HOLMWOOD & BISSETTE

FAMILY COURT OF AUSTRALIA

HOLMWOOD & BISSETTE

[2019] FamCA 252

FAMILY LAW – CHILDREN – Best interests – where the mother made allegations that the father had sexually abused one of the children – where the mother conceded during the final hearing that she no longer held the belief that the father sexually abused the child – where the allegation of sexual abuse is not substantiated – where the mother’s parenting capacity is of concern – where the father perpetrated family violence upon the mother in the presence of the children – where the parties agree that there is no unacceptable risk of harm to the children in either parents household – where the family consultant recommends that the resident parent hold parental responsibility due to high parental conflict – Aboriginal children but no evidence concerning culture – orders made.

Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65DAC
Evidence Act 1995 (Cth) s 140

Briginshaw v Briginshaw (1938) 60 CLR 336
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102 at 36
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
Jones v Dunkel (1959) 101 CLR 298
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT:

Ms Holmwood

RESPONDENT:

Mr Brissette

INDEPENDENT CHILDREN’S LAWYER:

Auslawyers

FILE NUMBER:

PAC

2014

DATE DELIVERED:

23 April 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

10, 11, 12 and 13 September, 7 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lo Schiavo

SOLICITOR FOR THE APPLICANT:

Go To Court Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Otrebski

SOLICITOR FOR THE RESPONDENT:

Mason Mia & Associates Solicitors and Advocates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cairns

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

AusLawyers

Orders

The mother have sole parental responsibility for the children X born …2008, Y born … 2010 and Z born … 2011 (“the children”).
The children live with the mother.
The children spend time with the father as follows:
(a)       During school terms from the conclusion of school on Friday until 6.00 pm Sunday in weekends following weeks three, six and nine of each NSW school term;
(b)       For one week during the shorter school holidays, such half as agreed between the parties and failing agreement;
(i)During the first week in odd numbered years, such time commencing at 10.00 am on the day following the last day of school and concluding at 4.00 pm on the seventh day of the school holiday period.
(ii)During the second week in even numbered years, such time commencing at 10.00 am on the seventh day of the school holiday period and concluding at 4.00 pm on the Sunday prior to the commencement of the new school term.
(c)       For half of the Christmas school holidays, such half as agreed between the parties and failing agreement;
(i)During the first half in even numbered years, with the children to be delivered to the father on the day immediately after the school term concludes. The children shall be returned to the mother on the seventeenth day of the school holiday period (counting from the day after the school term concluded), at 4.00 pm;
(ii)During the second half in odd numbered years, with the children to be delivered to the father on the seventeenth day of the school holiday period (counting from the day after the school term concluded). The children shall be returned to the mother on the Sunday immediately before the school term commences at 4.00 pm.
(d)       If the children are not already in the father’s care, on the Father’s Day weekend, from the conclusion of school Friday to 6:00 pm Sunday.
(e)       If the children are not already in the father’s care, from 3.00 pm Easter Thursday to 4.00 pm Easter Monday in 2020 and each alternate year thereafter.
(f)       On each of the children’s birthdays, all of the children will spend time with the parent who they are not in the care of from 3.00 pm to 6.30 pm.
(g)       Such other times as agreed between the parties.
The father’s time is suspended on the following occasions:
(a)       On the Mother’s Day weekend, from the conclusion of school Friday to 6:00 pm Sunday.
(b)       From 10.00am Christmas Eve until 2.00 pm Christmas Day in 2019 and each alternate year, and from 2.00 pm Christmas Day to 6.00 pm Boxing Day in 2020 and each alternate year.
(c)       From 3.00 pm Easter Thursday to 4.00 pm Easter Monday in 2021 and each alternate year thereafter.
Unless otherwise provided for in these orders, changeover shall occur as follows:
(a) On school days the father shall collect the children from the children’s school at the commencement of his time and return the children to school at the end of his time, or as otherwise agreed between the parties.
(b) On non-school days the mother shall deliver the children to the father at McDonald’s Town B area at the commencement of the father’s time and the father shall return the children to this location at the end of his time, or as otherwise agreed between the parties.
Each parent be and is hereby restrained from changing the primary place of residence of the children from the Town B area.
The father shall communicate with the children when they are not in his care as follows:
(a)        During the school term by telephone or Skype on Thursdays, Fridays and Sundays with the father to initiate the Skype call or telephone contact with the children between 7.30 pm and 8.00 pm.
(b)       The children shall have telephone or Skype communication with the father at other such times as requested by the children, and the mother shall facilitate such communication between the children and the father.
(c)        For the purposes of this order, in the event that the children are not available, the mother will notify the father as soon as is practicable.
Each party shall notify the other at the earliest opportunity (no later than 24 hours) in the event of any medical emergency, serious illness or hospitalisation involving one of the children.
The mother shall provide any necessary authority to the medical practitioners treating the children to provide the father with all information regarding the children's medical issues.
The parties shall keep each other informed of their residential address, contact telephone number and an email address which can be used to communicate about issues in relation to the children, and shall keep those details updated including providing at least ten days advance notice of any change in such details.
Unless in the event of an emergency, the parties shall communicate with each other via SMS text message only regarding issues about the children and spend time arrangements.
The parties are restrained from taking or causing the children to attend upon any counsellor in relation to allegations of sexual abuse, raised in these court proceedings.
The parties shall not use physical force when disciplining the children.
The parties shall not allow the children to be exposed to family violence.
The parties shall not criticise, harass, threaten, abuse or denigrate the other parent or members of that other parent’s family or household in the presence of the children, and they shall use their best endeavours to not allow any third party to do so.
The parties shall not discuss any issues connected with these proceedings with the children or permit any third party to do so.
Once each child reaches high school age, the mother shall enrol the child into a high school within the Town B area.
The parties are restrained from attending the children’s school except:
(a)       When they are delivering the children to, or collecting the children from school in accordance with these orders; or
(b)       When invited by the school to attend; or
(c)       When attending an appointment at the school that has been arranged in advance.
In the event that any of the children is prescribed medication or a particular form of treatment which is required to continue into a period when the other parent will be caring for the children, such medication will be provided to the other parent with a description of the condition for which it is required and the appropriate dosage or method of treatment.
Both parents shall, within 14 days of the date of these orders, sign all necessary documents to cause to be forwarded to both parents a copy of any school reports from any school that the children may from time to time attend, as well as any photograph order forms, newsletters and notices, sports reports and any other notice(s) relating to the children.
The parties shall be at liberty to attend the children’s sporting and extra-curricular activities only during the time that the children are scheduled to spend time with that party, provided that such events are of the kind that parents are usually invited to attend.
That both parents shall ensure that they are listed as a responsible parent with any school, sporting clubs and sporting organisations that the children are enrolled or involved in and these orders shall be sufficient authority for either parent to be provided with any information regarding their progress and performance, as well as any training and current playing draws.
The mother is restrained from making arrangements to schedule activities, extra-curricular activities or events which would take place in the father’s time as set out in these orders, unless the father’s prior consent has been obtained unless the children are currently enrolled in or are participating in such activities.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Holmwood & Bissette has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: PAC67/2014

Ms Holmwood

Applicant

And

Mr Bissette

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This matter concerns the long term parenting arrangements for the parents’ three young children: X, Y and Z (“the children”) following the breakdown of the parents’ relationship.
From 2012 when the parties separated until March 2017 there had been a number of different living arrangements for the children who at different stages lived in the primary care of each parent. Since March 2017 the children have been in the care of the mother and have spent little (supervised) time with the father.
Since March 2017 it had been the mother’s case that the father poses an unacceptable risk of harm to the children on the basis that he may sexually abuse them and this position was initially maintained until the final hearing which commenced in September 2018.
In the course of the final hearing when under cross-examination the mother changed her position and agreed that she no longer maintained that the father had sexually abused one of the children. In final submissions made on her behalf however it was contended that the evidence is sufficient to support a finding that the father did sexually abuse the child in question. Further, in a submission that I do not understand it was contended that such a finding if made does not mean that the father poses an unacceptable risk of harm to the children.
The mother seeks orders that she have sole parental responsibility for the children who will live with her and spend weekend time with the father once every three weeks, for one week in the short school holidays and a two week block in the Christmas school holidays. My understanding of the mother’s position is that if I were to find that the father had sexually abused one of the children or poses an unacceptable risk of harm on this basis, as the time with him is proposed to be “limited” this will mitigate that risk of harm.
The father seeks orders that he have sole parental responsibility for the children, that they live with him and spend time with the mother each alternate weekend, one week of the short school holiday periods and half of the summer school holidays. He also seeks an order restraining both parents from relocating from the regional town in which they live.
During the final hearing the father proposed an alternate Minute of Order in the event I do not make an order that the children live with him. If the court were to order that the children live with the mother, the father contends that it would be in their best interests for the mother to have sole parental responsibility as to most matters, but that the parents share parental responsibility equally in relation to any decision that would make it more difficult for the children to spend time with him. He proposes in these circumstances that the children spend substantial and significant time with him.
It is the position of the Independent Children’s Lawyer (“ICL”) that it is in the children’s best interest to continue to live with the mother and for her to hold sole parental responsibility for them. The ICL proposes that the children spend alternate weekends from Friday to Tuesday and block time in the school holidays with the father. The ICL also seeks an order that the parents equally share parental responsibility for decisions which would significantly change the living arrangements for the children, such that it would be more difficult for the children to spend time with the father and an order restraining both parents from relocating from the regional town in which they live.
These parenting proceedings are being dealt with in accordance with the Magellan protocol[1]. The questions for me to determine are where the children should live and what orders with respect to their time with the non-residential parent and otherwise are proper. The parents have each faced many challenges over the years in caring for their children which has led to the involvement of the Department of Family and Community Services (“Community Services”) from time to time. There are risk factors associated with the care provided by both parents. As a result, although the best interest of the children is the paramount consideration, it is difficult to resolve this parenting dispute on this basis. Rather, the dispute will be determined by making orders that are the least detrimental to the children.
[1] The Magellan protocol is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

Background

The father and the mother began a relationship in late 2006 or 2007. The mother was 16 or 17 when the relationship began and 16 years younger than the father who was in a superior position at the workplace where they met. The parents began living together shortly after the relationship began.
Two or three years prior to meeting the father the mother and her sister had been sexually abused by their stepfather. The mother suffered significant trauma and mental health difficulties as a result of this abuse which she had not at that stage disclosed to anyone and continued to struggle with these issues in the early years of her relationship with the father.
In January 2008 the mother was charged with assault occasioning actual bodily harm and an Apprehended Violence Order (“AVO”) was made against her resulting from an incident in which she in the company of three others physically assaulted and threatened two men. The mother pleaded guilty to the charge and was not convicted but discharged upon entering into a 12 month good behaviour bond.
The first child, a boy named X (“the oldest child”) was born a few months later in 2008.
In 2009 the parents married.
In 2010 the parents’ second son who is currently aged nine (“the middle child”) was born. Two months later the mother was hospitalised after attempting suicide and this incident was reported to Community Services. The parents were offered assistance through the H Program which they declined.
In 2011 the parents’ third child, a daughter who is now seven (“the daughter”) was born.
In the course of an argument in the presence of the children in January 2012 the father assaulted the mother by sitting on top of her, placing his hands over her mouth and jaw and pushing down on her shoulder while screaming abuse at her. He also grabbed the mother’s arms and crossed them over her chest. The father was charged with assaulting and intimidating the mother and also assaulting police and resisting arrest. He was convicted and placed on a good behaviour bond and an Apprehended Domestic Violence Order (“ADVO”) was made against him for the protection of the mother.
These events also prompted reports to Community Services. As a result three home visits were conducted by officers of Community Services who determined that the children were “safe” provided that a safety plan was adhered to. The plan required that the mother and children were protected by the ADVO, the mother attend regular counselling, the children attend child care and the mother become involved in a young mother’s support group.
On 20 March 2012 a further risk of harm report was made to Community Services alleging that the children were at risk of abuse and neglect. A case worker conducted a safety assessment and the children were assessed as safe.
There is some dispute between the parents about the date of their separation, though both agree it occurred in 2012. Prior to separation the family had been living in Sydney.
Sometime in 2012 the mother formed a relationship with a Mr C (“the mother’s former partner”) though that relationship is now at an end.
The father at some stage also formed a new relationship with a woman named Ms D (“the father’s former partner”) though that relationship is also no longer intact.
There was a physical altercation in October 2012 in which the father was accosted and punched in the face multiple times by the mother’s former partner. The father was injured and attended hospital as a result. The mother’s former partner was charged with assaulting the father and his former partner.
In about December 2012 the mother’s step-father was convicted for the sexual abuse of the mother and her sister and was sentenced to prison.
Following separation the children remained living with the mother. In circumstances which are unclear the father took the children interstate for two weeks during the 2012 Christmas holiday period. The mother did not permit the father to see the children after they were returned to her from January 2013 for about 10 weeks.
The father moved to the regional town in which the family now lives in 2013.
In May 2013 the mother gave birth to a daughter (“the mother’s other daughter”). Mr C is the father of this child.
In June 2013 the mother attempted suicide in the presence of the children. Following this incident the parties agreed for the children to live with the father in the regional town and spend regular time with the mother in Sydney.
In December 2013 an incident occurred in which the mother contacted the father’s workplace and verbally abused a colleague of the father mistakenly believing that she was speaking to the father’s then pregnant former partner. When contacted by the police the mother said “I know where he works, where his pregnant girlfriend works and I’m going to kill the baby”. As a result the mother was charged and subsequently pleaded guilty to using the telephone service to menace, harass or offend and an ADVO was later made against her for the protection of the father and his former partner for a period of two years.

On 9 January 2014 the mother commenced proceedings in the Federal Circuit Court.
On 22 April 2014 the father’s youngest son (to his former partner) was born. That child is now aged four.
On 28 April 2014 Community Services received a risk of harm report alleging that the oldest child had been sexually abused by the mother’s former partner. The allegation was that the mother’s then partner had “pinched [the child] on the doodle and the bum”. The matter was referred to a Joint Investigative Response Team[2] (“JIRT”) for investigation. On 2 May 2014 the oldest child was interviewed by JIRT and the allegations were not substantiated. Community Services’ records relating to this matter indicate that at the time the mother stated that she was no longer in a relationship with her former partner and that any time her former partner may spend with the mother’s other daughter would be supervised.
[2] The Joint Investigation and Response Team, made up of officers from police and Community Services investigates allegations of serious child abuse.
In about August 2014 the mother formed a relationship with a Mr F. That relationship has also subsequently ended. In the same month the father resigned from full-time work to care for the children and his youngest son (from his then current relationship).
A Family Report dated 17 November 2014 (“the first Family Report”) was prepared by a family consultant and released to the parents the following month. The family consultant recommended that the children live with the father and spend three weekends a month and half of school holidays with the mother.
On 9 October 2015 final orders were made in the Federal Circuit Court with the consent of the parents which provided for the parents to have equal shared parental responsibility for the children who were to live with the father for so long as the mother remained in Sydney and spend time with the mother each weekend. In the event the mother were to move to the regional town where the father resided the children were to live with the parents in a “week about” arrangement.
In 2016 the parents’ divorce was finalised.
For a period of approximately six months the children lived with the father and spent time with the mother on weekends in Sydney. In April 2016 the mother relocated to the regional town and the children began living in a “week about arrangement” with each parent in accordance with the October 2015 orders.
An incident occurred in January 2017 in which the mother was banned from her local swimming pool for being offensive and abusive to other visitors to the pool and pool staff. In particular she swore in a racist tone towards a family as she believed that they had taken a photo of her child.
In early March 2017 the daughter, then aged five, made complaints of having a sore vagina to both parents. On 12 March 2017 the mother took the child to a Sydney hospital where swabs were taken from the child’s genital area, a pelvic ultrasound was conducted and the child was prescribed antibiotics.
The mother alleges that a few days later the daughter disclosed to her that “[the father] touches my rude parts”. The mother reported this disclosure to Community Services.
The following morning the mother attended a police station to report the child’s complaint and the matter was allocated to JIRT for investigation. On the same day the daughter was interviewed by JIRT.
On 17 March 2017 JIRT interviewed the father who denied the allegation and all three children were interviewed as well. On the same date JIRT advised both parents that the allegations were not considered to be substantiated.
Although the mother describes herself as devastated about the JIRT decision the children spent time with the father between 17 to 24 March 2017.
The mother alleges that on 24 March 2017 the daughter returned from spending time with the father and disclosed that “[my] vagina is sore, and I wet daddy’s bed” and that she had a rash on her back, neck and underarm areas. The mother also alleges that the oldest child returned to her care with a rash around his groin area. The mother stopped facilitating the children’s time with the father from this time.
The father denies all allegations of sexual abuse or misconduct. This is a significant issue in the proceedings to which I will return.
On 1 April 2017 the mother took the children to live in Sydney, where they stayed in the home of a maternal aunt and were enrolled in a local school. The children had a poor pattern of attendance at this school.
After moving with the mother to Sydney the children had no physical contact with the father until August 2017, though he did have some limited telephone contact with them.
In May 2017 the mother filed an Initiating Application in the Family Court seeking that orders be made for the preparation of a Family Report and that she be given leave to particularise the final orders she seeks after the release of such a report. On the first court event orders were made that the matter be allocated to the Magellan program, a Magellan Report[3] was ordered and an ICL was appointed.
[3] A Magellan report sets out the involvement of Community Services with the family.
In June 2017 the father filed a Response seeking orders that he have sole parental responsibility of the children, that they live with him and spend supervised time with the mother.
In July 2017 the father’s former partner withheld the father’s youngest son from spending time with him and alleged that this child had made a complaint of sexual abuse against the father. This complaint was also investigated by JIRT but found not to be substantiated.
In early October 2017 the mother began a new relationship with a Mr E (“the mother’s current partner”).
In October 2017 the parents reached an agreement that the father would spend four hours of supervised time with the children every Sunday on an interim basis but this arrangement did not eventuate as agreed as the children refused to go with the agreed supervisor.
Between 3 August 2017 and 6 December 2017 the father attended at the children’s school in Sydney on a number of occasions which he claims was for the purposes of seeing the children “in a supervised capacity as facilitated by the school”. The father deposes to each of these visits as having been organised through the principal or assistant principal at the school and says they were positive experiences for the children on each occasion. The mother who generally casts these visits in negative terms (claiming that the father attempted on occasions to entice the children to spend time with him or told them that he would be taking them from school back to his home) does agree that the deputy principal reassured her that she need not worry about the children as they would be supervised at all times.
The mother and children retuned to live in the regional town where the father lives in December 2017. They originally lived with the mother’s current partner and his son.
On 22 January 2018 interim orders were made with the consent of the parents for the children to live with the mother in the regional town and spend supervised time with the father at a contact centre. Initially the father’s time with the children appeared to go well but after a couple of occasions the children were brought late to the centre, not brought at all, or were resistant to seeing him.
On 30 January 2018 the parents attended upon a family consultant under the Child Responsive Program.
In March 2018 the mother and children moved out of the home of her current partner and began living in a rented home of their own provided by a crisis accommodation service.
In or around March 2018 the father began attending the children’s school during lunch time to spend time with the children. He had previously volunteered at the school in a range of activities when the children lived with him and from the start of the 2018 school year was once again involved at the school on a voluntary capacity in a range of activities a number of days each week. By 19 March 2018 the father was aware that the children had expressed some concerns about seeing him at school too much and on 20 March 2018 the mother wrote an email to him requesting that he reduce the visits to the children during school time. On the same day the father took on another position within the school community. The following day the mother attended a meeting with the school principal to address her concerns about the father’s presence at the school and was reassured by the principal that the father would be spoken to about the issue.
In April 2018 the family were interviewed by a family consultant for the purposes of a Magellan Family Report.
From mid-February 2018 to August 2018 the children were to spend time with the father each week at a contact centre. On many of these occasions the children attended but one or more of them refused to spend time with the father. In August 2018 the contact centre ceased providing supervision services to the family as centre staff assessed that it was not appropriate for the arrangement to continue.
The final hearing proceeded over five days in September 2018.
On 7 November 2018 the legal representatives gave oral submissions to supplement written submissions which had been previously filed. On this occasion an order was also made with the consent of the parties that the father spend time with the children as agreed between the parties in writing. Judgment was then reserved.

The Areas of Dispute

Although I understand that the mother does not contend that the father poses an unacceptable risk of harm to the children, (or if he does that harm can be mitigated by the limited orders she seeks for his time with them), she contends that the evidence does support a finding that the father sexually abused the daughter. Despite an extensive interchange between myself and the mother’s counsel as to this issue it was stressed in final submissions made on her behalf that such a finding is sought and is able to be made on the evidence.
It is also to be remembered that the parenting dispute between the parties had been resolved by orders made in the Federal Circuit Court in October 2015 and the only basis upon which the mother sought to revisit those orders in May 2017 was her contention that the father had sexually abused the daughter.
Having regard to the seriousness of any allegation of sexual abuse or contention of unacceptable risk of harm on this basis those matters must be resolved in order to determine this parenting dispute.
The mother also contends and maintained in final submissions that the father physically abused the middle child. The father also denies this conduct. This allegation of abuse which also amounts to family violence if proved also requires resolution.

Allegations of sexual abuse

In M v M[4] the High Court said when discussing allegations of sexual abuse at [23] – [25]:
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless….
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access….
In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[4] (1988) 166 CLR 69; [1988] HCA 68.
In M v M (supra), the High Court also said at [18]:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.
In Johnson & Page[5] the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.
[5] [2007] FamCA 1235 at [72].
The principles encapsulating “unacceptable risk” and the standard of proof have been extended to other forms of abuse[6] and will also be applied when determining the allegations issue of physical abuse in these proceedings.
[6] See eg Orwell & Watson [2008] FamCAFC 62 (psychological abuse); Ruth & Hutton [2011] FamCAFC 99 (emotional abuse); Oscar & Delaware;Oscar & Austen [2014] FamCAFC 32 (physical and sexual abuse).
I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[7], where the Full Court noted at [111]:
We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.
[7] (2005) FLC 93–235.
In the Case Outline filed on behalf of the mother at the commencement of the final hearing her position is set out clearly when it is stated “the mother alleges sexual abuse by the father of the [daughter] as well as ongoing physical discipline and violence in the father’s household and seeks sole parental responsibility and no contact with the children by the father”.
In her affidavit the mother deposes in relation to the allegation of sexual abuse that the daughter’s behaviour began to change in December 2016 (eight months after the parents began an equal shared care arrangement). According to the mother the child started to wet her bed, refuse to eat dinner and would return from spending time with the father and complain that she had a sore and red vagina. Under cross-examination the mother confirmed that she formed the belief in December 2016 that the father had been inappropriately touching the child due to these behavioural changes.
The father deposes that on only one occasion (9 March 2017) the child said to him that her vagina was sore but that in about 2014 and 2015 she had suffered with frequent urinary tract infections.
The mother deposes that on 10 March 2017 the daughter again complained of having a sore vagina and when bathing the child the mother noticed that the child’s vagina was red and that there was discharge on the child’s underwear. The following night the mother alleges that she and the child were at a dinner [at the maternal aunt’s home] in Sydney when the child refused to eat. The mother asked the child what was wrong, to which the child replied “it’s just what daddy did”.
The following day (12 March 2017) the mother took the child to a hospital in Sydney, and at the hospital raised her concerns that the child had been sexually abused by the father. Hospital notes indicate that the mother stated that the child had a history of urinary tract infections and that she had a sore, red vagina with discharge since the parents started an equal time arrangement.
Hospital records record that the child stated that she “can’t remember” when asked about any sexual abuse by the father and that no disclosures were made by the child. Medical staff examined the child’s genitals and found no redness, discharge, bruise or laceration. A vaginal swab was taken and the child was prescribed antibiotics and referred for a pelvic ultrasound.
The hospital provided advice to the mother that she should not ask the child leading questions in order to provoke a disclosure.
On 15 March 2017 the pelvic ultrasound was performed. The results of this investigation did not show any evidence of a foreign body or structural abnormality. In the course of a consultation on this day when the issue of sexual abuse was raised the child’s local doctor informed the mother that he did not hold concerns as the child had not made any disclosures. The mother deposes that the doctor suggested that she “have a talk with [the child] and see if you can gain any further information from her”. The doctor’s notes do not corroborate the mother’s evidence that the doctor provided this advice.
The mother says that on the evening of 15 March 2017 she had a conversation with the child, which she recorded on her phone in which the following was said:
Q. Do you remember you told me daddy did something to you?
A: Yup
Q: What was that?
A: He touches my rude parts
Q: When does he do that?
A: Every time I go into his bed
Q: What do you say to dad when he does that?
A: I say stop touching my rude part
A: What does daddy then do
A: He doesn’t stop
The father deposes that the child does not call him ‘daddy’, he has never heard the child use the word “rude part” to describe her vagina and that she uses the term “gina”.
The mother then reported this conversation to Community Services and police who referred the matter to JIRT for investigation.
The mother played the recording she had made of the child’s disclosures to the JIRT officers who note the following in their records:
The recording appeared to have a number of leading questions and again did not particularise the incident in detail. Police are unable to determine what conversations took place between the mother and child prior to this conversation taking place and if the mother may or may not have told the child what to say.
Under cross-examination the mother acknowledged that the questions she had asked the child which elicited the disclosure were leading.
Police records of the mother’s interview with police also indicate that “[the mother] indicated that she may be over reacting as she had been through this herself whilst a teenager.”
On 16 March 2017 JIRT officers interviewed the child and she made a number of statements to the officers, many of which were contradictory in nature. She said that the father has “been touching my rude part… every time I go into his bed”. When asked what happens when she goes into the father’s bed the child said “nothing”.
On 17 March 2017 JIRT officers interviewed all three children and no statements were made to corroborate the allegations. JIRT also interviewed the father who denied the allegations and stated he did not touch the child as alleged and that the child sometimes came into his bed at night and that he would take her back to her own bed. The father stated that he assisted the child to go to the toilet each night and that usually she wiped herself but that sometimes he would have to do it for her.
The father deposes that both JIRT and Community Services contacted him on 17 March 2017 to tell him that the investigation was closed, the allegations had not been substantiated and that he had not been assessed as a risk to the children. The children were returned to his care under the alternate week shared care arrangement on this day.
The father was not cross-examined by the mother’s counsel about the sexual abuse even though the mother is seeking a finding that he had perpetrated that abuse.

The only other evidence upon which the mother relies to suggest that the father sexually abused the daughter is a further complaint she says was made by the child sometime later. The mother deposes that the daughter told a friend of hers on 22 December 2017 that the father had put “his finger in my bum and private parts” and said “I would cry and he told me that it is okay because he is my dad and he’s allowed.” This prompted the mother to make a further report to Community Services the following day. JIRT records indicate that this report was not investigated and on the basis that the allegations had been previously investigated in March 2017 and were not substantiated.
At the commencement of the hearing the mother’s case was that the father had sexually abused the child and as such she sought orders that she have sole parental responsibility of the children and that the father spend no time with them. On the second day of the hearing under cross-examination the mother changed her position and conceded that she did not believe that her daughter was sexually abused by the father and that she held no fears that any of the children would be sexually abused if they spent time with him. When cross-examined by counsel for the ICL the mother acknowledged that she may be overly sensitive to risks of sexually abuse because of her personal history.
As a result of her concessions the mother changed her proposal from one in which the father would have no time with the children to one which would see him spend every third weekend and holiday time with them.

Discussion and findings

I am unable to make a positive finding to the requisite standard that the daughter was sexually abused by the father for the following reasons.
·In my view it is highly unlikely if the mother had a genuine belief from as early as December 2016 that the father had been inappropriately touching the child that she would have continued to permit the father to care for the child and her other children in an equal shared care arrangement.
·Given the mother’s own experience with sexual abuse and her heightened concerns about protecting her children it is of significance that she did not raise any concerns with police, Community Services or any other authority in December 2016 when she was first concerned about the child’s behaviour and the possibility of sexual abuse. For the foregoing reasons I do not accept that the mother had any concerns about sexual abuse prior to March 2017.
·The mother clearly raised her concerns that the daughter had been sexually assaulted by the father when she presented the child to a hospital on 12 March 2017. When the child was spoken to by medical staff she did not make any complaint about sexual abuse which may have been expected if, as the mother contends, the child made a connection between her sore vagina and unusual behaviour and “what daddy did”.
·The records of the hospital indicate that the mother reported that the child had a history of frequent urinary tract infections which could explain the child’s complaints about redness and pain in her genital region.
·On 15 March 2017 the mother presented the child to her general practitioner and informed him of her concern about possible sexual assault. The doctor made contact with the Child Protection Unit and was advised there were insufficient grounds for further investigation which he conveyed to the mother. Although the doctor also requested that the mother obtain information in relation to the hospital presentation the mother instead decided to directly question the child against the advice she had been given by the hospital.
·The mother’s recollection of information given to her by her doctor is at odds with his records. She deposes that the doctor suggested to her that she talk with the child in an effort to obtain further information (about the sexual abuse) which is not corroborated by the doctor’s notes. The mother herself conceded that she may have overreacted as she had been a victim of sexual abuse as a teenager. For these reasons I regard the mother’s evidence about the events as less reliable than the independent and more objective evidence such as records from the hospital and police.
·Although the mother appeared to regard the child’s disclosure in the recorded conversation that the father “touches my rude parts” as highly significant this recording was not adduced in evidence by the mother. An inference may be drawn that this recording would not have assisted the mother’s case.[8]
·According to JIRT records the officers who heard the recording of the mother’s conversation with the child considered that it contained a number of leading questions and did not particularise the incident in detail. I accept the opinion of JIRT officers stated in their records given their particular expertise in relation to interviewing children. I attach weight to this matter in forming the view that the child’s responses when later formally interviewed by JIRT are likely to have been influenced by conversations with the mother.
·There is a real risk that by the time the daughter was interviewed by JIRT on 16 March 2017 she was vulnerable to suggestion and as opined by the family consultant may have provided answers that she thought the adults wanted to hear.
·Although the child disclosed in the interview with JIRT “dad’s been touching my rude part” the child was unable to provide any context except that this occurs “every time I go into his bed”. The child provided very little other contextual information and stated in answer to many questions that she couldn’t remember or provided no answer. Some of the answers she did provide were internally inconsistent or made little sense. These matters affect the reliability of the daughter’s account.
·The father denied to JIRT and in these proceedings that he ever touched the daughter in the genital region except on occasions when assisting her after using the toilet.
·The JIRT investigators, a specialist team, did not substantiate the complaint.
·The father was not challenged about his evidence that the child does not use the word “rude part” to describe her genitals or call him “daddy” but these words were used by her in the disclosure according to the mother and in her JIRT interview. This also give rise to concerns about the reliability of the child’s disclosure and the likelihood of influence.
·It is of significance and a weighty factor that the father was not cross-examined about the allegation of sexual abuse.
·The mother has not filed an affidavit from her friend to whom she claims the daughter made a very serious complaints in December 2017 to the effect that the father had penetrated her and had reassured her that this was permitted as he was her father. This is a particularly serious alleged complaint by the mother and her failure to adduce direct evidence of it without explanation is a weighty factor. It is unlikely in my view that the daughter did make a complaint in these terms.
·Although the mother maintains many allegations against the father concerning his conduct she conceded under cross-examination that she did not now believe that the father had sexually abused the daughter.
[8] Jones v Dunkel (1959) 101 CLR 298 – a rule of evidence under which an unexplained failure by a party to put evidence before the court, may give rise to an inference that this evidence would not have assisted that party.

Allegations of physical abuse

The mother does not depose in her affidavit that she observed the father being physically abusive or violent towards any of the children or that any of them complained to her that this had occurred.
A complaint about physical abuse of the children was first made in October 2013 to Community Services by way of a report alleging that the daughter had bruising to her face and had allegedly been assaulted by her mother. A few days previously it had also been alleged that the mother’s new boyfriend had punched the window of the [mother’s] family car and the mother had put the children in the boot of the car as there was not any room in the passenger seat. A further complaint was made towards the end of October 2013 to the effect that the daughter had returned from her mother’s care with a mark on her neck. Community Services did not carry out any assessment in relation to these reports. The father also does not refer to these matters in his affidavit and he did not seek in these proceedings that a finding be made against the mother in this respect.
The father deposes to the children being exposed to physical abuse and neglect by the mother on a number of occasions including that in December 2015 the oldest child expressed fear of the mother because she had told him that she would punch him in the face for misbehaving. The father also deposes in his affidavit that in February 2016 that the middle child returned from the mother’s care with severe sunburn to his back, which required medical attention.
A complaint about physical abuse at the hands of the father was made to Community Services in August 2016 to the effect that he had “dragged [the middle child] down some stairs”. This complaint was not assessed by Community Services.
An allegation of physical abuse arose in the course of the family consultant’s interview with the children when middle child said that he continued to worry “about being dragged [by the father]”
Although as noted the mother did not refer to this alleged incident in her affidavit the suggestion that the father had dragged the middle child down some stairs assumed some significance in the proceedings. The father also does not address this incident in his affidavit.
Under cross-examination the father recalled that the assertion had been made that he had dragged the middle child down the stairs, that the police were contacted and that no further action was taken by police. He gave evidence that he had no idea where that allegation came from but accepted that the child had reported that to the family consultant.
There is no evidence of any of the children reporting any physical abuse by the father and the suggestion that the father “dragged” the child down the stairs was not clarified in the proceedings. The police were said to have been called following this incident though it is also said that no action was taken by them. The police report is not in evidence before me. This allegation arose in the midst of high levels of parental conflict, characterised by both parents making allegations against the other. For the foregoing reasons I do not make a positive finding that the father physically abused any of the children.
Although I have not made a positive finding that any of the children were physically or sexually abused, I also do not make a positive finding that these events as alleged did not occur. The question of the risk of sexual abuse and physical abuse must be considered together with other evidence about risks to the children that are present in each of the parents’ households. The question of the existence and magnitude of risks in each parent’s care is a matter to which I will return when considering the best interest considerations.

Expert evidence

A family consultant prepared a Magellan Family Report to assist in the proceedings by conducting interviews with the family, observing the children with relevant adults and reviewing the affidavits and other documents such as Notices of Child Abuse, the Project Magellan Report and court Orders in the proceedings.
At the time of the interviews in April 2018 the children were living with the mother and her youngest daughter from another relationship and the mother’s current partner and his son were living separately in the same regional town. The father was at that time living alone in the regional town and spending supervised time at a contact centre with his youngest child from another relationship. He was also meant to be spending time with the children at a contact centre but the children regularly refused to co-operate so that time was not occurring. He told the family consultant that he was not in paid employment and was studying full time and was also involved in volunteer work at the children’s school.
In the course of the assessment the mother told the family consultant that the reason the children had not been spending time at the contact centre was that they had been seeing the father at school all the time. She felt that the children were “fed up” with seeing the father so often. At that time the mother was also of the view that the children would not be negatively affected by not spending time with their father and did not think that the father offered anything positive to the children.
The father reported that the children had stopped spending time with him at the contact centre as they had expressed the view that they did not want to see him. He reported being heavily involved in activities at the children’s school. He felt that the mother was not supportive of his relationships with the children.
The father considered that the children would be able to manage a change of residence into his care as they had lived with him before and were “clingy” with him when they saw him at school. It was his view that all of the children had a closer relationship with him than with the mother and that the only reluctance they may have would be based on their lack of time with him in the last twelve months.
The family consultant considered each of the risk factors for the children including family violence and sexual abuse. At that time the mother told the family consultant that she believed the father had sexually abused the daughter and stated that the middle child had witnessed the father sexually abusing the daughter and had told this to the maternal aunt. A complaint of sexual abuse had also been made against the father in relation to his youngest son from his subsequent relationship. The father denied the sexual assault allegations relating to both the daughter and his youngest son from the other relationship.
The family consultant also asked the father about physical discipline and he denied chasing the children up the stairs (except in the context of playing a game) and tripping or pulling the children down the stairs. He claimed the middle child told him that the mother had forced him to make an allegation to the police that he had done that.
The family consultant also considered issues relating to the children’s physical safety and stability with the mother and the mother’s mental health.
When interviewed by the family consultant the oldest child said that he had not been spending time with the father at the contact centre recently “as he has been tired”, that he sees his father at school “pretty much every day” and did not like his father attending his school this often as it embarrasses him in front of his friends. This child said he might spend time with his father at the contact centre if he did not see him every day at school. He told the family consultant that there was nothing scary about his father and that he had not hurt him but that the middle child was scared of the father as the father had “dragged him down some stairs when he was angry”.
The middle child also reported finding the father’s attendance at school as embarrassing as other parents did not do this. He said he did not want his father to attend his school at all. The child reported being worried “about being dragged”.
The daughter also reported not liking that her father attended at her school and thinking that it was too much.
When evaluating the children the family consultant said that they all presented as disengaged from the interviews which she opined may be as a result of having been interviewed numerous times by family consultants, police and Community Services. The family consultant also observed that the oldest and middle child either ignored the father or acted somewhat aggressively towards him and that none of the children appeared overly emotionally engaged with him. The family consultant was particularly concerned about the middle child’s presentation in the observation sessions which she felt may be reflective of a behavioural issue or may be related to the parent’s conflict and/or his experiences of one or both of his parents. In any event she concluded that it appeared likely that child is experiencing emotional difficulty which is apparent in his behaviour.
The family consultant also expressed some concerns about the father’s reported extensive involvement with the children’s school. First she noted that the father’s time with the children was required to be supervised pursuant to court orders and time with the children at school does not amount to supervision. Second, if he were to pose an unacceptable risk of harm to the children due to the sexual abuse allegations he may also pose an unacceptable risk of harm to other children at the school. Further, apart from the risk of unacceptable harm the family consultant opined that having a parent at school constantly may be experienced as difficult for the children and may interrupt their learning and involvement in peer relationships.
The family consultant recommended in the event the court makes a finding of unacceptable risk of harm on the basis of sexual abuse the children should spend no time with the father.
If the allegations of sexual abuse are found to be vexatious then the family consultant expressed the opinion that serious concerns would be held for the mother’s parenting and her ability to provide a relationship between the children and the father. She also opined that making vexatious allegations and subjecting children to unnecessary interviewing and medical investigations is considered abusive and confirmed her view in this regard under cross-examination. The family consultant also confirmed under cross-examination her opinion that the mother’s conduct could only amount to abuse if it was malicious in nature.
The family consultant opined that if the court finds the mother had made vexatious allegations then consideration may need to be given to the children living with the father. She did however identify a number of concerns about a change in residence.
The children appeared to the family consultant to have concerns for their safety around the father and may genuinely hold these concerns whether they were abused by the father or not. She further was of the view that “their relationships with him did not appear to be of such quality that they would be able to live with him”. Although it was noted by the family consultant that the children had previously lived with the father this was some time ago and they had not spent substantial time with him for at least twelve months. The nature of their relationships when they did live with him or in an equal shared time arrangement are not known.
The father appeared to the family consultant not to have considered how he would manage any negative behaviours from the children if they did live with him as he did not think that would occur. The family consultant felt that this position may demonstrate a lack of insight in the father as to the children’s experience and difficulty empathising with them.
Another risk factor for the children identified by the family consultant is family violence. The family consultant placed some weight on the allegations made by each of the parties about family violence perpetrated by the other. She also noted that both parents agreed that the children would have witnessed violence between them.
In the opinion of the family consultant if the mother’s account of the father’s violence is accepted this may be considered coercive and controlling violence perpetrated by him. She outlined in her report that exposure to coercive and controlling family violence is known to have a detrimental impact on children including on their physical safety and psychological wellbeing and can also be associated with parenting deficits and an limited capacity to identify and meet a child’s needs.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

As a general proposition it is always preferable to make an order least likely to lead to the institution of further proceedings in relation to children. However, it is equally difficult to predict how each of the parents may act in the future particularly if orders are not made as sought by them. This is therefore not a weighty consideration in the determination of these proceedings.

Conclusion

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[15] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parents will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[15] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
The presumption of equal shared parental responsibility does not apply because I am satisfied that each of the parents has engaged in family violence.
Both the mother and ICL propose that the mother have sole parental responsibility for the children. Under the father’s proposal that the children move to live with him, he seeks sole parental responsibility for them. Under his alternate orders in the event the children are to live with the mother the father accepts the evidence of the family consultant and agrees that it is in the best interests of the children for the mother to hold parental responsibility for them except in relation to any significant change in the children’s living arrangements that would make it more difficult for them children to spend time with the father. The ICL also proposes that this aspect of parental responsibility be shared between the parents.
For the reasons fully considered in this judgment I have no confidence that the parents have any capacity to make decisions jointly in the best interest of the children and am easily satisfied that it is not in their best interests for the parents to share parental responsibility for them.
I am of the view that parental responsibility in respect of the children’s living arrangements that would make it more difficult for them to spend time with the other parent should also not be shared as the purpose of such an order is best achieved by restraining the parents from changing the primary place of residence from their current location. This is preferable to requiring the parents to attempt to reach agreement in relation to this matter where there is not prospect of that occurring.

Other orders

Having regard to all of the foregoing matters and attaching particular weight for the reasons given to the need to protect the children from harm, the nature of their relationships and the likely impact upon them of a change of circumstances I am of the view that the least detrimental suite of orders are generally those proposed by the mother and for this reason I make orders mainly in accordance with that proposal.
However the mother’s proposed orders are extremely limited and do not provide for matters relating to the children’s future arrangements which I consider proper to be covered by orders. For example there is only limited provision in her proposal for the father’s time with the children on special days, and no provision for communication between the parents, notification in relation to medical or educational matters and restraints in respect to the parents’ conduct.
Many of the orders as proposed by the ICL are in my view proper and have been incorporated into the orders. There are some orders sought by the ICL which relate to matters that did not arise in the proceedings and for this reason I decline to make them. Accordingly the orders are made as set out at the forefront of these reasons.

I certify that the preceding two hundred and fifty seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 April 2019.

Associate:

Date: 23 April 2019

[2019] FamCA 252

23 April 2019

Key Legal Topics

Areas of Law

Family Law