Greer and Carson

FAMILY COURT OF AUSTRALIA

GREER & CARSON

[2009] FamCA 770

FAMILY LAW - CHILDREN - With whom a child lives - Both parents are seeking orders that the children live with them and spend supervised time with the other parent - Unacceptable risk of harm - Mother alleges the father sexually abused the children - Father denies sexually abusing the children and argues that the false allegations by the mother constitute emotional abuse of the children - The Court is not satisfied on the evidence that the father sexually abused either child at any time - Interim orders made for the children to live with the mother and spend time with the father each alternate weekend and half of school holidays - Therapeutic counselling ordered for both parties after which the Court can assess the success of the therapeutic intervention - Parental responsibility - Mother and father to have equal shared parental responsibility for the children
FAMILY LAW – CHILDREN – Best interests

Family Law Act 1975 (Cth)

Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 16, 36, 38, and 42

A v A (1998) FLC 92-800
Amalgamated Television Services Pty Ltd v Marsden (2002) NSWCA 419
B & B (1993) FLC 92-357
Briginshaw v Briginshaw (1938) 60 CLR 336
Goode & Goode (2006) FLC 93-286;
J v Lieschke (1987) 162 CLR 447
Johnson & Page (2007) FLC 93-344
Napier & Hepburn (2006) FLC 93-303
Qantas Airways Ltd v Gama (2008) 247 ALR 273
Re W (Sex abuse: standard of proof) (2004) FLC 93-192
Rice & Asplund (1979) FLC 90-725
WK v SR (1997) FLC 92-787

APPLICANT:

Mr Greer

RESPONDENT:

Ms Carson

INDEPENDENT CHILDREN’S LAWYER:

Adams & Associates, Solicitors

FILE NUMBER:

NCC

1246

2008

DATE DELIVERED:

26 August 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Austin

HEARING DATE:

12 to 14 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr R Wilkinson
SOLICITOR FOR THE APPLICANT:	Emery Partners, Solicitors
COUNSEL FOR THE RESPONDENT:	Ms V Hollins
SOLICITOR FOR THE RESPONDENT:	Craney, Family Solicitors
COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Ms D Burns
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Adams & Associates, Solicitors

Orders

PENDING FURTHER ORDER, IT IS ORDERED:

That all former parenting orders, including but not limited to those made on 12 March 2007, 27 August 2008 and 31 October 2008 are discharged.
That the mother and father shall have equal shared parental responsibility for the children, B born … January 2002 and E born … January 2004.
That the children shall live with the mother.
That each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
(a)From 5.00pm on Friday 28 August 2009 until 12 noon on Saturday 29 August 2009.
(b)During New South Wales public school terms, each alternate weekend from 5.00pm Friday until 5.00pm Sunday, commencing on Friday 11 September 2009.
(c)During New South Wales gazetted school holidays (except the Christmas school holidays), for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
(d)During the New South Wales gazetted Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
That for the purposes of implementation of Orders 4(c) and 4(d), the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, and the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid-point is the day between those first and last days.
That Order 4 is suspended during the following periods:
(a)From 3.00pm on Christmas Eve until 3.00pm on Boxing Day each year, during which period the children will spend time with the father from 3.00pm on Christmas Day until 3.00pm on Boxing Day, and with the mother from 3.00pm on Christmas Eve until 3.00pm on Christmas Day in even numbered years, with the same arrangements in reverse in odd numbered years.
(b)Between 10.00am and 5.00pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
That each of the parties shall take all reasonable steps to ensure that the children communicate with:
(c)The father each Tuesday and Friday when the children are living with the mother, between 6.00pm and 7.00pm, and for that purpose the father shall telephone the children on mobile telephone number 04…, and the mother shall ensure that the children are able to receive the father’s calls at that number.
(d)The mother each Saturday and Wednesday when the children are spending time with the father, between 6.00pm and 7.00pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father, and the father shall ensure that the children are able to receive the mother’s calls at that number.
That for the purpose of implementing the time spent by the children with the father:
(e)Pursuant to Order 4(a), and for the first two occasions pursuant to Order 4(b), the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the W Contact Centre, New South Wales, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place, but in the event of closure of W Contact Centre at any of those delivery and collection times Order 8(b) shall apply.
(f)Subject to Order 8(a), the mother shall cause the delivery and the father shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonalds Restaurant at K, New South Wales, and the father shall cause the delivery and the mother shall cause the collection of the children at the conclusion of the time spent with the father at the same place.
That each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
That each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
That each parent shall notify the other of any medical emergency or illness, or injury suffered by the children or either of them whilst in their respective care, warranting treatment by a third party, and shall authorise any treating health professional to communicate with the other parent about the condition and treatment of the child or children.
That each parent, insofar as it is respectively known to them, shall keep the other informed of all educational, sporting, cultural, and extra-curricular events in which the children are to participate.
That the parties shall forthwith inform, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
That the mother shall forthwith procure and maintain a communication book to facilitate communication between the parties in respect of issues related to the children and each party shall relay important information concerning the children to the other by way of written notification in the communication book, which will travel with the children at change-overs.
That both parties shall forthwith enrol themselves to commence, participate in, and complete a post-separation parenting program, subject to the approval of that program by the family consultant.
That the mother shall do all such things and sign all documents as may be necessary to commence therapeutic treatment with a psychiatrist, for as long as is deemed necessary by that psychiatrist, within 14 days of the date of these Orders, and for that purpose:
(g)The mother shall meet the cost of such treatment.
(h)The mother shall inform the independent children’s lawyer and the family consultant of the name and contact details of that psychiatrist.
(i)The mother will waive confidentiality, and irrevocably authorise the psychiatrist, in writing to:
i)consult with the family consultant and psychologists appointed under Orders 17 and 18 hereof; and
ii)make files, notes, reports, and documents available for inspection and production on subpoena, by the family consultant, independent children’s lawyer and parties.
That the father shall do all such things and sign all documents as may be necessary to commence therapeutic treatment with a psychologist, for as long as is deemed necessary by that psychologist, within 14 days of the date of these Orders, and for that purpose:
(j)The father shall meet the cost of such treatment.
(k)The father shall inform the independent children’s lawyer and the family consultant of the name and contact details of that psychologist.
(l)The father will waive confidentiality, and irrevocably authorise the psychologist, in writing to:
i)consult with the family consultant, psychiatrist appointed under Order 16, and psychologist appointed under Order 18 hereof; and
ii)make files, notes, reports, and documents available for inspection and production on subpoena, by the family consultant, independent children’s lawyer and parties.
That the parties and independent children’s lawyer shall forthwith confer for the purpose of jointly choosing a psychologist with whom both children are to consult for therapeutic counselling, with such counselling to commence within 14 days of the date of these Orders, and for that purpose:
(m)The parties shall meet the cost of that counselling in equal shares and pay their respective shares of the fees promptly upon request.
(n)The parties and independent children’s lawyer shall inform the family consultant of the name and contact details of that psychologist.
(o)The parties and independent children’s lawyer will waive confidentiality, and irrevocably authorise the psychologist, in writing to:
iii)consult with the family consultant, psychiatrist appointed under Order 16, and psychologist appointed under Order 17 hereof; and
iv)make files, notes, reports, and documents available for inspection and production on subpoena, by the family consultant, independent children’s lawyer and parties.
That the independent children’s lawyer shall furnish copies of the Family Report dated 28 May 2009 and a sealed copy of these Orders to the psychiatrist and psychologists appointed pursuant to Orders 16, 17 and 18 hereof, for the limited purpose of their use in therapy.
That the independent children’s lawyer is authorised to provide copies of documents produced on subpoena to the psychiatrist and psychologists appointed pursuant to Orders 16, 17, and 18 hereof, as may be required by those therapists, for the limited purpose of their use in therapy.
That the family consultant shall furnish the Court with an updated family report pursuant to s.62G of the Family Law Act 1975 by Wednesday 24 March 2010.
That this matter is adjourned to 9.30am on Wednesday 31 March 2010 before Justice Austin for further directions.
Liberty to apply on seven (7) days written notice.
That pursuant to s.65DA(2) and s.62B of the Family Law Act 1975, the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

NOTATIONS:
A.These Orders may be inconsistent with an existing Apprehended Violence Order made against the father in favour of the mother by the Local Court on or about 12 February 2009, insofar as that Apprehended Violence Order may also purport to protect the children as persons who live in a domestic relationship with the mother, in which event Division 11 of Part VII of the Family Law Act 1975 applies and these Orders prevail to the extent of any inconsistency.
B.The maternal grandmother is not a party to these proceedings. In view of the evidence given by the family consultant, in her presence, it is expected that the maternal grandmother will attend upon the same form of therapeutic treatment and upon the same conditions as the mother pursuant to Order 16 hereof.
C.Ms C is not a party to these proceedings. In view of the evidence given by the family consultant, in her presence, it is expected that Ms C will attend upon the same form of therapeutic treatment and upon the same conditions as the father pursuant to Order 17 hereof.

IT IS NOTED that publication of this judgment under the pseudonym Greer & Carson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC1246 of 2008

MR GREER

Applicant

And

MS CARSON

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court for determination are competing applications for parenting orders in relation to two young children.
The competing positions of the parents could hardly be more polarised.
In his Amended Application filed on 26 June 2009 the applicant father essentially seeks the allocation of parental responsibility for the children to him solely; that the children live with him; and that the children spend extremely restricted supervised time with the mother.
Conversely, in her Amended Response filed on 3 December 2008, the respondent mother similarly seeks the allocation of parental responsibility in respect of the children to her solely; that the children live with her; and that the children spend similarly restrictive supervised time with the father. However, during the hearing the mother altered her position to seek the allocation of equal shared parental responsibility to her and the father.
The parties separated in February 2007. Final parenting orders were consensually made between the parties at the Local Court on 12 March 2007. Although those orders were final, the parties have bilaterally proceeded on the basis that the current litigation is not precluded by the principle established by Rice & Asplund (1979) FLC 90-725 because of a seismic change in the family’s circumstances.
Although the parties complied with the consent orders for some 12 months, the mother refused to permit the children to spend any time with the father after about March 2008 when her suspicions crystallised about the alleged sexual molestation of the children by the father. The father commenced the current proceedings a relatively short time later on 14 May 2008 and both parties now conduct this litigation on the basis that the past final orders ought to be changed.
Two principal issues have emerged in the proceedings.
Firstly, there is the question of the alleged sexual abuse of the children by the father, and the extent to which there is an unacceptable risk of that occurring in the future if they live or spend time with him.
Secondly, if those allegations are not sustained and there is no unacceptable risk of future abuse posed to the children by him, the question arises as to whether the mother continues to emotionally abuse the children by encouraging or permitting the perpetuation of the false allegations against, and their fear of, the father.

Evidence relied upon by the parties

The father read the following affidavits in his case:
(p)       Affidavit of the father filed on 14 May 2008.
(q)       Affidavit of the father filed on 22 August 2008.
(r)       Affidavit of the father filed on 11 May 2009.
(s)       Affidavit of the father filed on 31 July 2009.
(t)        Affidavit of Ms C filed on 22 August 2008.
(u)       Affidavit of Ms T filed on 22 August 2008.
(v)       Affidavit of Ms G filed on 2 September 2008.
The mother read the following affidavits in her case:
(w)      Affidavit of the mother filed on 7 July 2008.
(x)       Affidavit of the mother filed on 26 February 2009.
(y)       Affidavit of the maternal grandmother filed on 15 July 2009.
The independent children’s lawyer adduced evidence from the family consultant, Ms Y, in the form of her Family Report dated 29 May 2009.

Background history

The father was born in 1967. At the time of hearing the father was 42 years of age.
The mother was born in 1965. At the time of hearing the mother was 44 years of age.
The parties formed a de facto relationship in about March 1997. They finally separated nearly 10 years later in February 2007.
During the period of the parties’ relationship they had two children, being B (born in January 2002) and E (born in January 2004).
At the time of hearing, B was 7 years of age and E was 5 years of age.
At the time of separation in February 2007 the family was living in a home at L. The father vacated the home and the mother remained in occupation of the home with the children. The mother and the children have remained there since.
Upon separation, the father went to live in a caravan at Ms T’s property situated at 3 Mary Street, A. That accommodation was arranged for the father by the mother.
A consensual arrangement arose whereby the father would frequently visit the children, on almost a daily basis after school hours, at the home of the mother. Sometimes the mother would be present and sometimes she would not. The children would also spend time with the father on weekends at the mother’s home.
Within a few weeks of the separation the mother went to the Local Court and consulted “Mr Mackenzie” who appears to have then occupied the position of Registrar of the Local Court. In accordance with the mother’s instructions, the Registrar compiled a document entitled “Family Law Act 1975 – Terms of Settlement”. At the request of the mother, the father attended the Local Court and both parties then consulted the Registrar concerning the terms of settlement prepared by him. Without advice from independent lawyers, both the mother and father signed the document and their signatures were respectively witnessed by the Registrar. That occurred on 12 March 2007. In circumstances that are not plain from the evidence, the terms of settlement executed by the parties in the presence of the Registrar became the sealed orders of the Local Court.
In summary, those orders provided that:
(z)The children reside with the mother (Order 1).
(aa)The mother have responsibility for the day to day decisions concerning the care, welfare and education of the children (Order 2).
(bb)The mother and father have joint responsibility for the long-term decisions concerning the care, education and welfare of the children (Order 4).
(cc)The father have contact with the children as agreed to by the parties (Order 5).
After the making of those orders, the time spent by the children with the father ensued uneventfully.
The father formed a new relationship with Ms C in or about April 2007, and they later established a de facto relationship which continues to exist at the present time. The father purchased a residential property at A. The father and Ms C currently live in that home.
The parties communicated, often in writing, making arrangements about the times that the children would spend with the father. The children began spending overnight time with the father with the consent of the mother, towards the end of 2007.
In or about March 2008, the mother ceased being conciliatory about the time that the children would spend with the father. The father sent faxes and telephoned the mother to arrange for the children to spend time with him, but the mother was inexplicably evasive. That situation prevailed for several weeks until the father commenced the present proceedings with an Initiating Application filed by him on 14 May 2008.

When the mother filed her Response and affidavit in support on 7 July 2008, it became apparent that the mother was alleging either the actuality or potentiality of the father’s sexual molestation of the children, and that that was the reason for her opposition to the children spending further time with the father.
The mother’s affidavit contained a series of dated incidents in which she asserts that one or other of the children made complaints to her about sexually orientated behaviour of the father, or themselves behaved in overtly sexualised ways. As a consequence of what the mother was told and observed, she feared that the father had sexually molested the children and unilaterally decided to terminate the time that they spent with him.
The matter came before the Court for hearing on 27 August 2008, and on that date interim parenting orders were made, including the following:
1.1That pending further order, paragraph 4 of the Consent Orders made in the Local Court on 12 March 2007 be suspended.
1.2That pending further order, and subject to the availability of Ms I to supervise the children, B and E spend time with the father on weekends for a period of two hours such time to be supervised by Ms I, the first such occasion to occur on Saturday 27 July 2008 between 2.00 pm and 4.00 pm.
The matter came back before the Court about two months later on 31 October 2008 at which time the further interim parenting order was made:
1.The father spend time with the children [B] and [E] on alternate weekends at the [W Contact Centre] for a period of two hours supervised with such times to be in weeks when the children do not spend time with the father pursuant to Order 1.2 of the Orders of 27 August 2008.
The proceedings were transferred from the Federal Magistrates Court to the Family Court of Australia on 2 July 2009, and came before this Court for hearing, commencing on 12 August 2009.

Evidential basis for sexual assault allegations

The mother relies upon a string of incidents involving each of the children from which she draws the conclusion that they have each been sexually abused by the father.
The mother alleges that following the children’s first overnight visit with the father on 3 and 4 November 2007, E said that she had a “stingy bottom” and B reported that E had slept in the father’s bed with him.[1]
[1] Mother’s Affidavit filed 7 July 2008, para. 38
The mother alleges that upon the children’s return from the father on 24 and 25 November 2007 E said “my bottom hurts” and “it stings when I do a wee”.[2]
[2] Mother’s Affidavit filed 7 July 2008, para. 39
The mother alleges that on 4 January 2008, following their return from the father, she was bathing the children. Both children complained that it stung when they urinated. When E got into the bath she allegedly said “Daddy hurt my bottom with the soap”. She put her hand down to her vaginal area and said “I told him it hurt but he didn’t stop”.[3]
[3] Mother’s Affidavit filed 7 July 2008, para. 40
The mother alleges that later that evening B pulled down her own pants and those of E, then bent E over the lounge and proceeded to mimic a sexual act upon her from behind.[4]
[4] Mother’s Affidavit filed 7 July 2008, para. 41
On 8 January 2008 the mother took the children to a general practitioner and arranged for urine specimens and swabs to be taken from the children.[5] She conceded in cross-examination that she did so because she suspected a medical affliction in the children, not because of any suspected sexual abuse of them.
[5] Mother’s Affidavit filed 7 July 2008, para. 42
The next day, being 9 January 2008, the mother was bathing the children and dropped the soap into the bathwater. The mother alleges that E jumped up screaming and said “get it out, get it out” and “It’s going to go in [B’s] bottom”.[6]
[6] Mother’s Affidavit filed 7 July 2008, para. 43
The mother reports that she saw both children around that time behaving in a manner which manifested stress. She reports seeing E pulling out strands of her hair and B grinding her teeth. When the mother questioned E about whether anything was wrong, E told her “I can’t tell you, it’s a secret”.[7]
[7] Mother’s Affidavit filed 7 July 2008, para. 44
On 24 January 2008 the mother alleges seeing E pull down her pants and then grab her outer vaginal area and spread it apart. The mother reports E as then saying “Dad puts cream on my bottom with a stick”.[8]
[8] Mother’s Affidavit filed 7 July 2008, para. 45
Upon the children’s return from the father’s house on 16 March 2008 the mother attempted to bathe the children. B would not sit down in the bath and complained of being sore. The mother enquired as to where she was sore in response to which B pulled her outer vaginal area open and said “you can look but don’t put your fingers in”.[9]
[9] Mother’s Affidavit filed 7 July 2008, para. 47
From that point, the mother began involving outside agencies. She spoke with a social worker and staff at the North Shore Hospital and Westmead Sexual Assault Unit. The mother also telephoned Hunter Health and the NSW Department of Community Services.[10]
[10] Mother’s Affidavit filed 7 July 2008 para. 48
The following day, being 17 March 2008, the mother took the children to see their general practitioner, who referred the children to the Sexual Assault Service at D. The mother made an appointment with that organisation and both children were then medically examined by a paediatrician, Dr M, on 26 March 2008.[11]
[11] Mother’s Affidavit filed 7 July 2008, para. 51
The medical examinations of both children’s genitalia revealed no abnormality.
The mother thereafter consulted the NSW Department of Community Services, a lawyer at Newcastle Legal Aid NSW, the Benevolent Society, B’s school, and E’s day care centre.[12]
[12] Mother’s Affidavit filed 7 July 2008, paras 52-53
The maternal grandmother also reports personally observing both B and E to pull apart their front genital areas, and also having seen B often touching herself and adjusting her underwear continuously.[13]
[13] Affidavit of the maternal grandmother filed 15 July 2009, paras 17-18
On 24 April 2008, the maternal grandmother alleges that E complained to her about the father disturbing her genitalia with soap, and also witnessing B lying on her back with her underwear pulled down and E bending over and looking at B’s genitals.[14]
[14] Affidavit of the maternal grandmother filed 15 July 2009, paras 21-23
The mother alleges that on approximately 28 May 2008, E told her that “sometimes Daddy puts his hand in my pants and puts his fingers in his mouth”.[15]
[15] Mother’s Affidavit filed 7 July 2008, para. 60
The maternal grandmother alleges that on 30 May 2008, E complained to her that her father had hurt her bottom and it was still sore. She alleges that B also alleged that the father had hurt her, and put her hand on her clitoral area.[16]
[16] Affidavit of the maternal grandmother filed 15 July 2009, paras 35-37
The maternal grandmother also alleges being told by E that the father had said to her that her bottom was all pink inside, although when that was said is unspecified.[17]
[17] Affidavit of the maternal grandmother filed 15 July 2009, para. 45
The mother alleges that on 11 June 2008, B was in the bath and spread her legs, grabbed hold of what could have been her clitoral area, pulled the skin out and said:
“See Mum this is the boy’s thing. This is the problem.”[18]
[18] Mother’s Affidavit filed 7 July 2008, para. 61
The mother alleges that E again mentioned the “soap in the bath incident” on 9 September 2008.[19]
[19] Mother’s Affidavit filed 26 February 2009, para. 11
The mother alleges bathing the children together on 3 December 2008 at which time she saw E extend her leg and force her foot into B’s crotch. When questioned by the mother as to why she had done that, E is reported to have replied “so that the soap won’t get into [B’s] bottom”.[20]
[20] Mother’s Affidavit filed 26 February 2009, para. 25
The mother alleges that on 31 January 2009 she was preparing to take the children to the beach. She reports B complaining to her that E had tried to put her finger into her bottom. The mother alleges speaking to E and asking her why she tried to put her finger into B’s bottom which elicited a response from E to the effect of “that’s what Dad did”.[21]
[21] Mother’s Affidavit filed 26 February 2009, para. 33

Evaluation of the sexual assault allegations

The cross-examination of the mother was illuminating. She conceded that she harboured no suspicion about the father’s sexual abuse of the children until 16 March 2008. That is consistent with her acquiescence to the continuance of the children’s expenditure of time with the father up until that time. She and the father were still corresponding up until then about the time that the children would spend with him.[22]
[22] Father’s Affidavit filed 22 August 2008 para. 38(j), 38(k)
The crystallisation of the mother’s suspicion on 16 March 2008 occurred as a consequence of her consulting a counsellor at the Westmead Sexual Assault Clinic on that date. She was advised to write out a list of concerning incidents that had occurred over preceding months.[23] She complied with that advice. When she reviewed her list that evening she says that the realisation dawned upon her that the father had sexually abused both children. After that time she could not countenance any other plausible hypothesis for the children’s behaviour and complaints.
[23] Mother’s Affidavit filed 7 July 2008 para. 49
Axiomatically, the events referred to in her affidavit, which covered the period between November 2007 and 16 March 2008, took on significance in her mind that had not previously been apparent to her.
When questioned during cross-examination, the mother repeatedly asserted that she genuinely believed, from what she had seen and heard, that the father had sexually abused both children on multiple occasions. The maternal grandmother maintained the same belief.
It is important to record at this point that, with one exception later addressed, the allegations of the mother and maternal grandmother are not corroborated by any other person or document. In some instances, they are actually contradicted, and the contradictions relate to both children.
The mother alleges that on 15 December 2008 she had a conversation with a person named “Z” at the Child care Centre when she collected E, at which time she alleges that she was told by Z words to the effect “[E] has made a disclosure to me about her father” and “I have telephoned DOCS and reported what she said, that’s what I have to do”.[24]
[24] Mother’s Affidavit filed 26 February 2009, para. 43
The mother’s counsel conceded that there was no corroborative record of any report being made about E to the NSW Department of Community Services by any person from the Child Care Centre. Subpoenas issued to both those organisations failed to disclose any such report.
The family consultant was understandably interested in that alleged incident, and therefore contacted the Director of the Child Care Centre at K and was told there were no concerns in respect of E’s behaviour throughout her time at the centre. The family consultant was told by the Director that at one time a mandatory child at risk report was made to the NSW Department of Community Services following a staff member observing E role playing with dolls in a sexualised manner, but there is no record of any such report in either the files of the NSW Department of Community Services or the Child Care Centre.[25]
[25] Family Report, para. 125
The mother alleges speaking to a teacher at B’s school named “Ms P” in mid August 2008, at which time she discussed B’s alleged concerns about her father. The mother contends that the teacher said to her at the time “I have had to report a conversation I heard between [B] and another child to DOCS”.[26]
[26] Mother’s Affidavit filed 26 February 2009, para. 7
That piece of evidence also excited the interest of the family consultant, who contacted Ms P directly. Ms P had been B’s class teacher in the 2008 academic year. Ms P reported to the family consultant that she had no concerns in respect of B’s behaviour or demeanour at any time in 2008. In particular, Ms P stated that B had never displayed any sexualised behaviour or made any comments of a sexual nature. Ms P expressly stated to the family consultant that there had been no information or incident that required her to make a mandatory “child at risk” report to the NSW Department of Community Services, and that there had been nothing inappropriate or concerning about the father’s interaction with B during the Easter bonnet parade at the school in 2008.[27] It is simply impossible to reconcile the evidence of the mother and the comments of Ms P to the family consultant. One of them must be mistaken or untruthful.
[27] Family Report, paras 107-109
It is particularly salient that neither staff at B’s school nor E’s pre-school saw any behaviour that warranted any professional intervention, especially given that the mother approached both the school and pre-school to advise staff of her fears about the father’s sexual abuse of the children and warned them to be vigilant in that context.
The mother says that she took the precautionary action on the advice of some person she had consulted at one of the agencies to which she had been referred. It remains unclear to me whether that person was Ms O from the Benevolent Society as she stated in her affidavit,[28] or Ms R from the D Health Campus as she stated in oral evidence. It seems from the evidence that the approach to B’s school was made by both the mother personally, and by one of the agencies on her behalf. The mother was cross-examined about her private diary entry dated 26 May 2008 reminding herself to approach the school to warn staff of the danger posed by the father, and to do so in the presence of B.[29]
[28] Mother’s Affidavit filed 7 July 2008 para. 53
[29] Exhibit F6
The mother accepted in cross-examination that the material produced on subpoena from B’s school suggests that she is a bright, happy, little girl. That conflicts with the evidence adduced by the mother.[30] Evidence also indicates that E was a happy, secure child who interacted well with other children and staff at her pre-school, displaying no sexualised behaviour or behavioural changes.[31] Observations to that effect were also made about the children by the family consultant.
[30] Mother’s Affidavit filed 7 July 2008 para. 55; Affidavit of maternal grandmother filed 15 July 2009 para. 16
[31] Exhibit F13
The incident which primarily underpins the mother’s belief of the father’s sexual abuse is the repeated complaint about the contact between soap and genitalia in the bath. There are some curiosities about that incident when the evidence is carefully examined.
The father alleges that the description of that incident has mutated over time. It is described slightly differently in the version given by the mother to Dr M at the time of the girls’ physical examination on 26 March 2008,[32] and in the version given by the mother in her affidavit.[33] The father places considerable significance on the difference, but I do not. The difference is not so striking in my view.
[32] Mother’s Affidavit filed 7 July 2008 Annexures E and F
[33] Mother’s Affidavit filed 7 July 2008 para. 40
However, of more significance is the fact that when the mother consulted the D Health Unit on 17 March 2008, she alleged that the “soap in the bath” incident had been the subject of complaint by one or both of the children the night before – being 16 March 2008. There is no mention by the mother in her affidavit of such an incident when she was at pains to catalogue the list of incidents that gave rise to her belief about the sexual abuse.[34] The omission of that alleged event from her chronology is puzzling.
[34] Mother’s Affidavit filed 7 July 2008 paras. 38-51
Of more concern still, is the sense of utter confusion that now pervades the entire incident.
The incident was originally reported to the mother as involving only E.[35] The mother does not report B as having complained to her about being involved. However, the maternal grandmother alleges that B made such a complaint to her on 30 May 2008,[36] which was many months after E had originally complained to the mother on 4 January 2008. The mother reports that B complained to her counsellor on 19 January 2009 about her abuse by the father in that form,[37] although that may have in fact occurred on 20 January 2009,[38] but when the family consultant conferred with B on 20 April 2009 she resiled from the complaint that she was personally involved.[39]
[35] Mother’s Affidavit filed 7 July 2008 para. 40
[36] Affidavit of the maternal grandmother filed 15 July 2009 paras. 35-39
[37] Mother’s Affidavit filed 26 February 2009 para. 35
[38] Exhibit ICL 23
[39] Family Report para. 93
With the exception of B’s passing reference to the “soap in the bath” incident in discussion with the counsellor on 19 or 20 January 2009, despite the extensive recent history of professional intervention in the lives of the children reported by the mother[40], no other witness reports, and no other document records, any complaint made by either child against the father about any form of sexual abuse.
[40] Mother’s Affidavit filed 26 February 2009, paras 34-44
The father stridently denies any form of sexual abuse of either child. The father’s rebuke of such a suggestion in cross-examination was convincing.
The father adduced evidence in his case from his former wife, MS G. She deposed to her awareness of the allegations made against the father in these proceedings and she reports that such allegations are out of character for the father in her opinion of him. Ms G furthermore reports that their children deny any sexual or physical abuse at his hands. She was not cross-examined.
The father has also adduced evidence in his case from his current partner, Ms C.
In general terms, Ms C denies the allegations levelled at the father having regard to her knowledge of both the father and the children. More specifically, Ms C casts doubt on the “soap in the bath” incident repeatedly mentioned in the mother’s affidavit material. Ms C’s denial of that incident arises from her assertion that soap has never been used in the household comprising the father, herself, and her own two children. Ms C and her two children suffer from skin irritation when using soap and consequently they have only ever used a pump-pack non-allergenic body wash in their household. Ms C has always been present when the children have been with the father and she ordinarily supervised the bathing of the children. She refutes that the father could have assaulted either of his children with a bar of soap in the household that he shares with her. Ms C was not cross-examined either.
The father’s evidence was that the mother’s allegations of his sexual abuse of the children coincided with a dispute arising between them about the agreement they had previously reached about the division of matrimonial property. He attributes to the mother as a motive for making the false allegations her wish to avoid the prospect of him moving to re-open their property settlement agreement.
The mother admits not publicly disclosing her proprietary interest in a parcel of real property at the time that the parties concluded their property settlement agreement, although that was not an agreement ratified by the Family Court. The father threatened to take litigious steps to re-open the property settlement agreement, of which threat the mother was aware, but later decided against instituting such litigation.
Although there may have been a temporal correlation between the father’s notification to the mother of prospective litigation and the making of the sexual abuse allegations against the father by the mother, I am not satisfied on the evidence that the allegations of the mother are fraudulent for that reason. There would be no basis for finding such a connection between the events, but for the husband’s bare suspicion and the coincidental timing of those events. The father admitted in evidence that he did not form the view that the mother was coaching the children about the allegations until some time later upon the commencement of supervised time between the children and the father following the orders in August 2008.

Legal principles concerning alleged sexual abuse and unacceptable risk

This Court is frequently confronted in parenting cases with allegations by one party against another that the other has abused the children, either sexually or physically. It is understandably contended in those circumstances that the existence of such past abuse is an impediment to the children living or spending time in the future with the perpetrator of that abuse – because that future contact would expose the children to either the certainty, probability, or potentiality of further abuse.
It has been authoritatively determined that such allegations of abuse ought to be critically analysed, but only within the context of the Family Law Act (“the Act”). It is not the function of the Family Court to necessarily adjudicate upon the veracity of the allegations of abuse. The Court should not divert its attention from the task imposed by the Act, which is to reach a parenting outcome on the evidence which is in the best interests of the children.
As the High Court said in M & M (1988) 166 CLR 69 at 76-77:
“…it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352 at pp 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf J v Lieschke (1987) 162 CLR 447 at pp 450, 458, 462, 463-464.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard for the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362…
…in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so….
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk.”
That commentary has been discussed and adopted by the Full Court of the Family Court on numerous occasions since.
In B & B (1993) FLC 92-357 the Full Court said at 79,778:
“The test propounded by the High Court in M & M and which is authoritative in this jurisdiction, is ‘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’.
The ‘unacceptable risk’ test is therefore the standard used by the Family Court 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’. In other words, where the court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.”
It should be noted that those principles are applicable to all allegations of risk of harm, including family violence. They are not confined to allegations of risk by reason of sexual abuse. As the Full Court said in A v A (1998) FLC 92-800 at 84,994 – 84,995:
“…though the High Court was in M & M talking in terms of sexual abuse, the same principles apply to ‘other risks of harm’ to the child.
The Full Court recognised (at 84,996) that the risk covered not only physical, but also emotional, harm, saying:
“Usually they are sexual abuse or similar cases, but this approach includes cases of the type identified here which involve the assessment of the risk of future physical and/or emotional harm.”
In WK v SR (1997) FLC 92-787 the Full Court emphasised the distinction between a positive finding of abuse on the one hand, and a finding of unacceptable risk on the other, saying (at 84,694):
“…before trial judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s.140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect references are insufficient to ground a finding of abuse.”
In Re W (Sex abuse: standard of proof) (2004) FLC 93-192 the Full Court again examined the principles applicable in cases involving contested allegations of child sexual abuse, emphasising the need for rigorous evaluation of the evidence, and observing that the termination of a relationship between the child and the allegedly abusive parent ought generally be the course of last resort. The Full Court said (at 79,217-8):
“Unless a rigorous approach is taken, where the often-inevitable result of a positive finding is the cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child that an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to remain conscious of this imperfection at all times…
The lessons to be learned have not changed. The risk that the Court will find heinous behaviour where none has occurred needs to be borne in mind at all times. The harm and injustice that flows to both parent and child from an erroneous positive is almost too horrible to contemplate.”
In W v W (Abuse allegations; unacceptable risk) (2005) FLC 93-235 the Full Court considered what is meant by “unacceptable risk”, the possible severance of a meaningful parent/child relationship, and the appropriateness of maintaining that relationship by way of supervision. After reviewing numerous decisions in which the concept of “unacceptable risk” was considered, the Full Court concluded (at 79,910):
“In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an ‘unacceptable risk’ and the cases determined after that decision testify to the difficulty.”
The Full Court (at 79,911) expressly avoided the statement of any principles or guidelines about the circumstances in which orders might be imposed by the Court providing for extended supervision of a parent/child relationship as a means of abating a risk of future abuse from an “unacceptable” to an “acceptable” level. Importantly though, the Full Court found (at 79,902 and 79,918) that the trial judge in that case had not fallen into error in making orders for supervision of the ongoing relationship between the child and allegedly abusive parent, which arrangement would then be reviewed by the Court after the elapse of a number of years.
In Napier & Hepburn (2006) FLC 93-303 (at 81,114 - 81,115) the Full Court recognised that the “unacceptable risk” test was not a magical incantation, but rather a real benchmark by which a court must evaluate whether or not, and why or why not, the evidence manifests an unacceptable risk of harm to the subject child. That entails critical analysis of the nature and degree of the alleged risk, and whether the risk should be categorised as unacceptably high, even with the imposition of safeguards.
Again the Full Court in Napier & Hepburn emphasised the distinction between a finding of sexual abuse and a finding of unacceptable risk, referring to earlier authorities with approbation, saying (at 81,117):
“…the failure to be satisfied of the occurrence of sexual abuse on the balance of probabilities does not of itself answer the question whether an unacceptable risk can be said to exist. There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, although that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
The observations of the Full Court in Napier & Hepburn were endorsed by the Full Court in Potter & Potter (2007) FLC 93-326 at 81,636.
The deleterious effects of sexual abuse upon a child can scarcely be overstated. As the Full Court recognised in W v W (Abuse allegations; unacceptable risk) at 79,906:
“Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
Clearly, the perpetration of sexual abuse upon a child is an anathema to the best interests of the victim, and the Court must be vigilant to prevent it.
Whilst the authorities are replete with references to the Briginshaw standard of proof, it must be remembered that the common law Briginshaw standard has been supplanted by the provisions of s.140 of the Evidence Act 1995 (Cth). That is not to say that the statutory and common law formulations are in conflict. Section 140(2) reflects the jurisprudential points found in Briginshaw (Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 at [61]). However, the evidence adduced must be analysed in light of the statutory provision (Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891; Qantas Airways Ltd v Gama (2008) 247 ALR 273 at 306, 312).
If the Court reaches the conclusion that there is no unacceptable risk, when the evidence is measured against that standard of proof, the Court must then consider the separate issue of the accusing parent’s belief in the occurrence of the events, which will of itself potentially influence the parenting outcome. In A v A (at 84,996) the process is set out as follows:
“It is only in cases where the trial judge reaches a conclusion that objectively there was no unacceptable risk that the judge would need to turn to the separate question of the wife’s belief in the occurrence of the events in question as a separate matter…
…if the wife had such a belief it is not a necessary component that the belief should be reasonably and objectively based. What is required at this level of the inquiry is that it was genuinely held…
The first inquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether it will have a significant impact on the party’s capacity as the resident parent and so impinge on the interests of the children. The Court then needs to take steps proportionate to that circumstance.”

Findings about alleged past abuse and risk of future abuse

By reference to those principles, I cannot be satisfied on the evidence that the father sexually molested either child at any time. I should note that the mother’s counsel conceded, when asked, that the Court could not be satisfied that the father had done so.
However, the mother’s counsel still pressed for a finding that the father posed an unacceptable risk to the children, but I cannot be satisfied on an objective basis that there is an unacceptable risk of the father sexually abusing either child at any time in the future.
The father contended that the allegations of the mother were complete fabrications. I reject that submission. I accept that the children did say words to the mother at various times that, whilst susceptible to ambiguity, did arouse her curiosity. However, when her suspicion was finally aroused, events over preceding months were retrospectively imbued with a sinister connotation. Thereafter, any further comments and conduct of the children were viewed through that prism of suspicion. I am moved to conclude that the same unfounded suspicion infected the opinions of the maternal grandmother, who clearly had a vested interest in supporting her daughter and protecting her grandchildren.
The propensity of the mother and maternal grandmother to unjustifiably think the worst about the father is exemplified by two unrelated incidents, which lead me to conclude that the mother and maternal grandmother react histrionically towards events concerning the father.
The first incident was in a suburban car park.
The maternal grandmother had the children with her in a parked car. The mother was not present. The mother alleges in her evidence that the maternal grandmother and children were intentionally blocked-in by a car driven by Ms C and that the father shouted from that car at the children, causing them to be frightened.[41] The mother admits that she telephoned her solicitor about the incident and reported the incident to police several days later.[42]
[41] Mother’s Affidavit filed 26 February 2009 para.5
[42] Exhibit F19
When cross-examined, the mother conceded that she knew that the father simply called out “Hello girls” to the children, which is at least partially consistent with the benign version of the incident given by the father.[43] The father contends that it was a chance sighting of the children and he merely called out a greeting.
[43] Father’s Affidavit filed 11 May 2009 para.43
Having heard the parties’ oral evidence about that incident, I accept the father’s version in preference to the mother’s. It seems that the police formed the same view. They took no action on the mother’s report.
The second incident occurred at B’s school at the Easter bonnet parade.
The father and mother independently attended the school for that function. There were many students and parents in attendance. At one stage it was reported to the mother that the father had taken both children off towards B’s classroom. The mother freely concedes that her response to that innocuous event was to run for the headmaster seeking his intervention.[44]
[44] Mother’s Affidavit filed 7 July 2008 para. 54
In cross-examination the mother conceded that she did not fear the children’s sexual molestation by the father in that public setting. She was reacting to advice that she not leave the children alone with the father, and she wanted to prevent their abduction and also check whether the father had said anything inappropriate to them. The mother’s reaction was wholly disproportionate to the circumstances. She conceded as much.
Having found no persuasive evidence of past sexual abuse by the father, and no unacceptable risk posed by him to the children, I turn to consider the subjective opinions of the mother about those issues.
One thing is beyond doubt, because it is admitted by the mother and maternal grandmother, and that is that the mother and maternal grandmother both continue to honestly believe that the father did sexually molest both children on more than one occasion in the past, and that he is capable of doing so again in the future.
The mother could not be drawn on the nature of the sexual abuse that she suspected had been perpetrated upon the children. The maternal grandmother was more forthcoming. She believes that E has been anally penetrated by the father’s penis. That seems a bewildering opinion to hold. Nothing said or done by E, on the evidence adduced, could rationally permit such a fervent belief in that type of molestation. The maternal grandmother also believes that B has had her vagina penetrated to some degree, but with what she was uncertain. The maternal grandmother doubts the veracity of Dr M’s findings that the girls’ genitalia are normal and unremarkable. She professes to have noticed a change in both girls’ genitalia, and in particular the clitoral area of B.
The maternal grandmother also believes that the father has had an accomplice during his sexual abuse of the children. The basis of that belief is a single nightmare she observed suffered by B, during which she heard B call out in her sleep “run [E], run - don’t let them get you”.[45] Self-evidently, the link between that single incident and the maternal grandmother’s belief in complicit paedophilia is tenuous in the extreme.
[45] Family Report para. 78
I am satisfied on the evidence that the belief of the mother and maternal grandmother about the danger posed to the children by the father has been either discussed openly with the children by one or both of them, or inferred by the children from the comments they have heard and behaviour they have seen on the part of one or both of the mother and maternal grandmother. So much is obvious from the interaction between the family consultant and the children on 20 April 2009 as described in the family report.[46]
[46] Family Report paras. 88-125
B expressly reported to the family consultant that her mother talks with her about the father, in terms which repeatedly reinforce the “soap in the bath” incident.[47] B’s spontaneous reference to the “car park” incident is also suggestive of repeated reinforcement.[48]
[47] Family Report para. 95
[48] Family Report para. 97
The children said or inferred to the family consultant that their father was “bad”.[49] Those comments are corroborated by B’s counsellor.[50]
[49] Family Report paras. 90-92, 113, 117
[50] Exhibit ICL 23
Such remarks though are incongruent with the manner in which the children were observed by the family consultant to interact with the father.[51] The same observations were made by supervisors during the period of months in which the children’s time with the father has been supervised.[52]
[51] Family Report paras. 99-100, 118
[52] Exhibits F7, F8, F9, F10, ICL 22

The children resonate to the mother’s belief in the risk posed to them by the father. The reinforcement in the minds of the children that they have good reason to be fearful of the father is unhealthy for them, and their apprehension needs to be eradicated.
I conclude on the evidence that there is an existent emotionally abusive aspect to the relationship between the mother and the children, which is compounded by the relationship the children have with the maternal grandmother. The actuality of that abuse transcends mere risk.
The real question that presents is what remedial action ought now be taken by the Court. The solution posited by the father and independent children’s lawyer is to remove the residence of the children from the mother to the father. The mother argues that the children’s residence should remain with her. Everybody agrees that psychiatric or psychological intervention all around is warranted.

Evidence of the family consultant

In her family report, the family consultant recommended that, if the Court finds that the children are not at risk of sexual harm in the care of the father and that the mother is able to facilitate a meaningful relationship for the father with the children, then the children should live with the mother and spend unsupervised time with the father.[53]
[53] Family Report, para. 153
Alternatively, the family consultant recommended that, if the Court finds that the children are not at risk of sexual harm in the care of the father and that the mother is not able to facilitate a meaningful relationship for the father with the children, then the children should live with the father and consideration should then be given as to whether the children spend supervised or unsupervised time with the mother.[54]
[54] Family Report, para. 154
Those views were the subject of elaboration in oral evidence.
The family consultant was cross-examined after she had been present in Court for the cross-examination of both the mother and maternal grandmother.
The family consultant considered that the negative views held by the children about the father could be reversed, but only with a great deal of professional intervention. She considered that the children needed to hear from both the mother and maternal grandmother the expression of views that they would be safe in the care of the father. Presently, the children have a rigid view that they have one good parent and one bad parent. She regarded the children as being firmly aligned with the mother.
The family consultant was adamant that the children needed urgent therapeutic intervention, most probably from a clinical psychologist or a counsellor with an established experience in the field of family separation.
The family consultant was also of the view that both the mother and maternal grandmother need professional assistance to promote the relationship between the children and the father. She envisaged that a psychiatrist would be needed to undertake that task.
As for the father and Ms C, the family consultant considered that they needed to consult a psychologist to assist them overcome the impediment they have to future communication with the mother.
Understandably, the family consultant considered it would be beneficial for her family report to be released to the psychiatrists, psychologists, and/or counsellors retained to provide therapy for the children and adults.
The family consultant was concerned about the mother’s capacity to reassess her behaviour. She had doubts about whether the mother possessed the ability to change. Similarly, the family consultant was concerned about the attitude of the father, who she considered maintained a great deal of animosity towards the mother. She thought it was necessary for the father’s view of the mother to also change if he is to facilitate a meaningful relationship between the children and maternal family. Those views applied equally to Ms C.
When the family consultant was confronted with the alternate recommendations set out in paragraphs 153 and 154 of the family report, and appraised of the father’s imminent move of household from A to the O area of which she was previously unaware, she thought that ideally the opportunity should be given for the mother and maternal grandmother to engage in therapy to shift their views about the father before the Court took the dramatic step of removing the children from the household of the mother to the household of the father.
When questioned more closely about that opinion, the family consultant expressed a preference for an interim arrangement whereby the children remained living with the mother whilst the children, mother, and maternal grandmother received the psychiatric and psychological intervention that she considered necessary. In the event that such therapy was successful in shifting the views of the mother and maternal grandmother, she envisaged that the interim arrangement would in time transform into a final arrangement. However, in the absence of any material change in the views of the mother and maternal grandmother, the family consultant considered that it would then become necessary to remove the residence of the children from the mother’s household to the household of the father.
The family consultant thought that a period of six months would be necessary in order to determine whether the interim arrangement was successful.
The family consultant believed that the children should immediately commence spending time with the father on an unsupervised basis.
I accept the evidence of the family consultant, which I regarded as clear, considered, rational, and persuasive.

Summary of substantive parenting law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).
However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that the presumption of equal shared parental responsibility applies, the Court is obliged to consider the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best interests of the children – primary considerations

As the Full Court said in A v A (at 84,996 – 94,997), it is an entirely artificial exercise to carry out an analysis of the statutory factors affecting a child’s best interests in isolation from the conclusions reached about the existence of an unacceptable risk of abuse to the child. To do so would sideline the major factor in the case. I will therefore bear in mind the findings already reached when reviewing the criteria under s 60CC of the Act.
It is uncontroversial that both children presently enjoy a meaningful relationship with the mother. She has been their primary attachment figure since their respective births. They have always lived with her. The beneficial nature of the children’s relationship with the mother is evident from their interviews with the family consultant.[55] It would be advantageous for the children to continue their relationship with the mother, conditional upon rectification of the adverse views of the father instilled in the children either deliberately or inadvertently by the mother.
[55] Family Report, paras 89, 101, 112
In evidence, the family consultant said that there was a need for the children to have an ongoing relationship with the mother and maternal grandmother, provided their fears about the father are not transferred to the children.
The benefit to the children of having a meaningful relationship with the father was a vexed question from the mother’s perspective. The mother persistently described in her evidence, both affidavit and oral, the fear expressed by the children about spending time with the father. She describes that fear as having manifested itself in “terror”, although she contends that the terror has now abated to a more moderate level of apprehension.
The initial apprehension of the children in spending time with the father has been independently witnessed by Ms I, who supervised visits between the children and the father in late 2008 and early 2009. It was also witnessed by the family consultant when she observed the children’s interaction with the father on 20 April 2009. She saw that B was initially resistant to the father, but that her resistance subsided within a period of minutes.[56] The family consultant did not observe the same reservation on the part of E,[57] even though E still only wished to see the father at the Contact Centre.[58]
[56] Family Report, paras 99 to 100
[57] Family Report, para. 118
[58] Family Report, para. 112
What is plain is that both children immensely enjoy their time with the father once any transitory resistance subsides. That is the uniform view of the family consultant, Ms I, and the supervisors at the Contact Centre. There clearly is an advantage in the children continuing their meaningful relationship with the father, and any impediments to that relationship continuing to flourish should be avoided.
I have already determined that there is no need to protect the children from sexual abuse at the hands of the father.
There has been no sustained suggestion by either party that the children are at risk of physical abuse at the hands of one another. Although the mother has faintly alleged that the father has physically abused the children from time to time, the evidence is not such as to materially change the outcome of the proceedings. The father openly admits that he has occasionally physically chastised the children by light smacks on the back of their hands. Those incidents were alleged by the mother to have occurred during the parties’ cohabitation. The mother’s knowledge of that form of physical discipline was not such as to convince her that the children ought not spend time with the father following separation, because she promoted the children spending unsupervised time with their father for more than 12 months after separation until such time as the allegations of sexual abuse came to light. It would be hypocritical of her to promote it as a serious issue in these proceedings, which is presumably why it was raised only perfunctorily.
The parties have alleged that each was physically violent to the other at various times before and after separation.[59] It was acknowledged by the parties that the children were present to witness some of those incidents. Although the children were not directly involved in a physical sense, the question arises as to whether the exposure of the children to family violence has or will cause them psychological harm.
[59] Father’s Affidavit filed 14 May 2008 paras 9, 14-15, 20-26; Mother’s Affidavit filed 7 July 2008 paras 6-16, 28-30
The independent children’s lawyer submitted that the evidence adduced by the mother about her subjection to family violence at the hands of the father ought be rejected as unreliable. I do not agree. I am persuaded that each of the parties acted with physical aggression towards the other on occasions reasonably proximate to the time of their separation in February 2007.
There was a further noteworthy episode of violence between the parties some months after separation in July 2007. Each party reacted with hostility towards one another. The police were involved. The father was charged with “assault”. The father ultimately entered a plea of guilty to that charge before the Local Court on 12 February 2008. Although, no conviction was formally recorded against the father, pursuant to s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW), his plea of guilty to the offence publicly manifests an admission of guilt.
Contemporaneously with the finalisation of the criminal charge, the Local Court imposed a final apprehended violence order (“AVO”) against the father for the protection of the mother, with such order to prevail for a period of 12 months. It was conceded during the course of the hearing that the AVO had been extended for a further 12 month period and will now expire on 11 February 2010. The extended AVO is apparently in identical terms to the original AVO.[60]
[60] Mother’s Affidavit filed 7 July 2008 Annexure “B”
The evidence shows that the children have been affected by their exposure to the violent conduct between their parents.
B told the family consultant that the father “gets mad” and “hurts Mum”.[61] E also reported to the family consultant that she had seen her parents argue and that she had seen her father leave their house after a display of temper.[62]
[61] Family Report, paras 90-91
[62] Family Report, para. 116
The exposure of the children to those past unsavoury incidents is regrettable. Nonetheless, on the preponderance of the evidence, they are unlikely to be exposed to family violence at any time in the future. There is no evidence of violence in the individual households of their parents. But for the one incident in July 2007 that led to the AVO, the episodes of violence between the parties were sporadic and pre-dated separation in February 2007. The evidence does not lead me to conclude that there is a need to make express provision for the protection of the children from exposure to family violence in the future.

Best interests of the children – additional considerations

The children are presently aged 7 and 5 years respectively. They are still very young. Their emotional maturity is apparently proportionate to their chronological age. They have met the usual development milestones. There is nothing about the evidence that leads me to the conclusion that significant weight ought be attributed to their expressed views.
B expressed a view to the family consultant that she wanted to remain living with the mother and that she wished to spend no time with the father.[63]
[63] Family Report, paras 89-90
As I have already recognised, the positive nature of her interactions with the father necessarily means that her views are either unrealistic or disingenuous.
Similarly, E expressed a view to the family consultant that she wanted to live with the mother and only see the father at the Contact Centre.[64] Likewise, her interaction with the father plainly suggested that she did not fear him and genuinely enjoyed his company.
[64] Family Report, para. 112
I am persuaded that the manner in which the children have reacted positively towards the father, as observed by numerous independent persons, is a far more reliable indicator of their feelings towards the father than the sentiments they have expressed.
The children enjoy a loving relationship with the mother and maternal grandmother. I also conclude on the evidence that they enjoy a loving relationship with the father, although that relationship has been at risk of compromise by reason of the negative views expressed or inferred about the father by the mother and maternal grandmother.
The negativity directed towards the father by the mother and maternal grandmother, that has persisted unabated since at least March 2008 when the revelations of sexual abuse came to light, is indicative of either an unwillingness or inability on the part of the mother to facilitate and encourage a close and continuing relationship between the children and the father.
The mother has professed a continuing belief in the sexual abuse allegations against the father. If there was a sound basis for those allegations, her unwillingness to promote the relationship between the children and the father might be understandable. However, in my view, there is no sound objective basis for those allegations. The adherence of the mother to her belief in circumstances where any reasonable objective onlooker would reach a contrary conclusion does not bode well for her ability to encourage the relationship between the children and the father into the future.
I entertain similar concerns about the father’s willingness and capacity to encourage a close and continuing relationship between the children and the mother into the future. The father’s bitterness towards the mother for what he regards as false allegations has become so entrenched that he is unable to speak of her in positive terms.
Changing the children’s residence from the mother to the father, as has been advocated by both the father and independent children’s lawyer, would be an enormous wrench for the children. That was conceded.
That separation of the children from the mother, being the primary figure in their lives, would be a tremendously difficult change for the children to cope with, even with the benefit of psychological intervention.
The mother contends that such a change would be too great a challenge for the children. She had some qualified support from the family consultant, who expressed the view that it would be preferential for the children to remain living with the mother whilst entering into therapy, as opposed to being immediately moved to the residence of the father.
Although the parties currently live relatively close to one another in the villages of L and A, the father is shortly to move his household to O. The house that the father owns at A has been sold and settlement is due to occur on 25 August 2009. A property is about to be purchased at O, principally funded by a large financial gift from Ms C’s family, and the balance to be funded by mortgaged loan raised jointly by the father and Ms C. The father and Ms C expect to be living at that O property in the very near future.
If the children were to move from the mother’s household to that of the father, it would necessarily mean that they could not maintain their present school and/or pre-school enrolments. The father has investigated their enrolment at the O Public School, in anticipation of the children possibly living with him. The change of schools would compound the deleterious effect of a change of circumstances upon the children. There would be no constant in their lives.
Although O is considerably further in distance from L than is A, it is still not so far so as to raise the prospect of practical difficulty and expense in change-over between the parties. Both townships are still in the Hunter Valley. Both parents have driver’s licences and access to a motor vehicle. The expense of the extra travelling is not a material consideration.

There is no doubt that the mother and father both have the capacity to provide for the physical and intellectual needs of the children. It is the mother’s capacity to provide adequately for the emotional needs of the children that has become the focus of consideration. Whilst she has that capacity in all other respects, the mother has not demonstrated a capacity to cater to the emotional needs of the children by supporting their continuing relationship with the father. Her failure in that regard demonstrates a lacuna in her parenting attitudes and responsibilities.

Allocation of parental responsibility

I have already noted that I am satisfied of the occurrence of family violence in the past. As a consequence, the presumption of equal shared parental responsibility does not apply (s 61DA(2)). That does not mean that the Court is precluded from allocating equal shared parental responsibility – merely that that form of parental responsibility is not allocated presumptively.
In the early stages of the hearing the mother indicated that, despite her contentions about the father’s sexual abuse of the children, she would like equal shared parental responsibility for the children allocated to her and the father.
The father maintained his position that parental responsibility should be allocated to him solely, and by the time the evidence was complete he had the support of the independent children’s lawyer on that score.
Clearly, the existence of prior family violence was not such as to deter the mother from seeking equal shared parental responsibility. Equally, the existence of prior family violence was not the reason for the father and independent children’s lawyer seeking the allocation of sole parental responsibility, which position was due to the alleged alignment of the children with the mother, and the mother’s exclusion of the father from important parenting decisions such as the commencement of B in counselling and the school she would attend.
Violence of any sort is to be abhorred, but it is particularly insidious when it occurs within a family, committed by one member of the family upon another. The exposure of children to family violence is an important feature of any parenting case, which is why it is designated as a “primary” consideration rather than simply an “additional” consideration in determining a child’s best interests under s 60CC of the Act. Nevertheless, it is an important feature to be considered in the context of a constellation of others.
The evidence adduced, and the submissions made, in these proceedings by the parties make it plain that they do not regard the past episodes of family violence as a major issue in the proceedings. In the manner that they have conducted the case, nor do I.
I am persuaded that it is appropriate to allocate equal shared parental responsibility to the parties. That would serve the best interests of the children. The reasons relied upon by the father and independent children’s lawyers do not convince me that parental responsibility ought to be allocated to the father solely, and there is no other valid reason why the parties ought not each participate equally in the decisions that relate to the major long-term issues in the lives of the children.
Even though oral communication between the parties has been beset by difficulty, they each have a demonstrated capacity to communicate in writing about the children. Both parties yearn to exercise parental responsibility, and I am satisfied that they should do so.

Living arrangements

Given that the presumption of equal shared parental responsibility does not apply, I am not mandated to consider the children spending equal, or alternatively substantial and significant time, with each parent. That may be the outcome in any event, but that is determined by application of the evidence to the statutory criteria specified in s 60CC of the Act.
Because I have found that the father did not sexually molest the children, and that there is no unacceptable risk of that occurring in the future, there is no impediment to the children living or spending time with him on an unsupervised basis.
Although the father conducted the hearing on the basis of the orders posited in his Amended Application filed on 26 June 2009, his original application was filed on 14 May 2008.
In his original application the father proposed that the children live with the mother, and essentially spend time with him on alternate weekends, depending upon the nature of his work shifts. The changes to that regime proposed within his Amended Application only arose out of the circumstances of the alienation of the children from him caused by the sexual abuse allegations. Inferentially, the father’s position has always been that, in the absence of any sexual abuse and concomitant alienation, the children should remain living with the mother and spend substantial and significant time with him, principally on weekends and during holidays.
The same may be said of the mother. She contemplated the prospect that the Court would not accept the veracity of the sexual abuse allegations levelled at the father. In her Amended Response filed on 3 December 2008 she proposed two alternate parenting outcomes – one in the event that the sexual abuse allegations against the father were sustained (Orders 1-9), and the other in case they were not (Orders 10-27). The proposed orders in the latter instance require the children to live with her and spend time with the father, escalating to alternate weekend and holiday time.
It will be observed that the parties have a similar view about the parenting regime that ought to be implemented for the children, assuming that there is no substance to the sexual abuse allegations. Broadly speaking, my view is consistent with the underlying concurrence between the parties.
The caveat to implementation of a regime under which the children spend most of their time in the care of the mother is the prevailing apprehension experienced by the children in spending time with their father. The alignment of the children with the mother was the aspect of the case that the family consultant found disturbing.
The mother and maternal grandmother both vigorously asserted in evidence that they could abide by and promote any court orders making provision for unsupervised time spent by the children with the father, despite their persisting belief about the risk he poses to the children. I have reservations about whether they could act as they say, but equally, I am not convinced that they would actively sabotage any such orders.
It must be borne in mind that the father and Ms C were just as strident in expressing their views that they could never again communicate orally with the mother, echoing the remarks made by the father to the family consultant.[65] That animosity arises largely out of their perception that the mother and maternal grandmother have maliciously fabricated the evidence of sexual impropriety against the father. They cannot forgive them for that perceived malevolence. The father said that that was not the only reason for holding that attitude, but the other reasons were not explored. Ms C initially said that she could never again have a working relationship with the mother, although she did say that she would try and put her feelings to one side for the sake of the children.
[65] Family Report para. 51
Surprisingly, the father asserted in evidence that he did not think that the children would be adversely affected if he and the mother did not ever again talk to one another. That statement demonstrated the same sort of lack of insight for which he was critical of the mother. He was staunchly resistant to the idea of his participation in a post-separation parenting program, until it became apparent to him that his position in that regard would not reflect well upon him. Even after making that concession he stood by a refusal to ever participate in joint counselling with the mother.
It was submitted for the mother that any view formed by the Court about the existence of danger to the children’s emotional wellbeing by staying in the mother’s household was matched by the danger to the children’s emotional wellbeing that would be endured by them in the father’s household. Ultimately, I am persuaded by that argument – at least for the time being.
The independent children’s lawyer proposes that the matter should be adjourned with the imposition of only an interim parenting arrangement, so as to permit review of progress towards reparation of the family relationships. I am also persuaded to that position.
However, I disagree with the independent children’s lawyer that the children should immediately begin living with the father. I consider that the interim residence of the children should remain with the mother. That approach will conform to the opinion of the family consultant.
Although the residence of the children may still need to be moved to the father in the future, that entails the prospect of only one change of residence. To move the children to the father now on an interim basis would ensure one immediate change of residence, but still entail the prospect of another back to the mother in the relatively near future. That would not be in the best interests of the children. If the independent children’s lawyer intended a permanent move for the children to the father now, there would be no need for the interim arrangement proposed.
Although it is usually preferable to make final orders so as to dispose of the litigation, the exigencies of this case require otherwise. I will impose an interim regime with a finite life of approximately six months, after which the Court can assess the success of the therapeutic intervention. The success or otherwise of that therapeutic intervention will determine the nature of the orders that will be made on a final basis at the conclusion of the interim regime I impose.

Explanation of orders

The interim orders I have imposed do not accord with the orders proposed by either party or the independent children’s lawyer. The orders are an attempt to draw together the positions of the parties and independent children’s lawyer where there is general consensus.
The children will spend time with the father on alternate weekends and during school holidays. The weekend change-over times are designed to accommodate the children completing school on Fridays and being made available to the father in a timely fashion, rather than compelling the father and/or Ms C to collect the children from school when that could be difficult because of the father’s work commitments or the commitments of Ms C to her own school-aged children who will attend school at O.
The children will be able to communicate with both parents by telephone with reasonable frequency when the children are in the care of the other.
It is desirable that when the children are first re-introduced to unsupervised time spent with the father that their apprehension is catered for. Hence, the need for the initial change-overs to occur at W Contact Centre, if that is practicable. Otherwise, change-overs will occur at the McDonalds Restaurant at K. That location in generally between the two households in L and O, and is the suggestion of the mother.
Other orders restrain and compel certain behaviour on the part of the parties, which are beyond any sensible controversy.
The use of a communication book will facilitate the need for the parties to communicate with one another about the children and reduce the prospect of their need to communicate orally, which has been problematic.
The parties and the children are required by the orders to embark upon a program of professional therapy, which is generally consistent with the evidence of the family consultant, and about which there was really no dispute.
The orders permit the appointed professional therapists to consult with the family consultant, and one another, over the progress of the therapy.
The updating family report, and the records of the various therapists, will be available to assist in the determination of the final orders that should be made in the proceedings.
The parties should also undertake a post-separation parenting program. The father is grudgingly willing. The mother wants him to, and so should she.
There is an existent AVO affecting the parties. The current AVO is not in evidence, although it is said to replicate the AVO which expired on 11 February 2009, a copy of which was in evidence. The AVO, on its face, does not purport to affect the relationship between the children and the father, although that may be the effect of the AVO by reason of the provisions of ss 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The AVO does express itself to be subject to parenting orders under the Family Law Act. For abundant caution I have made a notation about the interaction between the orders of this Court and the AVO.
Even though they are integral to the lives of the children, neither the maternal grandmother nor Ms C are parties to these proceedings. The hearing was conducted by the parties on the basis that they should participate in the same form of therapy as the parties, although there was no argument directed to the jurisdictional basis upon which the court could order their respective participation in such therapy as non-parties. In the absence of legal argument about that I refrain from making orders purporting to compel their participation, but I have made self-explanatory notations.

I certify that the preceding two hundred and nine (209) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Austin

Associate:

Date: 26 August 2009

[2009] FamCA 770

26 August 2009

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Family Law

Statutory Interpretation

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Jurisdiction

Procedural Fairness

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Statutory Construction