Gaddi & Levett (No 3) - [2024] FedCFamC1F 621

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Gaddi & Levett (No 3) [2024] FedCFamC1F 621

File number(s): BRC 8895 of 2022

Judgment of: JARRETT J

Date of judgment: 17 September 2024

Catchwords: FAMILY LAW – PARENTING – Allegations of sexual abuse – Finding that sexual abuse did not occur – Where respondent did not encourage or coach allegations but did not respond appropriately – No risk to child with either parent – Order made for equal time

Legislation:
Family Law Act 1975 (Cth) ss 4, 60CC, 62G

Family Law Amendment Act 2023 (Cth) Schedule 1, ss 12, 25

Cases cited:
M v M (1988) 166 CLR 69

Naczek & Dowler (No 4) [2008] FamCA 653

Division: Division 1 First Instance

Number of paragraphs: 162

Date of last submission/s: 20 February 2024

Date of hearing: 11, 12 & 13 July 2023

Place: Brisbane

Counsel for the Applicant: Mr Thomas

Solicitor for the Applicant: Hall & Co Solicitors

Solicitor for the Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer: Mr McGregor

Solicitor for the Independent Children’s Lawyer: Bridges Family Law Specialists
ORDERS

BRC 8895 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GADDI

Applicant

AND:
MS LEVETT

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JARRETT J

DATE OF ORDER:

17 SEPTEMBER 2024

THE COURT ORDERS THAT:
1.The application in a proceeding filed on 15 January 2024 is dismissed.
2.Discharge all previous interim parenting orders made in these proceedings and in particular, the orders made on 24 November 2022 as amended on 20 December 2022, 18 January 2023 and 6 April 2023.
3.The orders made on 12 February 2018 are varied by:
(a)deleting order 5 thereof; and
(b)replacing it with the following:
5.From the commencement of the school term that begins immediately following the 2024 September/October school holidays, X shall live with the applicant from the conclusion of school on the first Friday of the term to the commencement of school on the next Friday and each alternate week thereafter. At all other times during school terms, X shall live with the respondent.

4.The parties shall otherwise forthwith implement the orders, including order 6 and specifically order 6.1.2 made on 12 February 2018.

THE COURT FURTHER ORDERS THAT:
5.Within 7 days of making of these orders:
(a)the applicant shall select one therapist from the following to engage with, with a view to improving the communications and the co-parenting relationship between the parties, namely:
(i)Dr Q;
(ii)Ms R; or
(iii)Ms S

(b)book an appointment with that therapist.

6.Each party shall:
(a)attend an intake session at the earliest opportunity available with the therapist chosen by the applicant pursuant to order 4(a) hereof;
(b)follow all reasonable directions of the therapist and attend all sessions indicated by the therapist to address all issues identified by the therapist with a view to improving/resolving coparenting deficits;
(c)equally share the costs of the therapy under order 5(b).

7.Otherwise all outstanding applications are dismissed.

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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:

One of the biggest risk factors for children of separated parents is exposure to conflict between their parents. In cases where those parents are in conflict about parenting arrangements for their children, unless the conflict is carefully managed, there is a high probability that the children of those parents will be affected by it, to their detriment.
As a general proposition, parents who do not have a functional co-parenting arrangement, who are distrustful of each other and who are motivated by purposes other than the best interests of their child or children will often fail to bring to the utterances or actions of their children the objectivity they might otherwise demonstrate. Such parents reject innocent or alternative explanations for the utterances or actions of their children in favour of explanations that are informed by the parental conflict. Some parents do this consciously and some, the majority I suspect, do it unconsciously.
Often, the objective meaning of the words heard or when they are considered properly in the context in which they were uttered, do not, or should not be taken as indicating sexual abuse or other inappropriate behaviour. Instead, ignoring the objective meaning of words and the context in which they were uttered, a conflicted parent may interpret the words in a way consistent with a conclusion contended for by that parent (such as that a child has experienced abuse in some form). The same may be said of actions that might be exhibited by children from time-to-time.
It is hard to imagine anything more shocking, indeed devastating, for a parent than to hear their child say that they have been sexually abused by their other parent. For separated parents who are in conflict with each other, often the only explanation for a child saying such things is that what is said must be true. Such a reaction, in the first instance, is both understandable and predictable. However, as time passes and more information becomes available some parents are able to revise their assessment of the veracity of what they have heard. Some are not.
In cases in this court, where a parent cannot or does not revise their acceptance of the veracity of the child’s statements where it is appropriate to do so, the court is inevitably asked to make orders that will see either the severing or the severe restriction of the opportunity for a relationship between the child and the parent alleged to have abused them. For their part, the parent who is the target of the allegations of abuse often responds by seeking orders that will lead to the severing or the severe restriction of the opportunity for a relationship between the child and the parent making the allegations. So it is in this case.
X is 12 years of age. Despite managing to co-parent X since their separation in 2017, the applicant and the respondent have now fallen into significant, protracted and seemingly intractable conflict about her ongoing parenting arrangements.
The evidence before me leaves no room to doubt that X has been affected by her parents’ conflict. X has attended appointments with a psychologist for the past two years, on a more or less monthly basis. The evidence is that she has been diagnosed with anxiety, including panic attacks. She probably suffers from Attention Deficit Hyperactivity Disorder (ADHD), Major Depressive Disorder, Anxiety (Generalised and Separation) and potentially other mental health disorders.
Although I deal with the evidence more fulsomely later in these reasons, there is no dispute that X has said on a number of occasions to different people, in differing contexts, that her father has acted towards her in ways that are within the description of abuse as set out in s 4 of the Family Law Act 1975 (Cth). The applicant denies that he has sexually abused or acted inappropriately in any other way towards X.
Until very recently, X’s mother, the respondent in these proceedings, believed that X’s accounts of abuse at the applicant’s hands are true and, overtly at least, did not countenance any other explanation for those accounts.
I have the benefit of a report prepared pursuant to s 62G of the Family Law Act 1975 (Cth) by Dr D, a social worker and family consultant. In that report, Dr D says:
111.It is acknowledged that in some instances, children do make false allegations; however, these are rare and characteristically tend to be easily detectable due to the predisposing context. False allegations are more likely to occur in contexts where there is a high level of conflict, dysfunctional parental relationship and/or parent/child relationship, neglect and poor parental capacity. From the families’ descriptions, the context here involved a dysfunctional parental relationship and a potentially high level of conflict. From each [Ms Levett] and [X’s] descriptions, the increased resistance in spending time with her father appeared to correspond with long-term complexities between [X] and [Mr Gaddi’s] caregiving context that perhaps [X] experienced as untenable.
112.Under these circumstances and the conflicting information, it is unclear, although perhaps not unlikely, that [X] was more vulnerable and needed to make false allegations (lie, manipulate) of such a severe nature to perhaps either exert some control over the parenting arrangements she was subject to or to escape an untenable context. Children are amenable to suggestion. They may also develop behaviours, some attractive and others less so, as an attempt to solve a problem they are experiencing and or exposed to. With all these factors considered, it is perhaps best to privilege the need to err on the side of caution, affording the most vulnerable party, [X], a high level of protective action. This is particularly so when considering the concerning mental health concerns for [X] and the risk that her mental health may further deteriorate if she is made to spend time with a parent she does not feel safe with.
(my emphasis)
Whilst I am satisfied that on the occasions I have set out below X has made statements to the effect that she has been sexually abused by the respondent, for the reasons that follow, I do not accept that her claims are truthful. I consider that the statements by her are false and were made by her to exert some control over her parenting arrangements in the context of a highly conflicted and dysfunctional parental relationship.
Further, I consider that in the context of the parent’s dysfunctional parenting relationship and a wider conflict involving the applicant’s present partner and his former partner, the respondent has fastened upon X’s statements and behaviours without giving them any objective or rational consideration. Rather than engaging in a meaningful way with the applicant so as to constructively deal with X’s behaviour, the respondent has permitted X to determine the course and outcome of her interactions with the applicant without challenge. This has been to X’s disadvantage.
PROPOSALS OF THE PARTIES
Although often not relevant, in the present case the development of the parties’ final proposals over the life of these proceedings assists to understand the basis for some for the submissions made at the conclusion of proceedings, especially by the independent children’s lawyer. For that reason, I have taken some trouble to trace the evolution of the parties’ proposals.
The parties agreed on consent parenting orders that were made in this court on 12 February 2018. By those orders, the parties have equal shared parental responsibility for X, she is to live with the respondent and spend time with the applicant each alternate weekend (from after school Friday to before school Monday) and for one half of all school holidays. The orders included a notation recording the parties’ intention that within two years of the making of the orders, they would review their terms with a view to increasing X’s time with the applicant.
At the time of the trial before me, X resided with the respondent and the respondent’s partner Mr F. Save for two occasions on 8 and 9 April 2023, X had not spent time nor communicated regularly with the applicant since 13 May 2022. Although the February 2018 consent orders had been discharged by a consent order made on 24 November 2022, there were further orders for X to spend time with the applicant made on 18 January 2023 and confirmed on 6 April 2023. Upon the reservation of my judgment in this matter, I sought and received assurances from the parties that the interim orders made on 18 January 2023 and confirmed on 6 April 2023 would be observed.
In his initiating application, the applicant sought the discharge of the 2018 consent orders, an order for equal shared parental responsibility, except for decisions related to X’s education for which he would be solely responsible. He did not specify any final orders for X’s time between her parents, but rather he sought to reserve his position pending the receipt of a family report. In the interim he sought an order that X live with him and spend supervised time with the respondent for two hours each Wednesday and Saturday.
In his interview with Dr D held on 5 May 2023 for her report, the applicant proposed that X be immediately placed into his primary care. He had no recorded proposal for X’s time with the respondent.
The orders set out in his case outline filed on 4 July 2023 seem to be the first time the applicant formally indicated his final position. In that document, he seeks orders for sole parental responsibility, that X live with him and that unless the parties otherwise agree, she spends no time nor communicates with the respondent. At this juncture the likelihood of agreement between the parties is remote. He seeks orders relating to a passport for X.
By her Response filed on 26 August 2022 the respondent sought the discharge of the 2018 parenting orders and interim orders for sole parental responsibility, that X live with her and that she spend supervised time with the applicant for 2 hours every alternate Sunday. By the time of the interviews for Dr D’s report held on 5 May 2023 the respondent was proposing that X spend no time with the applicant “for the time-being” although she proposed that X spend time with her paternal grandmother and paternal half-sibling.
In her case outline filed on 4 July 2023 the respondent seeks orders for sole parental responsibility, that X live with her and spend no time or communicate with the applicant. She seeks some limited orders for time between X and her paternal grandmother and paternal half‑siblings. She too, seeks an order for a passport for X.
X and I have the benefit of an independent children’s lawyer. In her case outline filed on 5 July 2023 she proposed three alternative sets of orders – one for which she contended if the court is of the view that X is at risk of being sexually abused by the applicant, another if the Court was not of that view and was of the view that the respondent has not influenced X against the applicant and the third if the court is of the view that the applicant does not pose a risk of harm to X and the respondent has influenced X against the applicant.
At the commencement of the hearing I asked counsel for the independent children’s lawyer which of the alternative proposals his client contended was in X’s best interests. He informed me that at that point in the trial, the independent children’s lawyer contended for the second option, as follows:
B.If the court is of the view that the child is not at risk of sexual abuse by the father, and the mother has not influenced the child against the father, then:
a. The parents have equal shared parental responsibility;
b.That the child live with the paternal grandmother, (if the court is of the view that the paternal grandmother will not expose the child to the parental conflict, or discuss these proceedings with the child, or discuss negative views of the mother with the child) then:
i.For a period of l months the child live with the paternal grandmother and not spend time with either parent;
ii.That thereafter, the child remain living with the paternal grandmother and she facilitate the reintroduction of the father to the child, with the father and child engaging with a qualified therapist who is experienced in reintroduction of the children to their parents.
iii.The father shall not bring a third party or introduce any partners to the child during this period of reintroduction.
iv.Once the child is reintroduced to the father and time spend arrangement commences on a frequent and regular basis, the time between the father and child and the mother and the child be on a week about basis.
v.Special days etc.
At the conclusion of the trial, the applicant sought orders consistent with those in his case outline, namely that X live with him, he have sole parental responsibility for her and that she spend no time with her mother. In final written submissions, counsel for the applicant suggested that before there should be time between X and the respondent, the respondent should engage in “therapeutic interventions designed to address the conduct she has engaged in” after which there would be a graduated and cautious reintroduction of time between X and her mother.
At the conclusion of the trial, the independent children’s lawyer proposed orders that would see the consent orders made on 12 February 2018 be reinstated and amended in the following way:
1.a.      within 48 hours of making of these orders, the father select one therapist from the following to engage with, with a view to improving the communications and co-parenting relationship between the parties, namely:
i.        [Dr Q]
ii.        [Ms R]
iii.       [Ms S]
b.book an appointment with that therapist
c.each party shall attend an intake session at the earliest opportunity available; and
d.thereafter follow all reasonable directions of the therapist and attend all sessions indicated by the therapist to address all issues identified by the therapist with a view to improving/resolving coparenting deficits.
2.Orders 5 and 6 of the Orders of 12 February 2018 be suspended until such time as the therapist counsels the child [X] child sufficient to recommence time with the father pursuant to order 5, or alternatively, for any shorter period or periods of time pending the recommencement of Order 5.
3.The father spend time with the child each alternate weekend pursuant to order 5 commencing on a date nominated by the therapist.
4.That the Orders for the child [X] to spend time with the father pursuant to the final orders made on 12 February 2018 shall be varied to provide:
a.at the expiration of one month from the recommencement of the time pursuant to order 5 shall increase so that the child spends time with the father from after school Friday to the commencement of school Tuesday for a period of one month;
b.at the expiration of one month from the expiration of Order a hereof the time the child shall spend with the father shall increase so that the child spends time with the father from after school Friday to the commencement of school Wednesday for a period of one month;
c.at the expiration of one month from the expiration of Order b hereof the time the child shall spend with the father shall increase so that the child spends time with the father from after school Friday to the commencement of school Thursday for a period of one month;
d.at the expiration of one month from the expiration of Order c hereof the time the child shall spend with the father shall increase so that the child spends time with the father from after school Friday to the commencement of school Wednesday for a period of one month;
e.At the expiration of the time referred to in order d hereof the child’s time with the father shall further increase to commence from after school Wednesday to the commencement of school Thursday, for a further period of one month;
f.At the expiration of one month from the expiration of Order a hereof the time the child shall spend with the father shall increase so that the child spends time with the father from after school Friday to the commencement of school Friday and shall continue during school terms on a week about basis.
5.The cost of the therapy sessions for the child shall be equally shared by the parties and the parties shall each solely pay the costs of their individual therapy.
6.That should any of the orders listed above not be followed/complied by the parties, then either party may apply for the matter to be listed urgently before the Honourable Justice Jarrett as a matter of urgency.
7.That the ICL be discharged after the expiry of 28 days from the making of final orders.

In subsequent submissions, counsel for the independent children’s lawyer clarified that the counselling that is intended by order 1 set out above was counselling for X’s parents. The independent children’s lawyer accepted that it was probably inappropriate for X’s time with her father to be suspended until such time as the parents have engaged in that counselling and ultimately counsel for the independent children’s lawyer accepted that X’s time with her father should continue unobstructed under the present orders until further orders were made.
In submissions, the respondent abandoned the orders set out in her case outline document and agreed with the orders proposed by the independent children’s lawyer.
THE ISSUES
The applicant’s case as put in final submissions is that X is at an unacceptable risk of psychological and emotional abuse in the respondent’s household. Primarily, he says that this risk arises from the respondent’s support and encouragement for X to persist with and develop false allegations that the applicant had abused her such that X’s decision to no longer spend time with the applicant and the respondent’s support of that position was justified. He argues that unless X is removed from the respondent’s household, the risk that the respondent will continue to support and encourage such false allegations is unacceptable and X ought to be protected from it. He argues that unless X is removed from the respondent’s household, there is a significant risk that X will not have her relationship with the applicant fostered, encouraged and facilitated as it ought to be.
Initially, the applicant also seemed to be pursuing a case that X is at risk of physical and perhaps psychological harm from Mr F. The applicant asserts in his trial affidavit that Mr F has physically assaulted X in the past and is likely to do so in the future. Various reports have been made by the children in Mr F’s care to the relevant child protection authorities of him perpetrating physical abuse, however, those complaints have never been progressed. Mr F admits to yelling at the children on occasion but denies any physical abuse. Ultimately, the case that X is at risk in the respondent’s household from Mr F was not pursued in submissions and I need not consider it further.
The orders sought at the outset of the trial by the respondent have their basis in her case that the applicant poses an unacceptable risk of abuse to X. She also argues in her trial material that X is at risk of abuse at the hands of Ms T who she says has abused her own children. Ms T’s children have reported various instances of physical abuse, as recorded in police records. Although the applicant and Ms T do not reside together and are not in a relationship with each other, the respondent contends that it is likely that the applicant will bring X into contact with Ms T, perhaps for the purposes of being abused by Ms T or others. The respondent also expresses concerns about the applicant’s denigration of X’s weight and faith and neglectful behaviours such as leaving her at home alone for long periods of time.
The orders promoted by the independent children’s lawyer at the conclusion of the trial are predicated on the basis that X is not at an unacceptable risk of abuse from the applicant. They were also predicated on the basis that she is not at an unacceptable risk of abuse (emotional or psychological) from the respondent or otherwise likely to be exposed to physical harm in the parents’ household.
At the conclusion of the trial, the respondent agreed with the orders sought by the independent children’s lawyer. The inconsistency of those orders with the proposition that X is at an unacceptable risk of harm of abuse from the respondent or emotional or psychological harm from him and the respondent’s acceptance of them as an outcome that is in the best interests of X necessarily carries with it an abandonment of her case to the contrary. So too, the respondent’s acceptance of the independent children’s lawyer’s proposal necessarily carries with it an abandonment of her case that X is at an unacceptable risk of harm in the applicant’s care because he will expose her to Ms T.
Parts 1 and 2 of Schedule 1 of the Family Law Amendment Act 2023 (Cth) relate to amendments to the Family Law Act 1975 (Cth) that change the way the court is to go about assessing the best interests of children and parental responsibility respectively. The application provision for each part (s 12 and s 25) specifies that the amendments made by each Part apply to proceedings instituted on or after the day the amendments commence, or proceedings instituted before, and not finally determined by, the day the amendments commence, other than proceedings in respect of which a final hearing has commenced by the day the amendments commence. The final hearing for this matter commenced in July 2023. Therefore the amendments to the Family Law Act 1975 (Cth) that commenced in May 2024 pertaining to best interests and parental responsibility do not apply to these proceedings. The law as it stood prior to those amendments is the law that I must apply to the resolution of this proceeding.
Having regard to the evidence, the submissions of each of the parties and the provisions of s 60CC of the Act, at a high level, the issues for determination appear to me to be:
(a)Has the respondent supported or encouraged X to make false allegations of sexual abuse or embellish otherwise innocent disclosures so as to persist with and gradually develop the seriousness of those allegations and disclosures, leading X to have a false narrative about her father, and if so, is X at an unacceptable risk of emotional harm in the respondent’s care for that reason?
(b)If X is at an unacceptable risk of emotional harm in the respondent’s care, will the benefit of being protected from that risk by living in her father’s household be greater than the detriment that might befall X if she is removed from the primary care of the respondent?
(c)In the context of the last question, does either party have the capacity to facilitate a relationship between X and the other parent and, if not, which care arrangement for X will best mitigate the risks arising from exposure to high levels of parental conflict?
(d)Where the presumption that equal shared parental responsibility is in the best interests of X does not apply due to family violence, is an order for equal shared parental responsibility nonetheless appropriate in circumstances of high parental conflict? If not, in which parent should sole parental responsibility vest?
Ordinarily, in cases such as the present, it is not necessary for the court to make positive findings about the alleged abuse. The task for the court is to make a determination about the future risk of abuse and how the orders of the court might address the risk so identified. The position is explained in M v M (1988) 166 CLR 69:
In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362. There Dixon J said: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.” His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
That is not to say that a court cannot make a finding about the alleged abuse, one way or the other. There will be occasions when it is appropriate to do so. Again, as explained in M v M:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
Here, however, counsel for the independent children’s lawyer urges me to make a positive finding that the applicant did not and has never perpetrated abuse upon X.
THE RESPONDENT’S APPLICATION TO REOPEN
On 15 January 2024, the respondent filed an application in a proceeding seeking to adduce further evidence. The trial had concluded and judgment was reserved when the respondent filed her application.
In Naczek & Dowler (No 4) [2008] FamCA 653, Cronin J considered the principles relevant to application for leave to reopen the evidence in parenting proceedings. His Honour set out that the proposed new evidence:
must have an impact on the proposals of the parties already put to the Court. That impact must be so significant as to not only change the direction of a party’s case but also to require the trial judge to contemplate a different scenario to that determined during the trial. If the evidence fits into that category, there must be an obligation on the Court to pursue it as a consideration of how it will impact upon the lives of the children.
The correct approach is therefore in three steps. First, to determine whether the proposed new evidence impacts the proposals of the parties. Second, to determine whether that impact (if any) is so significant as to require me to contemplate a different scenario to that determined during the trial. Third, to consider how that different scenario (if any) will impact upon X’s life.
The evidence sought to be adduced by the respondent is contained in her supporting affidavit filed 15 January 2024. That evidence broadly falls into four categories.
The first category can be loosely described as hearsay evidence from the respondent of things X has told her the applicant has said to her. The first problem with this evidence is that it consistently sets out the things X allegedly said using the phrase “words to the effect of” and does not set out the actual words X used. The evidence as it stands has very little probative value. The second problem is that this evidence is simply more of the same type of evidence that was led at the trial. Initially, the respondent’s case at trial was that X should spend no time with the applicant. She gave evidence in her affidavits relied on at the trial that was largely consistent with the new evidence she seeks to adduce. The addition of this proposed new evidence does not advance her case any further, it simply gives additional examples of things she says the applicant has done. For that reason, it should not be admitted.
The second piece of evidence the respondent seeks to adduce relates to an allegation that the applicant showed court documents to a mutual acquaintance, which has impacted on one of X’s friendships. It is tenuous at best that this event has impacted X’s friendship, as the text message itself simply expresses a desire from the parent of one of X’s friends to talk to the respondent prior to any more sleepovers. The applicant, in his affidavit filed 13 February 2024, denies showing the court documents to the person in the text messages. They have not been called or subpoenaed as a witness. This evidence does not alter the proposals of the parties and should not be admitted.
The third category of evidence relates to the applicant’s marriages. The applicant married his new wife in late 2023. There is no evidence that the applicant’s new wife poses any risk to X. Given that the respondent’s initial case was for X to spend no time with the applicant because he posed an unacceptable risk of harm to her, but she subsequently withdrew from that case, it is difficult to see how his new marriage advances her case in any respect. Similarly, the applicant’s case was for X to spend no time with the respondent due to her being an unacceptable risk of harm. The applicant’s remarriage to Ms U does not alter either party’s case. The respondent further alleges that the applicant has married Ms T, a witness in these proceedings against whom the respondent levelled several serious allegations. Leaving aside the fact that the respondent’s evidence for this marriage was based on a Facebook profile and has little reliability, and that the applicant denies this marriage, the marriage is a legal impossibility in Australia given the applicant married Ms U in late 2023. This evidence should not be admitted.
The last category of evidence proposed to be admitted by the respondent relates to some innocuous communication between the parties. The parties were able to negotiate about the school X should attend, and the applicant requested for his mother to be released from pickup and drop-off duties, to which the respondent did not agree. In the context of both parties’ proposals, this communication takes the matter no further and this evidence should not be admitted.
It follows that the respondent’s application in a proceeding should be, and is, dismissed.
BACKGROUND AND SOME FINDINGS OF FACT
What follows in this section of these reasons is a recitation of the uncontroversial background to these proceedings, some controversial matters about which I have made findings and other matters which are controversial and in respect of which I have left my findings and comment for later in the reasons. Notwithstanding the use of headings and the division of these reasons into different parts, they, of course, should be read as a whole.
I have approached the applicant’s evidence with considerable circumspection. In cross‑examination he revealed himself to be a witness who was intent on answering only those questions he wished to answer and then only in a way that he thought would advance his own interests. He was often defensive and argumentative.
I have also approached the respondent’s evidence with some circumspection. That is because, by and large, it consists of opinion, conclusion and assertion by her. Critical matters, such as her conversations with X are recorded in such a way as to detract significantly from the probative value of her evidence. Her interpretation of events and incidents does not appear reliable. Although there are many, two examples will suffice:
(a)a comparison between the respondent’s evidence in paragraph 104 of her trial affidavit with the text of the text message referred to in that paragraph reveals a skewed interpretation of it by the respondent;
(b)the text messages referred to in paragraph 50 of her trial affidavit (said to be demonstrative of the applicant’s extreme religious views) appear to be part of a conversation between the applicant and the respondent but the whole conversation is not reproduced in the exhibit and so it cannot be put into context. Without context, the words are next to meaningless.
The applicant is 46 years of age and is employed on a full-time basis as an educator. He is in good health, although he says that he is stressed by these proceedings. He has one other child from an earlier relationship, namely N who is now 19 years of age.
The respondent is 44 years of age. She has repartnered with Mr F. As far as I can tell from the evidence, she is in good health and in her affidavits describes her occupation as a “product manager”. She told the report writer, Dr D that she was employed full time as a “[professional]”.
The parties were married in 2011. X was born in 2012. They separated on 26 May 2017 and divorced in 2018.
In early 2017 the parties met another couple, Mr F and Ms T. The respondent describes that the parties as “engaged in swinging with” Mr F and Ms T. Although it was not explained in the evidence, I take that reference to mean that the parties and the second couple engaged in sexual intimacy with each other from time to time.
Mr F and Ms T have four children of their own, namely J, K, L and M (aged 17, 15, 14 and 11 years respectively).
The couples formed a close friendship and their families spent considerable time together. However, it is uncontroversial that the parties’ relationship with each other and that between Mr F and Ms T deteriorated and both couples separated.
Although the applicant claims that it commenced before the parties’ separation, the respondent says that soon after their separation, in mid-2017, she and Mr F “began a committed relationship”. Whatever is the case, they now live together with the three youngest of the children of Mr F and Ms T. They also have a child of their own, V, who is 6 years old. The respondent and Mr F are engaged to be married.
The respondent alleges that the applicant and Ms T had a dating type relationship for about five months following her separation from the applicant. The applicant denies that was so. Ms T gave evidence that she and the applicant were intimate on “a few occasions” following her separation from Mr F but between November 2017 and May 2022 Ms T says that she and the applicant had “next to no communication”. I accept her evidence about this and reject the respondent’s claim that the applicant and Ms T were in a relationship or dated for about 5 months in 2017.
In mid-2017 the respondent sought a temporary protection order against the applicant. A temporary protection order was made on that date. She says that she detailed in her application for the protection order “a range of threats, verbal, emotional and sexual abuses that I was subjected to by [Mr Gaddi], including the distribution of explicit material by [Mr Gaddi] and [Ms T] of myself to [Mr F’s] family and friends”. However, the application for the protection order is not before me and as best as I can tell, none of the matters alleged in it are sworn to by the respondent in the evidence before me.
It seems uncontroversial that the applicant breached the temporary protection order in mid‑2017 by sending her a text message with an image of one of the conditions of the protection order. He was charged and pleaded guilty to the breach. A final protection order was made in late 2017 upon the applicant’s consent and without admission. The term of the order was 3 years.
In the meantime, proceedings were on foot between Mr F and Ms T. In late 2017 orders were made for Mr F and Ms T’s children to live with Mr F (who was then living with the respondent).
In February 2018 the parties agreed upon consent parenting orders for X. I have summarised their terms earlier in these reasons.
In early 2018 the applicant and Ms G commenced a de facto relationship which lasted for about 4 ½ years. Ms G’s evidence was to the effect that she had never experienced any circumstance in which she felt threatened or intimidated by the applicant in any way. Ms G’s evidence is to the effect that her relationship with X was difficult. She attributes that to the respondent’s influence over X and the respondent’s dissatisfaction that the applicant had commenced a relationship with Ms G. For example, she asserts that the respondent told X that the applicant had left the respondent because of Ms G and that she was responsible for the family breakdown. She said that X was sent to the applicant’s house wearing the respondent’s wedding ring from the applicant around her neck. When asked why she was wearing it, her response was because “mum told me too”. Generally speaking, I received no assistance from Ms G’s evidence because of the discursive form in which it was given and its plainly partisan tone.

The evidence makes it plain that X and Ms G had a fraught relationship. The notes from X’s counsellors demonstrate that she had significant issues with Ms G and according to the respondent’s evidence, X was visibly relieved when she found out that the applicant was no longer in a relationship with Ms G.
At some time in 2021 (the applicant says June 2021 whereas the respondent says January 2021 although in oral evidence she put this as early as 2020) the applicant and the respondent agreed for X to spend an additional night with the applicant each fortnight, being each alternate Monday night, from after school Monday until before school or 9.00am Tuesday. No orders were made to that effect and none were probably needed given the parties’ agreement. X spent time with the respondent accordingly.
The conflict between all four parents seems to have continued unabated and expanded to contaminate X’s school, C School.
The complex interpersonal relationships between the parties, Mr F and Ms T are illustrated by the toing and froing concerning X’s schooling. The 2018 orders provide for the parties to have equal shared parental responsibility for X. The orders carried a notation that the applicant would be responsible for the school fees associated with X’s attendance at C School. It was the school at which she was attending when the orders were made. Accordingly, any decision to change the school needed to be a joint decision of her parents. Notwithstanding this, the respondent made a decision to move X from C School to O School from the commencement of semester two in 2021 without the consent of the applicant.
Her explanation for doing so, set out in her affidavit filed on 20 June 2023 suggests that X was removed from C School “due to concerns regarding her safety and that of her siblings”. The respondent asserts that X’s teacher was being “personally influenced by [Ms T] in a way that posed an unacceptable risk to [X] and her stepsibling, [K]”. She does not say how that influence was occurring or what the unacceptable risk was to X or K. Whatever is the case, it seems that X’s teacher at C School became concerned about X and thought that a notification to the Department of Child Safety might be appropriate. That appears to have antagonised the respondent who now makes many generalised allegations against the teacher, about which there is no specificity and which are impossible to answer except in a generalised fashion.
In late 2021 the respondent and Mr F were interviewed by officers of the Department of Children, Youth Justice and Multicultural Affairs upon the information provided by X’s teacher. The matters investigated were subsequently found to be not substantiated.
In the meantime, conflict ensued between Mr F and Ms T about their children. Initially, Mr F and the respondent prevented Mr F and Ms T’s children from spending time with Ms T in 2017. Between mid and late 2021, it seems that Ms T returned the favour. Orders were made in late 2021 between Ms T and Mr F. Mr F was given sole parental responsibility for decisions for his children and they were to live with him.
The respondent swears that in late 2021 “[Mr F and Ms T’s] children” (she does not say which or if it was all of them) began making “disclosures to [Mr F] and me about emotional, physical and sexual abuse they were subjected to by [Ms T]”. She gives no particulars. She swears that “we reported the children’s disclosures to the police”.
X was not particularly happy at O School and wished to return to C School. Although the respondent engaged with the applicant about X returning to C School, the parties could not agree about that. It was a source of friction between the respondent and X on the one hand and the applicant on the other. The applicant’s view, informed by some officious opinion advanced by his then partner Ms G, was that another change in school was not in X’s best interests and she should remain at O School.
The disagreement over X’s school seems to have informed difficulties between the applicant and the respondent in organising X to spend time with the applicant from about April 2022 in accordance with the orders that were then in place. Difficulties occurred when the applicant contracted COVID-19 and make up time was not able to be arranged. Time happened sporadically but there were ongoing difficulties. The respondent deposes to a telephone conversation with the applicant on 25 May 2022 during which they discussed the applicant wanting X to spend time with him every Monday night, concerns for X’s weight, X’s desire to return to C School and X’s continuing issues with the applicant’s then-partner, Ms G. The respondent did not help matters by taking X out of school for two weeks for what she claimed was a trip interstate without providing the notice required for that purpose under the orders then in place.
The respondent deposes to some text messages between X and the applicant on 1 and 2 June 2022. They are annexed to her affidavit. In them, X asserts to the applicant a “right” to say where she goes to school, in response to which the applicant initially suggests that she is being coached by the respondent. Rather than engage with X, he tries to divert her by telling her that the issues concerning her schooling are for her parents to sort out. However, it is clear from the messages that both parties were actively involving X in adult issues and the parental conflict.
On 10 June 2022 the respondent told the applicant that X did not want to spend time with him in accordance with the orders. The applicant says this was ostensibly because she was “not doing so well emotionally at the moment” whereas the respondent deposes to telling the applicant that she was still upset about the communication that was exchanged on 1 and 2 June 2022. The respondent further deposes, “I supported her in this so she could have time to let her emotions settle and see if [Mr Gaddi] and I could resolve the conflict”. The applicant ultimately agreed for X to remain with the respondent instead of spending time with him on the upcoming weekend.
By that time, the respondent knew that in mid-2022, Ms T was arrested and charged with multiple offences in relation to J, L and M. There is no evidence that the respondent told the applicant about this.
The respondent alleges that “around June 2022” X told her that over the previous 2 years she had been left unattended whilst in the applicant’s care on multiple occasions. She apparently said that one night she went to bed and the applicant and his then partner (Ms G) left the house but did not tell her as they thought she was asleep. She swears that X told her she was very scared and they did not get home until about 11pm. When X asked the applicant about this the next day he said they went to a concert and that she was old enough to be left alone. She allegedly told the respondent that other occasions they went out at night to get food, and one time she had a babysitter who left the house when she thought X was asleep. She was also left at home during the day, with no instructions as to what to make for lunch so she went hungry for the day. The applicant denies these allegations.
In my view, this point represents the start of the respondent’s nonchalant attitude to compliance with orders of the court and X’s realisation that the respondent would not compel her to spend time with the applicant in accordance with the orders.
The conflict escalated significantly when the applicant submitted an affidavit in support of Ms T in some domestic violence proceedings she had commenced against Mr F. The respondent became aware of this on 20 June 2022 and thereafter withheld X from spending time with the applicant. At that time, Mr F and Ms T were also in litigation in the Federal Circuit and Family Court of Australia (Division 2) about their children.
On 20 June 2022 the respondent sent the applicant a text message in these terms:
I have just been notified that you have submitted an affidavit as part of [Ms T’s] civil matters with [Mr F]. This is highly inappropriate in normal circumstances, for which this is surely not. I provided information to you in a timely manner that [Ms T] has been charged with sexual abuse of the three children. These are serious indictable offences for which she has strict bail conditions regarding the kids (who are [X’s] siblings). These kids have been traumatised by this abuse, and [X] loves them with all her being. It is for this reason that I am now withholding [X] as it shows you have not exercised sound judgment associated with a paedophile, and I do not want [X’s] safety compromised through your relationship with [Ms T] ...
As the respondent noted in her message, the applicant had indeed provided an affidavit for Ms T to use in her family violence proceedings. In his affidavit, the applicant asserted that Mr F was not a credible witness and that he falsified his military service record on an employment application with a government body.
Ms T appeared as a witness in these proceedings. She has been charged with sexual offences against her own children. She is contesting the charges. I am not furnished with evidence sufficient to make any findings about those matters, nor would it be appropriate for me to do so. Suffice to say, the respondent and Mr F believe the allegations against Ms T to be true and were thus angered by the applicant’s support of her in the family violence proceedings. The applicant believes the allegations to be fabricated by the respondent and Mr F. Despite the time that has passed since I first heard the evidence in this case, neither party, nor the independent children’s lawyer have sought to give any further evidence about this issue and the progress of the charges against Ms T.
At the time the respondent withheld X, Ms T was not living with the applicant. Indeed the evidence is clear that they had not been in any relationship since as long ago as 2017. Nonetheless, and for reasons that are not explained by her, the respondent said that she “was concerned that [the applicant] would not act protectively for [X]”. She gave no evidence about seeking an undertaking from the applicant not to bring X into contact with Ms T or suggesting other measures to protect X from what she perceived were the risks associated with Ms T. Her conduct in withholding X was a clear contravention of the orders. More than that, I consider that it was entirely opportunistic and she disingenuously suggested that she was ceasing all time between X and the applicant to protect X. It was, I am satisfied, nothing more than retaliation against the applicant for providing what the respondent and Mr F perceived as support for Ms T.
The respondent deposes that she “regularly asked [X] if she would like [her] to facilitate phone contact with [the applicant] to which [X] apparently responded with words to the effect “No, I am not ready to speak with him yet, I am still too upset”. Not only did this further involve X in the dispute, when parenting arrangements should be a matter for these two parties to resolve, but is nonsensical when the respondent on her own evidence, withheld X due to the issues with Ms T rather than X’s wishes. This evidence demonstrates a lack of capacity on the respondent’s part to discharge the obligations as a parent. Instead, she chose to delegate those responsibilities to X.
In mid-2022 the respondent made another application for a protection order. No temporary protection order was made. A copy of the application is not before me and there is no evidence before me of any acts of family violence by the applicant toward the respondent to justify such an application at that time. It is little wonder then that the respondent withdrew the application at a hearing later that month.
The applicant commenced these proceedings on 22 July 2022. At about this time, the respondent simply decided to change X’s school once again without the applicant’s consent and despite the order for equal shared parental responsibility. She did so “irrespective” of the applicant’s protests because she “felt it was too urgent to wait for the disputes to be resolved through mediation/ court”.
In August 2022 the respondent made a report to police about what she claims X told her in June about being left home alone by the applicant on several occasions. X was interviewed by Queensland Police in September 2022 about these matters. The police determined not to take further action. Curiously, while the respondent mentions the applicant leaving X alone in her affidavit, she does not mention taking X to the police over these allegations or the lack of action taken by the police in respect of them.
On 29 August 2022 this application had its first court date before a registrar. Amongst other orders, an order for a “Child Impact Report” was made. On the same day, the applicant’s solicitors wrote to the respondent insisting that time between he and X recommence as per the 2018 orders. The respondent refused to recommence the time but in return correspondence suggested that supervised time be commenced. She did not suggest where or how that supervision would take place. In her correspondence sent on 30 August 2022 she suggested that X had been “subjected to emotional abuse and child neglect whilst in your client’s care, including not having basic needs met such as provision of food and being allowed access to a toilet”. She also recorded that there “is an open child protection investigation regarding your client and his partner [Ms G], with respect to leaving [X] unattended whilst in their care”. She was critical of the “attitude of [Ms G] towards [X] and chasing her around [a shop] on 26 August”. The applicant did not agree to supervised time. The respondent repeated her proposal on 5 September 2022 and the applicant did not respond.
As part of the present proceedings, the parties attended on family consultant Ms E for the preparation of a Child Impact Report in October 2022. The respondent deposes to becoming aware from that report that the applicant was no longer in a relationship with Ms G. She says that when she informed X of this information, she was “visibly relieved” and the respondent was hopeful that she and the applicant could come to an agreement on X’s care taking into consideration the recommendations made by Ms E. Whilst the respondent referred to Ms T and the charges pending against her in her interview with the family consultant she did not suggest that the applicant would expose X to a risk of harm through exposure to Ms T.
In her report, the family consultant recorded that X appeared to continue to desire a relationship with the applicant but her “reported experiences have impacted on her comfortability and willingness to spend time” with him. The family consultant suggested that time could occur under the supervision of an “appropriate family member to ensure [X] experiences the spend time as positive and comfortable”.
The respondent engaged lawyers and negotiations between her lawyers and the applicant’s lawyers with a view to time between X and the applicant commencing led to some promising signs of compromise. However, time did not commence.
Whilst the respondent seemed content for there to be face-to-face time between X and the applicant, albeit supervised, her position changed after 21 November 2022. The respondent claims that on that day L (Mr F’s child) recounted a conversation she said she had overheard in a shopping centre in 2021. She does not say when in 2021 the conversation occurred. The respondent claims that L said to her:
(a)Ms T and the applicant met at a coffee shop;
(b)Ms T told L to put her hands over her ears;
(c)the following conversation took place:
[Ms T] said “hey”, [Mr Gaddi] said “hey you”, [Ms T] said “are we still on for Saturday. …[Ms T] said “yeh of course sexy”. [Ms T] said to [Mr Gaddi] “you can hurt my daughter as long as I can hurt your daughter.” [Mr Gaddi] said “I better be getting some money off this”. [Ms T] said “yes of course”.
(d)Ms T then indicated to L to unblock her ears.
The respondent gave no explanation as to how it was that she was able to recount in direct speech this conversation reported to her by L (which she had heard no less than 11 months and perhaps as long as 22 months earlier) but yet she was unable to recount in direct speech the significant conversations that she says she had with X concerning the applicant’s treatment of her. By reason of this conversation with L, the respondent said that she formed the view that X should only have telephone time with the applicant.
At this point it is necessary to divert from the timeline momentarily to record that counsel for the independent children’s lawyer submitted that the chronology shows that in 2016 a person called Mr W is alleged to have abused L. Further, in Mr F’s household, J is alleged to have abused his sister although just when that was alleged to have occurred is not at all clear.
On 24 November 2022 the application came before a Senior Judicial Registrar of the Federal Circuit and Family Court of Australia (Division 2). Consent orders were made that day discharging the 2018 orders. The orders further provided for:
(a)the parties to have equal shared parental responsibility for X, save in respect of decisions involving education;
(b)X to live with the respondent;
(c)X to communicate with the applicant by telephone every Sunday at 5.00pm;
(d)a report pursuant to s 62G of the Act to be prepared on a private basis;
(e)the appointment of an independent children’s lawyer; and
(f)the transfer of the proceedings to this court.
In November 2022, X started seeing Dr H. Significantly, during her sessions with Dr H, X told him that she felt like she was not being supported by the respondent and that she was feeling neglected.
The respondent claims that L had a “dissociative episode” in late 2022 resulting in her being transported by ambulance to hospital. The evidence does not explain what the respondent means by a “dissociative episode”. She says that this is part of a “common pattern with [L], in that when she has serious mental health episodes with dissociation, it is followed by further disclosures about abuses against her when she is calm and able to express herself”. The respondent alleges that at this time L told her that there is “more” about what happened at the shopping centre, but she did not want to talk about it further.
The respondent’s evidence is that in late 2022 L disclosed to her psychologist, Dr Y, that the applicant had raped her in late 2021 in a disabled toilet at a shopping centre. The context of the respondent’s evidence is such that this is said to have occurred on the same day as the meeting between Ms T and the applicant in the coffee shop in the same shopping centre. But there is no corroborative evidence of this statement by L to Dr Y. There are no records from him. Having said that, that L said these things does not seem to be in dispute. There are no records from the Department that would tend to show that Dr Y reported L’s claims to the Department as might have been expected.
One would have thought that the pattern of L’s disclosures after dissociative episodes may alone give rise to serious concerns as to their veracity. One would also have thought that the respondent and Mr F might also have concerns about L’s veracity given that L accused Mr F of strangling her in mid-2021, an allegation which was denied by both the respondent and Mr F. The police report of the incident was annexed to the applicant’s affidavit of 20 June 2023.
In any event, the respondent asserts that the allegations made by L in late 2022 were reported to police two days later and she participated in a recorded interview with police on that day. There is nothing before me that corroborates those claims.
The applicant denies meeting with Ms T as the respondent alleges L described and he denies raping L. I will return to these claims shortly.

On 18 January 2023 another judge of this Court conducted an interim hearing and ordered, amongst other matters:
(a)the discharge of order 2 made on 24 November 2024 effectively reinstating equal shared parental responsibility for all decisions for X;
(b)that X spend time with the applicant in the presence of her paternal grandmother, for nominated hours on nominated days and thereafter each alternate weekend commencing Saturday, 11 March 2023 for 9 hours on a Saturday and 9 hours on a Sunday;
(c)that X communicate with the respondent each Wednesday between 5.00pm and 5.30pm; and
(d)that X attend C School.
Soon afterwards, the respondent swears that in early 2023 “[X] made her first disclosures regarding [Mr Gaddi’s] sexual abuse of her”. The respondent says that X told her:
(a)that she woke up “on occasions” with the applicant in her bed in his underwear. When X asked him why he was there, he apparently told her that he had been hot in his bedroom. She did not think it was a hot time of year;
(b)that the applicant would come into public change-rooms and toilets with her and this made her “uncomfortable”; and
(c)that sometimes he gave her soda water and that after drinking it she became sleepy and fell asleep quickly.
The respondent speculates that these events occurred prior to June 2022 presumably because X had spent no time with the applicant since then, although she gives no basis for her speculation. There is no other evidence that would allow me to make a finding as to when these events took place.
Counsel for the independent children’s lawyer put these allegations to the applicant and he denied them.
The respondent swears that on the following day X “disclosed to her” that the applicant came into her room at night on one occasion and kissed her on the mouth, touched her under her clothes on her chest and breast area, then pulled her pants down and put his fingers in her vagina. The respondent’s evidence was that X was shaking and crying as she said these things. She says that X said “Mama, Dad’s (sic) are not supposed to do that are they?” The respondent says that she replied “No, Dad’s (sic) are not supposed to do that”. This is the only direct speech about which the respondent gives evidence. The respondent says that as X said these things she grew more distressed and she was shaking and crying as she spoke to her. The respondent says that X expressed concern to her about not being believed by her grandmother, her brother N and others.
Counsel for the independent children’s lawyer put these allegations to the applicant and he denied them.
The next day, the respondent’s partner, Mr F went to the police and asked for L to be re‑interviewed by the police because she wanted to allege that the applicant had raped her at her mother’s house about one week after the alleged incident at the shopping centre.
Mr F told the police that L had told X about what had happened to her at the hands of the applicant and that had led X to make her complaints against the applicant. Importantly, the police records (exhibit 17) show that the investigating officer told Mr F that it was unlikely that the applicant would be charged in relation to the alleged shopping centre offence as there was no corroboration, and vehicle registration of entries to the shopping centre showed that Ms T could not have driven L to the shopping centre around the time stated by L in her interview. The police also told Mr F that they would be seeking phone records to ascertain location data relating to the whereabouts of the applicant “and if it showed any contact or proximity to [Ms T]”.
The respondent swears that on the following day X underwent an interview with Queensland Police. According to the respondent the interview was halted because X broke down crying, was not able to tell the male police officer what she had described to the respondent and asked for a female police officer. I have seen this interview (exhibit 22). I do not consider that it is consistent with the respondent’s description. Whilst there were times during the interview when X appeared teary, it could hardly be said that she “broke down crying” and that was why the interview came to an end. She gave to the police the same account that she gave to the respondent (on the respondent’s evidence). There was a female police officer present during the interview. X did not ask for a female police officer. Significantly, the police record (exhibit 17):
Of note [X] stated that she had never discussed her father with [L] and [L] had never talked about her father with her. This is in contrast to what [Mr F] had told the RO the previous day. The interview as (sic) terminated as [X] did not wish to continue. No evidential disclosures were made regarding a sex offence. This was communicated to [Ms Levett] who request if she could give [X] another hug and try again. RO stated that this was not appropriate however if [X] felt comfortable talking to a police officer at a later time that could be arranged.
The respondent swears that later that month, X made more “disclosures” to her, saying that there were more occasions where the applicant came to her bedroom at night and had done the same thing, touching her on her chest and vagina.
Counsel for the independent children’s lawyer put these allegations (such as they were) to the applicant and he denied them.
The respondent swears that the following month X attended upon the Queensland Police again and was interviewed by two female police detectives. During this interview she told police that she was staying with the applicant and that her step mum (Ms G) and her brother were not there because Ms G had gone to Region Z because her dog had just died. She said that the father had come into her room when she was lying on her bed. She was wearing a singlet and undies. The police record that X said that the offences occurred in early 2020. The applicant was alleged to have entered X’s bedroom, pressed on her thigh, pressed on her tummy and then breast. He then kissed on her lips with his lips. It was alleged that the applicant penetrated X’s vagina with his finger, started playing with his penis in front of her and then left the room.
The police notes of this investigation also record that X provided “a clear marker of the offence date which was when [redacted] dog […] died”. However, the police were able to confirm that other evidence showed that X was not in the applicant’s care at the relevant time. The police concluded that the allegations were unfounded because of the clear discrepancies between X, the applicant, other witnesses and “the large quantity of evidence that suggest that the offence could not have occurred…”.
The respondent swears that a few days later, X made more disclosures. X allegedly told the respondent that the applicant came into her room on another occasion at night time while she was lying in bed awake, but it was different because he used his middle finger rather than his index finger, that the applicant “pulled his penis and that white stuff came out”, and that on another occasion she was sitting on the couch and the applicant put his hand on her thigh and his fingers in her vagina.
The respondent says that X told her that she did not tell the police those particular details during her interview a few days earlier. No reason was offered as to why she did not tell the police those things.
On 28 March 2023 another judge of this Court ordered that the respondent file an affidavit setting out the disclosures made by X. A further interim hearing was fixed for 6 April 2023.
On 6 April 2023 the Court ordered the resumption of X’s time with the applicant, such time to occur in accordance with the orders made on 18 January 2023.
The respondent swears that in the early hours of the morning on 7 April 2023 X came into her room. She swears that X was feeling sick and anxious and she told her that her step-sister, K had mentioned to her that the respondent had been at court the previous day. Apparently, K had “unintentionally overheard my fiancé [Mr F] and I talking about the court outcome”. The respondent says that X said words to the effect “Are they making me see my Dad? I can’t believe they would make me see my Dad who has raped me”. After the respondent reassured her (in what terms I do not know), X went back to her own room to go to sleep.
I accept the submissions of counsel for the independent children’s lawyer that it is clear from Dr H’s notes that within the household when all the children were living together, there was talk between X and L, J and later with K about sexual matters which, in all probability, included sexual abuse matters. Indeed, the respondent’s own evidence is that she and Mr F spoke to the children about such matters no later than March 2023 when, in a family meeting, K and J both talked about J acting inappropriately towards K. According to the respondent, the children implicated Ms T in their behaviour and the children’s time with Ms T stopped soon thereafter.
The respondent says that between early April 2023 and mid-April 2023 X’s mental health deteriorated because she had spent time with the applicant. She says that on one occasion X expressed “suicidal ideation and self-harmed […]”. The respondent further swears:
169.[X] said that she needed to tell me something but she was embarrassed and was worried that I might be mad at her. I assured [X] I would not be mad at her, and that it was important to talk about things if they are bothering us.
170.[X] said words to the effect l am having feelings of wanting to die. It was all okay until I was forced to go back to Dad but now it is all too much to handle. I am so upset and frustrated that my voice is not being heard and I just want to die and disappear." [X] then said "Mumma I [self-harmed] last night" and she started to sob.
171.I asked [X] if she would mind showing me her [injury]. […] I could see multiple [injuries]. […] [X] said words to the effect of "it bled a little bit, it hurt, but I felt better immediately after, but then felt really ashamed".
On the following day the respondent took X to the Children’s Hospital. A report from the hospital is in evidence. On examination, the examiner found “a superficial [injury] – no closure required.” Exhibit 21 is the social work notes from the hospital. The notes record that X was not having thoughts of “self-harm” and she denied any thoughts of any intent or plan to “end her life”. The respondent’s report of X’s attendance at the Children’s Hospital varies wildly from the hospital records attached to her affidavit and that were tendered during the course of the trial.
The mark was described by Dr AA in his notes of his consultation with X and the respondent on the same date (less than 24 hours after the respondent had observed them) as “few superficial […] marks”.
The objective evidence demonstrates that the respondent’s report of this episode is exaggerated and embellished. On the evidence, X simply did not sustain “multiple [injuries]” as she swears.
The respondent swears that a few days later, X disclosed an argument she had with the applicant during April 2022. The applicant allegedly came home smelling like alcohol, that he choked X, and then “put his thingie” in her which “really hurt”, and that he “put his thingie in [her] bum”.
The records of the BB Medical Centre (exhibit 18) show that X attended there two days after this disclosure. The notes are important for a couple of reasons and so I set them out in full:
1. For referral to [hospital] ortho due to concerns about [pains]
Refused weight check
2. [X] had her first court appearance - judge has ordered she continue to see her father every 2 weeks for 2 days (no overnight stays}. Has also ordered that she is not to continue seeing a psychologist...? [X] feeling quite upset about all this - told Mum she wishes she was not alive "but I love my family too much"
Tried [self-harming] - few superficial […] marks seen today.
Discussed - fortnightly reviews here with me while she cannot see a psychologist - other ways to release her feelings - flicking her skin, punching or screaming into a pillow, kicking a tree etc.
Advised against using sharp objects to prevent serious injuries
A few days later, X and the respondent attended upon Dr AA. The doctor’s notes, which speak for themselves, record:
1. Had […] earring hole pierced earlier in the month. Still getting a lot of gunk and piercings are hurting. Minimal redness and swelling noted. Piercings look clean Advised to use sleepers, keep piercings clean and apply topical bactroban to stop infection 2. [X] was asked by [Ms Levett] If she wanted to share what else she came in for today – [X] said no, asked if she could leave the room.
[Ms Levett] spoke -states [X] was quite agitated on the weekend. She and [Mr F] enquired what she was worried about Told them she had more information about what her father had done to her. Stated that March/April last year while at his house she was upset with Dad about him not paying attention to her, also upset about something to do with her stepmum at the time. Dad got angry – [X] yelled back and said he was "self absorbed". Soon afterwards her Dad told her to go to bed even though It was not yet bedtime. She did.
Recalls taking Easter eggs to the room with her.
About an hour later Dad entered the room, thinks he may have been drunk/drinking, started choking her, slapping her and vaginally and anally raped her.
[X] returned into the room after this. I directly asked her what her father had done - she said he had put his "thing" Into her front and back holes last year. I asked if it was the first time, she shook her head and put two fingers up. I asked if both times involved the back as well as front. Shook her head.
Verbally confirmed again with [X]. Dad had done this twice, but "the back" was only during the second time.
I asked if she ever noticed any blood on her underwear or the sheets after this - she said no.
States she-did not tell police officers about this - had only disclosed him using his fingers (vaginally) in the past when she was younger.
[Ms Levett] states that [X] has always taken a long time in the toilet. States it hurts to do a poo. [X] states there is no blood in toilet after she does a poo.
Advised I should examine her one day when she Is ready.
In the meantime get bloods and urine samples to exclude STls :
The tests revealed nothing of note.
It is uncontroversial that despite those orders, X spent time with the applicant on 22 January 2023 and then not again until 19 February 2023. There was no further time until 8 and 9 April 2023. There was no further time until the trial before me.
At the conclusion of the trial, I sought and was given an undertaking that X’s time with the applicant under the orders of 18 January 2023 would be observed.
CONSIDERATION
Although s 60CC of the Family Law Act 1975 (Cth) sets out a number of matters to be taken into consideration in determining what are in a child’s best interests, the parties’ submissions and those of the independent children’s lawyer referred only to the need to protect X from harm – from the harm caused by sexual abuse in the applicant’s household, or the harm caused by putting her up to making false allegations of sexual abuse in the respondent’s household. In my assessment, apart from those matters, no serious issue arises between the parties having regard to the other matters raised for consideration by s 60CC. Both parties are able to meet X’s physical and intellectual needs. Both have met their responsibilities, financial and otherwise, to her. Save for the applicant and the respondent (dealt with below), she has good, worthwhile relationships with the members of both extended families. I give these matters no further consideration.
At the interviews for the s 62G report with Dr D, each party told her that they thought that X would benefit from a meaningful relationship with the other parent. She records:
31. Agreement is seen between the parties that [X] would be benefitted from maintaining a relationship with both parents, however little agreement is seen beyond that.
However, I do not consider that either parent truly thinks that X will benefit from a meaningful relationship with the other parent. The applicant’s orders countenance no contact between X and the respondent. At all. Ever.
Such a proposal is entirely inconsistent with a belief that X will benefit from a meaningful relationship with her mother.
Nor do I consider that the respondent genuinely considers that there will be a benefit to X from a meaningful relationship with the applicant. Cross-examination demonstrated that the respondent believed in the truth of the statements made to her and others by X indicating that the applicant had abused her. The statements made to the respondent included, according to her evidence, statements to the effect that the applicant had placed his fingers in X’s vagina and placed his penis in her vagina and anus.
Counsel for the applicant argued that the respondent’s claim that X would benefit from a meaningful relationship with the applicant was inconsistent with her seemingly enduring belief that the applicant had perpetrated abuse upon X as she now alleges. When asked to reconcile those two beliefs in cross-examination, the respondent was unable to do so. Dr D suggested that the positions were not able to be reconciled.
I do not consider that the respondent’s inconsistent positions can be reconciled either.
Nonetheless I consider that X will benefit from a meaningful relationship with each of her parents. The independent children’s lawyer thought so as well. Each has much to offer X and I find that it will be to her benefit to have a meaningful relationship with each of them.
According to the stance taken by the respondent at the conclusion of the trial, she does not consider that X is at risk of physical harm in the applicant’s household. Nor does she consider that X is at risk of abuse in the applicant’s care. I agree.
The respondent gave evidence about disclosures allegedly made to her by X concerning sexual abuse allegedly perpetrated by the applicant.
Although it is not necessary, indeed usually inappropriate, to make findings about whether abuse has occurred to a child, I am comfortably satisfied here that the applicant has not sexually abused X as X has alleged to the respondent and others from time to time.
X has made clear claims about abuse at the hands of the applicant and she has made various complaints to the respondent about that abuse. I am not satisfied that the respondent has caused X to say these things. Dr D’s evidence satisfies me that X has determined to say these things as means of controlling the narrative of the conflict between her parents. She has said these things to her mother in an effort to give herself an easier life by not having to spend time with one of her protagonist parents.
Counsel for the independent children’s lawyer submitted that it is likely that when making her complaints about the applicant, X has repeated matters she has heard from some of Mr F and Ms T’s children. When asked about this possibility, the respondent said that X could not have obtained the information that X provided to her, the police and others from them because they were matters beyond her contemplation and that of Mr F and Ms T’s children. But I accept the submissions of counsel for the independent children’s lawyer that if X was talking to L and J at the least, she would likely to have learned information from them about sexual matters given the allegations that had been made by or about them well prior to the statements that X made about abuse at the hands of the applicant. Using that information to control the narrative of her parent’s conflict and her entrapment by it is consistent with Dr D’s opinion.
Counsel for the independent children’s lawyer submitted that it is likely that X has made up the allegations of sexual abuse against the applicant. He posited four matters that lead inexorably to this conclusion.

First, X told her clinical psychologist Dr H that she felt like she was not getting attention from the respondent. That seems to have been a theme in X’s discussions with her counsellor for some time. She had gone from a household where she was the only young child, to a household where she was competing for attention with four other children and the respondent’s new partner. Second, the suicidal ideation that X reported to the respondent referred to in paragraph 63 of Dr D’s report was a cry for attention on the part of X. The evidence does not suggest that there was in fact any genuine suicidal ideation from X, nor was it sustained over any period of time. It was an attempt to secure the attention of the respondent and it succeeded. The respondent took X to the hospital. Third, X’s actions escalated to ensure she had the respondent’s attention. She engaged in “self-harm” by making some superficial marks. The respondent reacted. Fourth, is the evidence that X underwent extensive examination and testing and despite her claims of significant and invasive abuse, the results showed nothing consistent with the type of abuse of which X complained.
I am satisfied on the balance of probabilities that the applicant did not abuse X as she claims. I am satisfied on the evidence that X has constructed her claims as a means of dealing with her parents’ dysfunctional coparenting relationship, as explained by Dr D. I find that X is not in need of protection from harm by reason of being exposed to abuse at the hands of the applicant.
Despite all that has fallen from X about how the applicant allegedly treated her, according to Dr D, X gave no indication that she was concerned with living with the applicant. She expressed to Dr D that she was missing the applicant but apparently did not want to spend time with him “at this point”. These observations are consistent with X’s interactions with the applicant when he and X engaged with Dr H in November 2022.
This begs the question “Why does [X] feel this way?”. Dr D posits a couple of alternatives:
105. The inherent dilemma pertains to whether [X's] voice is separate from that of her mother, if emotional abuse is present, and whether [X's] resistance dynamic is justified and has substance or lacks substance and is unjustified. [X's] examples, outside of the sexual abuse allegations, arguably highlight struggles in her relationship with [Mr Gaddi’s] caregiving context and could allude to historical adjustment challenges to her given the likely increase in complexity of relationships post-separation. It is likely the fractious relationship [X] (and the parent's) reported she had with her father post-separation underpins her desire for distance and time. It may also be an adaptive response to her fraught caregiving context and being at the centre of her parent's conflict. Notably, despite her parent's conflict, [X] seemed to feel free to discuss her father in a positive light without indicators of feeling torn in terms of loyalty. [X's] presentation and comments did not appear to raise concerns for parental influence or coaching.
(Errors in the original)
The applicant’s case is that I should conclude that the respondent has manipulated and manoeuvred X into making the allegations of abuse against the applicant that she has. In doing so she has been emotionally and psychologically abusive of X. Dr D provides support for the proposition that if this is what the respondent has done, it is harmful to X:
107. [Mr Gaddi] raised concern that [Ms Levett] is building a false narrative that paints him as an abusive parent to severe the time he can spend with [X]. In this respect, [Mr Gaddi] frames [Ms Levett’s] concerns as a form of parental alienation and proffers that ongoing parental alienation impairs her capacity to maintain a clear, consistent focus on [X's] needs and wellbeing. Should the Court accept [Mr Gaddi’s] view that [Ms Levett] (and [Mr F]) are at the root of intractability and that [X] has been manipulated to make false allegations at the whim of her mother and encapsulated in [Ms Levett’s] reality, thereby accepting and sharing her mother's views; this suggests [X] is experiencing a form of emotional and psychological abuse. The long-term outcomes for the children in this scenario suggest not just disconnection from her father, but also age appropriate functioning which can be thwarted as she strives to meet the favoured parent's needs, leading to a range of behavioural and psychological struggles. If the Court accepts that [Ms Levett] is posing such as risk to [X], this may be mitigated by assessment and intervention with an appropriately qualified mental health practitioner with experience in high conflict post separation. Further a psychological assessment may be useful to assess any underlying mental health issues.
(Errors in the original)
Alternatively, as the independent children’s lawyer argues, the evidence is also consistent with the respondent reacting to X’s conduct and statements by taking them at face value, giving them no critical thought or analysis and delivering to X her desired outcome. Dr D opines:
108. It is also possible that [Ms Levett] is responding to [X's] stated grievances in a manner that she considers proportionate and protective, while struggling to balance this with the court's Orders. Given [X] expressed having difficulties in her father's context, particularly her experiencing [Mr Gaddi] as rigid and inflexible, the allegations of sexual abuse, as well as, and most concerning of all, [X's] struggles with her mental health; it is understandable that [Ms Levett] would want to take actions to reduce the adversity that [X] is experiencing.
Notwithstanding the persuasive submissions of counsel for the applicant I do not consider that the respondent has actively encouraged X to make these allegations, although I am satisfied that she has facilitated a repetition of the allegations to the relevant authorities. The respondent’s failure to ensure that time between X and the applicant occurred after June 2022 in accordance with the court’s orders offered tacit approval of X’s conduct. X learned that, in the context of the Mr Gaddi/Ms Levett/Mr F/Ms T conflict, the respondent was receptive to X’s desire to exert more control over her relationship with the applicant in circumstances where she had been engaged in disagreements about her schooling and other things with the applicant and she had a poor relationship with the applicant’s then partner, Ms G. The evidence shows that in terms of parenting styles, the applicant has greater expectations of X and her behaviour than does the applicant. She shared the attention in the respondent’s household with Mr F and Ms T’s children.
As time marched on and it became apparent that X would have to spend time with the applicant despite her endeavours not to do so, (see here the orders of November 2022, January 2023 and April 2023), I am satisfied that X determined to increase her efforts to thwart the applicant’s attempts to spend time with her. She had seen and heard of the allegations made by Mr F and Ms T’s children and the effect those allegations had on the arrangements between those children and Ms T. I am satisfied that X fixed upon pursuing a similar course and when she met no resistance or scrutiny, just blind acceptance, from the respondent, she was encouraged in her endeavours.
Whilst I am not satisfied that the abuse allegations made by X are a product of the respondent’s creation or encouragement, her response to those allegations demonstrate an impaired parenting capacity. In the context of the Mr F/Ms T conflict, she was unable to prioritise what was in X’s best interests – a continuation of her relationship with her father, over petty point scoring within that wider dispute.
In the absence of a finding that the respondent has deliberately caused X to make the relevant allegations against the applicant, or explicitly encouraged a continuation of them (and thereby a need to protect her from psychological or emotional harm in the respondent’s care), the orders sought by the applicant would work a substantial and likely deleterious effect upon the relationship, not only between X and the respondent (it would cease to be supported by any face-to-face time between them) it would most likely lead to a deterioration in X’s relationship with the applicant. She would no doubt come to resent the applicant for the loss of her relationship with the respondent.
So too, in the absence of a finding that the applicant posed an unacceptable risk of harm to X, the primary order sought by the respondent would not be in X’s best interests.
To address directly the issues I posed at the commencement of these reasons, I find:
(a)the respondent has not expressly supported or encouraged X to make false allegations of sexual abuse or embellish otherwise innocent disclosures so as to persist with and gradually develop the seriousness of those allegations and disclosures, leading X to have a false narrative about the applicant;
(b)X is not at an unacceptable risk of emotional harm in the respondent’s care for that reason; and
(c)both parties have the capacity to facilitate a relationship between X and the other parent.
Counsel for the independent children’s lawyer submits that the orders promoted by the independent children’s lawyer would have the effect of X spending time with each of the parents on an equal basis. She would then see her half-siblings in the Mr F and Ms Levett household when she is living in each respective household. She would also see many of her half-siblings when she’s at school. An equal time arrangement may serve to quell some of the conflict between the applicant and the respondent or, at the least reduce X’s exposure to it.
Save for a short period of time following the interim orders made in November 2022, there has been an order for equal shared parental responsibility in place since the making of the orders in February 2018. Its terms were observed, more or less, although the evidence demonstrates that the respondent has been given to making unilateral decisions for X in the context of the broader dispute in this case. However, I am confident that the parties can continue to discharge their obligation of equal shared parental responsibility, final protection order notwithstanding.
X spending time on an equal basis in her parents’ households will be something to which X is unaccustomed. But, I consider that it is necessary so that she has a balanced experience of each of her parents’ households and with her extended families in each of them. The respondent accepted in final submissions that such an outcome was in X’s best interests.
I do not consider that the graduated process provided for in the independent children’s lawyer’s proposed orders is necessary. X has been spending time in accordance with the orders made on 18 January 2023 since I reserved my judgment in this matter. The independent children’s lawyer’s orders were proposed at a time when X had spent little time with the applicant since June 2022. Those circumstances have now changed.
The equal time arrangement should commence on the first Friday following the resumption of school after the current school holidays. The 12 February 2018 orders should resume forthwith. School holidays are currently underway. Under the 2018 orders, X is to spend the first half of the current school holidays with the respondent and the second half with the applicant. Subject to any agreement between the parties to the contrary, those arrangements should be observed so that X spends the second half of her school holidays in the applicant’s care pursuant to order 6.1.2.2 of the 2018 orders.
There is no evidence that the parties have engaged in any form of family therapy designed to assist them to co-parent X. The independent children’s lawyer’s proposal requires such counselling. To be fair, until the imbroglio arising from the applicant’s support for Ms T in 2022, there had really been no need for the parties’ to think about their coparenting dynamics. The parties had seemingly been able to deal with each other and manage X’s needs. Since then, however matters have deteriorated and as I understand the evidence, the Mr F/Ms T dispute remains on foot.
In those circumstances, it is as well, I think to make the order proposed by the independent children’s lawyer for the parties to engage in family therapy.
DISPOSITION
There will be orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett.
Associate:
Dated: 17 September 2024

File number(s):	BRC 8895 of 2022
Judgment of:	JARRETT J
Date of judgment:	17 September 2024
Catchwords:	FAMILY LAW – PARENTING – Allegations of sexual abuse – Finding that sexual abuse did not occur – Where respondent did not encourage or coach allegations but did not respond appropriately – No risk to child with either parent – Order made for equal time
Legislation:	Family Law Act 1975 (Cth) ss 4, 60CC, 62G Family Law Amendment Act 2023 (Cth) Schedule 1, ss 12, 25
Cases cited:	M v M (1988) 166 CLR 69 Naczek & Dowler (No 4) [2008] FamCA 653
Division:	Division 1 First Instance
Number of paragraphs:	162
Date of last submission/s:	20 February 2024
Date of hearing:	11, 12 & 13 July 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Thomas
Solicitor for the Applicant:	Hall & Co Solicitors
Solicitor for the Respondent:	Litigant in person
Counsel for the Independent Children’s Lawyer:	Mr McGregor
Solicitor for the Independent Children’s Lawyer:	Bridges Family Law Specialists

BRC 8895 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GADDI Applicant
AND:	MS LEVETT Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JARRETT J
DATE OF ORDER:	17 SEPTEMBER 2024