Glanville & Percy - [2022] FedCFamC1F 179

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1
Glanville & Percy [2022] FedCFamC1F 179

File number(s): WOC 1638 of 2020

Judgment of: CHRISTIE J

Date of judgment: 24 March 2022

Catchwords:
FAMILY LAW – CHILDREN – FAMILY VIOLENCE - Child sexual abuse – Whether the father poses a risk to the children – No risk found – Relocation – Where the children are not at an unacceptable risk of sexual abuse – Substantial and significant time with the father - Whether the mother poses a psychological risk to the children – Where it is in the children’s interest that the parents live in proximity to one another.

FAMILY LAW – BEST INTERESTS - Equal shared parental responsibility where presumption under s 61DA of the Family Law Act 1975 is not rebutted.

Legislation: Family Law Act 1975 (Cth) ss 60B(1)(b), 60CC(2)-(3), 61DA.

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

N & S and the Separate Representative [1996] FLC 92 – 655,

Sampson and Hartnett (No. 10) (2007) FLC 93 – 350.

Number of paragraphs: 195

Date of hearing: 14 February 2022

Place: Sydney

Counsel for the Applicant: Ms Lawson

Solicitor for the Applicant: Shoalhaven Family Law

Counsel for the Respondent: Ms Treherne

Solicitor for the Respondent: WM Lloyd & Associates

Solicitor for the Independent Children's Lawyer: Mr Nasti, S P Nasti & Co Solicitors
ORDERS

WOC 1638 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GLANVILLE

Applicant

AND:
MS PERCY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

24 MARCH 2022

THE COURT ORDERS THAT:
1.The parents have equal shared parental responsibility for X (born 2015), Y (born 2016) and Z (born 2020) (“the children”).
2.The children live with the parents as follows:
(a)With Mr Glanville (“the father”) from 10.00 am on the first day of the April 2022 school holidays until the commencement of school in Term 2 2022;
(b)With the father in week one, commencing Term 2 2022, of each school term and each alternate week of school term thereafter from Friday after school or 3.00 pm to Monday before school or 9.00 am;
(c)With the father in week two of each school term, commencing Term 2 2022, and each alternate week of school term thereafter from Wednesday after school or 3.00 pm to Thursday before school or 9.00 am;
(d)Otherwise during school term with the mother;
(e)Commencing with the school holidays following Term 2 2022 in each of the school holidays at the conclusions of terms 1, 2 and 3 with the father for the first half in odd numbered years and the second half in even numbered years and with the mother for the second half in odd numbered years and the first half in even numbered years;
(f)In the summer school holiday periods at the end of 2022, 2023 and 2024 for half the holidays in a week about arrangement with the father to have the first week and each alternate week (or part week) thereafter and the mother to have the second week and each alternate week (or part week) thereafter.
(g)In the summer school holidays commencing 2025:
(i)With each parent for half the school holidays by agreement; but
(ii)Failing agreement, with the father in odd years for a period of three weeks beginning at 9.00 am on the Saturday immediately following the end of Term 4 and concluding at 4.00 pm three weeks later and with the father in the even years for three weeks ending on the day prior to school recommencing at 4.00 pm and commencing at 9.00 am three weeks prior, and otherwise with the mother.

3.Notwithstanding any other provisions the following time take place on special occasions:
(a)The children will be with the mother from after school Friday to before school Monday on the weekend of mother’s day;
(b)The children will be with the father from after school Friday to before school Monday on the weekend of father’s day;
(c)With the father from 5.00 pm 24 December to 5.00 pm 25 December in odd numbered years;
(d)With the mother from 5.00 pm 25 December to 5.00 pm 26 December in odd numbered years;
(e)With the mother from 5.00 pm 24 December to 5.00 pm 25 December in even numbered years.
(f)With the father from 5.00 pm 25 December to 5.00 pm 26 December in even numbered years.

4.Where changeover does not take place at school it will occur at a location agreed in writing by the parents and, in the absence of agreement, outside the school of the youngest child (even if a non-school day).
5.On the father’s undertaking (Annexure B) and prior to the commencement of Term 2 2022 the mother make the children’s place of residence within the Region T area (being an area which stretches no further south than E Town and no further north than F Town).
6.During school term the parents will ensure the children have telephone, video or other electronic communication as follows:
(a)With the father at 6.30 pm on Wednesdays (on the Wednesday the children are not in his care);
(b)With the father at 6.30 pm on Saturdays (on the Saturday the children are not in his care);
(c)With the mother at 6.30 pm on Saturdays (on the Saturday the children are not in her care).

7.During school holidays the parents shall ensure the children have telephone, video or other electronic communication with the other parent twice per week by agreement and failing agreement at 6.30 pm on Wednesday and Saturday.
8.The parent with care of the children will initiate a video call with the other parent on each of the children’s birthdays between 5.30 pm and 6.00 pm and facilitate the children’s participation in that call.
9.The mother’s telephone, video and electronic communication is suspended during the school holiday period between Terms 1 and 2 of 2022.
10.The mother be permitted to provide a copy of the single expert report of Dr D to any treating psychologist or counsellor engaged to assist the mother.
11.The mother and father (“the parents”) are restrained from denigrating the other parent, or any member of the other parent’s family, in the presence or hearing of the children or permitting any other person to do so.
12.The parents be and are hereby restrained from discussing or conversing with the children with respect to these orders or these family law proceedings.
13.The parents will be civil, polite and courteous to each other and anyone who accompanies them at changeovers. In the event that either parent has significant questions regarding the children and requires to discuss detailed matters with the other parent regarding the children, they will do so by text message and such exchanges will not occur at changeover in front of the children.
14.The parents forthwith inform each other, and keep each other informed, in writing of their respective residential address, mobile telephone number and email address and notify the other parent within 24 hours of any change.
15.The parents are restrained from permitting any other person to discuss with the children, or within the hearing or presence of the children, the allegations in these family law proceedings, unless in the context of therapy.
16.Each parent keep the other parent informed about the children or any of them receiving medical attention, being prescribed medication or attending any health practitioners.
17.In the event that any of the children are hospitalised, the parent in whose care the children are in will notify the other parent as soon as practicable by telephone call and no more than one hour after the event. Such notification will include sufficient details that have been made available to enable both parents to be consulted in respect to and being fully advised regarding such illness or condition and any treatment.
18.Should either child be unwell while in either parent’s care and require the administration of medication, then that parent shall advise the other parent at the time of the changeover of any medication recently given or required to be given while the child is in the other parent’s care.
19.Each parent shall authorise all health and any medical treating practitioner, speech therapist, physiotherapist, dentist, or any other health care worker to provide to the other parent all particulars relating to the information as the case may be.
20.The parents are to ensure that both parties’ names and contact details are included on the enrolment form for the children’s school and pre-school as both a parent and emergency contact.
21.Each parent be granted leave to provide a copy of these orders to any school(s) and/or pre-school(s) attended by the children. These orders authorise the school(s) and/or pre-schools(s) to provide each parent with copies of school reports and any other reports in relation to school progress and behavioural issues and other school circulars and additional information normally provided to parents, in relation to the children.
22.Each parent be entitled to obtain directly from any school attended by the children copies of any reports, notices, school photos or other relevant verbal or written advice affecting the education and welfare of the child, at the cost of the requesting parent.
23.The parents keep each other informed as to significant events occurring in the children’s lives, including (whenever applicable) but not limited to parent/teacher interviews, sporting events and invitations received by or on behalf of the child, via text message.
24.Both parents are entitled to attend all events involving the children including:
(a)Sporting events;
(b)School graduations and award ceremonies;
(c)Extra-curricular activities that allow for parental attendance; and
(d)School functions that allow for parental attendance including but not limited to concerts, assemblies, sports days, parent/teacher interviews, canteen duties and social functions; and the parent who has the children in their care on the day of such activities will be responsible for their day to day care at such event and their transportation to and from such event.

25.If either parent wishes to seek to apply for or renew a visa or passport for the children both parents must do all acts and attend all duties and sign all forms required to facilitate such purpose within 14 days of a request to do so at the cost of the requesting parent.
26.The travel arrangements for the children are to be made by the parents during their respective time with the children unless otherwise agreed between the parents in writing.
27.Pursuant to s 65Y of the Family Law Act 1975 (Cth) each parent shall be permitted to remove the children from the Commonwealth of Australia for the purposes of overseas travel at such times and travelling to such destinations as they may desire provided that:
(a)The parent wishing to take the children outside of the Commonwealth of Australia shall provide the other parent, no later than 60 days prior to their departure date, the location and approximate length of time the child will be outside the Commonwealth of Australia; and
(b)No later than 40 days prior to departure, the travelling parent shall provide to the other parent a copy of their travel itinerary, flight details, details and contact phone numbers for accommodation which has been arranged for the children whilst they are travelling and emergency contact phone numbers; and
(c)The travelling parent shall ensure that they return the children to the Commonwealth of Australia on the date provided for in the travel itinerary.

28.In the event that either parent loses or misplaces the children’s valid passport that parent is to replace the lost or missing passport at their cost within 30 days of the passport being lost or missing including covering any fees that might need to be paid if there is an urgent need for the passport.
29.The mother will retain the children’s passports and will provide passports to the father within 48 hours of being requested to do so but no sooner than 14 days prior to the date of departure and on the father’s return from travel with the children he will return the passports to the mother within seven days of such travel.
30.The Independent Children’s Lawyer’s application for costs is dismissed.

THE COURT NOTES THAT:
A.Pursuant to s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure “A” attached hereto and these particulars are included in these orders.

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

These are final parenting proceedings about three children: X (born in 2015) (“X”), Y (born in 2016) (“Y”) and Z (born in 2020) (“Z”) (“the children”).
The children’s parents are Mr Glanville (“the father”) and Ms Percy (“the mother”).
The children were represented in these proceedings by an Independent Children’s Lawyer (“the ICL”).
The parents separated on a final basis on or about 10 September 2020.
At the time of separation the mother left the parties’ shared home at H Street, Suburb J (“the Suburb J property”) in the Region T area with the children and travelled to the home of the maternal grandmother in K Town.
The mother asserts the separation and move occurred in the context of the parties’ son Y having disclosed to her that the father had sexually abused him.
The father has at all times denied that he has touched Y in any sexually inappropriate manner.
The parties’ proposals for parenting orders were as follows:
(a)The mother sought orders which would permit her to remain living in K Town with the children. Her primary application was that the children spend no time with the father. The mother’s alternate application sought orders which would permit her to remain living in K Town with the children and provide that the father see the children each alternate weekend, on Wednesday nights in the other week and during school holidays. While it was not the mother’s application, she conceded in her evidence that if the court determined that the children should return to live in the Region T area she would return to live in the Region T area.
(b)The father sought orders which provided that the children live with him in Suburb J. He sought that the mother have no contact with the children for a period of two months followed by supervised contact for a period of at least two years. The father’s alternate position was that the children should live in a week about parenting arrangement in the Region T area.
(c)The ICL sought orders that the children live with both parents in the Region T area in an equal time arrangement.
EVIDENCE RELIED ON AT TRIAL
The mother relied on the following at trial: her affidavit filed 28 January 2022, the affidavit of Ms C (“the maternal grandmother”) filed 28 January 2022 and the affidavit of Ms L (“Ms L”) a family friend filed 28 January 2022. The mother gave evidence and was cross-examined.
At trial, the father relied on his own affidavit filed 28 January 2022 and the affidavit of Ms B (“the paternal grandmother”) filed 28 January 2022. The father gave evidence and was cross-examined.
While each witness took a particular position in the litigation which aligned with his or her interest, or that of the person in whose case their affidavit had been filed, there was no basis to form a view that any witness had been deliberately untruthful.
Clinical psychologist, Dr D (“Dr D”), was appointed by the Court as the single expert and was cross-examined.
BACKGROUND
In October 2013, the parties commenced co-habitation in the Australian Capital Territory (“the ACT”). In 2015, the parties’ daughter X was born while they were living in the ACT.
In mid-2015, the parties moved to U Town, NSW.
Between September 2015 and January 2016, the mother moved to V Town, NSW with X and while pregnant with Y. The mother says she moved there during that period in order to have the assistance of her mother.
In late 2015, the father visited X and the mother in V Town and actively applied for jobs in and around V Town to be closer to his family.
In January 2016, the parties began to live together again in V Town. The father did not have employment and used an inheritance from his grandmother to start his own business during that period. That business was not successful.
Between February 2016 and early 2018, the parties lived separately and apart in V Town.
In 2016, the parties’ son Y was born.
In May of 2017, the mother moved from V Town to K Town with X and Y. The father travelled to K Town to visit the children three times a week.
In mid-2017, the mother moved to E Town to follow the maternal grandmother. The father travelled to E Town once a fortnight to see and spend time with the children.
In August of 2017, the father obtained employment in W Town (17 kilometres from E Town). During the period where the father was living in W Town, he was able to see the children four to five times per week.
In January of 2018, the parties reconciled their relationship.
In June of 2018, the parties recommenced co-habitation in W Town.
In August of 2018, the father was made redundant from his employment in W Town and obtained new employment in a similar role for M Company in BB Town.
In September of 2018, the parties and the children moved to the Suburb J property in the Region T area. During the parties’ time at the Suburb J property, both X and Y attended the N Preschool.
Between December 2019 and January 2020, the mother and the children spent time at the maternal grandmother’s home in K Town to escape the effects of a natural disaster. In early 2020, the parties’ daughter Z was born in K Town.
In March of 2020, after the mother had returned to the Suburb J property, the parties began sleeping in separate bedrooms.
In May of 2020, the paternal grandmother commenced visiting the children at the Suburb J property each Thursday.
On 27 August 2020, the paternal grandmother asked the mother whether or not X would be attending her kindergarten orientation session that day. The paternal grandmother says that the mother responded with words to the effect of “no she’s not doing that anymore”.
On the same day, 27 August 2020, the mother sent the father text messages complaining about the paternal grandmother’s criticisms of the mother’s parenting. Those text messages read “I swear to fucking God if you even think of telling me to ‘remind her’ of anything I will pack me and the kids up and fucking leave”.
The father says that the mother continued to complain and negatively speak about the paternal grandmother almost daily thereafter. He says the mother said words of the following effect:
You need to cut all communication with [the paternal grandmother], she’s not coming here on Thursdays anymore.
...
If you don’t fucking listen to me, I’ll go to [K Town] with the kids.

On 2 September 2020 the mother sent the father a text message about the paternal grandmother saying “I hope you told your mum shes [sic] not welcome on Thursdays anymore”.
On 5 September 2020, the parties had a conversation about the mother’s desire to relocate to K Town. The parties do not agree about the exact content of the conversation but they do agree that during that conversation the mother said that she wanted to move to K Town.
On 8 September 2020, in circumstances described below in greater detail, the mother says that Y made a disclosure that he had been sexually abused by the father.
On 3 February 2021, orders were made for preparation of a Magellan report by the Department of Communities and Justice (“the DCJ”). That report was released to the parties by Court order on 7 April 2021. The DCJ found the allegation of sexual abuse was not substantiated.
On 3 March 2021, orders were made by Senior Registrar P (as he then was) which provided for time in the following pattern with the following restraints:
(a)The children live with the mother in K Town.
(b)The children spend time with the father two hours every second weekend supervised by CC Contact Centre (a supervised contact agency).
(c)The mother is restrained from discussing sexual abuse allegations with the children.
On 11 October 2021, consent orders were made which provided:
(a)The parents have equal shared parental responsibility for the children.
(b)The children live with the mother.
(c)The mother be restrained from relocating with the children any further than 315 kilometres from the Region T area.
(d)The children spend time with the father each alternate weekend from Friday 6.00 pm to Sunday 6.00 pm commencing 15 October 2021.
(e)Overnight time with the father occur at the paternal grandparents’ home.
(f)The paternal grandmother or paternal grandfather remain substantially present during the children’s time with the father.
(g)During school holidays the children’s time with the father is extended to seven nights.
(h)Each party is restrained from discussing sexual abuse allegations with the children, or within the hearing or presence of the children.
THE LAW
First and foremost the Court is called upon to determine whether either parent’s proposal poses a risk of exposing the children to physical or psychological harm: s 60B(1)(b) and s 60CC(2)(b) of the Family Law Act 1975 (Cth) (“the Act”).
Accordingly, the Act provides the framework within which to assess the appropriate risk.
Section 60CC(2)(b) of the Act speaks of the need to protect children from both physical and psychological harm which flows from being exposed to abuse. The abuse may be physical or mental.
In the case of N & S and the Separate Representative [1996] FLC 92-655, his Honour Justice Fogarty observed at page 712:
Cases of alleged sexual abuse often add a unique difficulty to the judicial function. While the assessment of future possibilities and risks is a familiar component of the judicial role in cases involving the welfare of children, it differs in many cases of sexual abuse to the extent that the possibilities being examined are not future possibilities whose evaluation derives from a known factual basis, but possibilities which relate to an unestablished series of facts.
[Footnotes omitted.]
While the allegations of sexual abuse lie at the heart of these proceedings (from both parties’ perspectives), in the matter of M v M (1988) 166 CLR 69 (“M v M”) the High Court of Australia (“the High Court”) concluded at page 76 that:
…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence.
…
The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
CONSIDERATION
This case is challenging because each parent asserts the children are at risk of serious harm in the care of the other parent.
The mother contends the father has sexually abused their son Y and Y remains at risk of the father committing such abuse in the future. The mother asserts this poses both a physical and a psychological risk to Y. Inferentially, given the orders she seeks relate to all three children, she also says it is not in the best interests of the other children to have time with their father.
The father contends that the mother has become fixated on the notion that Y has been sexually abused and this fixation has seen Y interviewed on multiple occasions, counselled and treated as though he has been sexually abused in his father’s care. The father says this constitutes an unacceptable risk of psychological abuse.
While I have had regard to all of the relevant considerations under s 60CC(3) of the Act, this case is significantly concerned with the interplay between the two primary considerations. The majority of the High Court in M v M at page 78 had in mind the nature of the balancing exercise when they observed:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
As the case law has developed this test has encompassed risks other than sexual abuse (such as a risk of significant psychological abuse). A court will not make orders to facilitate time with a parent if that time would expose the child to an unacceptable risk of harm.
The allegations
The mother gave evidence that in late 2019, when X was about four years of age, the father reported to the mother that while the father and daughter were showering together X had commented “Daddy has a big doodle”. The father agrees that the incident occurred. The mother’s affidavit reads at paragraph 39 “This is the earliest clearest incident in my mind of behaviour that I felt was sexually inappropriate involving the children”. Under cross-examination, the mother was asked why (in the context of the parties both, at that time, showering with the children) she was concerned about sexual impropriety. Her answer was that it was because the father had smirked during their conversation. The mother did not suggest that the father had sexually abused X at that time nor did she initially suggest that X was at risk of sexual abuse by the father in the future, although she was somewhat equivocal during her time in the witness box. It is likely that the mother has revisited this innocuous conversation with the father through the lens of her later concerns that Y had been abused.
Dr D gave oral evidence in these proceedings (talking about Y) but relevant to understanding X’s comments about her father’s genitals where X was almost five years old at the time:
Five years two months at the time of my interview then. He is still in the age group of children that are, essentially, coming to understand their bodies, engaging in exploratory play with themselves, with their own body, and, certainly, engaging in curiosity – thinking about other people’s bodies – and engaging in discussion at generally a superficial level about sexual language, sexual activities, but that should usually be relatively well-managed by the parent or caregiver.
(Transcript 18 February 2022, p.4 lines 14 – 19)
The mother says that on 8 September 2020, in the context of having received training about protective behaviours at preschool, Y came home and disclosed to her that he had been sexually abused by his father.
Dr D, in his oral evidence, spoke about the first disclosure as being the “index event” and usually the most “useful and potentially most accurate” (Transcript 18 February 2022, p.5 lines 11 - 12).
The mother sets out in her affidavit, the conversation between herself and Y on 8 September 2020 to the following effect:
The mother asks [Y] if anyone touched his body in a way which made him feel yucky or uncomfortable.
[Y]: “Yes”
Mother: “Can you tell me who has made you feel yucky or uncomfortable?”
[Y]: “Daddy has!”
Mother: “Can you tell me what happened?”
[Y]: “Sometimes when I go in for my morning snug with dad he plays with my doodle”
Mother: “Can I ask if it was over your pyjamas or under”
[Y]: “Over”
Mother: “Can you tell me how many times this happened?”
[Y] held up ten fingers
[Y]: “Ten times mum, I don’t want to talk about this anymore”.
As is plain from the conversation, the mother asked Y whether he had been touched – Y did not spontaneously tell the mother he had been touched. It is already clear from the manner in which the questioning occurred that the reliability of the “index event” has been compromised by the manner of questioning.
On 9 September 2020, the mother made contact with the DCJ. The Child Protection Helpline Report from that contact records that the mother told the DCJ that Y had said “when I go in for my morning snug with Daddy, sometimes he touches my doodle” which Y claims was over his pants.
The mother told the father that she had reported Y’s disclosures to the DCJ on 9 September 2020.
On 10 September 2020, the mother spoke with a detective and left the Suburb J property with the children and travelled to K Town.
On 10 September 2020, Y was interviewed by the NSW police and said to them “Daddy makes me feel yucky because he stinks”. The police record that Y does not make any disclosure of sexual harm.
On 12 September 2020, the mother says that Y was playing with toy cars in the lounge room of the maternal grandmother’s home (in K Town) and seemed a bit unsettled. The mother says she had a conversation with him to the following effect:
Mother: What’s up?
[Y]: I don’t want to tell the police, I want you to tell them
Mother: Okay, well how about you tell me for now
[Y]: Daddy touches my doodle
Mother: Where does this happen?
[Y]: In my bedroom
Mother: What were you doing in your bedroom?
[Y]: Playing games like my speed race cars, superheroes, and hide and seek
Mother: Okay bub, can you show me how he touched you?
[Y] grabbed his groin area over his clothes and made motions like he was massaging and pinching his groin
Mother: Okay sweetie how does that make you feel, is there anything else you want to tell me?
[Y]: it made me feel sad mum. Yeah, I have something else I want to tell you about I want to draw you a cake.
The mother made a recording of her conversation with Y on 12 September 2020 which became exhibit C in the proceedings. The video recording shows a much longer interaction between the mother and Y on 12 September 2020. The mother did not set out the whole of the conversation (or even all of the relevant parts of the conversation) in her affidavit. The recorded part of the conversation starts with the following interchange:
M: So you feel safe here? Shhh people are still sleeping. [Y], you feel safe here? You feel safe with Mummy? Who else do you feel safe with?
[Y]: Grandma
M: Is there anybody you feel unsafe with?
[Y]: Daddy, yes Daddy and Nanna.
M: Why do you feel unsafe with Nanna?
[Y]: Because she always plays too rough with me.
M: What do you mean plays too rough with you?
[Y]: She does.
M: Ok and why do you feel
M: Ok honey – hop off her, hop off her belly, hop off her belly honey - and why do you feel unsafe with
Daddy? Hmm?
M: Honey, why do you feel unsafe with Daddy?
[Y]: Because he stinks
M: Is that all? [Y]? [Y] Is that all?
[Y]: Yep, yep, yep, yep, yep…. Do do do
(Exhibit E Agreed transcript, p.1).
As was developed during cross-examination of the mother, the mother has introduced the concept through questioning of Y that he is unsafe with some people and safe with other people. Although when asked to identify why it is that he feels unsafe with his father, the answers which he has given to his mother and to authorities are not confirmatory of him having been abused.
The conversation which the mother recorded with Y on 12 September 2020 took place over a period of six minutes and 41 seconds. Later in the recording the following conversation takes place:
M: …Can - can I ask you a couple more questions?
[Y]: No
M: Well honey I need to, we gotta talk about it.
[Y]: No
M: Okay, has anybody made you feel uncomfortable?
M: Babe, has anybody made you feel uncomfortable? Yeah? Can you tell me who?
[Y]: Daddy.
M: can you please tell me how it happened? And what happened?
[Y]: When I was giving him snugs
M: What happened when you were giving him snugs?
M: You give -
[Y]: Nothing
(Exhibit E agreed transcript, p.2).
The mother does not obtain the answers from Y that she expects based on the previous conversation so keeps returning to the topic.
The mother continued to pursue questioning of Y. When Y tells the mother that the father touches him on the hand, she says:
M: [Y], [Y] is there anywhere else?
[Y]: No just there
M: Okay, has anybody touched your body? [Y]?
[Y]: Yes, Daddy.
M: Can you tell me where he touched you? I can’t see, you’ve got to tell me where.
M: And what’s that?
[Y]: My doodle, he done it
M: And how did that make you feel?
[Y]: Sad
M: Pardon me?
[Y]: Sad
M: Well you don’t have to be sad anymore honey, okay. Hey, [Y], [Y], big boy, [Y], hey high 5 for telling me and for being such a big brave boy okay, you can tell mummy anything you like okay, anything you like big boy
(Exhibit E agreed transcript, p.3).
Dr D gave evidence about the mother’s interactions with Y – noting the development of a dynamic whereby, when Y provides the mother with the answers which she seeks, he is almost congratulated for the disclosure, setting up a pattern where he is likely to provide her with the answers he knows that she is seeking.
Dr D does not say that this is conclusive of the fact that abuse did not occur. The point that Dr D made is that it makes any conclusion that sexual abuse has occurred, if based on these disclosures, particularly unsafe.
On 18 September 2020, Y was interviewed again. The records reflect that Y did not make any disclosure of sexual harm. On the same day, X was interviewed and did not make any disclosure of sexual harm.
The father was interviewed by the police on 24 September 2020.
On 2 October 2020, the report from the DCJ dated 9 September 2020 was referred to the City AA Joint Child Protection Response Program (“JCPRP”) for further assessment. The allegations were not substantiated.
On 15 October 2020, the maternal grandmother says that, at the dining table with Y and X, the following conversation occurred:
[Y]: Daddy’s very rude to me
Grandmother: What do you mean?
[Y]: He touches me (point to his groin area)
Grandmother: Are you okay?
[Y]: Yes but my daddy was very rude to me
Grandmother: You’re safe here now mate ([Y] nods his head)
(Affidavit of [Ms C], 18 January 2022 at [15]).
In mid-October 2020, Y was taken by the mother to consult with a psychologist, Ms O, who is a child counsellor in V Town specialising in sexual abuse. In January 2021 the psychologist for Y changed to Ms P (“Ms P”) of the Child Protection Counselling Services.
The mother made a video recording of a conversation between herself and Y on 21 October 2020. It is plain from the opening statement of the video that there had been some discussion about the subject matter of the allegations the previous day and the mother was returning to them with an intention to record Y. In response to the mother’s question “how ‘bout you tell me what I need to tell the police and I write it down”, Y responded “um, I want you to tell them Daddy touched um my doodle”. Later in the conversation the mother asked “how many times has it happened?” Y is seen in the video to hold up one finger. After confirming once, the mother responds “baby, you have been a very big and brave boy for telling me. You always are a big and brave boy when you talk about this and if you can be a big and brave boy and tell the police this, you might be helping out other kids who feel sad for whatever else”.
It is significant that Y, when asked directly “how many times has it happened?” indicates once. This is different from the account provided by the mother of Y’s disclosure on 8 September 2020 when he told his mother it had occurred 10 times.
There followed in the recording a long discussion about cake, birthdays and candles. The mother said a few times “do you remember what I said about a truth and a lie?” Y replied no – this must refer to an earlier not recorded conversation. Again given the context it seems probable that the subject matter of the earlier conversation was concerned with the allegations of abuse.
On 28 October 2020, the mother deposed that she had a conversation with her children about “safe people”. She said that her conversations were identifying “…who our heroes are and that the police/firies/ambos are all safe people. This is every few days so they don’t forget that there are safe people”. It appears as though the mother fails (or failed) to appreciate that she was sending an equally clear message that other people were unsafe.
The mother says that on 28 October 2020, Y told her he did not want to speak to the police he wanted his mother to speak to the police for him. When the mother asked him what he wanted her to tell the police, she says that Y responded “that sometimes in my room Daddy touches my doodle”. The mother asked Y if it happened anywhere else to which Y replied, “Grandma’s old house”.
On 29 October 2020, the mother says that Y said to her words to the effect “Daddy never touched my doodle, I take it back”. In response she said to Y, “I believe the things you told me and you’re brave for telling me and you’re safe now”.
At this stage Y had told the mother that he had been abused by the father ten times, then once and now not at all. The mother did not accept that when Y said the abuse had not occurred, Y was telling the truth.
The mother was cross-examined during the hearing about why it was that she believed Y when he said that he had been sexually abused but disbelieved him when he said that he had not been sexually abused. By way of explanation the mother said that she had undertaken some internet research and found that it was not uncommon for children to recant stories of sexual abuse.
As the evidence emerged, it became plain that the mother was more likely to accept as truth, information about the father having abused Y than she was other information which did not fit with the narrative that Y had been abused. The mother has consistently maintained that part of the reason why she is concerned about her children is because she believes that Y is telling the truth. Confronted during cross-examination of many occasions on which it is plain that Y was not telling the truth, the mother indicated that she was in a position to distinguish between occasions when Y was telling the truth and occasions when Y was not telling the truth based on how he presented to her.
On 29 October 2020, the mother says that Y told her that his father had touched his “doodle” at the maternal grandmother’s house during Christmas 2019, and that it had occurred while he was in his room playing with his racetrack and after Santa came.
On 2 November 2020, the report made to the Child Protection Helpline on 29 October 2020 was transferred to the K Town Community Service Centre (CSC) but was closed without further investigation.
On 15 December 2020, in circumstances where the mother had not facilitated any time between the father and the children, he commenced proceedings in this Court.
The mother alleges that a further conversation occurred between her and Y in mid-December 2020 where the following was said:
[Y]: Where is daddy?
Mother: He’s in [Suburb J]
[Y]: The police will come and take me and [Mr Glanville] and [X] and [Z] away and then I will have no family just like the little owl
Mother: Who told you that?
[Y]: Daddy did.
Mother: Why did daddy say that?
[Y]: Daddy said that I couldn’t touch his doodle and that if I did the police would come and take daddy and mummy and [X] and [Z] away and that he would have no family and he would be like the little owl
(Affidavit of [Ms Percy], 28 January 2022, [85] – [86]).

It was not the subject of any comment by the mother in her evidence that in this particular discussion Y reportedly told the mother his father had said Y could not touch the father’s genitals. A similar theme emerged during the next conversation which Y reported to the mother (that is, it also included mention of Y not being permitted to touch his father’s genitals).
The mother says that a further conversation occurred on 18 December 2020 when she was putting Y to bed. The context of the conversation according to the mother was that as Christmas was approaching, Y asked her for a motorbike. As the conversation continued, Y suggested that the father owed him a motorbike and the mother responded “why does he owe you a motorbike?” This conversation followed according to the mother:
[Y]: He told me he would buy me a motorbike with a stand so it stands up if I didn’t say anything
Mother: Didn’t say anything about what?
[Y]: Him touching my doodle. I want you to call him now for my motorbike for Christmas.
Mother: We can’t call him now. He’s sleeping, it’s night time. Did he say anything else to you about not telling?
[Y]: Yeah, he told me that it felt really good and nice
Mother: Good and nice?
[Y]: Him touching my doodle, but it didn’t mum. I told him it was bad and he said no it wasn’t
Mother: Did he say anything else after that?
[Y]: I’d be alone and have no family
Mother: What do you mean you’ll be alone and have no family?
[Y]: He told me that I can never touch his doodle or the police will come and take you and daddy and [X] and [Z] away and I would be all by myself with no family
(Affidavit of [Ms Percy], 28 January 2022, [86]).
The mother told Y “you are safe and you are loved and you will never be left alone”. The mother later told the DCJ that the mantra “you are safe and you are loved” is one she was repeating each night.
On 19 December 2020, the mother raised the topic of the conversation the day before with Y, asking him if he wanted to keep talking about it. After the mother says Y said okay, she said:
Mother: who was it that made you feel uncomfortable or yucky?
[Y]: it was daddy because he touched my doodle lots
Mother: where were you when this happened?
[Y]: at the [Suburb J] house. Two times.
Mother: two times?
[Y]: one in my room playing with toys and one in the shower
Mother: did it happen anywhere else?
[Y]: all of the houses we sleep at. Nana’s house, grandma’s house, [Suburb J] house and not at [Ms Q]'s [maternal aunt’s house]
Mother: can you tell me about nana’s house where was I?
[Y]: you were upstairs making Milo and it was when [X] and I were taking turns on the top bed. And the next night it was [X]’s turn on the top and mine was on the bottom. Daddy touched my doodle then.
Mother: what room did this happen in? Where was [X]?
[Y]: daddy’s room. [X] was sleeping on the top still
Mother: what happened next?
[Y]: daddy touched my doodle
Mother: can I ask if it was under your clothes or over your clothes?
[Y]: it was under my pjs
Mother: did daddy say anything to you?
[Y]: he told me that it was good and nice
Mother: has there been any other times at nana’s house?
[Y]: just that time and in the lounge room
Mother: which lounge room?
[Y]: nan’s
Mother: where was I?
[Y]: you and [Z] were having a rest downstairs and [X] and Nana were at nana’s beach
Mother: what about [Suburb J] house
[Y]: in my room playing with toys and games with daddy
Mother: was it over or under your clothes?
[Y]: that time was under. Dad said “No. No. No. don’t tell mummy”
Mother: why did he say that?
[Y]: [X] came in
Mother: you are very brave and we can stop now and we can talk later
(Affidavit of [Ms Percy], 28 January 2022, [87]).
In this conversation Y tells the mother that the touching is under his clothes. He also says this has happened twice. This is different from his previous accounts.
On the same day, 19 December 2020, the mother sets out in her affidavit material that she had a conversation with the parties’ daughter X. In that conversation the mother says:
Mother: did you ever see anyone touch [Y]’s body?
[X]: yes
Mother: who
[X]: I saw Daddy touching [Y]’s doodle
Mother: why didn’t you tell me?
[X]: I did, you were sitting on the balcony having a coffee and a smoke
Mother recalls this did happen and she confronted the father who had told her it was an accident.
Mother asks [X] to show her how the father touched [Y]
[X] says “Daddy done this” and put her hands down inside her clothes and into her underpants over her genitals
Mother: did daddy say anything?
[X]: [Y]’s in a time-out
Mother asks what happened next and [X] says her father went fishing
Later the same day, during bath time, the mother says Y raised with her that he had a “body secret”. The mother then says that the following conversation took place:
[Y]: I wasn’t supposed to tell you my secret or I’d get into trouble
Mother” [Y] you’ve done nothing wrong, you are safe and loved and I am one of your safe people, you want to tell me about it?
[Y]: daddy told me I wasn’t allowed to say anything, that it’s a secret for him
Mother: what’s a secret for him?
[Y]: that he touches my doodle in my room and in the shower
Mother: you wanna tell me about the shower whose shower did it happen in?
[Y]: at [Suburb J], he was washing my body
Mother: why was he washing your body when you’ve done it by yourself for a long time?
[Y]: he told me I wasn’t to do it, I was only allowed to wash
Mother: so arms, chest, shoulder, legs
[Y]: no not my legs
Mother: what do you mean
[Y]: I was only supposed to wash my top part of my body and daddy said he had to wash my bottom half of my body, my legs, feet and doodle
Mother: that is not ok because you’ve been able to do all this yourself since you would wipe your own backside because you’re a big boy
[Y]: “I told him no mum, but he said yes yes yes he had to do it
Mother: well it won’t happen anymore bub, im going to have to call [Detective DD] and tell her about this if that’s ok?
[Y]: no I don’t want to I’m scared of the police
Mother: you don’t have to be scared of the police bub, they are here to help keep us safe
[Y]: you need to be scared and so does [X] and [Z]
Mother: who said we need to be scared of the police bub?
[Y]: daddy said we all have to be scared of the police or I’ll get taken away and have no family anymore
Mother: [Detective DD] is a friend and she has helped us get safe, and even though you’re scared you’re super brave using your voice because your voice….
[Y]: MATTERS
(Affidavit of [Ms Percy], 28 January 2022, [91]).
On 24 December 2020, the mother sent an email to the DCJ setting out in detail the discussions which had occurred between her and the children on 12 September, 15 October, 19 October, 21 October, 28 October, 29 October, 18 December and 19 December 2020.
Y’s conversations with the mother during this period start to adopt the language of the child protection counselling he commenced to receive.
On 11 January 2021 the mother told Ms P that she had been engaging in protective behaviours education with Y on a daily basis. That included speaking about protective behaviours and reading a story book.
On 12 January 2021, a Child Protection Helpline report was received. The reporter says that Y had disclosed “when daddy comes in for night-time cuddles he plays with my doodle” and “it makes me feel all yucky”. On the basis that this disclosure referred to the evening – as opposed to the morning – a further investigation was commenced.
On 1 February 2021, a further interview of Y by the NSW Police took place. Y is described in the police records as having been excited to speak to the police. Y made no disclosure of sexual abuse during that interview and made only positive references to his father. Y stated he liked everything about his dad and there was nothing about his dad that he did not like.
When the police interview finished on 1 February 2021, Mr R (“Mr R”), a caseworker from the DCJ, told the mother that Y had not made any disclosure to the police. The mother is said, according to the DCJ documents, to have responded “I want to woop his ass” and after a short pause she added “but I won’t”. Mr R offered to interview Y again. He offered to do so in a “leading manner”. He told the mother that it would not be useful to the NSW Police but may provide the DCJ with further information. The mother accepted the offer and Mr R interviewed Y. Mr R explicitly asked Y if anyone had touched him on what Y had identified as his “private part” and he said “no one touches me there”. When the caseworker raised explicitly the fact that Y had told others that his father had touched, him the notes record Y told CW [caseworker] he does not remember his Dad touching his private parts, he just knows it happened.
The mother was also interviewed by the NSW Police and the DCJ on 1 February 2021 and during that interview said that she wanted an expert in the field to tell her if Y had been abused or not before she allowed any contact between the father and the children. She told the police and the DCJ that she believed that Y had been abused.
When the interview with Y did not result in a disclosure the mother told Mr R that X had witnessed abuse and was more than willing to speak about it. X was subsequently interviewed at school. She made no disclosure. During the debriefing session with Mr R on 1 February 2021, it is recorded that he explicitly requested the mother not talk to the children, as she had been regularly and frequently, about people being safe and unsafe as it had the potential to make the children afraid (as opposed to reassuring them).
On 2 February 2021, X participated in an interview with the DCJ at her school. The DCJ notes record that X did not display an understanding of the distinction between truth and lies during the interview and made no disclosures of abuse.
On 11 February 2021, the mother had further contact with the DCJ and again indicated that she would not facilitate contact between the father and the children until an expert had been consulted. When the DCJ spoke to her, they assessed that she displayed little insight into the impact of re-raising the abuse allegations on Y and appeared fixated on obtaining information to support her decision to stop contact.
On 22 February 2021, Y was again interviewed by two employees of the DCJ. He did not make any disclosures of sexual abuse.
On 11 March 2021, the mother took a video recording of her interactions with Y. She says, and the recording confirms, that the recording was not about allegations of sexual abuse. The mother appears on the recording to have entered the room where she had left Y and his baby sister Z, returning because Z was crying. The mother started to question Y about why Z was crying and Y claimed to have been tickling her. The conversation which she recorded included the following:
M: [Y] she doesn’t cry like that if she is just being tickled. Please do not lie to me son, what the hell happened?
[Y]: I don’t know
M: What happened?
[Y]: I just don’t
M: Don’t lie to me please.
(Exhibit E – Agreed transcript, p. 13).
It is plain that Y made a gesture which the mother interpreted as Y having confirmed that he had strangled his sister and the conversation continued:
M: Why the hell are you strangling her?
[Y]: Ta
M: No. No. Take that off. Take that off right now. Give me your tablet for a minute. Give me your tablet
M: So you put your hands around her neck?
[Y]: Mhmm
M: And then what happened?
[Y]: She started to cry
M: Why? Are you putting your hands around her fricken neck?
(Exhibit E – Agreed transcript, p. 13).
In the second part of the conversation after the mother had been recording for more than three minutes, she said to Y, would you like it done to you? The conversation continues:
M: would you like it done to you?
[Y]: No.
M: have you ever had it done to you?
Y: Yeah.
M: you have?
[Y]: Yeah, Daddy done it.
M: Sorry?
[Y]: Daddy, Daddy done that, that’s what Daddy done.
M: That doesn’t mean that you get to do it to anyone else [Y]. Thank you for telling me that, but you don’t get to do it to anyone else. It’s not cool. It hurts people, it’s not safe and it’s not right. You don’t lay a hand on anyone least of all your sisters. No, you’ve lost your tablet privileges for now
(Exhibit E agreed transcript, p. 14).
The mother says she took the video in order to obtain parenting advice about how she could discipline Y in the circumstances which she had recorded.
I accept that the mother may not have made the recording on 11 March 2021 for the purposes of substantiating sexual abuse allegations. However, that does not mean that the recording is not relevant to the allegations and the assessment of the appropriate parenting orders. The questioning of Y undertaken by the mother, as recorded on this video, confirms Dr D’s concerns that the manner in which the mother questions Y, rewards him for providing her with information which confirms her concerns. When confronted about having put his hands around his baby sister’s neck, Y normalises his conduct by indicating that this is something which the father has done to him.
Interestingly, the mother does not assert in these proceedings that Y has been the victim of an assault by way of strangulation undertaken by the father. The mother does not believe that the father has placed his hands around Y’s neck. This sits incredibly uneasily with her almost unfailing belief in the details Y provides when they are confirmatory of sexual abuse. It also sits uncomfortably with her comment in her affidavit: “I know my son and he does not lie” (affidavit of Ms Percy, 28 January 2022, [135]).
The mother says that on 11 March 2021, when she was driving the children home from school, she and Y had the following exchange:
[Y]: I’ve seen videos of kids touching other kids [sic] private parts adults touching kids private parts
Mother: [Y] where have you seen that?
[Y]: On daddy’s phone
Mother: thank you for telling me [Y]
(Affidavit of [Ms Percy], 28 January 2022, [101]).
The mother does not have a recording of that conversation. Assuming that the evidence which she gives is accurate to date, that conversation appears to have taken place on the same day as she made the video of Y in respect of him having placed his hands around his sister’s neck.
The mother’s evidence about Y discussing videos on his father’s phone fits the same pattern as the mother thanking Y for the disclosure.
There is no context to what Y tells the mother. On the one hand, this is supportive of the fact that the mother did not question Y extensively about the when, where and how details. This is not something that Y has repeated to anybody else and there does not seem to be any evidence which would allow the court to find that the father has, on the balance of probabilities, exposed the children to any sexually inappropriate material. The father was not asked during cross-examination whether or not he had shown Y videos on his phone.
Supervised contact was due to take place on 21 March 2021 and did not occur.
On 26 March 2021, the DCJ informed both the mother and the father that the allegations of sexual abuse had not been substantiated and they intended to close the case.
Supervised contact was again due to occur between the children and their father on 5 April 2021 and it did take place on that occasion. It was the first time the children had seen their father since 10 September 2020. The children’s interactions with the father were recorded by the supervised contact workers. The report of supervised contact on that day includes the observation that contact seemed “a positive experience for everyone involved…There was much laughter and love apparent throughout contact”.
The further occasions of supervised time also proceeded without incident. The reports record the children interacted happily with their father and, for example, on 27 June 2021 record that X told her father she loved him. Z is described as constantly looking for her father. The supervised contact worker concluded “the contact seemed fun for everyone involved with the mood amongst Mr Glanville and the children positive and comfortable”.
On 23 April 2021, the Child Protection Helpline received a report which suggested Y had said words to the effect that he did not love his father “because he touched my doodle”.
On 8 June 2021 the mother met with Dr D. Dr D in his testimony says he told the mother:
… “just stop doing this”, believe me on the basis of all the documents that I reviewed prior to my single expert interviews and my direct discussion with the mother, I made that position abundantly clear. That she needed to stop interviewing [Y]. She needed to stop recording and she needed to stop encouraging him to disclose.
(Transcript 18 February 2022, p.7, lines 33- 35).
A Child Protection Helpline report was received at the end of April 2021. The report is redacted but includes the statement “Y made two separate disclosures raising concerns about possible sexual abuse from his father Mr Glanville”. The report records Y as having said his father was not at his birthday party because he “he’s not allowed”. Asked why, Y stated “because he touched me here”. The reporter observed Y point to his penis area over the top of his track pants. The second reference in that report is that when Y was drawing a picture of his family, he said “Daddy was in our family but isn’t anymore”. When asked why, Y stated “because he touched my private parts”. The reporter said that before that day “Y has not made a clear disclosure raising concerns about sexual abuse”. The shift in language used by Y has him using the language of the protective behaviours training e.g. “private parts” in substitute for his previous language e.g. “doodle”.
These reports have to be seen in the context of Dr D’s evidence about the way in which being exposed to discussions about whether or not abuse has occurred, have made anything which Y subsequently says, of limited utility in assessing whether or not he has actually been abused.
The reporter also indicated to the DCJ that the mother had provided information to the effect that the child X had told her “Daddy is naughty for touching Y’s doodle”. Again, there is a concern that this information may be a product of what the children have heard rather than what they have experienced.
It is important to note that there is a clear distinction between the way in which the mother says the children were presenting ahead of seeing and spending time with the father and the objective information about the way in which they presented during periods of supervised contact. The mother indicated that the children had anxiety about seeing their father which manifest in reluctance, poor sleep, nightmares and the like. The supervised contact reports are unfailingly positive in respect of the children’s interaction with their father.
The mother is said to have noticed behavioural changes in the children after contact visits, noting they have increased attitude with damaging toys and are generally irritable or tired following the long travel from F Town to K Town.
It was put to the mother in cross-examination that the children’s behavioural changes could be due to missing their father. It is clear from the context that they could equally be due to the fact that the children have had to undertake significant travel. All of these issues speak to the advantages to the children in living in close proximity to both of their parents.
On 2 May 2021, Y is said to have told his mother that his bum hole had been tickled and when questioned as to what he meant by that he said “Daddy done it, he put his hand up there and he didn’t even use a glove” (affidavit of Ms Percy 28 January 2022, [102]).
The DCJ, aware of the fact that, during that period, all time with the father had been supervised, understood that Y may have been making a historical allegation that he had been sexually abused, which related to the period prior to separation.
On 7 May 2021, the DCJ received a report. The records read: “Y (five years) disclosing he was sexually abused by his father”. The reporter asked the mother if X had also disclosed any sexual abuse in recent months, to which she reported X had said “dad did it to me too” referring to sexual abuse. It is clear from context that the reporter formed the view that X may have said what she did as a form of “attention seeking”. There has been no suggestion by the DCJ that X has been the target of sexual abuse by the father. The mother’s evidence about whether she saw that X was at risk from the father was equivocal. She seemed to have taken the view that X was not a target because she was female but as the cross-examination proceeded she appeared disinclined to accept that X was not also potentially the subject of inappropriate sexual touching.

In the period where the father was having supervised time, there did not appear to be any allegations that there was any conduct during this period which was inappropriate. On 21 September 2021, the records of the DCJ record: X had drawn a series of pictures and on one picture she had written next to the drawing the words “daddy toucht Y privit part in Y room and I froz [sic]”. On another piece of paper, X had written “I am sad”. Those drawings became part of the evidence before the court. Curiously, in circumstances where the mother reported those drawings to the DCJ as early as 21 September 2021, those drawings were provided to the father’s solicitors by way of correspondence dated 24 November 2021 and in the mother’s affidavit material she says that she does not know when they were drawn.
On 11 October 2021, orders were made providing for the children to move from supervised to unsupervised time with their father – albeit the overnight time was to take place at the home of the paternal grandparents. The oral evidence of the paternal grandmother supported the conclusion that very little if any time between 11 October 2021 and the hearing took place without her (or her husband) present.
The children thereafter spent the following weekends with their father. Those weekends occurred on:
·16 – 17 October 2021;
·29 – 31 October 2021;
·12 – 14 November 2021;
·26 – 28 November 2021; and
·10 – 12 December 2021.
The children then spent a week with their father during Christmas from 24 – 31 December 2021.
The children were to spend further time with their father during the Christmas school holidays but for the events of 5 January 2022, when Y attended the police station in K Town with his mother to make a report. The report arose in the following circumstances: The mother’s friend Ms L is a former police officer. In her affidavit, Ms L says that in a conversation she had with Y on 5 January 2022, the following words were spoken:
[Y]: Daddy touches my doodle
[Ms L]: What?
[Y]: And my bottom
[Ms L]: [Y], where did this happen?
[Y]: In my room
[Ms L]: Oh [Y], I’m sorry that happened to you
[Y]: [X] too
[Ms L]: What do you mean [X] too?
[Y]: [X] too I saw
(Affidavit of [Ms L], 28 January 2022, [14]).
Ms L indicated in her evidence that she was aware that the mother ought not be speaking to the children about the allegations and ought not be allowing other people to speak to the children about those allegations. Ms L, because of her background as a police officer, knew that she probably ought not ask questions such as “where did this happen?”
The mother submits that I should pay particular attention to the fact that Y has raised the issue of sexual abuse with another person (not the mother) as supportive of the genuineness of Y’s disclosure. Given the history of Y making statements about events he says he has no recollection of, I cannot be at all convinced that the fact he has spoken to Ms L makes it any more likely that the abuse has occurred.
Ms L supported the mother (as she had previously) in attending upon the police and ensuring that the children were interviewed. Both Ms L and the mother were fairly insistent (the mother is described in the police documents as yelling) that the children be interviewed.
As a consequence of those matters being reported to the police and the DCJ, further interviews took place. The mother did not facilitate time with the father whilst the investigation took place.
The DCJ closed the investigation and did not substantiate the allegations. The most significant factor at play in the decision not to substantiate the allegations was the concern as a consequence of the interviews which took place, the children had come to recite things that they had heard rather than things which they had experienced. It is useful to set out the text of the interviews between the children and the case workers of the DCJ on 20 January 2022 in some detail to understand how they formed that conclusion. After the interview had been going for some time, while the case worker endeavoured to develop rapport with Y, the interview reads as follows:
Interviewer: Do you like going to dad’s house?
[Y]: Yeah
Interviewer: Have fun?
[Y]: Yeah
Interviewer: What do you like at dad’s house?
[Y]: I like playing cricket
Interviewer: When its dad’s house is there anything you don’t like?
[Y]: No nothing
Interviewer: What about mum’s house? What do you like about mums house?
[Y]: everything because she buys fruit sticks and they’re really good
Interviewer: Anything you don’t like about mums house?
[Y]: No
Interviewer: Sad you can’t live with dad?
[Y]: No
Interviewer: Sad at dad’s when you can’t see mum?
[Y]: No, we go there every second week except Christmas when we got to stay another week
Interviewer: How did that make you feel?
[Y]: Happy
Interviewer: Why?
[Y]: Supposed to be going this week but didn’t
Interviewer: Do you know why didn’t take you?
[Y]: No
Interviewer: Speak to dad on phone?
[Y]: No
Interviewer: How make feel?
[Y]: Happy
Interviewer: Why does it make you happy?
[Y]: Don’t like his voice much
Interviewer: Why?
[Y]: Sounds different to when born
Interviewer: When you come back from dad’s house who picks you up?
[Y]: Mummy, she always does
Interviewer: Why here to speak to us today?
[Y]: No
Interviewer: Did mum tell you what?
[Y]: No
Interviewer: [Ms L]?
[Y]: No
Interviewer: Have you spoken to mum about being worried and wanting to talk to us or talk to the police?
Y[]: No
Interviewer: Have you told [Ms L] anything about being sad or lonely?
[Y]: No
Interviewer: Talking about body, has anyone ever done anything to make you feel sad?
[Y]: [X] has been hitting me before (and demonstrated places on body)
Interviewer: Anyone else?
[Y]: Um, [Z] but doesn’t hurt
Interviewer: Have you ever had feelings where someone touched you and feel yucky?
[Y]: When daddy said something to me but I can’t remember. Butterflies in tummy.
Interviewer: Good or bad butterflies?
[Y]: Bad
Interviewer: Remember what said?
[Y]: No I don’t remember
Interviewer: When was it?
[Y]: When I was one year old
Interviewer: Anyone every touch body make feel yucky?
[Y]: Daddy has
Interviewer: Where?
[Y]: Here (pointed to penis)
Interviewer: Told anyone?
[Y]: Mummy next day
Interviewer: Tell dad?
[Y]: No he didn’t want me to so I could stay safe
Interviewer: Where were you?
[Y]: [Suburb J] house
Interviewer: Tell anyone else?
[Y]: Grandma, mummy’s mum
Interviewer: Do you remember daddy touching penis?
[Y]: Yes
Interviewer: Is it something you can see in your head or something someone told you?
[Y]: Someone told me
Interviewer: Who told you?
[Y]: Mummy
Interviewer: When daddy touched penis what doing?
[Y]: Playing races with hot wheels cars
Interviewer: Who else there?
[Y]: Mummy was at shops
Interviewer: How do you know mummy at shops?
[Y]: Before mummy left yelled out to be good – I’m going to shops
Interviewer: Tell me what happened
[Y]: Setting up track
Interviewer: Pants on or off?
[Y]: On
Interviewer: Meant to be an accident?
[Y]: Meant to
Interviewer: Say anything?
[Y]: No
Interviewer: How long touch it for?
[Y]: less than a second
Interviewer: What did he do?
[Y]: He did it again
Interviewer: How long:
[Y]: less than a second
Interviewer: Did dad think it was funny?
[Y]: yeah
Interviewer: What was [X] doing?
[Y]: She saw it happen
Interviewer: How know?
[Y]: She was standing there and I saw him do it to her
Interviewer: Touch you with what?
[Y]: Hand ([Y] demonstrated a poke)
Interviewer: Has he ever touched you more than that?
[Y]: No
Interviewer: Say anything after that?
[Y]: No
Interviewer: What happened after that?
[Y]: Nothing
Interviewer: Told anyone before?
[Y]: Mummy and grandma
Recapped. [Y] confirmed
Interviewer: Another time touched penis?
[Y]: No
Interviewer: Ever touched penis another time with no clothes on?
[Y]: Nope never
Interviewer: Do you think he thought it was a joke?
[Y]: Yeah but he…
Interviewer: Do you hear mum talking about what happened?
[Y]: Yeah every night
Interviewer: What happened or something else?
[Y]: Something else
Interviewer: So mum talks about something that didn’t happen?
[Y]: Yeah but it did happen
Interviewer: do you remember what mum says happened?
[Y]: Yeah
Interviewer: How do you remember?
[Y]: I don’t know
Interviewer: When you told mum was dad there?
[Y]: Yeah he was on the couch
Interviewer: What happened after told mum?
[Y]: We stayed until I was four and moved to [K Town]
Interviewer: What mum do or say to dad?
[Y]: I don’t remember
Interviewer: So stayed in that house until four, another two years?
[Y]: Yeah
Interviewer: Before said what mum said was different. Has dad touched your penis another time that you haven’t told us about?
[Y]: No
Interviewer: What about dad and staying now?
[Y]: Don’t like it
Interviewer: Why?
[Y]: I don’t know
Interviewer: is that your feelings or someone else’s feelings?
[Y]: Someone else’s
Interviewer: Who someone else?
[Y]: Don’t remember
Interviewer: Do you hear conversations sometimes about things dad done that you don’t remember?
[Y]: No
Interviewer: What about when visit dad and come home? Mum ask lots of questions?
[Y]: No
Interviewer: Tell mum about what happened?
[Y]: Lots too many things you do
Interviewer: Anything you tell mum that you don’t like happening at dads?
[Y]: No. Everything is different now
Interviewer: Do you like going to dads?
[Y]: No
Interviewer; Why?
[Y]: Don’t know
Interviewer: Do you not like going to dads because it makes mum upset?
[Y]: Yeah because as soon as we leave Mum starts crying
Interviewer: If Mum didn’t cry would you like going to dads?
[Y]: No because every time she does
Interviewer: But what if she didn’t?
[Y]: No because I don’t like his voice much
Interviewer: How sounds different?
[Y]: Don’t know
Interviewer: [X] thinks it sounds different?
[Y]: No
Interviewer: Have you ever told mum dads voice is different?
[Y]: No
Interviewer: Louder or softer or just different?
Y: Louder
Interviewer: Talk like that to everyone or just you?
[Y]: Me [X] and [Z]
Interviewer: What’s mum think about dad?
[Y]: doesn’t like him
Interviewer: How do you know?
[Y]: Mum told me she doesn’t like him
Interviewer: Do you know why dad doesn’t live with you anymore?
[Y]: No
Interviewer: Dad say anything about mum?
[Y]: No
Interviewer: What do you hear mum talking about every day?
[Y]: No I don’t remember (demonstrated poking or rubbing his penis)
Interviewer: You told me he done this?
[Y]: Yes
Interviewer: Has he ever done this?
[Y]: No
Interviewer: And you had clothes on?
[Y]: Yes
Interviewer: Is the reason you don’t want to go to dads because of you and something dad’s done or because of how much feels?
[Y]: Something dad done
Interviewer: Do you remember what dad done?
[Y]: No
Interviewer: Can you remember what he did or something you have been told?
[Y]: something I have been told
Interviewer: So if mum was happy would you go to dads?
[Y]: No
Interviewer: Why?
[Y]: Because he touched
Interviewer: How do you know that?
[Y]: Because mum told me
Interviewer: Told you what?
[Y]: Dad touched me
Interviewer: But you don’t remember it’s what mum told you?
[Y]: Yes
Interviewer: Does mum tell you that’s why you don’t want to go to dads?
[Y]: Yes she tells me that
Interviewer: but you can’t remember?
[Y]: No just mum tells me
Interviewer: So has dad ever hurt you?
[Y]: No
The large excerpt from Y’s interview with the DCJ is reproduced above because it demonstrates that Y’s reliability as a narrator is questionable. He has provided different versions of alleged abuse to different people at different times – material differences including where the alleged abuse occurred, when the alleged abuse occurred, how many times the alleged abuse occurred, even the nature of the alleged abuse. This is consistent with the conclusions of the DCJ that Y’s reports are based not on his experience but on what he has heard. I accept that conclusion as there is a large body of evidence to suggest that, even if inadvertently, the children have been exposed to regular discussions about the subject matter of the litigation and have received repeated messages about body safety, safe and unsafe people and protective behaviours training.
Dr D was at pains to convey the message (to the mother) that she take on board the observation that others (with an obligation to take the welfare of children seriously) had made concerning her children and appreciate that, what the mother has to date understood as being disclosures of abuse may be learned scripts without a foundation in Y’s actual experience. If she were to develop that understanding it may prevent her from automatically requesting the children be interviewed – a choice she as a parent is entitled to make. If, however, she were to continue to request that the children be interviewed she had to understand, Dr D stated, that the professionals involved do not have the same discretion and each apparently new disclosure would require that the children be interviewed.
Is there an unacceptable risk to the children in the father’s care?
On the basis of the evidence as set out above I agree with the observations that have been made by both the police and DCJ that the material does not support a conclusion on the balance of probabilities, that Y has been sexually abused.
I was asked by counsel for the father to make a finding that Y has not been sexually abused. I understand why such a submission was made. While the evidence does not support a positive finding I must exercise caution in concluding the opposite.
I am however, convinced that Y (and his siblings) will not be exposed to an unacceptable risk of physical or psychological harm as a consequence of past sexual abuse or the possibility of future sexual abuse if I make orders they spend time with their father. In reaching that conclusion I have taken into account the following:
(a)Dr D gave evidence that there was nothing in the interviews/observation session which raised concerns for him that Y had been the target of sexual abuse, that is there was nothing in Y’s presentation indicative of having been abused;
(b)The child care centre Y attended in Suburb J raised no concerns for Y based on their interactions with him in their dealings with DCJ;
(c)Y has consistently and over a long period of time declined to provide any disclosures to DCJ or police when questioned in a non-leading fashion;
(d)Y’s disclosures began to adopt the language he had learned through protective behaviours education;
(e)Y spoke almost universally positively about his father to DCJ and police;
(f)Y’s interactions with his father, as observed in supervised contact displayed none of the anxiety or sadness said by his mother to be associated with the father;
(g)Some of the matters reported by the mother as disclosures were seen by DCJ as consistent with non-sexually based contact with the child’s genitals (such as inadvertent touch during physical play or touch during showering);
(h)As early as February 2021 and as recently as January 2022, case workers with DCJ formed the view that when Y spoke about having been touched by his father he was recounting matters he had been told as opposed to matters he had experienced.
Is there an unacceptable risk to the children in the mother’s care?
The mother is a good parent.
The mother has a significant limitation to her parenting capacity.
One of the difficulties with the mother’s approach is that because she has become convinced that Y has been the subject of abuse then she interprets the behaviour of the children through that lens.
Dr D was concerned that the mother’s hypervigilance and fixation with the idea that Y had been sexually abused by the father may cause Y (and the other children) harm in the following ways:
(a)Dr D gave evidence that he was concerned that the children (Y in particular) would be vulnerable to “systems abuse” on the basis of the number and frequency of the interviews of Y undertaken to date. Dr D says that such exposure to systems abuse can be “horrendously damaging”. That is part of the father’s case as to why the court should place the children in his care.
(b)The children have a tendency to provide the answers the mother is seeking because of the praise they receive from disclosure. Dr D gave evidence that such praise was “potentially actively encouraging the child to link the mother’s demonstration of praise and affection and positive reinforcement to the child associated with possible disclosures and, in and of itself that sets up a horrendous dynamic”.
The risks to the children in the mother’s care identified by the evidence are:
(a)That they may be subject to systems abuse;
(b)That the mother may expose them to her fears and views that they (or at least Y) have been abused or are at risk of abuse; and
(c)That they may come to view themselves as having been abused.
These risks are real as opposed to fanciful. It is concerning that as recently as 31 January 2022, when the DCJ informed the mother that there would be no substantiation of the allegations of abuse, the DCJ records stated “Ms Percy said she understood this however she will keep believing her children and what they tell her”. If, as a consequence, further interviewing occurs, Dr D concluded the risks to “these children are enormous”.
Ultimately, I have concluded that while the risk is appreciable it is not so unacceptable that it justifies an order which would separate these young children so significantly from their primary attachment figure.
In reaching that conclusion I have taken into account the fact that there is no evidence that the mother herself has undertaken questioning of the children about sexual abuse in the period from June 2021 to the hearing. That does not mean the mother has not allowed others to question the children, but there is no evidence she herself questioned or recorded the children in that period. Accordingly, I am able to find that the mother accepted the advice of Dr D that it was a matter for the authorities to interview and investigate any allegations of sexual abuse disclosed by the children.
I have also taken into account the fact that the mother reinstated contact in January 2022 after she was told that the allegations had not been substantiated.
I have considered the fact that the mother, while concerned to act protectively of her children, was still prepared to facilitate time after she was told that DCJ had closed their investigation without substantiation provides a basis for accepting the mother’s evidence that she will agree and abide by the decision of this court. It suggests that the mother is aware that, absent objective evidence that the children are at risk of physical and psychological harm in the care of the father, then the children need to see and spend time with both parents: s 60B of the Act.
I have taken into consideration the fact that the mother has proactively sought out her own psychological support. Dr D recommended that the mother provide his report and a copy of the reasons for judgment and orders to her psychologist to assist her to understand the issues and risks involved with questioning of the children, and to assist the mother with hypervigilance and anxiety around issues concerning child sex abuse. I intend to make an order permitting her to do so.
I have taken into account the fact that the mother gave evidence she would accept the decision of the court about whether the evidence established the children were at risk. I cannot place too much weight on this evidence in circumstances where the mother has questioned similar conclusions of the DCJ and the police. I must acknowledge that the events of January 2022 make this a more difficult conclusion. It may well be that, notwithstanding the requirement that I consider making orders that are less likely to result in further proceedings, if there is a repeat of the pattern of the children being interviewed without substantiation of allegations it may be necessary for the matter to return to court. I raised with the parties the making of interim orders and each party sought that final orders be made.

The father quite properly did not seek to pursue his application that the children live with him and have very limited time with the mother unless the court was of the view that such an order was required because the children would be at unacceptable risk of psychological harm in the care of the mother.
Dr D was concerned about any proposal which separated the children so significantly from the mother giving evidence to that effect:
…for [Z] at two years old, to be suddenly summarily removed from the mother’s care and then have a block period of zero contact. All that’s going to do is cause a – a traumatic attachment breach.
(Transcript 18 February 2022 p. 12 lines 15 – 17)
If I had formed the view that time with either parent posed a significant risk that could not be ameliorated by the making of orders then the other considerations in s 60CC(3) of the Act would have little relevance.
As discussed above, the evidence suggests that the children would not be at unacceptable risk of physical harm in the care of the father and if the mother can accept the findings of the Court, then the children are unlikely to be the victims of psychological abuse in the mother’s care. Accordingly it is appropriate to have regard to:
(a)The children’s views;
(b)The nature of the children’s relationships with the mother and father and the extended maternal and paternal family;
(c)The parenting capacity of each of the parents;
(d)The children’s right to enjoy their Aboriginal culture.
Children’s views
The children are young – X is almost seven, Y is almost six and Z is just two years of age. In this context, Dr D reported on the children’s individual views on the matter:
Both [X] and [Y] expressed during their individual interviews that they missed their father and would like to be able to see and spend more time with him than currently permitted. When considering their views, it was noted that both children showed no understanding of the situation that they were now in and although intelligent, neither were considered to have the requisite maturity or level of understanding for the Court to place significant weight on their view. That said, the current arrangement of two hours supervised contact with the father each fortnight is not considered to be sufficient to meet the criteria of substantial and significant time with their father, much less the inordinate cost associated with supervision services and intrusiveness of an unfamiliar supervisor on the children. As such, and noting the above, [Y] and [X]’s clearly stated desire to spend more time with their father can be considered as an important factor which the Court could place weight upon.
([Dr D]'s Expert Report, [128])
I accept that evidence because it accords with other evidence about the nature of the children’s interactions with their father. When the mother first made her report to the DCJ, she described the father as a “great dad” and it is recorded in their notes that she “did not know if this [the abuse] had actually occurred”. The mother in her text messages with the father also confirmed that, whilst she had concerns about the nature of the adult relationship between them, she did not have concerns about him as a father. While the children have been primarily in the care of the mother, it is plain by the long distances travelled by the father when the parties have been separated in order to maintain his relationship with the children, that the father has been actively involved. It is off the back of these interactions that the children, young as they are, have formed the view as expressed to Dr D that they wish to see and spend more time with their father.
Nature of the children’s relationships
I accept that the children have a close and warm relationship with their mother who has been their primary carer. The father agreed that this was the case.
I accept that the children like their maternal relatives and particularly like living in proximity to their cousins.
When questioned about his father, [Y] reported that he enjoyed seeing his father a great deal, “it is really fun to see Dad, he plays games with us at [F Town]. I don’t like that he is so far away. I would like to see him more”.
([Dr D] expert report, [92])
The mother is and has always been close to the maternal grandmother. The father agreed that this was the case. The children also have a good relationship with the maternal grandmother.
I have discussed the nature of the children’s relationship with their father above when considering how it may have contributed to their views about seeing and spending time with him. The observations of Dr D confirms a close relationship between the children and their father. Y was seen to be animated and spontaneously affectionate, X was seen to be seeking close proximity to her father and Z was seen to be comfortable in her father’s care despite her young age.
Parenting capacity: The mother
Part of the mother’s case for remaining in K Town rested on the availability of family support in the region, in particular that of the maternal grandmother. I did not form the view that the mother was dependent on that support to buttress her parenting capacity. It was also not plain from the evidence that the mother was significantly dependent upon the maternal family for practical support since the mother had obtained work during school hours.
The above conclusions should not be seen as ignoring the fact that the maternal grandmother does provide practical support to the mother but rather an indication that the mother is a capable parent who does not rely on the maternal grandmother because of deficits in her own parenting. This was the view of Dr D in his report at paragraph 133 and not challenged in cross-examination.
Dr D was asked to consider whether or not either of the parents suffered from a mental health condition or personality disorder impacting upon their parenting capacity. He concluded that, whilst the mother had observable anxiety in respect of the allegations, she did not meet diagnostic criteria for a mental health condition or personality disorder.
Further, Dr D found that both parties were loving parents who cared deeply for the welfare of their children and have the capacity to provide for their children’s needs including their emotional and educational needs.
Dr D formed the view that the most significant deficit in the mother’s parenting capacity arose out of her desire to do what it best for her children without the necessary skills and insight to be aware that she was in fact causing them potential harm. It was his view that with firm direction from the court, the mother would hopefully come to understand the importance of facilitating the ongoing relationship with the children’s father.
Parenting capacity: The father
The father was an engaged parent prior to separation on 10 September 2020.
The video calls with the children since separation, lasting as they did between 30 minutes and two hours, are indicative of his capacity to keep the children engaged.
Since separation and following the parties’ interviews with Dr D, the father enrolled in and completed two parenting programs. He told the court that he had also enrolled in a third course which was to commence in March 2022.
Dr D made the comment that the father’s engagement with the mother in the initial days of the allegations “showed a man who was more concerned for the welfare of his son than for that of himself” (Dr D's Report, 21 September 2021, paragraph 137). Like with the mother, Dr D formed the view that the father has the capacity to meet the needs of his children including their emotional and intellectual needs and is assisted in that by his parents.
The right to enjoy their Aboriginal culture
The mother identifies as a First Nations woman on her father’s side. The mother’s evidence was to the effect that the children have enjoyed exposure to her traditional language at school. The Act acknowledges the importance of Aboriginal children having the opportunity to enjoy their Aboriginal culture, including the right to enjoy that culture with people who share that culture: s 60CC(3)(h) of the Act. The most significant person who shares the children’s Aboriginal culture is their mother and the orders which are contemplated will not impact on her capacity to share her culture with the children.
Parental Responsibility
Each parent sought an order for sole parental responsibility. In making a parenting order I am obliged to apply the presumption that it is in the best interests of children that their parents have equal shared parental responsibility, unless that presumption is rebutted by evidence either of family violence or of other matters which would make an order for equal shared parental responsibility contrary to the children’s best interests: s 61DA of the Act.
In this case the biggest impediment to an order for equal shared parental responsibility operating in the best interests of the children is the current capacity of the parties to communicate.
I am hopeful that after these proceedings conclude, the mother will return to the view she shared of the father at the outset of the DCJ’s involvement, namely that he is a “great dad”. Inversely, that the father will be able to deal with what he came to see as a deliberate attempt by the mother to separate him from the children. The parties will be assisted in this by the courses the father has undertaken and the course in which, I was told by the mother’s counsel, the mother has enrolled.
I am confident that both parents have the capacity to make appropriate decisions of a long term nature for the children. I note, for example, that when the mother raised her opposition to the children attending a religious service while in the father’s care, he was appropriately responsive.
On the basis of the evidence as a whole and as a consequence of the orders for time which I am making, I am satisfied that an order for equal shared parental responsibility will operate in the best interests of the children.
Orders requiring the mother to move
The ICL sought an order that the mother bring the children back to live in the Region T area (as did the father, in the alternative). The mother resisted those orders.
Prior to the mother’s move to K Town, Y and X were attending N School and X had attended one of the orientation sessions at G School for Kindergarten.
At separation, the parties were living together at the Suburb J property in a rented five bedroom house which they had first rented in September 2018. The father remains living in that house.
The paternal grandparents lived about an hour’s drive away in F Town and the mother’s sister – Ms Q – lived in E Town with her children: EE, FF and GG (“the cousins”).
On 10 September 2020, the mother moved to K Town which is approximately a four hour drive from Suburb J. The maternal grandmother continues to live in K Town.
The father gave evidence that he was unwilling to move to the K Town area. He indicated he had had difficulties finding work in regional New South Wales in the past and was concerned to leave his current employment. He gave evidence that he benefited from living within an hour of his parents in F Town. He expressed concern about living in a small country town where the mother’s family may have negative attitudes towards him.
Adults are entitled to live where they choose. Just as a parent who seeks the court’s permission to move is not required to have reasons to move, so a parent who resists moving is not required to convince the court that their desire to remain where they are is reasonable. That does not mean that the reasons each parent advances will be irrelevant, but their relevance lies in the advantages and disadvantages of each of the proposals in so far as the children are concerned.
The mother gave evidence that she would move from K Town to the Region T area if required. The mother said that such a move would be financially difficult for her but she agreed that she would be likely to find work similar in nature to her current employment. The father gave an undertaking in writing in the prescribed form that if the Court ordered the mother to return to the Region T area, he would contribute to her costs of moving. I accept that undertaking.
The children are currently undertaking a drive of at least four hours one way or eight hours return every fortnight. Time between the children and the father is currently limited to alternate weekends and holidays due to the distance. If the parties were living in reasonable proximity to one another then the children would be able to see and spend time with the father more regularly and frequently.
The father sought orders that the mother live in the Region T area. In his application he defined this as the suburbs in the area between HH Town and Suburb S. No submissions were made about this and no evidence was specifically led on the topic. If the mother is required to move it should be to an area which makes substantial and significant time between the children and both of their parents most workable and allows the children easy access to their school from the home of each parent, but the area should be no more restrictive than is required. In those circumstances I am not convinced that the lower boundary should be HH Town. Since the father was content that the Northern boundary be Suburb S the Southern border can also be further from Suburb J.
I am conscious that in making an order that the mother move back to the Suburb J area, I am making an order that requires her to live in a location not of her choosing. In my view it is only appropriate for me to do that if the evidence supports the conclusion that it is necessary to make such an order to satisfy the best interests principle: Sampson and Hartnett (No. 10) (2007) FLC 93-350. I am satisfied in the circumstances of this case that such an order is necessary because:
(a)It will be difficult if not impossible for the mother to develop a level of trust in the father and his parenting and more importantly reach the conclusion that the children are not at risk in his care if they are parenting at such a significant geographical distance;
(b)The mother may be better able to assess the objective information about whether the father poses a risk if she is physically distanced from an environment in which the concern about risk is reinforced;
(c)If the parties live in reasonable proximity, the father will be able to be involved in the children’s day to day lives – attend at school and sport and other activities to which parents are invited;
(d)The children may be less likely to repeat some of the learned statements they have made to various professionals if they are spending time with their father for more extended and frequent periods such that their thoughts and feelings about their father will be more firmly based on their current experiences of spending time with him; and
(e)The children will not have to undertake such significant travel. The mother made frequent complaints to the supervised contact workers when driving the children between K Town and City JJ that the children found the travel long and difficult.
Having determined that the children will benefit from having both parents involved in their day to day care, the question remains as to what arrangement of time is in their best interests.
Each party made a proposal for time in the event that there were no findings of unacceptable risk in the care of either parent. The father and ICL sought an equal time arrangement. The mother sought more limited time, but that was in the context of the mother living in K Town. Dr D gave evidence:
…I think if the mother moved to [Suburb J], the [C]ourt could readily consider the prospect of the children remaining in the mother’s care and progressively, at an incremental and child-focused manner, moving into a shared care arrangement mindful of [Z]’s tender age.
(Transcript 18 February 2022, p.12 lines 27 – 30)
This is a difficult and finely balanced decision because the mother’s conduct in the period post separation is indicative that she will find it very difficult to accept that the children are not at risk in the father’s care. On the other hand, while the children have a good relationship with their father (and extended paternal family) they are young children who have been in the primary (sometimes sole) care of their mother and would find a change of residence almost incomprehensible. I accept that if I had determined that was the most appropriate option then the father (and his mother) would have helped the children to adjust to their new circumstances.
The father sought orders that there be a period of no contact between the children and their mother. In submissions this was identified as the potential mechanism to act as a circuit breaker to prevent further interviewing of the children. I understand the intent but view it as an extremely blunt instrument to achieve that goal since it would separate young children from their mother in a way they would find difficult to understand. I have seriously considered whether an extended period where time with the mother is suspended would function in the best interests of the children. I accept there is some merit in an extended period of time for the children in their father’s care and accordingly, I will order that they spend the Easter school holidays with the father. This is much shorter than the father sought but it will have the added advantage of giving the mother time to move house. I also consider that the mother moving from the K Town area to the Region T area will also function as something of a circuit breaker since she will not (in a physical sense) be surrounded by what Dr D described as a belief system that reinforces her views.
The father’s alternate proposal was for an equal time arrangement. I am not confident that the parents have a sufficiently robust parenting alliance to sustain an equal time arrangement. For me to find that such an arrangement was in the best interests of the children I would need to conclude that their communication is up to the task of implementing the equal time arrangement. The conclusion is not available on the present evidence.
In addition, the children’s ages and experience of being parented almost exclusively by their mother make such a significant change unwarranted. The mother works part time to accommodate her caring responsibilities while the father is employed full time. Dr D did not believe that such an arrangement was presently in the best interests of the children and I cannot predict that it may be in the future. Accordingly, I will make orders that the children live with the mother and spend substantial and significant time with their father.

I certify that the preceding one hundred and ninety-five (195) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.
Associate:
Dated: 24 March 2022

File number(s):	WOC 1638 of 2020
Judgment of:	CHRISTIE J
Date of judgment:	24 March 2022
Catchwords:	FAMILY LAW – CHILDREN – FAMILY VIOLENCE - Child sexual abuse – Whether the father poses a risk to the children – No risk found – Relocation – Where the children are not at an unacceptable risk of sexual abuse – Substantial and significant time with the father - Whether the mother poses a psychological risk to the children – Where it is in the children’s interest that the parents live in proximity to one another. FAMILY LAW – BEST INTERESTS - Equal shared parental responsibility where presumption under s 61DA of the Family Law Act 1975 is not rebutted.
Legislation:	Family Law Act 1975 (Cth) ss 60B(1)(b), 60CC(2)-(3), 61DA.
Cases cited:	M v M (1988) 166 CLR 69, N & S and the Separate Representative [1996] FLC 92 – 655, Sampson and Hartnett (No. 10) (2007) FLC 93 – 350.
Number of paragraphs:	195
Date of hearing:	14 February 2022
Place:	Sydney
Counsel for the Applicant:	Ms Lawson
Solicitor for the Applicant:	Shoalhaven Family Law
Counsel for the Respondent:	Ms Treherne
Solicitor for the Respondent:	WM Lloyd & Associates
Solicitor for the Independent Children's Lawyer:	Mr Nasti, S P Nasti & Co Solicitors

WOC 1638 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GLANVILLE Applicant
AND:	MS PERCY Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	24 MARCH 2022