Hammond & Hammond

FAMILY COURT OF AUSTRALIA
Hammond & Hammond [2021] FamCA 329

File number(s): WOC 1161 of 2018

Judgment of: HANNAM J

Date of judgment: 24 May 2021

Catchwords:
FAMILY LAW – CHILDREN – PARENTING – Where parenting dispute relates to the time, if any, the children are to spend with the father and whether the parents are to share parental responsibility for the children or whether it should be exercised solely by the mother – Where mother alleges that father poses an unacceptable risk of harm to the children on the basis of his alleged sexual abuse of the older child – Where mother’s case rests upon various disclosures said to have been made by the older child to JIRT investigators and the child’s treating psychologist – Where father denies the sexual abuse allegations and seeks equal shared parental responsibility and orders that the children spend time with him that is initially supervised and thereafter gradually increasing to substantial and significant time that is unsupervised – Where ICL proposes alternate suites of orders depending upon whether or not the Court finds that the father poses an unacceptable risk of harm to the children – Where ICL proposes that if the Court finds that the father does pose an unacceptable risk of sexual harm to the children, the mother hold sole parental responsibility for the children and that the children spend time with the father in accordance with their wishes, which is a proposal ultimately supported by the mother – Where the ICL proposes that if such a finding of unacceptable risk is not made the children spend gradually increasing time with the father leading to unsupervised time during the day only – Where the Court considers the accuracy and the reliability of the older child’s disclosures limited having regard to the context in which they were made, including in particular, possible coaching by the child’s psychotherapist – Where Court attaches weight to expert’s unchallenged opinion about problematic features of the older child’s answers on interview and concerns of possible contamination of the child’s accounts by mother and psychotherapist – Where Court is not satisfied that abuse allegations have been proved to the requisite standard – Where Court is not satisfied on the evidence that there is a future likelihood of sexual abuse by the father and accordingly does not consider that he poses an unacceptable risk to the children in this regard – Where Court not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them – Orders made largely in the terms proposed by ICL.

FAMILY LAW – INTERIM ORDERS – Where at final hearing the Court suggested a further possible parenting arrangement in the event the father was not found to pose an unacceptable risk of harm to the children – Where suggested arrangement reflect ICL’s proposal relating to children’s time with father – Where ICL supports such a proposal and the parties each acknowledged through their counsel that such an arrangement may be proper and neither opposed it.

FAMILY LAW – ICL’S COSTS – Where at final hearing the ICL sought that the parties pay the ICL’s costs in equal shares – Where the Court considers that both parties have the financial capacity to contribute to the costs of the ICL – Where parties were wholly unsuccessful in the proceedings – Orders made that parties pay the ICL’s costs in equal shares.

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC, 117

Evidence Act 1995 (Cth) s 140

Cases cited:
Goode & Goode (2006) FLC 93-286

Johnson & Page [2007] FamCA 1235

Langmeil & Grange (2010) FLC 93-427

M v M (1998) 166 CLR 69; (1988) HCA 68

Mazorski & Albright (2007) Fam LR 518

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316

PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123

Penfold & Penfold (1980) 144 CLR 311

Sahrawi & Hadrami (2018) FLC 93-587; [2018] FamCAFC 170

Number of paragraphs: 420

Date of hearing: 26 – 29 October 2020

Place: Parramatta

Counsel for the Applicant: Mr Sperling

Counsel for the Respondent: Mr Coleman SC

Counsel for the Independent Children's Lawyer: Mr Roberts

Solicitor for the Applicant: Willis & Bowring Solicitors

Solicitor for the Respondent: Lionheart Lawyers

Solicitor for the Independent Children's Lawyer: Claremont Legal
ORDERS

WOC 1161 of 2018

BETWEEN:
MR HAMMOND
Applicant

AND:
MS HAMMOND
Respondent

ORDER MADE BY:

HANNAM J

DATE OF ORDER:

24 MAY 2021

THE COURT ORDERS THAT:
1.The mother and father hold equal shared parental responsibility for the children Z born … 2011 and Y born … 2015 (“the children”).
2.The children live with the mother.
3.The mother is to ensure that Z continues to be engaged with her treating psychologist Ms B until such time as Ms B recommends otherwise.
4.These orders serve as authority for the Independent Children’s Lawyer to provide to Ms B with a copy of the expert’s report of Ms C dated 5 March 2020 and a copy of these orders.
5.The mother and the father are to engage in individual therapy with a therapist as suggested by Ms B and for the purposes suggested at paragraph 127 (d)(i) of Ms C’s report.
6.The Independent Children’s Lawyer have liberty to provide to each of the parent’s therapists with a
(a)Copy of Ms C’s report;
(a)Copy of these orders

7.These orders serve as authority for Ms B’s and each of the parents’ therapists to communicate with one another in relation to Z’s and the parents’ treatment.
8.The mother will facilitate FaceTime contact between the father and the children at least twice a week on days to be agreed between the parties and failing agreement every Tuesday and Thursday evening between 6.00 and 6:30 PM. The mother will not interfere with the conversations between the father and the children.
9.The mother and father refrain from denigrating each other, or allow others to do so, within the presence or hearing distance of the children, or either of them.
10.The mother and father refrain from discussing any aspect of these proceedings, including the allegations of sexual abuse, within the presence or hearing distance of the children, or either of them.
11.The mother and father keep each other advised of their telephone numbers and address and advise the other of any change within 48 hours of such change occurring.
12.The mother and the father are to keep each other advised of any medical emergency in relation to either child.
Independent Children’s Lawyer’s costs
13.The mother and father pay the ICL’s costs as specified in the ICL’s costs notice in equal shares.

PENDING FURTHER ORDER:
14.The children spend time with the father as follows:
(a)For a period of two months, supervised every second Sunday from 10am until 2pm. The supervisor is to be agreed to between the mother and the father and failing agreement by Ms D Hammond.
(b)For a further period of two months, supervised every second Sunday from 10am until 5pm. The supervisor is to be agreed to between the mother and the father and failing agreement by Ms D Hammond.
(c)For a further period of two months, every second Sunday from 10am until 5pm unsupervised, and every second Wednesday from the conclusion of school Wednesday, or 3pm if Wednesday is a non-school day, until 6.30pm;
(d)Thereafter, every second Saturday and Sunday from 10am until 5pm unsupervised, and every second Wednesday from the conclusion of school Wednesday, or 3pm if Wednesday is a non-school day, until 6.30pm;
(e)On Father’s Day from 10am until 5pm;
(f)On Christmas Day from 1pm to 6pm in even numbered years;
(g)On Boxing Day from 10am to 5pm in odd numbered years.

15.Any changeover that does not occur to and from school, shall occur by the father collecting and delivering the children to and from the mother’s home.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hammond & Hammond has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

These proceedings concern the future parenting of the parties’ two little girls aged nine and four (“the children”). The parties (“the mother” and “the father”) are also engaged in proceedings in relation to a fair distribution of their property interests but the parenting dispute was given priority and heard separately.
The parenting dispute relates to the time, if any, the children are to spend with the father and whether the parents are to share parental responsibility for the children or whether it should be exercised solely by the mother. There is no dispute that the children are to remain living with the mother.
It is the mother’s case that the father sexually abused the older child due to disclosures made by this child about him. On this basis, she contends that the father poses an unacceptable risk of harm to both children in his care. Until submissions at the conclusion of the final hearing, the mother had sought orders that the children live with her and spend no time and have no communication with the father.
The father, with whom the children currently spend fortnightly supervised time has always denied he has sexually harmed the children and contends that the Court will not find that he poses an unacceptable risk to them on any basis. His proposal is for the parties to equally share parental responsibility and for the children to spend time with him that is initially supervised and then is gradually to increase to substantial and significant time that is unsupervised.
The ICL proposes alternate suites of orders depending upon whether or not the Court finds that the father poses an unacceptable risk of harm to the children. In summary, it is the ICL’s proposal that if the Court finds that the father does pose an unacceptable risk of sexual harm to the children it would be proper that orders be made for the mother to hold sole parental responsibility for the children and that they spend time with the father in accordance with their wishes. In final submissions the mother agreed with this proposal if such a finding were made, which she contends is the only possibility on the evidence. If such a finding is not made, the ICL proposes that the children spend gradually increasing time with the father leading to unsupervised time during the day only.
In the course of submissions I also raised a further possible parenting arrangement if I were not to make a finding that the father poses an unacceptable risk of harm to the children. This suggested arrangement would see orders made on an interim basis along the lines suggested by the ICL with the prospect of returning to Court after an appropriate period of time to revisit the question of an increase in the children’s time with the father.
The question for me to consider is which of the parenting proposals is proper having regard to the best interests of the children being the paramount consideration.
BACKGROUND
The mother who is 40 and the father who is 46 began a relationship in around 2005 and married in 2009.
The first of the parties’ two daughters (“the older child” or “the child”) was born in 2011 and the second (“the younger child”) in 2016.
Throughout the parties’ relationship the father was employed on a full-time basis, while the mother worked part-time to enable her to attend to the children’s daily needs. On some days, the children were also cared for by members of the maternal family.
After the younger child was born and over the next few years leading to the parties’ separation, the mother became concerned about the older child who she contends was displaying increasingly sexualised behaviour and other unusual conduct. These behaviours include the older child touching herself and on occasion other children in the genital region, complaining of “unexplained tummy aches” and often appearing withdrawn.
As a result of these concerns, on various occasions from late 2017 the mother engaged the older child in alternative therapy such as chiropractic treatment, and also encouraged her to take vitamins, in an effort to address this child’s behavioural problems.
The mother also monitored the older child’s school progress and on at least one occasion in July 2018 met with the child’s school teacher to discuss what the mother firmly believed was a “change in [the child]’s behaviour”.
By mid-2018, the parties agree that their relationship had deteriorated significantly, and that not long after they had discussions about the possibility of separating.
Although the mother says that during their relationship she observed the father behave in ways that appeared inappropriate (which is a matter to which I will return), her concerns about him in this regard did not crystallise until August 2018 when her qualms about the older child intensified. Around that time, the older child wet the bed on numerous occasions and at least once expressed reluctance about being left in the father’s sole care.
On 3 September 2018 the mother reported her concerns about the older child to the family doctor as well to a psychotherapist[1] (“the psychotherapist”) who the mother engaged to provide therapy for the older child.
[1] The psychotherapist describes herself as a “registered art psychotherapist”.
Later that day the Department of Family and Community Services (“FACS” as they were formerly known) (“the Department”) received two risk of significant harm reports in relation to both children.
On 5 September 2018 the mother presented the older child to the psychotherapist for the first session of therapy. At the conclusion of this appointment the psychotherapist advised the mother against leaving the children in the father’s unsupervised care.
The parties separated on 6 September 2018 and since this time the mother and the children have lived in the maternal grandparents’ home, a short distance from the former family home where the father continues to live.
On the same day as separation, the mother reported her concerns about sexual abuse of the children by the father to police.
The Department received further reports concerning the older child displaying sexualised behaviours, other behavioural difficulties, anxiety and resistance to spending time with the father and in relation to the younger child who was reported to having behaved in a “sexual manner beyond normal experimentation”.
As a result of the various complaints, the older child was interviewed by local police on 4 October 2018 (“the first interview”) but the investigation was taken no further as the child did not make any disclosures of sexual abuse.
Throughout October and November 2018 the older child continued to engage with the psychotherapist. Information given by this child in the course of those sessions assumes some significance in relation to the alleged sexual abuse complaints generally and is a matter to which I will return.
Reports to the Department about further disclosures said to have been made by the older child in relation to sexual abuse by the father also continued to be made and resulted in further interviews being conducted with this child. On 15 October 2018 this child was interviewed by Departmental case workers (“the second interview”) but again she did not disclose any sexual abuse and the complaint was not substantiated by the Department.
As a result of further disclosures said to have been made by the older child after the second interview, this child was interviewed for a third time (“the third interview”) on 7 November 2018. On this occasion the investigation was allocated to the JCPRP[2] and the third interview was conducted by police in that unit with specialist training in forensic interviews with children.
[2] The Joint Child Policing Response Program a multi-agency team (from the Health Department, Communities and Justice and Police) which deals with allegations of serious child abuse.
On 9 November 2018 the father commenced parenting proceedings in the Federal Circuit Court seeking orders that the parties equally share parental responsibility for the children and that the children live with each of the parents in a shared care arrangement. He raised concerns in his Notice of Risk that the mother was “emotionally manipulating” the children and had coached the older child to make false allegations against him. At this stage, the children had not spent time with him since they moved into the maternal grandparents’ home, and had only spoken to him through video calls on a few occasions.
The JCPRP continued its investigation which included taking into account the contents of emails sent by the psychotherapist to the Department and police in which she expressed an opinion about the likelihood of the sexual abuse of the older child having occurred which is also considered in greater detail later in these Reasons.
In December 2018 the mother filed her Response to the father’s application seeking orders that would see her have sole parental responsibility for the children, the children live with her and spend no time with the father.
On 5 December 2018 interim orders were made with the consent of the parties providing that the children spend supervised time with the father each alternate weekend and that the older child engage with a psychologist (“the 2018 orders”). The father was interviewed in relation to the then recent allegations the following day.
Between late December and early February 2019 the children spent time with their father in accordance with the 2018 orders. While records produced on subpoena by the supervision agency indicate that the children’s time with their father was generally positive, it is the mother’s case that during this period the children continued to exhibit concerning behaviours such as sexualised behaviours and other conduct that suggested to her that they were unsettled.
The children spent supervised time with their father on two more occasions on 19 January 2019 and 2 February 2019 before this time was stopped by the mother on the basis that the most recent investigation assessed the complaints of sexual abuse as “substantiated”.
At some subsequent stage, it appears the decision to substantiate the allegations following the third interview was revisited. There is a lack of clarity in relation to the final position taken by the Department in relation to this allegation, which is a matter that will be further considered later in these Reasons
On 5 February 2019 the older child began counselling sessions with a psychologist (“the psychologist”).
On 7 February 2019 the proceedings were transferred to this Court and placed into the Magellan Program.[3] On 12 February 2019 a Magellan Report[4] was ordered and at the same court event, it was noted that the father did not press for the mother to comply with the 2018 orders.
[3] The Magellan program is a fast-track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.
[4] A Magellan report sets out the involvement of the Department of Communities and Justice with the family.
In May 2019 the parties agreed on orders appointing a single expert to the proceedings for the preparation of a report relating to the welfare of the children.

The mother did not seek to discharge the orders relating to the children’s time with the father until June 2019, at which time the father pressed that the children’s time with him be restored.
The family were assessed by the expert in August 2019 and in the following month the expert’s report (“the 2019 report”) was released. A more detailed summary of the expert’s observations and opinion contained in her 2019 report is given later in these Reasons. It suffices to say at this stage that the expert observed that the sole issue of contention raised by the parents related to the allegations of sexual abuse against the father. It was the expert’s opinion that regardless of whether the father had engaged in sexually abusive behaviour, it was apparent to her that both children wished to maintain a meaningful relationship with him. The expert recommended that even if the Court were to determine that the father most likely sexually abused one or both of the children, the children should have an opportunity to spend supervised time with him on no more than a monthly basis but should not be required to do so.
In October 2019 the mother’s application seeking to discharge the children’s supervised time with the father was heard by a Senior Registrar. At the conclusion of that hearing, interim orders were made for the children to spend time with the father two hours per fortnight supervised by the same supervision service that had previously been engaged with the family. Orders were also made permitting members of the paternal family to attend during any such time between the children and the father, so long as there was no more than one other person attending at any time.
In early January 2020 at the request of the ICL the psychologist prepared a summary report of the older child’s involvement in treatment and other observations she had made in the course of the child’s therapy sessions.
On 23 January 2020 the proceedings were bifurcated and the parenting matter was listed for final hearing. At this court event an order was also made that the expert prepare an additional report in relation to the older child’s forensic interviews. In particular, it was requested that the expert express an opinion in relation to the conduct of the interviews, whether they complied with best practise in relation to the forensic interviewing of children and any other features of the interviews including the older child’s presentation that the expert considered relevant to the question of whether the children had been sexually abused.
The expert’s additional report (“the 2020 Report”) was released to the parties in March 2020. In summary, the expert was of the view that while the older child provided police investigators a broad narrative of her experience of abuse and her certainty that she and the younger child were both sexually abused by the father, little meaningful specific information was gained during those interviews. In her report, the expert also expressed concerns about the possibility that the older child had been coached by the psychotherapist prior to the forensic interviews.
As a result of restrictions associated with the COVID-19 global pandemic, the final hearing due to commence in May 2020 was adjourned with the consent of the parties to October 2020.
At the time of the final hearing, which took place across four days in late October 2020, the children continued to live with the mother in the maternal grandparents’ home and spend supervised time with their father for four hours each fortnight and had some electronic communication with him each week.
THE MATTER IN DISPUTE
It is contended on behalf of the mother that the father has sexually abused the older child and she seeks a finding to this effect. She contends that there is no possibility on the evidence that the Court could find the father did not sexually abuse the older child.
Although it was submitted by the father that the evidence is capable of supporting a finding that he did not sexually abuse the children or either of them and seeks a finding to this effect, his main focus was on the issue of unacceptable risk of sexual abuse.
The ICL agrees that the Court is required to make some assessment of the likelihood of sexual abuse having occurred in the past but does not submit that a finding about past conduct should or should not be made.
In final submissions it was contended on behalf of the mother that the Court will be satisfied on the evidence that the father touched the older child on her genitals at night on a number of occasions over a number of years. If I were satisfied to the requisite standard that he had engaged in such touching as alleged, this conduct would fall within the definition of sexual abuse.
In the course of final submissions, it was identified that evidence to support the finding sought by the mother is to be found in the older child’s answers given in the third interview and in another interview with Departmental caseworkers, disclosures made in the course of this child’s therapy sessions with the psychologist and in the information given by the child to the expert when assessed. The mother did not maintain that the older child’s earlier disclosures made to the psychotherapist could ground such a finding having regard to the expert’s unchallenged evidence about concerns she had in relation to the role of the psychotherapist. However, as the mother deposes to having concerns about the children’s behaviour which it appears she believed at an earlier stage were connected to suspected sexual abuse, the entirety of her evidence and the context of the older child’s third interview and disclosures to the psychologist must also be considered.
The Mother’s Evidence
The older child’s behaviour
As outlined in the background to these Reasons the mother deposes to having concerns about the presentation and behaviour of the older child for many years. According to her affidavit both parents had observed this child engaging in self-stimulation of her genitals from about the age of three which the mother describes as “masturbation” or “sexualised” behaviour.
Under cross-examination about this conduct, the mother agreed that this had been a matter of concern to her since the child began engaging in it and that she had discussed her concern with various people including family members, a pre-school teacher and a neighbour but had not discussed her concerns about this matter with the father or any health professional until September 2018 when she first raised it with the general practitioner.
As also noted in the background to these Reasons, the mother deposes to having concerns about other aspects of the older child’s behaviour and presentation since about mid 2016 when this child was around four and half and the younger child a newborn infant. The older child also apparently complained of unexpected tummy aches and appeared to the mother to be withdrawn, though it is not clear whether the mother has at any time contended that these aspects of this child’s behaviour are relevant to the allegation of sexual abuse.
Both parties agree that the older child was having some difficulties at school in about April or May 2018. The parties also agree that from around July 2018 the older child was wetting the bed but according to the father’s affidavit this was associated with this child having been given an old bed and the younger child being given the older child’s bed.
Under cross-examination the mother agreed that in about July 2018 there was a change to the older child’s bed and that she began wetting the bed at about that time.
The father’s conduct
The mother also deposes in her trial affidavit to the father behaving in ways that she found “inappropriate and concerning”. She gives as examples in her affidavit that she regularly saw the father with his hands in his pants “cupping his genitals” whilst engaging in activities such as watching television, during conversations and while on the phone. The mother deposes to finding this behaviour “disturbing” and telling him so. She also deposes to being unhappy about the father watching pornography on his IPad.
Under cross-examination, when asked about the behaviour engaged in by the father in which he "cupped his genitals", the mother maintained that it had happened frequently up until about 2011, that she raised it with the father at that time and it then occurred less frequently after that and she did not ever raise it with the father again.
In her affidavit the mother deposes to a specific incident that she observed in November 2016 relating to the father’s interaction with the children when they were having a bath together. The mother deposes to observing the younger child crawling over the father’s genitals and rather than move this child away the father let her crawl on him. The mother says she observed that the father “became aroused and had an erection” which made her upset and angry and that she told the father “that’s not ok” to which the father responded that she was “making a big deal out of nothing”.
The mother also deposes that shortly before the parties separated she woke one morning and was surprised to find the youngest child asleep next to her naked from the waist down and that this child’s pyjama pants were on the floor. The mother telephoned the father and asked what happened and the father told her that this child wet the bed but that she (the mother) had seen no evidence of this having occurred.
When cross-examined about this incident the mother agreed that at the time of this incident the younger child was being toilet trained and had been moved to a new bed and from time to time this child would get in or out of the bed herself. She did not recall any occasion when this child made her own way into the parents' bedroom. Although the mother says that she was sceptical about the father's explanation for this child's state of undress (being that the child had wet the bed), she agreed under cross-examination that when she checked the child's bed the sheets and pyjamas pants were damp. She maintained that the sheets and pyjamas weren't damp enough to satisfy her that an adequate explanation for the circumstances was that the child had wet the bed.
The mother agreed that this last mentioned incident did not immediately come to mind as an issue of concern and only crystallised in this regard when she had the conversation with her mother a few days prior to separation. She was unable to provide any explanation for why she had raised this event with her mother except to say that she considered it was unusual behaviour.
The parties’ relationship deteriorates
The mother’s concerns about the children intensified from about July 2018 at around the time both parents agree that the relationship had deteriorated and they were discussing the possibility of separating.
The mother deposes to a range of matters concerning her about the older child including that this child had been observed by her teacher to be more distracted and disrupted in class which the mother believed may have been related to bullying and that the child was experiencing unexplained “tummy aches” and “emotional meltdowns”.
The mother also gives other examples of conduct engaged in by the children and the father on various occasions in August 2018, although it is unclear from her affidavit why she considered the particular conduct concerning and how it relates to the allegations of sexual abuse.
The mother was cross-examined in particular about an incident she said she remembered very well that occurred on 5 August 2018. In an account about this incident contained in a previous affidavit the mother deposes to the father appearing to be distant and withdrawn at a family event and to both children appearing distressed and clingy. In particular, the mother deposes in that affidavit to the older child being inside the house and playing on her own and saying to her “leave me alone I don’t want you to hear me, I don’t want any adults to hear me”. The mother explained under cross-examination that she regarded this conduct as “secretive play” which caused her concern. In the earlier affidavit she also deposes that on the same day the older child said that she did not want to play with her cousin and hated her, which the mother agreed under cross-examination she regarded as unusual and aggressive behaviour.
The mother also said under cross-examination that she was particularly concerned about the father’s behaviour on 5 August 2018 in that he didn’t engage with the children and appeared distant from them.
The mother’s oral evidence in relation to the events of this day was very confusing. Although she agreed that these matters were sufficiently concerning to have included them in her first and subsequent affidavit she gave varying and inconsistent evidence about whether she believed that such conduct was indicative of anything untoward on the father’s part. She maintained that the father’s conduct and child’s behaviour was “indicative of something” and was very unusual but could not explain her concern any further.
Both parties agree that they had a discussion later on 5 August 2018 (though they disagree about the tone and intensity of it) about the possibility of separating. Both agree that the mother told the father that if this were to occur the children would live with her and he would have to move out of the house to which the father responded that he would not be moving out and would be seeking equal care of the children. It also appears that subsequent to 5 August 2018 they had a further conversation about separation and both told the other that they did not want this to occur.
Under cross-examination the mother also agreed that she had no concerns in relation to the father’s inappropriate behaviour as at the end of August 2018.
In her affidavit the mother does not depose to either child making complaints to her about the father’s sexually abusive conduct prior to separation. When asked under cross-examination about when the older child first raised the allegations of sexual abuse against the father the mother agreed that the child had “mentioned things” in this regard but did not specify when this had occurred and agreed that such complaints were “possibly not” in her trial affidavit.
The older child’s conduct towards other children
The mother makes a further complaint that the older child engaged in sexualised play accompanied by inappropriate touching “of other children”. In her affidavit she gives as the only example of this behaviour an account of an incident she says occurred in the last week of August 2018 when the children were playing with a female cousin of a similar age (“the children’s cousin”). When the children’s cousin was being undressed the mother deposes that the older child pointed and “touched [the cousin] on her vagina”. According to the mother, the cousin’s mother (“the mother’s sister”) told the older child that it was “not ok” and said “you don’t touch her on the vagina” to which the older child replied, “yes I do touch people on their vagina”.
Cross-examination concerning this incident and the reason for it causing the mother such concern was extremely confusing. At one stage under cross-examination the mother said that she did not say anything to any of the children at the time of this incident and agreed that she treated it at that stage as normal children’s behaviour. The mother also denied raising any concern about this incident with the father or her sister at the time. In other answers under cross-examination the mother maintained that the incident did concern her but that she had not ever raised it with the Department, police or any health professional but also agreed that she understood her sister had made a complaint at some stage about the incident to the Department and this complaint arose from conversations she had had with her sister.
The mother’s conversation with the maternal grandmother
There is no dispute between the parties that the father was interstate for a few days from 31 August 2018. The mother agreed under cross-examination that on 2 September 2018 when the father was away she had a conversation with the maternal grandmother about the older child’s behaviour. The mother agreed that this conversation was deposed to in an earlier affidavit filed in those proceedings but not in her trial affidavit.
In the affidavit filed earlier in the proceedings the mother deposes that on 2 September 2018 her mother “sat me down and spoke with me about [the older child]’s behaviour.” She says:
My mother said “[the mother’s sister] and I are concerned about [the older child]’s esculating behaviours and bed wetting and we think it might be of sexual interference”. I said “yes I think you are right, there has been a lot of inappropriate behaviours over the years that I have dismissed. It must be [the father]”. [The father] cupped his genitals regularly whilst watching television, on the IPad even on whist on the phone to [his stepmother]. I recalled [the older child] saying to [the younger child] in the bath as [the father] got in the shower “look [younger child] daddy has his penis out”.
(as written)
Under cross-examination the mother could recall this event and confirmed that the conversation with the maternal grandmother was the first time that sexual interference had come to mind in relation to the older child’s behaviour. She also agreed that she immediately came to the view that the father must have been the person perpetrating the sexual interference. The mother agreed that this conversation was not in her trial affidavit but could provide no explanation for it not being there.
The mother was then cross-examined about the words “daddy has his penis out”. She could not identify a particular incident that this related to and agreed that the children had seen the father naked from time to time but had not made a complaint about that matter nor had she raised it with the father. She said that she told her mother about the older child’s comment along these lines at that time because it shocked her as she couldn’t understand why the child had drawn attention to it.
The mother consults with a psychotherapist
At around this time, the mother sought the advice of various people in relation to a suitable therapist or treatment provider to assist the older child with her difficulties. It is clear from her affidavit that the mother selected a psychotherapist who she considered to be suitably qualified, spoke to the psychotherapist herself on 3 September 2018 prior to the older child’s first appointment and facilitated this child’s appointments with the psychotherapist without any input or consultation from the father.
The mother confirmed under cross-examination that when she first spoke to the psychotherapist on 3 September 2018 about the older child she discussed with the psychotherapist that this child may have been sexually interfered with based on her behaviours. She said that the psychotherapist told her that she also was thinking along those lines.
The psychotherapist’s records indicate that she first spoke to the mother on the phone on 4 September, but those records are otherwise consistent with the mother’s evidence. In particular it is recorded that the mother “volunteered” concern that someone must be interfering with the older child and the psychotherapist “agreed that when she told me the symptoms, they were classic indicators of a child being interfered with inappropriately”. It is also recorded that the mother said that the only person who could be doing this was her husband. The notes from this day also record the psychotherapist reassuring the mother that “it doesn’t matter how many phone calls [the Department] receive-the more the better where there is suspected child abuse”.
On the same day, 3 September 2018, the mother attended upon her general practitioner alone and told the doctor that she believed the father had sexually interfered with the older child. She also reported to the doctor that the younger child had said recently “Daddy touched my giney” (an apparent reference to her vagina) even though she does not depose in her affidavit to this child saying something along these lines. The mother understood that the general practitioner would make a report about this allegation to the Department which apparently did occur and the mother also reported her concerns to the Department herself.

According to the Magellan Report the notification in relation to the older child on this date included that this child was observed to be stroking a toy animal and while doing so told the maternal grandmother “I am touching his private parts”. The departmental records indicate that the reported conduct was that the older child had been seen by the maternal grandmother to “caress” a puzzle piece of an animal’s genitals. Another report received by the Department on this date referred to the mother’s claim about the father having an erection when bathing the children.
The Father’s Evidence
In summary, it is the father’s evidence that until 5 September 2018 (after he returned from interstate) he was aware only that the older child was having some difficulties at school in about April or May 2018 and that she had begun wetting the bed which he believed was related to the younger child being given the older child’s bed. He was otherwise completely unaware of the mother’s concerns about either child or the mother’s attendance at the school and engagement of any therapist for the older child.
The father also says that he and the mother had one conversation about the possibility of separating on 5 August 2018 but a few days later he told the mother he did not want this to occur. The father understood from the mother’s reaction that she felt the same way at the time though he had some concern she had opened up a bank account in her own name and now believes she was just waiting for the right time to take further steps to separate.
The father deposes to the older child having conversations with him about a friend whose parents had separated and the child's concern that the friend was unable to see his father as much as he wanted. According to his affidavit, in July 2018 when he and the mother were experiencing tension in their marriage the older child asked him directly if he and the mother were going to separate but he told the child that this was not going to occur.
The father deposes to having regular phone and electronic contact with the children while he was absent for a few days in early September 2018 and that he found the mother’s behaviour towards him upon his return strange, such as suggesting that he sleep in the older child’s bed and that she sleep with the children in her bed.
On 5 September 2018, the day after the father returned from interstate, the older child had her first attendance upon the psychotherapist. The father understood that the older child was being seen by a psychologist as arranged by the mother in relation to this child’s behaviour and although he asked to come along to the appointment the mother told him that it was just for her and the children.
According to the mother’s affidavit, later that day she and the father had a conversation about her concerns regarding the oldest child’s behaviour and in particular, the child’s bed wetting and aggression. The mother deposes to the father saying that he concluded that she believed that he had sexually abused the children.
According to the father’s affidavit, when the children returned from the appointment on 5 September the mother informed him that the children would not be having a bath that night which he found extremely unusual. He says that later in the evening in the course of their dinner the older child said to him “daddy I don’t feel safe”. He deposes that when he asked the older child why she didn’t feel safe the child said “I can’t talk to you dad, I am only allowed to talk to mum” and later said to the mother in his presence “mum I am confused. [First name of psychotherapist] said “I could only talk to you, but dad said it is ok to talk to him”.
According to the father’s affidavit, later that evening the mother insisted on having a conversation with him about his strange behaviour and in that conversation informed him that the older child had been using inappropriate sexual terms for a child of her age and had also complained that “dad has flopped his penis out”. The father said he was shocked and in this context felt that the mother was implying that he had sexually assaulted the children. He deposes that in the course of a phone conversation with his step-mother about the allegations, the mother said that he “must be” the person who was sexually abusing the children.
The father deposes that the mother did not speak to him the following day, 6 September 2018, and later that day came to their home to collect some personal items. The mother subsequently sent him a message telling him that she had told the children that they were having a little holiday at their grandparents and that he subsequently became aware that the mother had also attended at a police station on the same day. There is no dispute that both parties considered that the marriage was at an end on this day.
It is the father’s evidence that at the time of separation he had no idea about the extent to which the mother had made complaints and taken action in relation to the allegations, in the days following separation gained the impression that the maternal grandparents also did not believe that he had sexually abused the children. He also deposes that in the early days following separation, 7 and 8 September 2018, the mother sent text messages to him in which she said “I am sorry this is devastating for you”, “I know you have done nothing wrong” and “I am just doing what the professionals are telling me”. He deposes that although he had some limited electronic communication with the children the mother was not prepared to permit him to spend time with them.
The father has always denied any untoward conduct towards the children and confirmed under cross-examination that he absolutely denies all alleged inappropriate behaviour attributed to him by either child. In his words under cross-examination, “the allegations that [the older child] has raised did not happen full stop.”
Events following separation
When the mother attended at a police station on 6 September 2018 she understood that police were to investigate her complaint about the father’s conduct towards the children.
According to the Magellan Report, there were a further six Risk of Serious Harm reports received by the Department between 7 September and 18 September in relation to sexualised behaviour by both children as well as touching of the genitals of each other and their cousin.
Police and Departmental records indicate that there was a report made by the mother’s sister that on 25 September 2018 the children’s cousin made a complaint to her (the mother’s sister) that her vagina was itchy. It was reported that when asked why this child said “[name redacted] touches my gina” and then said “[father’s first name] touches my gina”.
The mother’s sister did not file an affidavit in the proceedings.
The complaint is investigated
As set out in the Background, the mother’s complaints to police, together with other reports about the older child’s behaviour, anxiety and resistance to spending time with her father made to the Department, led to the child’s first interview carried out by local police on 4 October 2018.
By the time the older child was interviewed by police she had seen the psychotherapist on four occasions. Little meaningful information about those therapy sessions can be gleaned from the psychotherapist’s notes which were produced on subpoena, but according to the psychotherapist’s report[5] the child had not made a disclosure of abuse at this stage. Her records also include the words “JIRT[6] needs a clear disclosure from child” and it appears (though it is not entirely clear) that these words were written at the first session of therapy.
[5] An affidavit filed by the psychotherapist dated14 February 2020 annexing an undated report (“the psychotherapist’s report”) was not read by the mother, but tendered by the ICL and admitted as Exhibit 19.
[6] JIRT (Joint Investigation and Response Team) is a previous interagency team that carried out the same functions as the JCPRP.
In her first police interview (which was recorded and the recording and transcript admitted into evidence) the older child made no disclosures that she had been harmed by any person including her father and denied that the father had ever touched her on the genital region.
Although the father was unaware at the time that the older child had been interviewed, he was contacted by police a few days later and subsequently voluntarily agreed to be interviewed himself. No further action was taken by police and the case was closed.
Throughout October 2018 the older child continued to engage regularly with the psychotherapist.
According to the psychotherapist’s report, the child first made a complaint of sexual abuse on 10 October 2018 (six days after her first interview with police). Some typed pages (“the typed pages”) are annexed to this report which appear to be a typed version of the records of some of the therapy sessions. One of these typed pages records that the older child volunteered various statements at the commencement of the therapy session including the following:
·     "I knew before mummy and daddy separated that this was going to happen"
·     "Because daddy was hurting me"
·     "Daddy was hurting me in a way that I don't understand - it was like fun stuff"
It is also recorded in the typed pages that the psychotherapist said various things to the child in that session including the following:
· "Well the more you talk about this and get it out from inside, the better you will feel"
·"The ladies you are going to talk to next week [Departmental officers] will be making the decision about whether you see daddy on holidays so it's good you can practice here telling me what you want to tell them next week".
The psychotherapist’s notes produced on subpoena also contain handwritten notes (“the handwritten notes”) for most of the sessions. There is no handwritten entry for 10 October 2018 though there are handwritten notes about the child’s disclosures along very similar, though not identical, lines dated 4 October 2018.
On 15 October 2018 the older child was interviewed by two Departmental caseworkers at the home of her maternal grandparents in the presence of the mother’s sister (as requested by the mother).
According to the records of the Department, although the interview does not appear to have been electronically recorded there is a transcript of the interview contained in the records.
In that transcript after the words “Introductions” and “FACS” the child is recorded as saying “mummy told me I had to tell you everything”. The child then provides information about her family and when asked “tell me about dad? What do you like about your dad?” the child reports, “I don’t like him” and “because he hurt me”. The transcript of the following questions and answers is as follows:
Q: How did he hurt you?
A: He hurt me in a way I didn’t like. When I was two.
Q: Who else was there?
A: Mum.
Q: Tell me what happened?
A: First he was hurting me when I didn’t know about it. Then in kindy I became more concentration. I found out what was happening.
Q: What was happening?
A: That dad was hurting me.
Q: How was dad hurting you?
A: He was letting me watch videos that were making me cranky. Letting me watch more TV…
…………..
Q: You said before daddy hurts you. Tell me how daddy hurts you?
A: By not letting me go outside and play with my chickens and dogs, because he was not letting me things I liked and loved.
Later in the interview, the child gave an answer referring to “my safe people” and then the transcript records the following:
Q: Who are the unsafe people?
A: Daddy.
Q: Why is daddy unsafe?
A: Because he hurts me. He hurts me in a way I don’t know about yet. Making me really cross and my family. It’s hard to explain.
Q: You can tell me.
A: He was trying to put me in danger.
Q: How?
A: In a way I don’t really know about yet.
The interviewer later returned to questions about the father hurting the child. This part of the interview includes the following:
Q: Tell me about what daddy did to hurt you?
A: In a way that I don’t know about. They make me cross at him.
Q: If you don’t know then how do you know he hurt you?
A: I really don’t want to know. The secrets that daddy are keeping. He told me that the family on his side is a lie. That’s not ok. That dad told a lie.
Q: Tell me about daddy lying. What did he lie about?
A: Just when they separated and mum told me it’s not safe (emphasis added)
Q: Was it safe before?
A: No.
Later during the interview when the child was shown various images of faces and asked to identify what emotion the face displayed, the child identified one of the faces as showing a “scared” emotion. The report in relation to this part of the interview is as follows:
Q: What’s this face?
A: Scared.
A: I use to be sad when dad turned off the lights. He hurt me when I was asleep I felt it.
Q: How did dad hurt you when you were asleep?
A: I don’t know.
The child was shown a body chart and asked about whether anyone was allowed to touch parts of her body. When asked about the part of the body identified in the transcript as “vagina” and “bum”, the child said “it’s okay for mum but no one else” to touch her there and only to “put cream on”.
At another point in the interview, it is recorded that the child reported “mum, [the maternal grandmother and mother’s sister] say that he is not safe. That I have to tell you everything.” (emphasis added)
The outcome of the investigation, so far as the Department was concerned, was that the complaint was not substantiated.
On the same date, a further report was made to the Department by the mother’s sister that after the older child's interview with Departmental caseworkers this child disclosed that her father had touched her vagina and that she had seen him touch the younger child's vagina which made her scared. This complaint resulted in a further referral to JIRT.
According to the psychotherapist’s report, two days later on 17 October 2018 the older child made a further disclosure. The typed pages indicate that during that session the child made various statements about the father such as “he did touch them [the child's private parts] at night” “[he was] hurting my private parts” and “he was doing it to [the younger child] as well”. It is also recorded that in the course of the therapy session, the mother’s sister who was apparently present, intervened saying to the child “do you want to tell [the psychotherapist] what you told me about how daddy lets you watch adult movies on the ipad”.
In her report however, the psychotherapist does not record that she had a therapy session with the child on 17 October 2018. There are also no handwritten notes for this date or for any date which records disclosures along these lines in the records produced by the psychotherapist on subpoena.
Further reports were made to the Department on 23, 24 and 31 October 2018 in relation to behavioural difficulties and sexualised behaviours engaged in by the younger child and the older child displaying symptoms of distress and anxiety.
Although the mother does not depose to this in her affidavit, she said under cross-examination that by 24 October 2018 the older child had wanted to change schools and that she (the mother) spoke to the school principal to make these arrangements on that date, which included informing the principal of the sexual abuse allegations and requesting that the father not be informed about the change of schools.
The mother also made contact with police on 31 October to report that the older child had become very distressed because the paternal grandmother had attended the child’s school that day. The mother also reported the older child saying to her in the presence of the younger child “daddy touched my giny” and this child told her sister “daddy touched your giny” and the younger child later repeated “daddy touched my giny”. Police records indicate that the mother questioned whether the younger child should be interviewed as well, given her “disclosures”. It is also recorded that later that evening the mother sent an email to police outlining her concern about the father’s behaviour on 27 September and 15 October 2018 in turning up at the children’s school and day care.
The child’s third interview in November 2018
On 7 November 2018 the older child was interviewed a third time, on this occasion by a police officer attached to the JCPRP. The child was accompanied to the interview by the mother and maternal grandmother who remained outside the interview room.
The child’s answers to questions in that interview which are a central plank in the evidence relied on by the mother, will be outlined in some detail.
At the time of this interview the older child was aged almost seven. The interview took place over 50 minutes.
In the course of the introductory questions about matters such as the child’s name and age, the following questions were asked and answers given:
Q: Now before I pressed record, did we talk about a few things?
A: Yeah
Q: What did we talk about? Do you remember?
A: We talked about that I can tell you everything.
Q: Ok. Did we talk about that?
[Child smiles at interviewer and shakes her head]
Q: We didn’t talk about that did we?...
At the commencement of the interview when the child was asked what she had come to talk about she answered, “about daddy hurting me”. When asked when this had happened the child responded “since I was a baby” and that it happened “at my old house”. When asked to tell the officer what had happened the child said:
He use to, well, he touched my private parts and he touched my sister’s private parts when he was just telling a lie, and, he, he used to tell lots of lies. Like that his sister was gonna have a bus ride and move houses to Victoria when she didn’t. And he use to touch my vagina and bottom and he used to hurt me, like, make me stretch my bones and that hurted me but I couldn’t say stop because he wouldn’t listen and that, that, that he once hurt my dog when mummy was at work and really and hit him but he reacted by, by, by biting us and then touching our private parts. Then he hit us in the private parts.
When asked whether there was anything else, the child answered “no”.
The police officer then asked a number of other questions in an effort to clarify the child’s answers. These questions and answers include the following:
Q: Ok. Alright, so you said to me ‘since I was a baby’. How old do you think?
A: I think, 2, he started
Q: Ok. Why do you think you were 2?
A: Because, I didn’t feel it when I was 1. I was noticing when I was 5 turning 6, um, that I knew that something was gonna happen when I was 5, I knew something was gonna happen to my parents, I knew that, that they were gonna separate and I knew all that
Q: Ok, so how many times, you said to me he said he “touched your private parts’. How many times do you think that happened?
A: 8
Q: 8? That’s very specific. Why do you say 8?
A: Because I felt it and I saw it, um, for me I felt it, he did it to me at night, and for my sister in the day when he said he was going to wake her up when she was asleep, um.
Q: Do you remember the first time. Do you remember the first time you can remember?
A: Yes. It was when I was 3. And for me, it was when I was 3, but for [the younger child] it was from when she was 5.
Q: Ok. Can we just talk about you for the moment?
A: Mm-hmm
Q: Ok, so when you were 3 and the first time you can remember. Can we just talk about that time for the moment?
A: Hm-hmm
Q: Can you tell me everything that happened from beginning to the end?
A: Well, I was asleep, and then I felt this thing, then I woke up but I didn’t open my eyes, I could just feel it and then I woke up a little bit and I saw dad doing it. And I thought, “what, I thought you were a good dad.” And then I noticed that he was doing something mean and I thought he wasn’t my dad.
The child was then asked questions about the layout of the house and indicated that she had her own bedroom. She was then asked the following questions and gave the following answers:
Q: Yep, ok, so that time that you were asleep in your bed and still at your old house. Do you remember whether this was, what time of the day it was?
A: It was night.
Q: Night-time.
A: I think it was the middle
Q: Ok, and your bedroom in the middle of the night
A: - was dark.
Q: Was dark. Was it completely dark?
A: Yes
Q: Yep, no lights on?
A: No.
Q: Ok did you sleep with your door open or closed?
A: Open, because I was a-scared of, of, of the dark
Q: Ok, and you said that you felt this thing. What did you feel?
A: Fingers
Q: Ok, and where did you feel those fingers?
A: On my vagina and bottom
Q: What were you wearing at the time?
A: Shorts and a tee shirt, cause it was summer

In answer to further questions the child reported that “he did it every birthday except for the sixth” and when asked how she remembered that the child said “cause, the birthday that, that it first started, I remember that, that [the younger child] wasn’t alive so that reminds me…”.
A little less than half-way through the interview and after a number of clarifying questions had been asked, the child spontaneously asked “have I done good”. When the interviewing officer answered “yeah, just chatting you’re doing well” the child then said “will you choose if daddy gets into gaol?”
The interviewer then returned to asking further questions in relation to the child’s account asking “ok, and then you said that you felt fingers on your vagina and bottom. Can you tell me about that, what did you feel?” to which the child answered “I felt like, that, that, that I couldn’t, I can’t explain it”.
At a point almost exactly half-way through the interview (page 11 of a 21 page transcript) the following questions were asked and answers given:
Q: Ok what can you remember? You tell me everything that you can remember.
A: I can’t remember anything.
The interviewer then returned to a previous answer that the child had given and the following questions were asked and answers given (at a stage in the interview when the interviewer had a diagram of a female child’s body in front of the child):
Q: Ok, so you said that you felt the fingers on your vagina and your bottom. Tell me everything about that.
A: Well it was twisting my vagina.
Q: Ok
A: And, um, smacking my bottom.
Q: Ok, alright, what do you mean by twisting your vagina?
A: So, this [25:14 – child draws on sheet] that bit, and it was going all twisted
Q: Ok, so, can you draw it again?
A: This bit.
Q: So where is this bit?
A: There
Q: So, you pointed at this area, so this is the girl’s legs, where in relation to the girl’s leg is this part?
A: In the – right – in that bit
Q: Ok so in between the legs?
A: yeah
Q: Ok. So how was it twisting, can you tell me how it was twisting?
A: It was like [26:11 – A draws in a spiral motion] like that
Q: And what was it making it twist?
A: His fingers
Q: And what was he doing with his fingers?
A: Twisting it.
Q: Ok, can you show me with your fingers what you think he was doing?
A: A [26:30] puts hands together and makes a “twisting” motion.
Q: Ok, and can you see him doing anything?
A: No
Q: Ok and how many fingers do you think he was using?
A: Every one
Q: What was his fingers doing?
A: Twisting
Q: Ok but how were they? So, [Q at 26:49 holds out hand] like my fingers are out straight or are they clenched or –
A: They were clenched.
During the following questions and answers the interviewer became quite directive telling the child three times in the course of five questions to stop scribbling on the page in front of her:
Q: …When, how long did you keep your eyes closed for?
A: Uh, until he finished
Q: Ok. And then how did it finish?
A: It finished with a smack on the vagina.
Q: Ok what do you mean, what happened?
A: Like, like that [27:55 – The child makes a smacking motion towards her lower abdomen]
A short time later (page 13 of 21) the child said “when is it gonna be finished?” to which the interviewer answered “oh we’ve still got a long while yet” and continued with questions about the child’s previous answers.
The child was then asked questions about the last occasion that “it happened” which the child said was when she was five. When asked about this occurrence the child said:
I was in bed, but, but, it was the day, when I was asleep from the car, when I woke up quickly and emerged and dad was like, I didn’t do anything, and I knew, I knew that he was doing it.
At various points in the interview from this stage onwards the child began doing things such as hitting the table (page 14 of 21) and moving out of the way of the camera and was given further directions in relation to these matters.
At this point the child said to the interviewer in answer to a number of questions, “I can’t remember anything else” and then the following was said:
Child: When are we gonna be finished?
Interviewer: Well when we go through everything you wanted to tell me.
Child: I have actually.
The interviewer didn’t respond to the child’s last answer but continued with the interview as follows:
Q: Hm, what about, you said about touching your sister’s private parts?
A: Well, it was in the day when she had to sleep in the car. When she was 1, he did it all that year, and he said to me “I’m just gonna wake her up”. But he didn’t, he was touching her bottom and vagina, but she could feel it because she couldn’t say words only “Ma” and “Dada”, but –
Q: Can you just move back over here? Because the camera won’t see you over there.
A: But um, she was like, when she had, she was like “[older child’s name]”, she could say [name] then, “ I felt some fingers”, I whispered this in her ear: “Don’t, daddy touched your vagina” and she was like “No he didn’t” and he actually did, she didn’t believe me, but I told her
Q: So how old was she when she said, “I felt some fingers”?
A: Um, no she didn’t, she said, she didn’t say that, but I knew that she, but she, I don’t know what I said to her.
The interviewer then asked the following questions and the following answers were given:
Q: And, so you said that [the older child-(sic)] was asleep in the car. And that dad was gonna go wake her up. So, tell me about that.
A: But he really didn’t. He was just, I actually didn’t watch it, I was just watching what he did, as I used to do, I used to watch, watch him on tv, but he did it every day, when she was asleep and we went on a bushwalk.
The officer then asked further questions about what the older child had seen on this occasion and the child answered “I can’t remember”. When asked what had made her upset the child said “that he was touching [the younger child]” and when asked what he was doing she said “he was doing the same to what happened to me”. The child then explained that this was “twisting her vagina”.
From this point on the child continued to repeat answers along the lines of “I can’t remember anything” and “I think I’ve told you everything” but the interviewer continued to ask further specific questions about what the father had done to the younger child. The child gave some answers but then began repeating “I can’t remember” and gave either verbal or nonverbal answers indicating that she had said everything. The interview then ended after 50 minutes.
Events following the older child’s third interview
Police records indicate that following the interview, the mother and maternal grandmother were told that the child was unable to particularise an incident and appeared confused about the details. Both were upset and advised police that this child had been clear to them in her disclosure and that they both believed that the father had been interfering with both children.
The police records also indicate that after briefing the mother and maternal grandmother, the children came into the room and the first thing the older child said to her mother was “did I do good?”.
The mother also deposes to a further conversation between her sister and the older child on the evening of 7 November 2018 following the interview. The mother deposes that when she was trying to get the older child to have a bath that the following conversation took place:
[The mother's sister] said to the [older child] “why don't you want to have baths?” [The older child] said “because he used to have baths with us when it wasn't even our bath time”. [The mother's sister] said “what happened in the bath?” [The older child] said “he touched our private parts with his foot not by accident”. [The mother's sister] said “what did you do when he was doing that?” [The older child] said “I got out of the bath and ran into my room”. [The mother's sister] said "when did this happen?" [The older child] said “last year”. [The mother's sister] said "was mum home?" [The older child] said “No” [The mother's sister] said “where was mum?” [The older child] said “at work”. [The mother's sister] said “did it only happen once?” [The older child] said “lots of times”.
According to the Magellan Report, on 20 November 2018 (while the investigation was still ongoing) the psychotherapist contacted police by email advising of her therapeutic engagement with the older child and reporting on the child’s “unprovoked disclosures” about “daddy touching [the younger child]’s private parts”. Departmental records indicate that the psychotherapist sent an email to the Department providing more detailed information about the same matter.
On 21 November 2018 a further Risk of Serious Harm report was received by the Department, the allegation being that the older child had reported that “[the father] had baths with them when it was not bath time” and that he “touched their private parts with his foot, not by accident”.
On the same day the Magellan Report indicates that the JCPRP caseworker contacted the younger child’s child care centre and the director of the centre reported that this child is happy to see both parents and had never observed any problematic sexualised behaviours. The caseworker also contacted the older child’s school principal who advised that there was a five week period where this child wasn’t herself and that the school had not observed some of the behaviours said to have been observed by the mother.
On 25 November 2018 a report was received by the Department alleging that the mother is psychologically harming the children and poses a risk to their mental well-being by coaching the older child to make false allegations against the father.
On 27 November 2018 the father was interviewed by police attached to the JCPRP in relation to the sexual abuse allegations.
By the following day, 28 November 2018, police had assessed that there was insufficient evidence to pursue criminal charges or an AVO application against the father in relation to the sexual abuse complaint.
Although no criminal proceedings were instituted by police, the Department continued to assess the allegations.
The older child continued with her therapy sessions with the psychotherapist until 30 November 2018.
On 5 December 2018 various orders were made with the parties’ consent including that the children live with the mother, spend supervised time with the father each alternate weekend and have electronic communication with him, that a suitably qualified psychologist be engaged for the older child and that the therapy with the psychotherapist cease.
By late December 2018, the father’s supervised time with the children commenced in accordance with the 2018 orders. The Department had at this stage not completed its assessment of the complaint.
Departmental records indicate that the children were also spoken to by Departmental case workers at their maternal grandparents’ home on 4 January 2019. A record of the Department in relation to this visit is as follows:
…[The older child] communicated she felt worried about “people hurting me”. [The older child] was asked how and who are the people that hurt her and she responded “Dad, he touches my vagina and hit me when mum wasn’t around”.
The [Case Worker] asked [the older child] what encouraged her to talk to someone about dad hurting her. [The older child] reasoned that she is “smarter now” as when she started school last year she has been taught that when someone touches her private part it was a bad thing. This made her realise that what her dad was doing was a bad thing and hence she needed to talk to someone.
There are no other records in relation to this interview with the child and it does not appear that the interview was recorded. It is also unknown whether anyone else was present during this interview or the context in which the questions were asked.
According to Departmental records, on 16 January 2019 the mother contacted the caseworker informing her that the older child’s behaviours were escalating again, particularly around electronic contact and supervised contact with the father. It is recorded that the caseworker informed the mother of the outcome of the assessment that sexual harm upon the older child by the father had been substantiated as had a significant risk of sexual harm upon the younger child.
On 5 February 2019 the older child had her first therapy session with her psychologist. According to the psychologist’s notes the child requested not to talk about her father during the first few sessions but stated she would like to talk about him in the future.
According to the records and affidavit of the psychologist, in the course of the second session the older child reported that the father had done things to hurt her when the family lived at the father’s home but did not wish to discuss her experiences in further detail.
Despite being informed that the allegation had been substantiated on 16 January 2019 the mother continued to comply with orders requiring that she facilitate the children spending supervised time with and communicate with the father until 7 February 2019. Thereafter, the mother ceased facilitating the children’s time with the father and the father did not press for compliance with the orders at that stage.
According to the Magellan Report there was a further complaint of sexual abuse made to the Department on 15 February 2019 though no other information is available in relation to it.
The Magellan Report also records that an unnamed person or people at the Department began to express concerns regarding “the continued reporting of sexual abuse with incremental detail accompanying each reported disclosure”. Although it is not clear from the report when these concerns were first raised, it can be inferred that it was sometime after 15 February 2019 as this is referred to as the “last report”. Having expressed this concern, the report goes on to detail the reason these concerns were held and that the relevant local Departmental office requested that the decision to substantiate the allegation of sexual abuse be reviewed. The Magellan Report dated 29 March 2019 concludes with the following paragraph:
There are concerns that the allegations of sexual abuse perpetrated by the father have been substantiated without any clear disclosure and within the context of Family Court proceedings these matters require careful consideration. The concerns pertaining to the mother’s mental health inclusive of the mother potentially manipulating the children to make the allegations against the father has not been substantiated based on the current arrangement of the children residing with the mother FACS has no substantiated concerns.
In a report annexed to an affidavit, the psychologist deposes that the older child first disclosed her experiences of sexual abuse by her father in the course of the child’s fourth session of treatment on 5 March 2019. In relation to this matter the psychologist reports:
…[The older child] said he had “hurt me” and “touched my private parts”. She reported that this had occurred on several occasions since she was three years old, each time in her bedroom after her mother had gone to sleep, but otherwise she was unclear with time frames and dates. [The older child] said “it felt weird” and “I didn’t like it”, “I wanted to say stop, I don’t like it, but he was too powerful”. She reported that she had not properly understood what was happening to her at the time but that it made her feel upset. [The older child] stated that her father “was pretending to be a normal dad, but isn’t” because “normal dads don’t hurt you” and “he was trying to be really nice to hide what he was doing at night”.
While [the older child] said it made her feel upset to discuss the abuse, she said it was also a relief to do so.
During the same session [the older child] commented that her mother had “told me that dad hurt me” but she also asserted that she could remember the abuse herself and that she had known about it before discussing it with her mother. She said she was coming to gradually understand what had happened to her.
In a subsequent session a few weeks later (28 March 2019) the psychologist deposes that the older child said that she would like to talk more about her experiences of abuse. The psychologist reports the following in relation to this session:
...She said that she had been abused on either three or four separate occasions, on each of which her father had entered her bedroom at night and touched her between the legs, demonstrating his actions with a swirling motion of her hand. She said that each instance had been the same, in terms of what her father had done, and on each occasion she had pretended to be asleep because she felt tired. [The older child] further disclosed that she had seen her father touching her younger sister [named] between her legs when [the younger child] was two months of age. She said this appeared different to him changing her nappy as he was not using a wipe.
The psychologist further reports that in the course of treatment on 2 April 2019 the older child stated that she did not want to get married or have children when she grew up as she was afraid that if she had a husband he may sexually abuse their children. The child said she would like to learn more skills to protect herself and be safe from abuse in the future.
The psychologist records that several sessions later on 2 May 2019 the older child reported worries about the prospect of seeing her father again and had specifically the fear that he may abuse her again. During the same session this child also made “some unclear comments about whether she should believe her mother or her father”. The psychologist explored this matter with the child but reports that she had difficulty clarifying further. The psychologist adds “[the child] did reiterate that she was able to recall the abuse, rather than having been told about it.”
EXPERT EVIDENCE
The 2019 Report
In August 2019 the parties and the children met with the expert, a forensic and clinical psychologist, for assessment.
For the purposes of the assessment, the expert conducted interviews with, and observations of the family and spoke to staff from the older child’s school and the younger child’s day care centre, as well as the older child’s psychologist. Various court documents filed by the parties in the proceedings were also reviewed by the expert, as were other documents produced on subpoena.
At the time of the assessment, the children lived with the mother in the maternal grandparents’ home and were spending no time with the father. The older child had also been receiving treatment from her psychologist since February 2019. As previously outlined, in her sessions with the psychologist the older child had gradually disclosed her feelings and experiences including allegations of sexual abuse by her father. Treatment by the psychologist also included supporting the older child to plan for managing anticipated stressors such as her gradual reunion with her father, if that were to occur.
It was the mother’s proposal at the time of the interview that the children remain living with her and spend no time with the father. The father was then proposing an equal time arrangement.
As explained by the expert, in her report significant discussion is given to the question of whether the father sexually abused one or both of the children as she regarded this as the ‘sole issue of contention'. Although I will return to other matters in relation to the expert’s assessment and opinion when considering the best interest considerations, at this stage I will focus upon that part of her opinion that relates to the question of the risk of sexual abuse at the hands of the father.
When asked about the sexual abuse allegations, the mother’s account was broadly the same as her affidavit. In relation to her then current state of belief about the father’s conduct, the mother told the expert that she did not “believe that someone who has been abused should see their abuser” and did not think that the father could do anything to make her believe that the children would benefit from a relationship with him.

Each of the proposals are also in line with the expert’s opinion about a suitable parenting arrangement if the court were not to find that the father posed an unacceptable risk of sexual abuse. Although the expert couched her recommendations in terms of the court finding that the father did or did not sexually abuse the children it was explained to her when giving oral evidence that any finding would be directed to the question of unacceptable risk. She agreed that her recommendations were equally to apply if there were no finding of unacceptable risk. The expert recommended in her 2019 report that if there were no such finding the children should commence spending time with their father in a “stepped up approach”.
Both proposals also follow the expert’s recommendation that under this arrangement for an increase in the father’s time such time should initially be supervised (ideally by an extended family member). However, the proposal of the father only continues along the lines of the expert’s recommendation that the increase in the children’s time gradually progress to alternate weekends with an overnight weeknight stay in the off week.
In the course of final oral submissions, the ICL’s counsel explained that the ICL’s proposal did not include any overnight time in light of the great caution that the expert expressed should be taken to an increase in the father’s time and based upon the Court finding the father does not pose an unacceptable risk to the children.
It is the expert's opinion that if it were the case that the father did not sexually abuse either of the children, the primary risk associated with spending time with him would be “the distress that this could cause [the older child] and [the mother] (given their view that he did sexually abuse [the children]) and the subsequent impact of this on [the younger child]”. The expert further opined that if unsupervised time were to occur between the children and the father, both the older child and the mother would require "significant, focused therapeutic support" to cope with this, otherwise there remains a risk of psychological harm to the older child in particular.
Under cross-examination, the mother's counsel questioned the expert about reports from the older child's therapy sessions with the psychologist dated 5 May 2020. The expert was taken in particular to notes made by the psychologist that the child “said she wanted to keeping having supervised visits” “saw her father drive by the house and slow down. Felt weird and not good about this but not sure why” and “stated that dad often lies and she feels unable to trust him because of that”. The expert agreed that she holds some concern about the child calling the father a liar and her being unable to trust him. She explained:
It raises concern for me about [the older child]'s ongoing experience of her father and the issue of…whether she feels safe with him in terms of the relationship and whether she still was holding concerns as a result of feeling that she has been harmed by him in the past. Alternatively, it could raise concern that she has formed a particular picture in her head of her father that she doesn't know how to make sense of or is having trouble moving away from, and…again, I'm sorry, but without having the information from [the older child] herself or from [the psychologist], it's difficult to know which is the more likely position or the more likely concern. But certainly, if [the older child] has a view that her father is a liar and that she is seeing ongoing evidence of that, then it does raise concern that she may not feel safe moving forward in a relationship with him, particularly in relation to unsupervised contact.
The psychologist gave evidence of the child currently being “willing to forge an ongoing relationship with her father”, noting however that she “does remain concerned of course with promoting her safety in the future”. The psychologist also said that the older child appears to be accepting the idea that she will have contact with her father in the future and that it would likely be unsupervised. The psychologist said the older child still vacillates as to how comfortable she would feel with the idea of unsupervised overnight visits. The psychologist said that the child “seems to be gradually growing more accepting of the idea and re-establishing a sense of safety around her father” and that while she does continue to believe that she was sexually abused “she is willing to stay and has stated on a number of occasions that she feels that he has changed his behaviour and that she may be able to trust him in the future if he was to continue to show that he was a safe person to be around”.
The expert’s general recommendation is that over time the children’s time with their father should become unsupervised and include overnights and that the main reason for ongoing caution relates to whether the older child continues to hold concerns as a result of feeling that she had been harmed by the father in the past. In these circumstances I am of the view that the approach of the ICL to the future parenting arrangement may give undue weight to concerns that are now past and little opportunity for the children’s relationship with their father to be more fully developed through spending overnight time with him.
The authorities do not support the proposition that the Court is required to craft orders to support an optimal relationship with each parent. However, an arrangement whereby the children would spend overnight time with their father as well as time during school holidays (so long as that was consistent with the need to protect them from harm) would support the children having the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests in accordance with the objects of Part VII of the Act.
For the foregoing reasons, I raised the possibility of a further parenting arrangement whereby the children would spend time with the father in accordance with the orders proposed by the ICL on an interim basis. If such orders were made a mechanism could also be set out in the orders for the father to seek further final orders in relation to the children’s time with him. I raised the suggestion that this could occur after the children had adjusted to the increase in their time and depending upon updated evidence about their response to the cessation of supervision and their views concerning the prospect of overnight time.
The second of the primary considerations is concerned with the need to protect children from harm arising in particular ways. There is no suggestion in these proceedings that the children have a particular need to be protected from the harm associated with neglect or would be subjected to or exposed to family violence under any of the proposals.
For the reasons given and discussed at length I am not satisfied that the father poses an unacceptable risk of harm to the children associated with sexual abuse. The potential need to protect the children (and the older child in particular) from the “emotional distress” or psychological harm associated with her belief that the father had sexually abused her in the past was raised in the context of this consideration. However, it was conceded by the ICL that this distress is not harm of the type envisaged in this consideration, as it is not harm arising from abuse, neglect or family violence.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Both parties and the ICL conceded that this parenting dispute is for all intents and purposes decided on the basis of the primary considerations, and particularly the question of whether the father poses an unacceptable risk of harm to the children. For this reason the additional considerations were given little attention in submissions and I also propose only addressing them briefly.
Views of the children’s and factors underlying those views
Nature of the children’s relationship with each parent and other significant persons
Likely effect of a change in the children’s circumstances
The views of the children in relation to spending time with their father have been dealt with at some length when considering the question of the extent to which each proposal fosters the children’s relationships with their father.
For the reasons given, when discussing this matter earlier in these Reasons I am of the view that it is appropriate to give significant weight to the children’s views about spending time with their father and other orders to support their relationship with him.
The expert opined that when observed, both children appeared to have a warm and loving relationship with each parent. The expert also observed that both children want a meaningful relationship with both parents, notwithstanding that the older child “likely fluctuates in her overt expressions of this”. The expert explained that while the older child was initially focused on the father having hurt her and was anxious about spending time with him, after enjoying her time with him during the assessment, the child reportedly expressed a desire to spend more, unsupervised time with him in the future.
Each of the proposals will bring about a change in the children’s circumstances as each will significantly increase the children’s time with their father and such an increase of its nature will bring about further separation from their mother.
The proposal of the ICL, with which the mother agreed, will bring about less of a change in the children’s circumstances than the father’s proposal and is based upon the cautious approach expressed by the expert. However, this caution is based not so much as concern expressed by either child about separation from their mother, but the possible distress that may be experienced by the older child in particular depending upon the views that she holds with respect to the father’s past conduct.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
These are not weighty considerations in this dispute. Each of the parents had been actively involved in decision making before separation and the father has been active in seeking to spend time and communicate with the children following separation.
There is also no suggestion that either parent has not fulfilled their obligations to maintain the children.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
This is also not a weighty consideration in these proceedings. If orders are made as sought by the ICL or the father there will be no practical difficulty or expense involved in the children spending time with and communicating with the father.
The significant expense involved in spending professionally supervised time with the children which has been borne by the father for a lengthy period of time will no longer be incurred as each party agrees that initial supervision of the father’s may be undertaken by family members.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Attitude to the children and responsibilities of parenthood demonstrated by each parent
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs
No evidence is adduced about the background or traditions associated with either parent’s cultural heritage or little is known about the lifestyles of either parent.
It is clear that the children enjoy connections with extended family members on the maternal side of their family and were closely connected to their extended paternal family prior to separation. The connection to the paternal family was continued to the extent to which it was possible during the period that the children’s time with their father has been supervised. In this context, it will be to the children’s benefit for them to be able to rebuild their relationships with their extended paternal family under the orders proposed by both the ICL and the father. The absence of any overnight time or extended holiday time in the ICL’s proposal will place some limitations on the rebuilding of these relationships.
Assuming that the father did not sexually abuse the children, the expert assessed that both parents present with adequate capacity to meet the children's needs. Although the father also told the expert that the mother deliberately alienated the children from him, the expert did not agree that this had occurred and considered that any influence by the mother is “unlikely to be malicious in intent” and instead based on the mother's genuine belief that he had sexually abused both children. She further commented that the mother generally demonstrates appropriate protectiveness and that there is no obvious risk of harm to the children in her care regardless of whether the father is found to have sexually abused the children or not.
However, one concern the expert did raise was the following:
… if [the mother] fails to support the children to maintain a relationship with their father based on their wishes or the Court's recommendations, she may be at risk of causing psychological harm to them by disrupting their relationship.
The expert then discussed recommendations she made in her 2019 report regarding therapy for the parents. When asked about the impact on the children if, notwithstanding therapy, the mother's position remained that the father did sexually abuse them, the expert responded that the children will be placed “in a very difficult and uncomfortable position” particularly if the mother “was not able to monitor her language or her responses to the children spending time with their father, [and] if…she was to question them, for instance, when they returned home, particularly from unsupervised time”.
The expert also agreed under cross-examination that if the Court were not to make a finding of unacceptable risk but did make a finding that the older child has an abiding belief that she has been abused, a number of other steps would need to be taken rather than simply, at any particular point, moving to unsupervised time with the father. She reiterated that "focused intervention" would be required in this regard, which she maintained could be a matter addressed through therapy with the psychologist.
Each of the proposals under consideration adopts the recommendations of the expert in relation to therapeutic support for the older child (by ongoing therapy with her psychologist) and for each of the parents. Each parent has also indicated in the proceedings a willingness to receive such therapy.
Any other matter the Court thinks relevant
As discussed previously in these Reasons, I had foreshadowed with the parties that there could be alternate orders other than those proposed by the parties or ICL which I may consider to be proper and in the best interests of the children. This arose because the tenor of all parties’ submissions was that in the absence of a finding that the father poses an unacceptable risk of harm to the children, the children do receive a benefit from having a meaningful relationship with their father which should be fostered by suitable parenting orders.
The proposal of the ICL adopted by the mother does not provide for any progression of the children’s’ time with their father to include overnights or holidays and appears to be based on evidence that may not be current. The father does include overnight and holiday time in his proposal but it equally does not appear to be based on current evidence about the older child’s emotional and psychological presentation.
In these circumstances, I suggested a possible arrangement that all orders be made on a final basis except in relation to the children’s time with the father and that these orders could be expressed as interim orders and that a mechanism be included for the father to reapply to the Court for a variation only in relation to the children’s time with him. The ICL supports such a proposal while the parties each acknowledged through their counsel that such an arrangement may be proper and neither opposed it, neither party advanced submissions in support of it.
As noted, the only order proposed by the ICL that was not agreed to by the mother relates to the members of the paternal family who are proposed to supervise the father’s time with the children. As it appears that the mother’s comfort in adjusting to this arrangement is an important matter in relation to the success of such final orders and as the father’s sister was clearly an impressive witness who well-understood her responsibilities as a supervisor, I am satisfied that the arrangement proposed by the mother that the father’s sister only be the nominated supervisor is proper in the circumstances.
CONCLUSION
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[14] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[14] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to children, the Court must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of any of the children, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the children’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
In the present case there are no grounds to believe that either parent has engaged in abuse, ( or family violence) so the presumption is not inapplicable on this basis.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the ICL and mother must mean that the mother would have all the duties, powers, responsibilities and authority which, by law, parents have in relation to the children if such an order were made and that the father would have none of the duties, powers, responsibilities and authority with respect to the children.
The ICL contends that it is proper for the mother to be given sole parental responsibility essentially on the basis of the parties’ poor track record in being able to communicate effectively with one another and that such difficulties were even experienced by them when the relationship was intact. The ICL’s proposal for sole parental responsibility is based upon the importance of reducing potential conflict between the parties in the future. The ICL submits that given the parties level of distrust and particularly the father’s views in relation to the mother’s “coaching and manipulation”, there would be concern about ongoing conflict between the parties if they were to share parental responsibility.

In promoting an order for sole parental responsibility, the mother’s counsel relied upon the recommendation of the expert that was said to have been made in relation to this matter. However, the expect made no recommendation about this matter in her reports and under cross-examination said it ideally would be shared parental responsibility but she would leave it in the court’s hands.
It is further submitted on the mother’s behalf that equal shared parental responsibility “simply would not work”, placing particular emphasis in this regard on the avoidance of a stalemate in relation to decisions which are likely, in the mother’s submission, to occur in the future if the parents share parental responsibility. The mother’s counsel also highlighted matters which he described as “very concerning aspects of the father’s insights” which would suggest that shared parental responsibility would be unworkable.
On behalf of the father it is submitted that the more recent evidence indicates that there is now some willingness and ability for the mother to communicate with him and that he certainly desires for that to continue.
In submissions, both parties raised the possibility of orders in relation to the parties consulting with one another in relation to major long term issues which may be appropriate to accompany an order for sole parental responsibility but neither party proposes orders along these lines.
In my view, the mother has shown some signs of significant compromise in agreeing to orders as proposed by the ICL rather than persisting with orders that the children spend time with their father in accordance with their wishes. This may indicate that the level of conflict that was previously present especially during the earlier stages of the proceedings may not persist to the same level after final orders are made. I also attach weight to the fact that despite the parents having different attitudes towards parenting their children, when their relationship was intact they were able to make some decisions for a number of years which were in their children’s best interests.
Having regard to all of the matters raised, and in particular, considering the Principles underlying the Act and the serious nature of any order which will remove a parent from all which is involved in the exercise of parental responsibility, I am not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them and accordingly the presumption is not rebutted.
Balance of parenting orders
Ultimately, the only real dispute between the parties relates to the pace of increase in the children’s time with their father and the question of whether it is proper and in the children’s best interest for that time to extend to include overnights and holidays. Having made that observation, I do not suggest that this is not a dispute of some significance.
The only issue that required determination related to whether the father poses an unacceptable risk of harm to the children and the parties agree that, if he was not found to do so, the children should have a meaningful relationship with him.
The objects of the part of the Act dealing with parenting include ensuring that the best interests of children are met by ensuring that they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
Having regard to the expert’s opinion in relation to a suitable arrangement that would meet the children’s best interests and the caution she expresses about instituting such an arrangement, it seems that the only impediment to making the orders proposed by the father is the absence of current information concerning the older child’s attitude towards her complaints of the father having abused or harmed her in the past and the impact of this upon her current levels of comfort and/or distress at spending time with him.
In circumstances where all other matters indicate that it is in the children’s best interest to spend overnight and holiday time with their father, I am of the view that it is proper to make the orders proposed by the ICL on a final basis, with the exception of those orders which relate to the children’s time with their father and for the orders in relation to their time to be made on an interim basis.
The ICL’s proposal will see the children begin to spend time with the father on the Saturday and Sunday of each alternate weekend and after school on the intervening Wednesday after six months and that by this time supervision will no longer be in place and that the child (and parents) will continue to receive therapeutic support if necessary targeted at assisting her with this new arrangement.
ICL COSTS
In the course of final submissions on 29 October 2020 the ICL sought an order that her costs be paid in equal shares by each parent. Annexed to the ICL’s minute of final orders sought is the ICL’s costs notice in which it is specified that the total amount of ICL costs is $17,587.
The mother’s counsel did not wish to say anything in opposition to such an order and the father’s counsel made no submissions in relation to the application.
Applications for costs in this Court are the exception to the rule. Section 117(1) of the Family Law Act 1975 (“the Act”) sets out the general rule as being that each party is to bear his or her own costs. That principle is, however, subject to the discretion afforded to the trial Judge in subsection (2), and the Court may make an order for costs if there are circumstances that it is of the opinion justify it in doing so.
The High Court in the matter of Penfold v Penfold[15] indicated that the circumstances justifying an order for costs need not be exceptional, but they must, of themselves, be sufficient to justify the making of an order for costs. Therefore, there is no additional or special onus on an applicant seeking an order for costs other than the Court finding justifiable circumstances to make such an order.
[15] (1980) 144 CLR 311.
Section 117(2A) sets out the relevant matters, if any are applicable, to which the Court is to have regard in considering an order for costs. The relevant matters will be considered, though there is nothing preventing any one factor being the sole determinant for an order for costs.[16]
[16] PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123.
The Act also makes specific provision in section 117 for orders as to the costs of an ICL as follows:
Costs of independent children's lawyer
(3)To avoid doubt, in proceedings in which an independent children's lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children's lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children's lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children's lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children's lawyer.
In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children's lawyer has been appointed, the Court must disregard the fact that the independent children's lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney-General.
The Court is conscious of the restrictions provided in section 117(4) of the Act that the Court must not make an order against a party in favour of an ICL if the party has received legal aid in the proceedings, or if the Court considers the party “would suffer financial hardship” as a result of an order to bear a proportion of the ICL’s costs.
Neither of the parties have received legal aid in the proceedings and instead each of them have been legally represented, including by counsel, throughout.
Although there is no evidence as to their current financial circumstances, both parties in their interview with the expert in late 2019 reported being employed on a full-time basis. The mother in particular told the expert that in addition to her income, receipt of child support payments and Centrelink payments, she has been supported by her parents on several occasions. In his interview, the father also reported having “adequate financial management” having been in full time employment for some 15 years.
On the basis of the limited information available to me, I do not consider that either of the parties would suffer financial hardship if an order was made that they share the ICL’s costs in equal portions. It appears that both parties are likely to have financial resources to draw on given their funding of the litigation.
As to the section 117(2A) considerations, I attach weight to the financial position of each of the parties to the proceedings, which for the reasons given are not such that they do not have the financial capacity to contribute to the costs of the ICL.
The only other matter I consider relevant to justify an order that the parties meet the ICL’s costs is the fact that both parties were only partially successful in the proceedings. The final parenting orders made in the proceedings are those proposed by the ICL and ultimately adopted by the mother. Orders relating to the children’s time with the father also reflect the ICL’s proposal but are made on an interim basis at the Court’s suggestion since the tenor of all parties’ final submissions was that in the absence of a finding that the father posed an unacceptable risk of harm to the children, the children do receive a benefit from having a meaningful relationship with their father which should be fostered by suitable parenting orders. In these circumstances, neither party was wholly successful in the parenting proceedings as the totality of the orders made do not completely reflect their respective positions as at the commencement of the final hearing.
For the foregoing reasons, the orders are made as set out in the forefront of this judgment.

I certify that the preceding four hundred and twenty (420) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 24 May 2021

[2021] FamCA 329

24 May 2021

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Procedural Fairness

File number(s):	WOC 1161 of 2018
Judgment of:	HANNAM J
Date of judgment:	24 May 2021
Catchwords:	FAMILY LAW – CHILDREN – PARENTING – Where parenting dispute relates to the time, if any, the children are to spend with the father and whether the parents are to share parental responsibility for the children or whether it should be exercised solely by the mother – Where mother alleges that father poses an unacceptable risk of harm to the children on the basis of his alleged sexual abuse of the older child – Where mother’s case rests upon various disclosures said to have been made by the older child to JIRT investigators and the child’s treating psychologist – Where father denies the sexual abuse allegations and seeks equal shared parental responsibility and orders that the children spend time with him that is initially supervised and thereafter gradually increasing to substantial and significant time that is unsupervised – Where ICL proposes alternate suites of orders depending upon whether or not the Court finds that the father poses an unacceptable risk of harm to the children – Where ICL proposes that if the Court finds that the father does pose an unacceptable risk of sexual harm to the children, the mother hold sole parental responsibility for the children and that the children spend time with the father in accordance with their wishes, which is a proposal ultimately supported by the mother – Where the ICL proposes that if such a finding of unacceptable risk is not made the children spend gradually increasing time with the father leading to unsupervised time during the day only – Where the Court considers the accuracy and the reliability of the older child’s disclosures limited having regard to the context in which they were made, including in particular, possible coaching by the child’s psychotherapist – Where Court attaches weight to expert’s unchallenged opinion about problematic features of the older child’s answers on interview and concerns of possible contamination of the child’s accounts by mother and psychotherapist – Where Court is not satisfied that abuse allegations have been proved to the requisite standard – Where Court is not satisfied on the evidence that there is a future likelihood of sexual abuse by the father and accordingly does not consider that he poses an unacceptable risk to the children in this regard – Where Court not satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them – Orders made largely in the terms proposed by ICL. FAMILY LAW – INTERIM ORDERS – Where at final hearing the Court suggested a further possible parenting arrangement in the event the father was not found to pose an unacceptable risk of harm to the children – Where suggested arrangement reflect ICL’s proposal relating to children’s time with father – Where ICL supports such a proposal and the parties each acknowledged through their counsel that such an arrangement may be proper and neither opposed it. FAMILY LAW – ICL’S COSTS – Where at final hearing the ICL sought that the parties pay the ICL’s costs in equal shares – Where the Court considers that both parties have the financial capacity to contribute to the costs of the ICL – Where parties were wholly unsuccessful in the proceedings – Orders made that parties pay the ICL’s costs in equal shares.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC, 117 Evidence Act 1995 (Cth) s 140
Cases cited:	Goode & Goode (2006) FLC 93-286 Johnson & Page [2007] FamCA 1235 Langmeil & Grange (2010) FLC 93-427 M v M (1998) 166 CLR 69; (1988) HCA 68 Mazorski & Albright (2007) Fam LR 518 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 Napier & Hepburn (2006) FLC 93-303; [2006] FamCA 1316 PBF as Child Representative for AF (Legal Aid Commissioner of Tasmania) & TRF & LKL (2005) 33 Fam LR 123 Penfold & Penfold (1980) 144 CLR 311 Sahrawi & Hadrami (2018) FLC 93-587; [2018] FamCAFC 170
Number of paragraphs:	420
Date of hearing:	26 – 29 October 2020
Place:	Parramatta
Counsel for the Applicant:	Mr Sperling
Counsel for the Respondent:	Mr Coleman SC
Counsel for the Independent Children's Lawyer:	Mr Roberts
Solicitor for the Applicant:	Willis & Bowring Solicitors
Solicitor for the Respondent:	Lionheart Lawyers
Solicitor for the Independent Children's Lawyer:	Claremont Legal

WOC 1161 of 2018
BETWEEN:	MR HAMMOND Applicant
AND:	MS HAMMOND Respondent

ORDER MADE BY:	HANNAM J
DATE OF ORDER:	24 MAY 2021