Harries & Harries - [2022] FedCFamC1F 1009

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE
Harries & Harries [2022] FedCFamC1F 1009

File number(s): BRC 2492 of 2021

Judgment of: CAREW J

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – PARENTING – unacceptable risk of harm – where mother ceased contact between children and father from November 2020 to June 2021 due to allegations of sexual abuse/sexual interference/inappropriate touching – where mother had asserted father is an unacceptable risk of harm arising from inappropriate sexual touching and family violence – where mother capitulated midway through final submissions and consented to the immediate resumption of unsupervised time – where allegations of inappropriate sexual touching are groundless – where mother found to have ‘weaponised’ the allegations of sexual abuse and family violence against the father to limit his relationship with the children – where children have been deprived of a meaningful relationship with their father for spurious reasons – where the father and family report writer expressed concern for the children’s home schooling environment and the mother’s permissive parenting style – where the mother is implacably opposed to the children attending mainstream schooling – where the mother is an unacceptable risk of emotional and psychological harm to the children – where the Court orders sole parental responsibility to the father and the children will live with the father – where the mother will spend alternate weekend and holiday time with the children following a period of supervision

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC93-637

Briginshaw v Briginshaw (1936) 60 CLR 336

Eastley & Eastley [2022] FedCFamC1A 101

Isles and Nelissen [2022] FedCFamC1A97

Johnson & Page (2007) FLC 93-344

Jones v Dunkel (1959) 101 CLR 298

M v M (1998) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92-655

Number of paragraphs: 250

Date of hearing: 14 – 17 November 2022

Place: Brisbane

Counsel for the Applicant: Mr J. Linklater-Steele

Solicitor for the Applicant: Best Wilson Buckley Family Law

Counsel for the Respondent: Ms K. Gover

Solicitor for the Respondent: DME Law

Counsel for the Independent Children's Lawyer: Mr A. Ehlers (on 14, 15, 16 November 2022)

Solicitor for the Independent Children's Lawyer: Stewart Family Law
ORDER

BRC 2492 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR HARRIES

Applicant

AND:
MS HARRIES

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

16 December 2022

THE COURT ORDERS THAT:
1.Mr Harries (“the father”) shall have sole parental responsibility for making decisions relating to the major long-term issues for the children, X, born … 2011, and Y, born … 2013, and Z, born … 2019.
2.In exercising sole parental responsibility in accordance with paragraph 1 herein, the father shall inform Ms Harries (“the mother”) of any decisions he proposes to make and consider any views expressed by the mother prior to making such decisions.
3.The mother shall comply with the decisions made by the father in the exercise of his sole parental responsibility.
4.The children shall live with the father.
5.The children shall spend time with and communicate with the mother at all such times as agreed in writing between the father and the mother and failing agreement as follows:
(a)For a period of six months, supervised at B Contact Centre, Suburb S, at times that may be facilitated by the contact centre, but no less than one occasion per fortnight, with the costs of supervision to be shared equally between the father and the mother; and
(b)After the period of six months:
(i)On each alternate Sunday from 9.00am until 4.00pm for a period of eight visits (unsupervised); and
(ii)By telephone or video call, with the mother to be at liberty to call the children twice per week at a time to be agreed between the parents in writing and failing agreement on Tuesdays and Thursdays at 6.00pm and the father shall facilitate the call. If the children are unavailable to receive the call at the agreed or specified time then the father shall ensure the children call the mother as soon as reasonably practicable thereafter;

(c)Thereafter, the children shall spend time with the mother at all such times as may be agreed in writing between the parents and failing agreement as follows:
(i)For so long as the mother continues to live in the C Region, on each alternate weekend from 9.00am Saturday until 5.00pm Sunday, or if Monday is a public holiday or pupil free day then until 5.00pm Monday;
(ii)In the event the mother moves back to Brisbane, then on each alternate weekend from after school Friday or 3.30pm until before school Monday or 9.00am, or if Monday is a public holiday or pupil free day then until before school or 9.00am Tuesday;
(iii)From 2024, and if the mother is living in Brisbane, then in each alternate week from after school Thursday or 3.30pm until before school Monday or 9.00am, or if Monday is a public holiday or pupil free day then until before school or 9.00am Tuesday;
(iv)From 2024, for one half of the children’s school holidays being the first half in even numbered years and the second half in odd numbered years;
(v)From 2024, on Mother’s Day weekend from after school or 3.30pm Friday until before school or 9.00am Monday, if the children are not already in her care.

6.Notwithstanding any other provision in this Order and subject to any agreement in writing between the father and the mother:
(a)The children spend time with the mother from 9.00am Christmas Eve until 5.00pm Boxing Day in 2023 and in odd numbered years thereafter;
(b)The children spend time with the father from 9.00am Christmas Eve until 5.00pm Boxing Day in 2022 and in even numbered years thereafter;
(c)The children spend time with the mother from 9.00am Good Friday until 5.00pm Easter Monday in 2024, and in even numbered years thereafter;
(d)The children spend time with the father from 9.00am Good Friday until 5.00pm Easter Monday in 2023, and in odd numbered years thereafter;
(e)The children spend time with the father on Father’s Day weekend from after school or 3.30pm until before school or 9.00am Monday, if the children are not already in his care;
(f)The parent with whom the children are not spending time with on the children’s respective birthdays will be at liberty to communicate with the child via telephone or video call and the other parent will facilitate the call;
(g)The father shall be at liberty to communicate with the children when they are spending time with the mother during school holidays, by telephone or video call twice per week at a time to be agreed between the parents in writing and failing agreement on Tuesdays and Thursdays at 6.00pm, and the mother shall facilitate the call. If the children are unavailable to receive the call at the agreed or specified time then the mother shall ensure the children call the father as soon as reasonably practicable thereafter.

7.In the event that the mother/father or her/his family has a special occasion or event such as a significant birthday, anniversary celebration, wedding, funeral, christening/naming ceremony etc. to which the children are invited, the mother/father shall advise the other parent of the occasion, time and location and the other parent will use their best endeavours to arrange for the attendance of the children at the relevant special occasion.
8.Unless otherwise agreed in writing by the father and the mother all changeovers shall occur at the B Contact Centre, Suburb S (with the parents to pay any costs equally) unless the children are at school and in those circumstances changeovers occur at the children’s school.

Counselling
9.The father shall ensure that he and the children engage with an experienced psychologist for the purpose of supporting the children in adjusting to their change in circumstances and to continue therapy for such period as may be recommended.

Education and schooling issues
10.The children, X and Y, shall transition to the D School, or such other school as nominated by the father, from the commencement of Term 1 2023.

Exchange of Information
11.The father and the mother shall:
(a)Keep the other parent informed at all times of their contact telephone numbers, and email addresses; and
(b)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.

12.The father shall keep the mother informed about the children’s educational and medical progress by providing her with a written update every two months (until 2024) and promptly provide the mother with copies of any medical reports or assessments for the children received by him.
13.The parents shall communicate by way of email or text messages unless otherwise agreed in writing or in the case of a genuine emergency.

Medical and Health
14.The mother shall be at liberty to contact the children’s medical and allied health professionals from 2024, in order to receive information about the children’s physical and mental health and to receive copies of any reports or assessments (at her cost) AND for this purpose the father shall keep the mother informed of the name and contact details of any such persons.

Schooling & Extra-Curricular Activities
15.The mother shall be at liberty to contact the children’s school from 2024, and to receive information about the children’s educational progress and other school related activities and to receive copies of school reports, photographs, certificates and awards obtained by the children (at her cost).
16.From the commencement of Term 4 2023, the mother shall be at liberty to attend any public or school social, sporting or educational event involving the children, including but not limited to art performances, sporting events, training sessions, school activities and functions, Christmas parties and other special occasions.

Non-Denigration
17.During the time the children are with either parent, that parent shall not denigrate the other parent or member of that parent’s household or family in the presence or hearing of the children and shall use their best endeavours to ensure that others do not denigrate the other parent or member of that parent’s household or family in the hearing or presence of the children.

Restraints
18.Save as otherwise provided in this Order, the mother is restrained from attending the children’s schools, medical or allied health appointments, or the father’s residence save with the prior written consent of the father.

Miscellaneous
19.Each parent shall actively encourage the children to spend time with the other parent.
20.Each parent shall ensure that they have their own school uniforms, clothing and personal items for the children, and these will be returned to the other parent, if they are taken by the children to the other parent’s home, at the next changeover.

NOTATION
A.Pursuant to Section 65DA(2) of the Family Law Act 1975 (Cth) the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order are set out in “Parenting Orders – obligations, consequences and who can help” and these particulars are included in this Order.

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

On 6 November 2020, the mother of three young boys stopped all contact between the boys and their father. On any view, there was a minor disagreement between the father and one of the boys about having a haircut. The mother turned up at the father’s house unannounced, with the intention of taking the boys, and there were some unpleasant words spoken by the father to the mother, and the boys left with their mother. In January 2021, the mother made a complaint to police suggesting that the boys had been indecently dealt with by the father and (shortly thereafter) a complaint that, during her relationship with the father, he repeatedly raped her in front of the children. The father did not see the boys between 6 November 2020 and 12 June 2021 (save for perhaps two or three occasions) and since 12 June 2021, the father has spent two hours per fortnight with the children supervised at a contact centre at a cost of $305 per visit.
Despite the mother having maintained her allegations for nearly two years, the mother capitulated midway through the final submissions of her counsel, and an interim order was made by consent that the father immediately resume spending time with the children on an unsupervised basis, including overnight after an initial four week period of day time visits. The independent children’s lawyer (“ICL”) supported the interim order. It was submitted on behalf of the mother that, while the mother maintained her allegations, she conceded that any risk of harm to the children was not one that could be found to be ‘unacceptable’[1] i.e. that the risk of possible indecent dealing or exposure to family violence did not outweigh the benefit to the boys of having a meaningful relationship with their father.
[1] M v M (1998) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1936) 60 CLR 336 at 362 (Dixon J).
In many respects, the timing of the mother’s capitulation was most curious. The mother has been legally represented for substantial periods since the proceedings were commenced by the father on 25 February 2021. The father has at all times denied the allegations and surprisingly he was not cross-examined on them. There was no revelatory evidence identified which might have caused the mother to view her allegations in a different light. Indeed, as already noted, the mother maintains her allegations.
After careful consideration of the entirety of the evidence and for reasons which will become apparent, I find that the children’s best interests will be met by them living with their father and spending time with their mother each alternate weekend after an initial period of supervision.
BACKGROUND
The mother and father commenced a relationship in 2006 and married in 2011. They separated on 3 August 2018 (although there may have been earlier separations) and divorced on 29 May 2020. However, there were a number of attempts to reconcile both before and after the divorce. There was no further attempted reconciliation after July 2020.
There are three children of the relationship. X is 11 years of age and was born in 2011, Y is nine years of age and was born in 2013 and Z is three years of age and was born in 2019.
The father is 47 years of age. He works in the transport industry three to four days per week with an average weekly income of approximately $1,090. The father proposes to take three months leave from his employment in the event the boys commence to live with him. The father is fully supported in his proposal for the boys to live with him by his partner Ms F (“Ms F”). The father and Ms F commenced their relationship in July 2021 and commenced to live together in mid-2022 in a four bedroom rental property in T Town, which is under an hour from the Brisbane central business district.
Ms F has four daughters and several grandchildren. Only one of her children is under eighteen and lives with Ms F and the father. V is 14 years of age and spends time with her own father every fortnight. Ms F is 48 years of age and employed in allied health.
The father also has a daughter from a previous relationship, W, who is 17 years of age. The father no longer sees W, there having been a break down in his relationship with W’s mother after X was born. W attended the parent’s wedding in Country U. Both X and Y are aware of W.
The mother is 36 years of age and the primary carer for X, Y and Z. The mother was born in Country U and still has family there. The children are home-schooled by the mother. The mother had a brief live-in relationship with Mr G from mid to late 2020 to February 2021 and it seems there were attempts to rekindle the relationship after that time. Mr G was noted to be present on occasions when the mother delivered the children for supervised time with the father at B Contact Centre, which commenced in June 2021. The mother is not currently in a relationship. The mother relocated with the children in April 2022 to AA Town in the C Region, which is over one hour from the Brisbane central business district.
It is common ground that the father became unwell in 2016 and was suffering from poor mental health. The father eventually sought medical intervention but was debilitated for at least six to twelve months and was supported by the mother, whom the father describes as “amazing” during this difficult time for the family.
Subsequently, it seems the mother may also have suffered some form of breakdown. The mother was often in bed when the father arrived to see the children after separation and they would be fending for themselves. In a letter from Dr H to the mother’s GP dated 18 April 2018, he opines that the mother “is quite clearly suffering from depressed mood and anxiety at present”. The father took photographs of some of the rooms in her home on 8 April 2021. The place was a complete and utter mess. The father contends that he took the photographs because he was concerned about his children living in such unhygienic conditions. It might have been better if he had simply cleaned the place, or offered to pay someone to do it.
There is little doubt that this family has experienced some very challenging times.
In January 2020, a final protection order was made naming the mother as the aggrieved and the father as the respondent. The father consented to the protection order without making any admissions. In September 2021, the protection order was varied to include additional conditions by consent, again without the father making any admissions. The protection order will remain in place until January 2025.
Up until 6 November 2020, when the mother suspended the father’s time with the children, the father had generally spent significant time with the children including weekends, afternoons during the week, special days and holidays, and of course there were times when the parents were living together during periods of attempted reconciliation.
On 7 December 2020, the parents attended a private mediation but were unable to reach agreement.
The father commenced parenting proceedings on 25 February 2021 seeking urgent orders for X and Y to be returned to mainstream schooling and for the children to recommence spending time with the father.

On the first return date on 15 March 2021, the matter was adjourned to enable the mother to file material in response.
On 18 May 2021, an interim order was made by consent providing for the parents to have equal shared parental responsibility and for the father to spend supervised time with the children at the B Contact Centre at Suburb S, which is now about halfway between the parent’s homes.
The matter was transferred to this Court on 19 October 2021 with it being noted that there were “serious allegations of sexual abuse of a child”. All parties were legally represented at that hearing.
The father re-applied to Court on 16 December 2021 for X and Y to resume mainstream schooling and for his time with the older boys to transition to unsupervised alternate weekends and overnight on alternate Tuesdays, and with a slower transition for Z. The application was heard by a registrar on 3 February 2022. The father’s application for unsupervised time with the children was supported by the ICL. The reasons of the registrar are before me, and on 8 February 2022 the father’s interim application was dismissed in circumstances where the registrar identified the competing allegations as follows:
(a) Of sexual indecent treatment by the father, and
(b)That the mother had weaponised allegations to limit the father’s parenting of the children.
The registrar also identified the following issues about which he expressed “much concern”:
(a)       The approach that has been taken to the home schooling of the children;
(b)The supervision of the children during the day and the lack of structure in their day;
(c)       Y’s speech difficulties;
(d)      Y’s lack of toilet training; and
(e)       The children’s socialisation.
Ultimately, the registrar found that he could not determine the “allegation of inappropriate sexual misconduct by the father on an interim basis”. The registrar also expressed concern that if he made the orders sought by the father, “the mother will seek to sabotage the orders”. All parties were legally represented at that hearing.
Trial directions were made on 20 May 2022 when the matter was listed for a final hearing commencing 14 November 2022. The issues identified by the parties on 20 May 2022 included the following:
Does the father pose an unacceptable risk of harm to the children as a result of the allegations of sexual abuse of the children and/or family violence including rape of the mother during the relationship?
All parties were legally represented at that hearing, as they were in the trial before me.
PROPOSALS OF EACH PARTY
The father’s proposal is for the children to live with him and eventually spend alternate weekends and half school holidays with the mother. Further, the father proposes that he have sole parental responsibility for major long term issues. The precise terms of the order sought by the father are set out in his Amended Initiating Application filed 17 October 2022. The father did not press for a moratorium on the mother spending time with the children but rather that there be a period of supervised time.
The mother’s proposal is for the parents to have equal shared parental responsibility for major long term issues, other than health and education for which she should be solely responsible. Further, the mother proposes that the children should continue to live with her and spend alternate weekends and half school holidays with the father. The precise terms of the order sought by the mother are set out in Exhibit 16. Exhibit 16 represents a significant change to the order sought in the mother’s Amended Response filed 24 October 2022.
The ICL recommends that the children live with the father; that he have sole parental responsibility for all major long term issues; and that the children spend alternate weekends and half holidays with the mother. The precise terms of the order recommended by the ICL are set out in Exhibit 17.
WHAT LAW GOVERNS THE DETERMINATION OF A PARENTING DISPUTE?
Section 43 of the Family Law Act 1975 (Cth) (“the Act”) requires the Court to have regard to a number of matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which set out the objects, principles and matters that must be considered when determining what parenting order is proper.[2]
[2] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined by s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility;
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. A particular object of the Act is to ensure that children receive adequate and proper parenting to help them achieve their full potential (s 60B(1)(c)).
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of a child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[3] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[4] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[5] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[6]
[3] Evidence Act 1995 (Cth) s 140.
[4] M v M (fn 1).
[5] Ibid.
[6] M v M (fn 1); N and S and the Separate Representative (1996) FLC 92-655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[7] to determine whether or not the possible risk of future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[8] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[9] Whether a risk is found to be unacceptable is not determined on the balance of probabilities according to the civil standard of proof.[10]
[7] Eastley & Eastley [2022] FedCF1A 101 at [31] (“Eastley”).
[8] Johnson & Page (2007) FLC 93-344 at 81,890, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[9] Isles at [7].
[10] Isles at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[11] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[12] on each and every factual dispute.
[11] Baghti & Baghti and Ors [2015] FamCAFC 71.
[12] M v M (fn 4) at 76.
Until a contrary order is made by the Court, each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[13]
[13] Banks & Banks (2015) FLC93-637.
I turn now to consider the issues in this matter.
ISSUES FOR TRIAL
As is my practice, the significant issues requiring determination were identified when the matter was set down for trial on 20 May 2022. At the commencement of the trial, counsel for the father added two additional issues without objection, and on day three of the trial the wording of issue one was changed to remove the words “sexual abuse” and replace them with “inappropriate touching”.[14]
[14] See Exhibit 7 – for ease of reference I have considered the numbered issues in a different order to that set out in the Exhibit.
The issues identified by the parties are as follows:
(a)Does the father pose an unacceptable risk of harm to the children as a result of the allegations of inappropriate touching of the children and/or family violence including rape of the mother during the relationship?
(b)Has the mother weaponised allegations of sexual abuse and family violence against the father to limit his relationship with the children?
(c)Does the mother pose an unacceptable risk to the emotional or psychological welfare of the children?
(d)Is the mother able to facilitate a meaningful relationship between the children and their father?
(e)What special needs do the children have and which parent can best meet those needs?
(f)Should the children continue to be home-schooled?
(g)Should one parent be solely responsible for decisions concerning the children’s education and/or health?
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN AS A RESULT OF THE ALLEGATIONS OF INAPPROPRIATE TOUCHING OF THE CHILDREN AND/OR FAMILY VIOLENCE INCLUDING RAPE OF THE MOTHER DURING THE RELATIONSHIP?
By the conclusion of the submissions made on behalf of the mother, it was submitted that the first issue did not require determination. The mother no longer contends that the father poses an unacceptable risk of harm. The father however, submitted that the issue should be determined to at least reflect all parties’ submissions, i.e. that the father does not pose an unacceptable risk of harm, and, on the father’s submission, to go further by finding that the allegations of ‘inappropriate touching’ are groundless.
The father further submitted that the finding on this issue will inform the determination of whether or not the mother has ‘weaponised’ her allegations in order to limit the father’s relationship with the children, whether or not the mother poses an unacceptable risk to the children, and whether or not the mother will be able to facilitate a meaningful relationship between the children and the father.
Inappropriate touching allegation
There can be no doubt that up until at least the commencement of the trial, and initially, at least, during her cross-examination, the mother’s allegations against the father were understood and expressed to be that his alleged inappropriate touching of the children was sexually abusive. Indeed, during cross-examination the mother initially maintained that the father had sexually interfered with the children. The following exchange occurred between counsel for the father and the mother:
Counsel for the father: … Do you still maintain that position that he sexually interfered with them from a very young age?
Mother: Yes
As earlier noted, an allegation of sexual abuse was expressly noted in the order transferring this matter to this Court on 19 October 2021, and again when the matter was before a registrar on 3 February 2022, and again when trial directions were made on 20 May 2022.
The mother’s Notice of Risk filed 4 May 2021 is marked with a cross beside the word “sexual” when identifying the kind of family violence she says the children have experienced.
It was only during cross-examination at trial that the mother took exception to the use of the term “sexual abuse”. I am not sure the change of terminology in the agreed issues for trial, is necessarily of significance.
The following further exchange occurred between counsel for the father, and the mother:
Counsel for the father: … Well, why is it, then, has it been necessary for them to only experience their father at a contact centre for 17 months?
Mother: Due to the genital tickling.
Counsel for the father: Due to the sexual abuse allegations?
Mother: Due to the indecent treatment of children allegation.
When asked by counsel for the father to identify what she saw as the unacceptable risks of harm posed by the father to the children, the mother responded that it was the “genital tickling and verbal abuse”. The mother said there was nothing else that posed an unacceptable risk. In relation to the allegation of ‘genital tickling’, the mother said that “every time he was changing a nappy or helping a child on the toilet”, the father would touch the children’s genitals, but that it “wasn’t a whole lot because he was not very involved in the family life”. The mother described the ‘genital tickling’ as “inappropriate behaviour”. When the mother was asked if she was suggesting it was a game, she responded – “not a reciprocal game, no”.
In the mother’s trial affidavit, she provides an account of the circumstances leading to her making a complaint to police in January 2021, and which formed the basis for what had been repeatedly referred to in the proceedings as ‘sexual abuse’:
84. In or around January 2021 [Z] had hurt himself and was on my lap crying. [Z] was completely undressed at the time and [X] came and sat beside us and tried to cheer [Z] up with words of encouragement and then he tickled [Z] on the penis. I immediately stopped him and said something to the effect of "you can tickle his tummy, but you can't tickle his penis". [X] responded by saying something to the effect of "oh, it's just that dad does it all the time". [X] then started crying. I assured him I wasn't angry at him and asked "does your Dad do that to you, too?" and he replied "No, just to [Z]."
85. I have witnessed this behaviour previously throughout our relationship, [the father] would sometimes say "I've got your ding dong" while doing this. When I witnessed this previously, I confronted [the father] and said something to the effect of "if we had girls, would you tickle their vulva?". [The father] would respond to me by calling me names such as "perve", and made me feel like I was making a big deal out of nothing. [The father] continued the behaviour, so I took over the duties of toileting and changing clothes for the children.
[emphasis added]
In the father’s trial affidavit and reply affidavit, he denies the allegation of genital tickling and denies the conversation as alleged in [85] of the mother’s trial affidavit. The father offers a possible explanation for X’s actions of tickling Z when he was upset. The father contends that in or about September 2020, Z was upset and he tickled him above the knee to cheer him up. He contends that Z was clothed at the time.
In the mother’s affidavit filed 21 January 2021 (Exhibit 6), she provided a slightly different version of what she observed and when.
22. [Early] January 2021, the children and I were at home. [X] was [...] old at the time and was not wearing any clothes or a nappy - he was going through a stage of being able to take off all of his own clothes and nappy, and it was his preference to be nude inside our house.
23. [Z] had hurt himself and was on my lap crying.
24. [X] came over to us to check on [Z] and was trying to talk to him to cheer him up. [X] then tickled [Z] on the penis in a playful manner that seemed to have the intention or understanding that it would be enjoyed by [Z] and would make him stop crying. This was brand new behaviour for [X], I had never witnessed him touch anyone else's genitals before.
25. I was shocked and quickly moved his hand away while saying something to the effect of "sweetie you can't tickle him there ... you can tickle him on the belly, but we don't tickle people's penis's".
26.[X] recoiled his arm into his body and said "oh ... it's just that dad does it all the time".
27.[X] curled into a ball and started crying hysterically. I asked [X] "does he [the father] do that to you, or just to [Z]?". [X] responded, "Just [Z]".
28. I assured [X] that I wasn't angry at him. My regular parenting style is to respond gently when the children do something wrong; I rarely snap at them, and I hadn't snapped in this situation – [X] was not upset because of how I responded.
[emphasis added]
In the mother’s affidavit filed 4 May 2021 (Exhibit 5), the mother described her exchange with X as “[X’s] disclosure”.
During cross-examination, the following further exchange occurred between the mother and counsel for the father:
Counsel for the father: So the implication that you’re trying to generate is that he was highly distressed because he had been interfered with by his father, isn’t it?
Mother: No, I’m suggesting that he had witnessed interference by his father to [Z].
Counsel for the father: And he had become distressed because he knew it was interference, did he?
Mother: I’m not sure I’m saying why I know he was upset, I just know that it wasn’t because of my – it’s not like I barked at him and I scared him and he started crying. There was something about that incident that made him distraught.
Counsel for the father: Well, curl into a ball and start crying hysterically?
Mother: Yes.
Counsel for the father: The suggestion that you’re trying to advance is that he reacted badly to the idea of seeing or being abused, isn’t it?
Mother: Yes.
[Emphasis added]

The mother demonstrated her reaction to X tickling Z’s penis. She put up both her hands, indicating ‘stop’, opened her eyes wide and said “Whoa, whoa, whoa”. It was quite an extreme reaction. The mother was however, very keen to link X’s response to the alleged “interference” rather than to her reaction to him tickling Z’s penis. Given the demonstration of her reaction, it seems more likely that the child became upset in response to the mother’s alarmed reaction to what seems to have been a rather benign incident i.e. X tickling his baby brother’s penis. The mother reluctantly conceded that to be a possibility.
Despite the mother describing what she regarded as X’s extreme reaction to witnessing ‘interference’ of his little brother by the father, the mother did nothing with the information until about five days later when she reported it to police. The mother agreed that the incident involving X touching Z’s penis occurred about five days prior to her reporting it to police in January 2021.
It is important in the chronology to note that prior to the mother going to the police, an email had been sent to her a few days before by the father’s solicitor. The letter forms part of Exhibit 11 in the proceedings. Although lengthy, I consider it important to set out the content of the letter in full:
We hold instructions to act on behalf of [the father] in relation to matters impacting upon [X], [Y] and [Z]. Whilst our client is hopeful of an amicable resolution of current difficulties given the genuine accord you have enjoyed until recently, he remains deeply concerned by the absence of his time with the boys for now in excess of nine (9) weeks.
Our client instructs that you last facilitated contact between our client and the boys on 6 November 2020. Despite our client’s efforts to have time resume, including a family dispute resolution session with [Ms J] culminating in her issue of a section 60I certificate, no contact has ensued. Whilst we note your proposal that you personally supervise time, given the existing Protection Order and current frustrations, this is an entirely inappropriate arrangement and unlikely to be adopted by the Court in any way.
Our client does not believe that issues arising in or about November 2020, or [X] or [Y’s] apparent resistance to time is other than readily capable of resolution with your support. Certainly same does not explain why you have unilaterally suspended our client’s time with [Z]. Further, please be aware that you are not at liberty to engage the children with a psychologist other than with [the father’s] agreement or Court Order. We are instructed accordingly to ask that you immediately refrain from attending upon [Dr K] with the children.
Our client believes there is no basis for your failure to facilitate time and particularly in circumstances where you had until September 2020 (and arguably beyond) a desire to facilitate an equal time arrangement, including for [Z] aged only one at that time. He similarly believes it is unacceptable that the children are not being afforded a structured education, or the professional support they require for clear and pervasive developmental issues.
It is our client’s intention to make application to the Court, without further notice to you, to seek the following specific Orders in the absence of your agreement to this course:
1. That you have equal shared parental responsibility save and except for our client having sole parental responsibility for issues of health, allowing him to seek assistance by way of speech therapy, dental intervention and assistance for [Y] in relation to incontinence given the pervasive nature of his ongoing difficulties;
2. That the children cease to attend upon [Dr K];
3. That the children attend, pending the conclusion of the 2021 school year, the [E School], transitioning thereafter to a suitable state school agreed by you both in the general area;
4. That should you be prepared to abide the above and our client’s time with the children then they live with each of the parties on an equal basis and specifically on a week about basis with time commencing from Friday after school or at 5.00pm during school holidays and concluding the following Friday morning at the commencement of the school day or at 8.30 am during school holidays.
Should you be unprepared to agree to the aforementioned matters and/or unable to facilitate the children’s attendance at school and their time with our client then our client proposes that the children live with him and spend time with you on such alternate weekend basis as can be reasonably facilitated.
We would be happy to elaborate on specific Orders for special occasion time should you be agreeable to the above in-principle arrangement.
We are instructed to afford you a period of seven days in which to take legal advice in relation to this matter and respond. In the absence of a response or indication of a meaningful desire to negotiate these matters, we confirm that proceedings may be initiated without further notice to you utilising the section 60I certificate issued by [Ms J].
We have reinforced for our client the importance of your co-parenting relationship but you would appreciate that it is a serious matter when one parent determines to unilaterally suspend a party’s time with children, and particularly in circumstances where a significant time arrangement has been in place.
We look forward to hearing from you.
The father contends that it was only after the mother received this letter, and realised that the father would press ahead with legal action to not only spend time with the boys but to have them attend mainstream school (and to live with him if that did not occur), that the mother made, what he contends, are false allegations suggesting inappropriate sexual conduct by him towards the children and later allegations of rape of the mother.
It is certainly true that, on the evidence before me, the mother first made a complaint about the father’s behaviour with the boys in January 2021 when she went to the police, and sometime later made an allegation of rape against the father. The police records provide a summary of their involvement which includes the following:
... The informant is the biological mother of the children and has custody of the children who have not been wanting to see their father, the suspect. Informant advised that she saw her son [Y] tickling the genitalia of his brother [Z] and that when she spoke with him about it he told her, and she had witnessed first hand previously, that their father regularly chases them when they are not clothed and tickles their genitalia. Informant tried to speak with [Y] about the inappropriateness of such activity. Informant further advised that the middle son [X (X)] wears a nappy. [X] does not have incontinence issues and is toilet trained however he does not like to be exposed, [Z] is a nudist when at home and if [X] sees him running around without pants on he becomes very upset. Informant advised that the brother of suspect was molested by a teacher at she believes [BB School] some time ago and that the matter was swept under the rug however this male is now a drug addict and has a lot of ongoing issues. Informant is concerned as to the extreme reaction by [X]. Informant is a named Aggrieved in a Protection Order and is varying the order to include her children. The actual dates of the offence are not known to Reporting Officer, however may be obtained when speaking with Informant, The informant has also made a Rape complaint involving the same suspect that relates to several occasions whilst they were together and advised that the suspect would rape her when she was breastfeeding the children, when the children were in the same bed and or the same room. No statements taken Please refer to CPIU for further.
(Emphasis added)
It is noteworthy that the mother reported the offending behaviour as involving the father chasing the children when they are not clothed and tickling their genitalia. Such behaviour, if it occurred, could be in the context of a game, particularly bearing in mind the ages of the children. In the mother’s affidavit evidence and oral evidence at trial, she refers to the alleged offending behaviour occurring when the father was changing nappies and assisting the children with toileting.
It appears that there may be an error in the police records because it is recorded that the mother tried to speak to “Y” about the inappropriateness of such activity, and refers to the “middle son” wearing a nappy but attributes that to X. In any event, it is recorded in the note that the child who wears a nappy does not have incontinence issues and is toilet trained but does not like to be “exposed” and becomes upset when he sees Z naked. Consistent with her evidence at trial, the mother in her complaint to police, focussed on X’s “extreme reaction”. There is also reference to the brother of the “suspect” (presumably this refers to the father) having been “molested by a teacher … some time ago and … swept under the rug”. The relevance, if any, of this piece of information is not apparent and it does not feature in any other evidence before me.
In January 2021, the mother took the children to the police station to be interviewed. Y refused to be interviewed. Only X was interviewed. The recording of the interview is not before me, only the police summary. When X was interviewed he is reported to have said the following:
- Disclosed that he saw dad tickle [Z] in the bad spot
- Eluded to the groin area when describing the bad spot. Explained that it is where you wee from.
- Stated when [Z] was being tickled, both Dad and [Z] were fully clothed and [X] believes it was in response to [Z] being upset.
- Stated he has not observed dad tickle anyone else like that at any other time nor has he himself been tickled like that.
- Stated that dad is mean due to constantly asking them to eat certain foods and update the father in relation to what they are watching or doing at all times.
X’s description largely accords with the father’s evidence of tickling Z when he was upset and fully clothed. I do not place any weight on the reference to the “bad spot” given the mother’s over the top reaction to the innocent action by X. X’s statement also corroborates the father’s denial of tickling either X or Y in the manner alleged.
When referencing X’s police interview, the mother contends in her trial affidavit that “[X] was very uncomfortable and would not disclose the full incident”. It is not clear on what basis the mother contends that X was “very uncomfortable”. There is no evidence she was present for the interview. Nor is it clear what the mother meant by the “full incident”. According to the mother’s own version, the incident at its highest involved X observing his father tickle Z’s penis in a playful manner while changing his nappy, chasing him, or assisting him in the toilet.
The mother further contends in her trial affidavit, that after X’s police interview, and while driving home from the police station she became “distraught” after Y said to her:
Dad tickles my penis almost every time he wipes my bum on the toilet. I ask him to stop when it happens, and most of the time he stops.
The mother pulled the car over at Hungry Jacks and bought the children an ice cream and then called a lawyer and made an appointment and instructed a letter to be written to the father “outlining the need for supervised care”. If there was a letter written, it is not in evidence.
The mother contends that about a week after the letter was sent by her solicitor to the father, and having heard nothing, she spoke to a police detective and told him what Y had told her in January 2021. In her trial affidavit, the mother sets out the exchange between herself and the police detective:
90. About a week later I spoke on the phone to the detective, who said that he had spoken to [the father] and that [the father] had denied the allegations. I told the detective "[Y] has told me that his father was touching his genitals on a regular basis", and the detective told me "Unless [Y] would agree to be interviewed, nothing further will be done." [Y] is selectively mute. I said to the Detective words to the effect of "Surely, there's another way of dealing with children who won't speak?" and the Detective responded saying something to the effect of "we have five year olds who make disclosures to us".
Not surprisingly, the police investigation concluded that there was insufficient evidence to support an offence of indecent treatment of a child due to there being no disclosures by either child and “nil sexual connotation behind the tickling incident X observed … [and] when Z was being tickled, both Dad and Z were fully clothed and X believes it was in response to Z being upset”. The police file was noted as having been finalised – “[e]vidence indicates the offence did not occur” and “unfounded”.
After being told the police were not taking any action, the mother contacted the “Department of Children’s Services” for advice. The mother contends that she was made to feel like the children’s experiences did not matter, all because the father said he did not do it. This is not an accurate reflection of why police concluded that there was insufficient evidence that an offence had occurred.
The mother contends that she then decided “to pursue rape charges against [the father]. I thought that since my children were unable to use their voices, or use them to the fullest, that I would use mine”. This is an extraordinary admission by the mother.
It seems the mother did indeed make a complaint of rape against the father. The only reference to the allegation of rape in the police records, before me, refers to the mother making the allegation that on “several occasions whilst they were together … [the father] would rape her when she was breastfeeding the children, when the children were in the same bed and or in the same room”. There is no record of a complaint to police that the conception of Z was a consequence of rape yet this is one of the mother’s allegations in the proceedings. The police records indicate that no statements were taken. The father has not been charged with any offences of rape and the father was not cross-examined about any alleged rape. The father denies ever raping the mother or engaging in sexual intercourse with the mother in the circumstances alleged by her. The focus of the cross-examination of the father was his alleged instigation of arguments when the mother declined his advances and this was suggested, by counsel for the mother, to demonstrate sexually coercive conduct or lack of insight. The father was at pains to explain that they argued about the breakdown of the relationship and that the lack of intimacy was just one part of that.
6 November 2020 – January 2021
It is perhaps useful to provide some further background to the circumstances leading up to the mother making a complaint to police in January 2021 and a subsequent complaint of rape.
Up until the night of 6 November 2020, the children spent regular time with the father. On that evening, the children were at their father’s home and were supposed to stay overnight. In her trial affidavit, the mother contends that at 7.08pm she received seven text messages from X simply saying “Mum”. The mother contends she did not receive a response when she asked if he was okay. At 8.19pm the mother contends that X sent her further text messages from which she deduced he was distressed and that both he and Y asked to be picked up. Interestingly, the mother’s account as contained in [64] and [66] of her affidavit bears little resemblance to the actual text message exchange (part of Exhibit 12 – no times are visible), which was as follows:
Mum !!!!!!!!!!
Mum
Mum
Mum
Mum
Mum
Mum
Hi [X]
All of your messages just came through at once! Are you ok??
Dad wants to cut my hair
Can I call you?
Ok
No
Dad will here (sic) you
Ok let’s just text then
Was he serious or do you think it as more of a joke?
No
He was serious
Can you pick me up tomorrow
Your hair is wonderful [X] and it is YOUR hair, you get to choose not your dad
Yes he was serious
Would you like me to pick you up now or tomorrow?
Are you ok [Y]?
Yes please
[Y] would you like to come home tonight too?
Pick me and [Y] up tomorrow
Yes
Your messages are a bit confusing … I can come pick you both up now if that’s what you would like, don’t worry about upsetting your dad, I will deal with him. Or I can come tomorrow
Tomorrow
[Y] is that ok with you?
Yessssssss
Me and [Y] only have 10 minutes ok
Until bedtime?
Does dad take your iPads away?
Yes
L L L
No he turns off the wifi
Have you guys had treat night?
No
?!!
We can have treat night when you guys come home
How is [Z]?
He is [illegible]
Can you pick me and [Y] up tomorrow please
Do you not want me coming tonight because you don’t want to upset your dad?
Yes
Come tonight
I’m going to come now
I’ll be there in 8 minutes. Can you please tell [Y].
I love you both
Ok
(As per original with emphasis added)
In my view, the texts exchanged between the mother and X and Y on 6 November 2020 demonstrate at least a degree of manipulation of the children by the mother. The texts from the children repeatedly conveyed a wish to be picked up the following day. The mother pressed the issue and offered the incentive of a treat if the boys returned that night. Finally, the mother suggested a reason as to why the boys did not want her to pick them up that night and they agreed. The mother also repeatedly undermined the father’s parental authority e.g. in relation to X’s hair, restricting the boys access to their iPads, and not providing them with treats. The statement by the mother that she would “deal with” the father does not create an impression that the mother had any fear of the father, as alleged in these proceedings. The term also indicates the mother’s expectation that the father would be less than pleased when she turned up unannounced.
The issue that prompted X to contact the mother related to his hair. Hardly a matter to justify what later occurred.
The mother turned up unannounced at the father’s home on 6 November 2020, at about 9.00pm. The father was alerted to the mother’s arrival by her car lights. He was in bed. X ran out to the mother’s car and Y followed. The father took Z outside to the mother. All children left the father’s home with the mother. While the father contends he was resigned to the children leaving against his wishes without being provided with a reason, there were certainly unpleasant words spoken. The father admits saying to the mother “This is why we’ll end up in Court … You fuckin piece of shit … You shouldn’t even be here”, and that he said these things in front of the children. The father says that he was emotional and upset and accepts that he should not have said those words, particularly in front of the boys. The father also admits yelling “fuck” loudly after he returned to the house, but contends he did not think the children would hear him. They apparently did.
The father denies threatening to cut X’s hair at any time, but agrees he brought up the topic on the evening of 6 November 2020. The father contends that when X became upset, he said no more about it, and that subsequently they all had dinner together and went to bed.
This incident has all the hallmarks of a ‘set up’ by the mother. The mother certainly anticipated that the father would be less than pleased with her turning up unannounced to take the boys because she said she would “deal with him”. The father should have refrained from demonstrating his anger and frustration in front of the children, but the situation would not have arisen had the mother done what the children asked i.e. pick them up the following day. The mother reported the father for a breach of the protection order and he subsequently pleaded guilty.
The mother also relied upon this incident in her application to vary the protection order which was signed and filed by the mother in February 2021. The mother’s application gives the impression that the children were in imminent danger, which they were not, and wrongly claims the children requested her to pick them up immediately.

Inexplicably, on 7 November 2020, i.e. the day after collecting the boys unannounced, the mother went to the father’s house alone to collect some camping equipment, linen and her snowboard. The mother threatened to call the police if the father did not hand over the items. The father provided them and the mother left the property. The father had a friend in attendance as a witness. In her application to vary the protection order, the mother portrays herself as deeply fearful of the father and “a large statured male friend” who both walked silently towards her with their arms folded. The mother contends that she contacted police and spoke to someone for five minutes. There is no police record of such a conversation. The police did not attend. The mother agrees that she received the items she requested and left. The father was not charged with any offence as a result of this event. This is another incident that has all the hallmarks of an attempted ‘set up’ by the mother. It could hardly be said that collecting the items identified were pressing matters, and given the mother’s allegations of being repeatedly raped by the father it defies belief that she would willingly go to his home on her own to collect a few mundane items.
After 6 November 2020, the mother contends that she made multiple attempts to communicate with the father “about the severity of the situation in the eyes of the children”. If the characterisation of the situation from the children’s perspective was accurate, the mother has to bear at least part of the responsibility.
The mother unilaterally arranged for the children to see a psychologist and contends that she invited the father to attend. The father makes no mention of having received the mother’s emails dated 27 November 2020, 1 December 2020 and 7 December 2020, although he may have because there is later evidence that he took exception to the particular psychologist retained by the mother and to the fact that she had done so unilaterally.
The parents attended a mediation on 7 December 2020 but no agreement was reached, and the father’s time with the children did not recommence.
It is common ground that on or about 15 December 2020, the mother suggested to the father that the children go on an outing with him to buy ice creams and that he agreed. The outing did not occur because the mother insisted on being present.
On 15 December 2020, the parents exchanged text messages including the following:
Mother
The boys are really keen to dye their hair, is that ok with you? I haven’t bought a hot dye yet but am getting grilled daily about it
Father
I would prefer they didn’t
Can you please not pass messages through [X]. I asked the question about Woolies and you haven’t responded to me but have gone through [X].
Also [X] is in tears about the hair dye response from you.
I honestly want nothing to do with you, so I would rather organise stuff with the boys.
That’s not how it works [Mr Harries]. …
…
Your only option for today now is for me to come with the kids, we will meet you wherever you are wanting to go so just name a time and place …
I’m out. I’m done. I want absolutely nothing to do with you. I hate the way you are raising the kids and I won’t be part of it anymore.
You are out for today or for good?
For good. Never contact me again
The boys were aged nine, seven and 19 months at the time. I note that at one of the supervised visits (supervised visits commenced about six months after the above email), X and Y turned up with brightly dyed hair, notwithstanding the father indicating his preference for the boys not to dye their hair in the above email. The father was nevertheless noted to compliment the boys on their hair.
The father made it clear in the above email that he did not want the mother to be present when he was spending time with the children. The mother suggested it was his only option for that day. Understandably, the father was wary about the mother making further complaints against him. The father’s request for the mother never to contact him again had no effect.
On 16 December 2020, the mother sent the father a further email. In the email, the mother references a proposed outing and again raised X’s “own opinion about his appearance”, and accused the father of “prioritising your own personal opinion about his appearance”. The mother concedes in the email that earlier that day, both X and Y had been excited about a proposed outing with the father. The mother informed the father in the email that she would be blocking his number on the boys’ iPads and that any contact had to be sent through her and that if he wanted to see the children it had to be under the supervision of a third party i.e. the children’s psychologist, the mediator or a visitation centre. (It will be noted later in these reasons that when the father did accept the mother’s suggestion for supervised time at a contact centre she delayed the process by months).
On 21 December 2020, the mother emailed the father asking him to let her know if he would like to see the children for Christmas and that she would be “happy to bring them to see you at a public place of your choosing (as long as it has video surveillance) …”. The mother continued to ignore the father’s objection to being in the mother’s presence.
On 24 December 2020, the father requested communication with the boys via FaceTime later that day and on Christmas Day. The mother responded by email stating, among other things, that he could FaceTime Z that evening and on Christmas Day. Her email included the following:
I was talking with [X] earlier this morning and asked what he wanted to do with seeing you for Christmas .... I said I was thinking of inviting dad over on Christmas day. He said no. I said how about we meet him at a playground. He said no. I said then we can just Face Time with him, he said no, that he doesn't want to see you. He then talked about how he is worried you are going to ruin Christmas and then talked about how you ruined his birthday (his opinion, not mine). He said that he gave you one last chance last week to meet him at the ice cream place and you blew it by cancelling at the last minute.
I have asked [Y] about if he wants to have you over or FaceTime with you, but I can't get a response out of him, he just shakes his head 'no'.
X was nine years old at the time and Y was seven years old.
The father arranged for a friend to deliver Christmas presents for the boys to the mother’s home on 24 December 2020. The mother confirms this in her trial affidavit and contends that she was unaware of this until after the event because she and the children had slept through the afternoon until about 6.30pm as they were unwell.
At 6.52pm on 24 December 2020, the mother sent the following message to the father:
[Mr Harries]
Looks like we missed you! We are all sick .... [Y] fell asleep on the lounge and then I lay down with [Z] when he had his nap and when I got up [X] was also asleep on the lounge! Did you want to come back to give the boys their presents? You are also welcome to come tomorrow if you'd prefer, [Mr G] has said he will leave for an hour or however long if you are wanting to see the kids.
[Ms Harries]
The father responded by text message at 8.29pm:
[Ms Harries]
You did not miss me this afternoon. I sent [Mr CC] to deliver the boys presents on my behalf as I maintain that I am not comfortable coming to your place.
Please confirm that the boys have the presents (the white one is [Y's]) and know they are from me.
As for tomorrow, aside from me not being comfortable coming to your house and given at mediation (see below) you were to have the kids until 5pm Boxing Day, I have made arrangements to spend Christmas Day with my elderly parents (who I haven't spent Christmas with in years) and family. However please facilitate a Face Time with me and the boys tomorrow morning at 930am.
If the boys wish to call me sooner (when opening the present I gave them), please let them call me from their iPads (between 730 to 840am I will be driving).
[Mr Harries]
In her application for variation of the protection order signed by the mother in February 2021, the mother gives a detailed account of the delivery of the children’s Christmas presents to her home on 24 December 2020, which is completely inconsistent with her trial affidavit and her text message to the father at 6.52pm. In her application, the mother alleges that the father sent around a threatening man who was an “ice addict and trained fighter whom the [mother] has previously been told by the [father] can easily kill someone with the level of training they have”. The mother goes on to state that this person proceeded to bang loudly on her door, alarming her then partner (Mr G), and that this person proceeded to bang on windows and again on the front door. The mother alleges that this “excessive knocking indicates to the [mother] that [the third party] was intending on a face to face confrontation to intimidate her”. The mother seems to have gone out of her way in her application, to create an atmosphere of dire risk, even including the following:
The [father] has been making decisions that are out of character for him that put my safety in jeopardy, including but not limited to sending a trained fighter and ice addict to my house unannounced and without my permission on December 24 2020; although this was done under the guise of dropping off Christmas presents (even though there had been no mention of the [father] needing to deliver presents to my house) it was clearly and effectively an attempt to intimidate me. The message was received loud and clear and I have since been trying to find new accommodation because I no longer feel safe in my house knowing that this particular friend of the [father] has my home address.
The allegations are really quite extraordinary. It is apparent from the mother’s text message at 6.52pm on 24 December 2020, that she thought the father had delivered the presents and so comfortable was she about that prospect, that she invited the father to come over that night and again the following day. It is also apparent from the father’s text message response that the mother knew the person he had arranged to deliver the presents because he refers to him as just, “Mr CC”. Indeed, the father contends that the mother and “Mr CC” were on friendly terms as she had spent hours assisting him with a family dispute involving his children. The mother does not dispute this. The mother’s then partner, Mr G is not a witness in the mother’s case. He had provided an affidavit but when the mother was unable to produce him for cross-examination, she did not seek to rely upon it. There was no application for a subpoena to issue requiring Mr G’s attendance. I infer that had he attended, Mr G would not have assisted the mother’s case.[15]
[15] Jones v Dunkel (1959) 101 CLR 298.
On 5 January 2021, the mother emailed the father noting his preference not to see her but stated - “given the situation I don’t really see a workaround”. Later that day, the mother further emailed the father noting that she had received the s 60I certificate[16] from the mediator and that the matter now appeared to be proceeding to court. The father responded that the mother had given him no choice. The father then proposed spending time with Z for two hours the following Saturday morning (8 January 2021) and the mother agreed. On 8 January 2021, the father enquired whether the arranged visit was still going ahead (Brisbane had gone into ‘lockdown’ as a result of the response to the Covid 19 pandemic). The mother confirmed that the visit would go ahead but stated that she would be staying for the entirety of the visit and suggested the father come to her home or she would come to his home. The father declined to go ahead with the mother present.
[16] A reference to s 60I of the Family Law Act 1975 (Cth).
On 6 January 2021, the mother emailed the father asking him to take the boys to see the psychologist she had unilaterally engaged for the boys, on Friday 29 January 2021, in DD Town (over an hour and a half from Brisbane CBD). The mother notes the father’s objections to the children seeing this psychologist but stated that X and Y “are very comfortable with him” and that the psychologist had “connected with them really quickly”. It does not appear that Y had any problem with his alleged “selective mutism” (a term used by the mother to describe Y).
The mother sent the father a further email on 6 January 2021, making reference to her phone call to the father and noting that he was “obviously busy with work”. The mother asked the father if he was free after work that day and if he wanted to “catch up”. She said she would bring Z and they could meet at a playground or a café or “wherever”. The mother went on to state:
I am wanting to bring all the kids with me on Saturday and was thinking if we come to your house I can be in the yard for a couple minutes with [Z] so it isn't a quick handover and then I’ll just sit in my car at the end of the driveway for a bit until [X] and [Y] are comfortable for me to leave (or if they don’t want to stay then we can leave [Z] there for a bit) I think if you can say to them that you are sorry and you want to work through things with them, and that you are going to see [Dr L] [the psychologist] that will do wonders for them. …
…
… [X] wants to get his ear or ears pierced and I said I will chat to you about it, and he ran off crying. …
(Emphasis added)
The father again declined the mother’s offer for her to bring the children to his home.
As earlier noted, the mother received the letter from the father’s lawyer on 18 January 2021 and the matter spiralled from that point. The mother made complaints to police suggesting the father had molested the children and raped her, and in February 2021, the mother filed an application to vary the protection order that had been made early January 2020, raising a sense of urgency and suggesting her safety was in jeopardy.
Before proceeding to examine what happened thereafter, it is perhaps useful to set out the circumstances leading to the making of the initial protection order.
Protection order made in January 2020
A protection order in favour of the mother against the father was made in January 2020.
It is common ground that in early January 2020, the father returned X and Y to the mother’s townhouse as arranged. The mother had left a key for him. X and Y then went to play at a neighbour’s place. When the mother returned, there was an argument between the mother and the father and the father took the mother’s phone and refused to return it. The father drove off with the phone but shortly thereafter returned and gave the mother her phone. The parties are at odds about the manner of the father’s driving upon his return and whether he drove at the mother.
In her Notice of Risk filed 4 May 2021, the mother contends on that day, a neighbour, Mr N, was present during the incident between herself and the father which culminated in the father taking her phone and returning shortly thereafter and accelerating towards her before stopping five metres from her. There is no evidence from Mr N and no explanation for his absence. However, the police protection notice is before me. In that document, it indicates that the mother made a complaint to police that same day in January 2020, in which she contended that the father had taken her phone and later drove back into her unit complex and toward her in a way that made her fearful that he was actually going to hit her. She said the father stopped the vehicle about five to ten metres from her. She said he was going way too fast for the complex. The police spoke to a neighbour (presumably Mr N) who said he was outside holding Z when the father returned and “he believed that the [father] drove towards the [mother] in a manner that would make her fearful”. The basis for that belief is not stated i.e. it is not stated what the neighbour actually witnessed. The notice also refers to a conversation between police and the father in which the father is alleged to have said that he did not mean to drive towards the mother to make her scared but agreed his behaviour was not appropriate. The notice does not contain any quotes attributed to the father. Whether the alleged admission as to his behaviour related to his driving or taking the phone is unclear. The mother contends that the police recorded their conversation with the father and that he agreed to all parts of her statement. No such recording was produced and no explanation for its absence provided. In her trial affidavit, the mother said that the incident occurred in front of the children. The mother’s Notice of Risk contends that the two older children were at another neighbour’s home.
The mother describes this same incident in her application for a variation of the protection order signed February 2021 as follows:
January [2020]: The [father] admitted to the [mother] that he had found out her banking password and admitted to monitoring her personal banking for more than 3-4 months. The [father] then took the [mother’s] phone and unlocked it, indicating he had also found out her phone password. An argument ensued and it ended with the [father] driving his vehicle at high speed towards the [mother], making her intensely fearful he was going to run her over. As a result the Police issued a PPO that same day which then turned into this current DVO.
…
(Emphasis added)
The father admits that he took the mother’s phone that day in January 2020 and that he returned shortly thereafter. However, he denies that he accelerated towards the mother and contends that he drove at a slow speed given that it was in a cul-de-sac in the unit complex, and that he pulled up on the grass opposite the mother’s townhouse approximately 10 metres away from her and returned her phone. During the trial, the father was cross-examined about the incident. However, the sole focus of the questions related to the father taking the mother’s phone, which was never in issue.
The father consented to a final protection order in January 2020, without making any admissions. The protection order contained only one condition i.e. that the father not commit an act of domestic violence. The mother was the only person named as an aggrieved on the order.
I am unable to make a finding as to exactly what occurred in January 2020 given the various versions provided and the absence of the witness and the alleged recording. As noted, the protection order was made without any admissions being made.
February 2021 – the application to vary the protection order
As already mentioned, in February 2021, the mother signed and filed the application to vary the January 2020 protection order. The mother sought the following additional conditions to be included in the protection order and that the children be added as persons protected:
1) [The father] not to attend home address of the [mother], or have anyone else attend said address, without written permission from the [mother].
2) [The father] is not allowed to locate or attempt to locate the [mother].
3) [The father] not to contact [the mother], or ask anyone else to do so, unless an emergency or in direct relation to their children, as per written agreement or Orders.
4) [The father] not to communicate about [the mother] to other people, or ask anyone else to do so, including on Social Media.
5) [The father] not to approach [the mother] or any Named Persons unless written agreement or Orders.
The reasons stated for the variation included:
(a)That the father had breached the conditions of the protection order “multiple times over the past 12 months”;
(b)That she had been too fearful to report the breaches (other than one) because to do so would further enrage the father and endanger her and the children;
(c)That she had been attending counselling and had been encouraged to report all breaches which she intended doing promptly;
(d)That her GP “has been aware of the domestic violence committed by the [father] over the last 4 – 5 years”. The mother also alleges that at the appointment in January 2021, her GP advised her to increase her security around her home and to be very careful as the GP was very worried for her safety and referenced a recent murder/suicide case;
(e)That on 27 August 2020, the father had been “quite angry and aggressive” and used “intimidation stand-over tactics” towards the mother’s partner, Mr G and swore at the mother;
(f)That in September 2020, the father had been harassing a neighbour, Mr M, with questions about the mother’s personal life;
(g)That the children had sent her “distressing” text messages on 6 November 2020, and when she arrived to collect the children, the father was agitated and swore at her;
(h)That the father and a “large statured male” had intimidated her on 7 November 2020 when she went to retrieve personal items from the father;
(i)That the father had caused an “ice addict” and “trained fighter” to deliver the children’s Christmas presents on 24 December 2020 in order to intimidate her;
(j)That the father “had been making decisions out of character for him that put my safety in jeopardy, including but not limited to sending a trained fighter and ice addict to my house … on December 24 2020”;
(k)That the children have expressed they are fearful of upsetting and/or angering the father;
(l)That she was becoming increasingly fearful of the father; and
(m)That she has been trying to find new accommodation because she no longer feels safe.

The NDIS funding for Y provides: $12,453 for “core supports” to assist with daily activities within the home, which may include, but is not limited to assistance with personal care and house/yard maintenance; $20,780 for “capacity building supports” including access to a psychologist, speech therapist, dietician; $14,740 for “increased social and community participation”; and $3,004 for “support coordination”.
The mother now has engaged with NDIS and has recently commenced the process of engaging suitable supports for X and Y. The NDIS plans are with the boys, not the mother, and are apparently transferable in the event the father becomes the children’s primary carer.
It is no doubt difficult for the mother to address all the day to day needs of the boys, particularly when they are home schooled and she has very little opportunity to have a break. The mother has recently accessed some supports in her local area, mainly although not exclusively related to home schooling.
Mr O expressed some concerns about the father’s “level of insight” and that he “had not put thought into exactly how difficult and challenging it will be for the children to move into his care”. Mr O considered that Ms F was likely to be an asset. Ms F has raised four children of her own and has grandchildren. All of her family are said to have a good relationship with the father and I have no reason not to accept that evidence. Ms F has considerable experience in providing care and support for people with ASD.
The father also has the support of a long-time family friend and psychologist, Dr R. Dr R has offered his unpaid support and guidance to the father whatever the outcome of these proceedings, for as long as required. Dr R has personal experience with his own children having been home schooled for a number of years and with assisting them to transition to main stream schooling. Like Ms F, Dr R is also likely to be an asset.
In the past, the mother’s history of providing the necessary support and direction for the children has been found wanting. Certainly that is the opinion of Mr O, and I accept his opinion. Whether that would change now that the mother has NDIS funding remains unknown.
The father is untested as the parent providing the primary support for the children but over the last two years, he has shown patience and dedication to his children and, importantly, has the support of Ms F and Dr R. The father proposes to take off three months to devote himself to the children if they come to live with him and he has the full support from Ms F to do this.
SHOULD THE CHILDREN CONTINUE TO BE HOME-SCHOOLED?
The decision about home schooling should really be left to the parents but, given their very different views about the appropriateness of home schooling for their children, it is a matter about which they seek a determination. Unfortunately, there are no educational assessments before me.
It seems the parents have always had different views about how their children should be educated. The father contends that he compromised on his views that the children attend mainstream schooling in the interests of family harmony. It seems the mother also compromised on her views, because while X was home schooled for his first three years he attended E School in 2018 to 2019. The mother however attended school with X nearly every day. Although being enrolled at E School, Y only attended prep for at most three days. The mother concedes that it was her decision to remove X and Y from E School and they have not returned to school since that time.
Matters came to a head when, on 16 November 2020, the father received notice that X and Y were not registered for home schooling. They have subsequently become registered. The father has been agitating since at least January 2021, to have X and Y attend mainstream schooling. In a letter from E School sent to the father on 20 January 2022, the principal of the school confirmed that the children could recommence at that school from 7 February 2022. That time has long passed and the father now proposes to send the children to D School which is a prep to grade 12 school.
The mother is implacably opposed to the children attending mainstream schooling and proposes that she continue to home school the children until the end of their secondary education.
As to home schooling, Mr O noted after his interview with the family in June 2021:
163. The home-schooling model practised by [the mother] is broadly accepted in the community, and while it can be an adequate collaborative practice, [the mother] corroborated the account of [X] that in their case, there is no structured time for learning, no consistent social contact with other children their age, and vague methods of identifying whether their learning is of a level that might be commensurate with other children their age.
164. The routine identified by [X] - that they look after themselves for most of the day and spend most of their time playing computer games - was not inconsistent with [the mother’s] account, and is similar to other areas of parenting which emerged. Children with speech delays naturally find computer a salve to their problems with language.
165. Apart from the lack of education, this environment leads to other difficulties including the social developmental tasks which they are missing, and which are vital to future development and eventual adolescence and adulthood.
Dr P provides some general recommendations for both boys as follows:
Some general recommendations that work well with children on the spectrum across ages:
•Where possible providing [X] [and [Y] with an active learning experience using prompting to aid in social learning.
•The limited ability for [X] [and [Y] to generalise learnt information across contexts can be supported by contextualising concepts in real world terms.
•Inclusive education rather than integrated education is the optimum environment for [X] [and [Y] to learn in. Where possible the provision of in classroom support would be deemed to be superior to removal to an external unit.
•[X] [and [Y], consistent with other children on the Autism Spectrum, will benefit by the provision of respect from teacher to child occurring prior to gaining respect from [them]. This is the inverse of standardised practices however the benefits of taking this small step will yield those working with [X] [and [Y], [children] who [are] willing to engage more often than if this is not achieved.
•Where possible teaching staff engaged with [X] [and [Y] should have a requisite amount of training in working with children on the Autism Spectrum.
•Consistency in teaching and interactions is essential. A systematic, structured approach promotes learning and generalisation of concepts.
•[X] [and [Y] may struggle when information is provided to [them] in a hasty manner. In the event that [they do] not comprehend the instruction [they] will have the potential to “shut-down”. It is paramount to provide [X] [and [Y] with the ability to process the information adequately.
•Behaviour modification with [X] [and [Y] will be aided by observing areas of interest to [them] and using this in planning changed behaviour.
•Direct, clear, and detailed instructions are required in the area of self-regulation and skills requiring executive function skills. Engaging the child in this training can allow them to learn flexibility of thoughts and actions, planning and organisation, using feedback from mistakes for positive outcomes in the future, and providing a model for shifting from ineffective problem solving skills.
•Children on the Autism Spectrum often struggle to reapply themselves after the weekend. A personal timetable developed by parents or Learning support may aid [X] [and [Y] in returning on a Monday and refocussing on the task at hand (i.e., schoolwork). Also, use of association techniques may benefit [X] [and [Y] (when used in the home and at school) to form linkages between home and school expectations and attentional direction.
•Modelling of behaviour from adults will aid [X] [and [Y] in gaining emotional regulation and social skills naturally. In addition to this, benefits have been found in discussion around this “in the moment” which loses the lesson plan nature of the concept and allows for the child to have thoughts and behaviours reinforced immediately when a change occurs.
Mr O recommends that the children transition to mainstream schooling where they are more likely to have the support and assistance of suitably qualified teachers and other staff. In my view, now that the children have been diagnosed with ASD level 2, the need for such a transition is even more acute, as demonstrated by the ‘general recommendations’ by Dr P. It will also be very important to have the benefit of independent observations of the children in a school setting.
The mother remains implacably opposed to the children attending mainstream schooling such that even if I made such an order, I could have no confidence that the mother would embrace or facilitate such a move. Without full support for the children’s transition to mainstream schooling, in my view, it would be tantamount to setting it up to fail.
SHOULD ONE PARENT BE SOLELY RESPONSIBLE FOR DECISIONS CONCERNING THE CHILDREN’S EDUCATION AND/OR HEALTH?
The parents are poles apart on matters concerning most parenting matters but certainly education and health.
According to Mr O, whose opinion I accept, the parents are “polarised in every sense of the word. There is no meeting of minds over any aspect of the children’s care [other] than perhaps their physical needs” and “they are parents who hold each other in the utmost disregard and there will never be a capacity to make joint decisions over any significant issue”. In his view, the mother “parents at the direction of the children. They are at liberty to suit themselves mostly, and their apparent inability to attend regular school is prefaced on her view of their emotional needs and the education system”.
Both parents and the ICL submit that one parent should have sole parental responsibility for (at least) decisions concerning the children’s education and health. In my view, the parent with the primary care of the children should have sole parental responsibility for all major long terms issues as that term is defined in s 4 of the Act. That parent should still inform the other parent of the decision to be made and seek their input.
WHAT PARENTING ORDER WILL BEST MEET THE NEEDS OF THE CHILDREN?
The children have a close and loving relationship with both parents and will benefit from having an ongoing meaningful relationship with both parents.
I have found that the father does not pose an unacceptable risk of harm to the children but that the mother does pose an unacceptable risk of harm. Despite that finding, I consider that the risk posed by the mother can be ameliorated by imposing supervision on the mother’s time with the children for the first six months and thereafter commencing unsupervised day time and later overnight time and holidays. The supervision and reduction in the children’s time with the mother will give the children time to settle in the father’s household, without undue pressure or undermining from the mother. Importantly, it will also give the children time to transition into mainstream schooling which will hopefully commence in first term 2023.
Even if the risk posed by the mother were not unacceptable I would nevertheless change the primary care of the children because I conclude that their best interests will be met by living with the father. Whether it related to hairstyle, hair colour, wearing clothing or shoes, undertaking school work, spending time with the father, going to bed, having a bath etc., the mother has been entirely permissive with the children. It seems the mother makes no attempt to exert any parental authority unless it suits her purposes. As noted, the permissive parenting style is a source of considerable concern for Mr O, whose opinions and observations I have found most helpful.
Mr O was of the view that the children would cope with a change of primary care, in the right circumstances. While expressing the view that the father he is “not a particularly sensitive man” he noted that “he is patient, given that he has attended supervised time for so long, but in situ he can present as frustrated”. The father should take note of that assessment and engage quickly with a psychologist, perhaps Dr R, to develop skills with which to respond to the many frustrations that are no doubt ahead of him. I do not propose to make an order that he do so. In my view, the father is motivated to do what is necessary. In so concluding, I have taken into account the observations of the father by the supervisors over the past 17 months.
While Mr O opined that the children would find it painful to be removed from their mother in the short or even medium term, their long terms interests may be better served by being primarily parented by the father. Further, he opined that:
85. … it is also necessary to ensure that these children develop resilience as they grow towards adulthood and independence. To date, their upbringing with their mother has lacked many of the major structural resources required to enable them to live a confident and assured life.
I accept Mr O’s evidence. While the father is untested, the children will stand a better chance of becoming resilient and fully functional children and adults if they live with the father. They will also be more likely to have an ongoing relationship with both parents. I note that the father acknowledged to Mr O the mother’s commitment and love for the boys.
The father will also have the support of Ms F. She is fully supportive of the father’s proposal despite the acknowledged upheaval this is likely to cause their family. Ms F and the father have obviously given the proposal considerable thought. Ms F is prepared to solely support the family from her income and savings of $15,000 while the boys settle into the new arrangement. Ms F has worked for the past 18 months in allied health and for the previous about five years she worked in similar roles. Her work hours vary each week and some weeks she works seven days and other weeks five days. On a five day week her income is $1,200. Ms F has committed to taking every Friday off to care for Z. Mr O expressed the view that Ms F would “most likely be an asset” in terms of the father’s household. I agree.
The father is keen for the boys to commence attending mainstream school and has made some initial enquiries with a couple of local schools to ensure they could provide for the boys’ needs. At this stage his preference is for the boys to attend D School which is a prep to grade 12 school. During the trial, the mother expressed her opposition to the children attending D School. The reasons given by her were that it was a Christian school, and neither she nor the father were Christian, and because the school “have very firm beliefs against the gender presentation of children and that [Y] would be required to cut his hair to what is considered a boy’s style haircut in order to attend”. In my view, despite the father having not unreasonable expectations that his boys will present to the world as boys, he has acted sensitively around this issue. I note that X’s hair is now just below his neck.
The father is conscious of the probable need for the boys to transition into mainstream school and I accept that he will do whatever he needs to do for that transition to succeed so that the boys will ultimately attend full time.
In the event the mother relocates to Brisbane, the father indicated his agreement to the mother ultimately spending more time with the children e.g. from Thursday after school to Monday morning in alternate weeks.
Each party was given the opportunity to make submissions about the orders sought by the other party and the ICL. I have considered all proposed orders and will include those which I consider will meet the best interests of the children but in particular:
(a)I am not persuaded that it is in the children’s best interests to change their surname;
(b)I will make provision for the mother to be kept informed by the father in relation to medical and educational matters until 2024 and thereafter for the mother to be able to obtain information herself (in my view, this will more likely assist in the transition from the mother to the father and the transition to mainstream schooling);
(c)Some proposed orders were unsupported by any evidence or any submissions, e.g. a restraint on the consumption of alcohol, and as such no such orders will be made;
(d)Some proposed orders would be impossible to enforce e.g. not to talk about ‘adult issues’ with the children, and no such orders will be made;
(e)An order under s 121 will not be made in the absence of submissions, the reasons for which are explained below.
Miscellaneous
Included in the minute of order sought by the father and the ICL are the following provisions:
Pursuant to s121 of the Family Law Act 1975 (Cth) (“the Act”), leave is granted to the parties and their legal representatives to provide a copy of this order to:
a.any school, education institution or care provider;
b.any treating medical practitioner, psychologist, hospital, or other health care professional; or
c.any government department or instrumentality;
that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988.
No submissions were made in relation to this provision. Without the benefit of submissions, I am not prepared to make an order in those terms.
Section 121 of the Act relevantly provides:
Restriction on publication of court proceedings
(1)A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a)       a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c)       a witness in the proceedings;
commits an offence punishable, upon conviction by imprisonment for
a period not exceeding one year.
…
(9)The preceding provisions of this section do not apply to or in relation to:
(a)       …
…
(f)the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i)to a person who is a member of a profession, in connection with the practice by that person of that profession …
…
What is proposed by the minute of order is to provide a copy of the order to the identified persons or authorities, if they request a copy, for the purpose of “discharging any duties, legislative or policy requirements”.
The Full Court of this Court in Re W: Publication application[18] held that copies of judgments of the Court:
… insofar as they relate to matters with which child welfare authorities are legitimately concerned, may be forwarded to such authorities without the commission of a breach of s 121, because for such a purpose, the authorities would not constitute “the public or a section of the public”.
[18] (1997) FLC 92-756 at 84,262.
The Full Court in Oscar & Traynor[19] said in obiter:
62. We would not regard the principle stated in Re W as being restricted to “child welfare authorities”. Even had his Honour not directed that a copy of his reasons and orders be provided to the contact centre, it is quite arguably the case that the Independent Children’s Lawyer could have made the documentation available to the centre without leave of the Court.
[19] [2008] FamCAFC 158 at [62].

In Toric and Toric,[20] the Full Court said in obiter that the provision of court documents to a consulate with the intention of seeking advice was not a publication within the meaning of s 121 of the Act.
[20] (1981) FLC 91-046 at 76,396.
In In the matter of P (a child)[21] the Full Court held that the proposed provision of copies of family reports to an expert retained by a party in the course of the proceedings was not prohibited by s 121(1) of the Act as it would not amount to a publication or dissemination to “the public or a section of the public”, but, in any event, s 121(9)(f)(i) would apply.
[21] (1993) FLC 92-376 at 79,895.
In In the marriage of T. and T.[22] the Full Court held that:
… the transmission of documents to the Attorney-General or to responsible officers of his Department is not “publishing” or “publication” “to the public or a section of the public” within the meaning of sec. 121 ….
[22] (1984) FLC 91-588 at 79,747.
In my view, in the absence of any submissions to the contrary, what is proposed by the minute of order would not be prohibited under s 121 of the Act, as it would either not be a publication to a section of the public, or it would be covered by an exemption.

I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 16 December 2022

File number(s):	BRC 2492 of 2021
Judgment of:	CAREW J
Date of judgment:	16 December 2022
Catchwords:	FAMILY LAW – PARENTING – unacceptable risk of harm – where mother ceased contact between children and father from November 2020 to June 2021 due to allegations of sexual abuse/sexual interference/inappropriate touching – where mother had asserted father is an unacceptable risk of harm arising from inappropriate sexual touching and family violence – where mother capitulated midway through final submissions and consented to the immediate resumption of unsupervised time – where allegations of inappropriate sexual touching are groundless – where mother found to have ‘weaponised’ the allegations of sexual abuse and family violence against the father to limit his relationship with the children – where children have been deprived of a meaningful relationship with their father for spurious reasons – where the father and family report writer expressed concern for the children’s home schooling environment and the mother’s permissive parenting style – where the mother is implacably opposed to the children attending mainstream schooling – where the mother is an unacceptable risk of emotional and psychological harm to the children – where the Court orders sole parental responsibility to the father and the children will live with the father – where the mother will spend alternate weekend and holiday time with the children following a period of supervision
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC93-637 Briginshaw v Briginshaw (1936) 60 CLR 336 Eastley & Eastley [2022] FedCFamC1A 101 Isles and Nelissen [2022] FedCFamC1A97 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 M v M (1998) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655
Number of paragraphs:	250
Date of hearing:	14 – 17 November 2022
Place:	Brisbane
Counsel for the Applicant:	Mr J. Linklater-Steele
Solicitor for the Applicant:	Best Wilson Buckley Family Law
Counsel for the Respondent:	Ms K. Gover
Solicitor for the Respondent:	DME Law
Counsel for the Independent Children's Lawyer:	Mr A. Ehlers (on 14, 15, 16 November 2022)
Solicitor for the Independent Children's Lawyer:	Stewart Family Law

BRC 2492 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR HARRIES Applicant
AND:	MS HARRIES Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	16 December 2022