
[1] See page 30 of the transcript
Having considered the evidence I am satisfied that the father lacked an understanding of appropriate boundaries which the father has addressed. The evidence does not support the children being at risk of being groomed or sexually abused by their father.
I am not satisfied that the mother has acted out of some sort of malice in taking the actions she did. Rather it is more likely that, particularly given the history of the father sleeping naked during their relationship, the mother was concerned and uncomfortable about the X’s disclosure but was not immediately concerned that the father was sexually abusing X, as her actions in the weeks after are simply inconsistent with this. Both parents are educators and therefore mandatory reporters, and I do not accept the mother’s evidence that she could not raise this in writing with the father’s lawyers immediately if not with the father directly. The mother was also keen to present herself as being somewhat passive and being guided by the police process, but the police records contradict this.
The mother’s evidence does not focus on there being a concern about the father lacking boundaries with the girls and lacking some parenting skill, but in both her trial affidavit and repeatedly during cross-examination she gave a narrative focusing on the children being at risk in the father’s care. This is hard to reconcile with her position at trial, and confirmed by her counsel in closing submissions after conferring with her, that she is not running a risk case and accepts that the girls are not at an unacceptable risk in the father’s care.
Her conduct could be at least partially explained by the mother accepting on an intellectual level that the children are not at risk but is struggling with that emotionally. Wanting clear-cut answers and external confirmation is understandable. The mother’s desire for X to make a disclosure is also understandable as it would support the mother’s actions. Nonetheless it is also concerning, particularly in light of advice from the police about the potential for trauma to X, that the father told the protection workers that the mother could get an idea in her head and it then becomes reality as she gets worked up. I suspect that is also part of what happened here, although I do not think as the father does, that the mother was trying to assert control and gain an advantage through making these accusations.
THE FAMILY REPORT
The family report interviews took place shortly after the investigations had concluded with the interviews taking place on 5 January 2022.
Significantly, the family consultant does not identify the issues in dispute and issues identified during her assessment as relating to risk, rather she identifies communication and parental decision making, paternal vulnerabilities with respect to illicit drugs/alcohol use and parenting responses. She does not explain what she means by parenting responses.
I found evidence of the report writer to be of limited assistance in this case. The pathway from her discussions, the body of the report and her recommendations are not entirely clear. She also identifies, for example, issues in dispute and issues identified by her as including family violence and refers to the mother referring to family violence post separation. This is not explored and there is no evidence with post separation family violence. If the mother was referring to the father allegedly patrolling outside her house, I do not accept that that incident occurred at as it is inherently unlikely, particularly given mother’s references to having a safety plan and packed bags to escape, that the mother would not have called the police upon neighbours reporting to her that the father was outside her house for some hours. This is particularly so given during this period the mother was in regular contact with police and other authorities.
The family report writer refers to given the “reported absence of substantive protective concerns in relation to paternal care” that overnight and unsupervised time is indicated, but this caution should be exercised with respect to extended block periods from both children, but she does not explain why. She then refers to the maternal trust likely to be enhanced by the father showing willingness to modify various aspects of his parenting responses and that it appeared that there are aspects of the paternal care, which makes X uncomfortable, which indicated some lack of insight. Since the report interviews the father has completed a tuning into kids for dads course and he has also detailed the changes it has made to his parenting and reengage with his counsellor. None of this has given the mother any real reassurance and the mother was unable to articulate what would reassure her other than passage of time.
When cross-examined the family report writer referred to the investigations being open at the time of the report interviews. This is not correct. Although she was given access to the exhibits shortly before being cross-examined. I am of course in a better position to assess the totality of the evidence. The mother’s counsel asked the report writer that if the Court found that the disruption to the father’s time in November was not justified because there was no foundation for unilateral cessation of time, would that change her recommendations. The premise of the question is problematic. Regardless of the reason for it, the children’s time with their father was interrupted and they have to adjust to that bearing in mind the different stages of development of attachments they are at, particularly for Y. The report writer referred to the difficulty of interviewing a seven-year-old. She said that if a seven-year-old said to her that she was nervous she would explore what the child meant by that word could be seen as an adult word in reference to the child protect workers’ interview with X. However, at paragraph 43 of her report the report writer refers to X commenting to her that she felt a little nervous on the day of interviews that there is no indication that she explored what she meant by that. My impression also that when cross-examined by the father’s counsel, she did not really engage with the fact that what counsel was putting to the family report writer was that Exhibit 8 shows that the mother was pressing for X to be interviewed again, despite being warned it would not be appropriate to be retraumatised. The report writer responded saying that it is not unusual for there to be a further interview with SOCIT. That is true, but does not address the issue here. Further, when it was put to her that the Court finds that the mother’s concerns were unreasonable or based on distorted perception that would reflect on the mother’s capacity to facilitate the father’s relationship with children, she simply said she could not comment on what the judgment will be based on all the evidence. She would not engage with concerns I raised about inconsistencies in the mother’s evidence and X’s exposure to her views and whether or not a counterbalance to that would be an increasing the father’s time.
When cross-examined by the mother’s counsel, she did say that it is important that the mother obtains support so that she does not expose children to her worries and about what she thinks may or may not happen as that can be damaging for children. They will be important for the mother because there are some indications that X is aware of the mother’s concerns and is certainly aware of the mother’s criticisms of the father’s parenting in a variety of aspects not just with respect to the boundary issue. I also refer to my concerns about the weight the mother puts to X’s reporting to her after spending time with her father, particularly in the context of the mother questioning her and appearing to not appreciate the conflict that X is in, being in the middle of the parents. X clearly loves both parents and misses her father. It is also typical for children of X’s age to want to please their parents. It must be remembered too, that children of this age are heavily reliant on their parents and are attuned to various non-verbal cues of their parents that they themselves might not be aware of. For example, how they react when a child talks about something positive or negative in the other parent’s household.
CONCLUSION
I found closing submissions of the mother’s counsel unhelpful being hyperbolic and not engaging with the evidence. References to Freud and films in closing submissions is hardly persuasive and it is also unhelpful to simply say that the child protection interview was incompetent and that the child protection material would be “torn to shreds” in the Children’s Court.
In closing submissions the father’s counsel drew attention to the fact that the father was cross-examined by the mother’s counsel for a relatively short period of time and was not challenged about significant matters, including the father refuting the mother’s allegations of neglect concerning hygiene.
When cross-examined about whether or not he thought the mother was genuine in making the report and withholding the children, the father said he did not think so, because if it had been genuine she would have withheld X when X told her about it. The father said that it happened a couple of times and X asked him to wear underpants and that after that he did. I observed that once should have been enough.
It is also important to note that the father acknowledged in cross-examination and elsewhere that the mother is a good mother that she has made sacrifices to stay home for the children and what he sees is that at times she can overreact when she is stressed.
To the party’s credit they agreed to Y commencing overnights at her father’s house a few weeks earlier that provided for in the orders during the Easter holidays. There is no evidence of any concerns about the children’s time with their father since his time resumed unsupervised and no concerns being raised his Y started spending overnight time with her father.
I do not think that the very conservative regime recommended by the family report writer and that sought by the mother is justified. However, the regime proposed by the father would involve significant changes going from one night a fortnight to 4 nights a fortnight.
This is a case where it is in the children’s best interests to spend substantial and significant time with the father that includes both time on weekends and holidays and times during the school week. As the parents agree that they should exercise equal shared parental responsibility, I must consider whether equal time arrangement are in the children’s best interests and whether it is reasonably practical. The father does not propose that this commence immediately, and proposes a build-up of time with equal time, commencing in 2025, when Y starts school.
Often the fact that a case that requires judicial determination is a fairly strong indicator of there not being the type of cooperation, communication and similarity in parenting styles, and flexibility which enable shared parenting arrangements to work in the best interests of children. Children as individuals may adjust differently, and it is impossible to predict how they will adapt as they get older, and in this case there is a need to balance the different developmental stages of X and Y, which I also acknowledge is something that the parents have done from the beginning. It is impossible to predict how the children will adjust in the future.

There is some hope for the parents’ communication to improve and as I have observed before to the parent’s credit, they have in fact been able to communicate as well as they have.
The reality is that the children will always be in their mother’s primary care and there is no concern raised with respect to the mother’s care of the children. I find that the proposed graduated increase of time that I will order which is in between the parents’ proposals, is in the children’s best interests as it acknowledges the importance of the children spending substantial time with the father, and the benefits they get from that, whilst not requiring too many sudden adjustments. There is also a need to balance the different developmental needs for the two girls.
I will order that from the time of these orders during school term until the commencement of Term Four 2022, in week one, the children spend time with the father from the conclusion of school on Thursday until the commencement of school on Friday. In week two, for X from after school Friday until 6:30 PM on Sunday, and for Y from after school Friday until 6:30 PM on Saturday, and on Sunday from 9 AM to 6:30 PM.
From the commencement of Term Four 2022, the arrangements in week one will remain the same, and in week two X will spend time with the father from after school Friday until before school on Monday, and Y from after school Friday until 6:30 PM on Sunday. During the term school holidays, X will spend a block of four nights with the father. Y will stay overnight for the first two nights and then have the following two days with the father returning to her mother’s each night.
With respect to the summer school holidays, I order that X spend a block of five nights with the father every second week, and that Y spend overnight for the first three of those five nights and spend the day during the fourth and fifth day of that block period. Holiday periods are different to periods during the school week when there is opportunity for the girls to spend a greater block of time with the father without it being too significant a leap. I am also the view that it will benefit the girls to have the greater periods of time together with their father and am satisfied that these orders strike that balance. From the commencement of 2023 during the first and second school term holidays in 2023, X will spend six nights with the father and Y spend the first three nights with the father, and then after the next three days with the father returning to the mother at night. From the commencement of Term Three school holidays in 2023, X will spend seven nights father and Y will spend the first four nights with the father, and the remaining three days during the day of returning to the mother night.
From the commencement of the summer school holidays in December 2023, X shall spend seven nights with the father on a week about basis, and Y will spend six nights with the father during the time X is with the father broken up into two blocks of three.
From the commencement of term one, 2024 both girls will spend the school term holidays and the long summer holidays, with the father and mother on a week about basis. As the children get older it will be desirable for the long summer holidays to be split into two blocks which will enable parents to take the children away for holidays and the like for longer periods. I order that from the time Y turns eight, the long summer holidays be split equally between the parties for the first half with the mother in even years and each alternate year thereafter and the second half with the father, and in odd years the first half with the father and the second half the mother.
With respect to time during school terms, the arrangements in place at the end of 2022 will continue for the first two term of 2023. Thereafter, both girls will stay from after school Thursday to before school Friday with the father in week one and from after school Friday until before school Monday in week two. From the commencement of school in 2025, the girls will spend five nights a fortnight with the father during school terms in week one from Wednesday after-school until Friday before school and week two from Friday after school until Monday before school. I am satisfied that these orders strike the right balance to the girls’ needs and are in their best interests.

I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Associate:
Dated: 25 July 2022

File number(s):	MLC 14278 of 2020
Judgment of:	JUDGE HARLAND
Date of judgment:	25 May 2022
Catchwords:	FAMILY LAW – parenting – young children – father seeks to progress to equal time arrangement by 2025 – mother raises concerns about father’s parenting capacity and boundaries
Legislation:	Family Law Act 1975 (Cth) pt VII, ss 60B, 60CA, 60CC, 65D, 65DAA
Cases cited:	MRR v GR [2010] 240 CLR 461
Division:	Division 2 Family Law
Number of paragraphs:	144
Date of hearing:	17 and 18 May 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Dellidis
Counsel for the Respondent:	Mr Scriva
Solicitor for the Applicant:	Pearsons Lawyers Pty Ltd
Solicitor for the Respondent:	Victoria Legal Aid

MLC 14278 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FORDE Applicant
AND:	MS HALSHAN Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	25 JULY 2022