HOWARD & LIPSCHITZ

FAMILY COURT OF AUSTRALIA

HOWARD & LIPSCHITZ

[2013] FamCA 75

FAMILY LAW – CHILDREN – where the mother and her partner were found to be causing the children significant psychological harm – where the mother and her partner’s allegations about the father’s sexual abuse of the children were not sustained – where the father did not pose an unacceptable risk of sexual harm to the children

FAMILY LAW – CHILDREN – Interim parenting orders – where the children live with the father – where the children spend supervised time with the mother at a contact centre – where a further family report will be prepared to assess the success of the children’s residence with the father – where the mother was restrained from bringing the children into contact with her partner – where the mother had neglected the children’s emotional needs – where the children had not spent time with the father for two years contrary to existing orders – where the mother was the children’s primary carer – where the mother and her partner had aligned the children against the father – where the children referred to the mother’s female partner as “Dad”

FAMILY LAW – CHILDREN – Parental Responsibility – where the relationship between the parties had deteriorated to such an extent that it was in the children’s best interests for the father to have sole parental responsibility for the children - where the presumption of equal shared parental responsibility did not apply due to past family violence – where the mother had not communicated with the father at all for more than two years

FAMILY LAW – CHILDREN – Ancillary Orders – where the mother is restrained from approaching the children at school or at the father’s residence – where the father is given leave to re-list the matter without further notice to the mother and seek an order for recovery of the children in the event of her contravention of the orders

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 62G, 64B, 65D, 65AA, 65DA, 65DAA, 65DAC, 65DAE and 68B
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 5, 16, 36, 38, and 42

Goode & Goode (2006) FLC 93-286
Jacks & Samson (2008) FLC 93-387
Johnson v Page (2007) FLC 93-344
M v M (1988) 166 CLR 69
Marriage of L & T (1999) 25 Fam LR 590
McCall v Clark (2009) 41 Fam LR 483
McKenzie v McKenzie (1970) 3 All ER 1034
MRR v GR (2010) 240 CLR 461
Napier & Hepburn (2006) FLC 93-303
Potter & Potter (2007) FLC 93-326
RCB v Forrest & Ors (2012) FLC 93-517
U v U (2002) 211 CLR 238

APPLICANT:

Mr Howard

RESPONDENT:

Ms Lipschitz

FILE NUMBER:

NCC

1528

2009

DATE DELIVERED:

20 February 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

18 February 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Powe

SOLICITOR FOR THE APPLICANT:

Slater & Gordon Lawyers

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

N/A

Orders, pending further order

All former orders relating to the children N, born … July 2006, and G, born … November 2007, (“the children”) are discharged.
The father shall have sole parental responsibility for the children.
The children shall live with the father.
For the purposes of implementing Order 3 hereof, unless otherwise agreed:
(a)The mother shall cause the delivery of the children to the father at the Police Station at Town A, NSW at 9.00 am on Thursday 21 February 2013; and
(b)Leave is granted to the father to provide a sealed copy of these orders to NSW Police.
In default of Order 4(a) hereof, leave is granted to the father to restore the matter to the list without further notice to the mother to make an oral application for the grant of a recovery order.
Within five days of the delivery of the children into the father’s care the father shall present the children to the Family Consultant for explanation of these orders and the reasons for such orders.
Subject to Order 8 hereof, each of the parties shall take all reasonable steps to ensure that the children spend time with the mother for two hours each alternate Saturday, with the first such occasion not to occur until the elapse of six weeks from the date of these orders.
For the purpose of implementing Order 7 hereof:
(a)The time spent by the children with the mother shall occur at and be supervised by staff at Contact Centre B situated at … Sydney Suburb C, or such other contact centre agreed between the parties in writing (“the supervisor”);
(b)The parties shall forthwith register with, undertake all intake procedures required of them by, and comply with all reasonable directions of, the supervisor;
(c)Leave is granted to the parties to furnish to the supervisor sealed copies of these orders;
(d)The father shall ensure the prompt delivery and the collection of the children to and from the supervisor;
(e)If an occasion on which the children are due to spend time with the mother is frustrated by the unavailability of the supervisor, illness of the children, or illness of the father, the time that the children were due to spend with the mother shall be made-up at another time as close to the original time as can be arranged;
(f)The mother shall pay all costs of the supervisor; and
(g)The mother is restrained from causing or permitting the children to be in the company of Ms E.
Pursuant to s 68B of the Family Law Act the mother is restrained from entering upon or approaching within 100 metres of:
(a)The father’s residence; and
(b)Any school attended by either child.
Leave is granted to the father to provide a sealed copy of these orders to the principal of the school at which the children are enrolled by him.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the children.
Each party is restrained from causing or permitting the children to hear any discussion by any person about incidents or allegations of violence or sexual abuse pertaining to them or any member of their family.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party is restrained from permitting the children to refer to any person other than the biological parents by use of the terms “Mum” and “Dad” respectively.
The father shall notify the mother of any medical emergency, illness or injury suffered by the children whilst in his care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the mother about the condition and treatment of the children.
The father shall authorise and request the principal of any school attended by the children to provide to the mother, at the mother’s expense, copies of all school reports and school photograph order forms relating to the children.
Following the elapse of six weeks from the date of these orders, each of the parties shall take all reasonable steps to ensure that the children are able to communicate with the mother in the following manner:
(a)By the mother being able to send letters, cards, and/or gifts to the children not more frequently than weekly, and
(b)By the father promptly sending to the mother:
(i)Written acknowledgement of receipt of the mother’s written communication, and
(ii)Any letters, cards, photographs, or other written communication that the children wish to be conveyed to the mother.
For the purposes of implementation of Order 17 hereof the parties shall forthwith notify one another in writing, and thereafter keep one another notified in writing, of the postal address to which mail can be sent to them.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
The Family Consultant shall furnish the Court with an updated Family Report pursuant to s.62G of the Family Law Act 1975 by 30 August 2013.
In order to facilitate preparation of the updated Family Report:
(a)Each party must attend upon the Family Consultant for such interviews and observation sessions at such times and places nominated by the Family Consultant, but not prior to 26 July 2013;
(b)Each party must ensure the attendance of the children at such interviews and observation sessions at such times and places nominated by the Family Consultant, but not prior to 26 July 2013; and
(c)The Family Consultant is granted leave to inspect the Court file and all documents produced on subpoenae.
The matter is re-listed before the Court at 9.30 am on Wednesday 18 September 2013 for further procedural orders.
The Application-Contravention filed by the father on 8 March 2011 is adjourned to 9.30 am on Wednesday 18 September 2013 for mention only.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1528 of 2009

Mr Howard

Applicant

And

Ms Lipschitz

Respondent

REASONS FOR JUDGMENT

Introduction

The history of these proceedings is a tale of woe.
Although the parties reached agreement about the parenting orders for their two children in October 2010 and the agreement was endorsed by orders of the Court, the parenting arrangements soon broke down.
The mother disappeared with the children only a few months later, causing the father to commence proceedings to find them and to prosecute the mother for contravention of the orders. When the mother and children were eventually found the father filed an application for fresh parenting orders and the pending contravention proceedings were left in abeyance.
The mother admitted that she deliberately contravened the orders and abducted the children but contended she was justified because the father had sexually molested them. No evidence was placed before the Court to establish either the father’s molestation of the children or an unacceptable risk of such molestation, but the mother tenaciously maintained the allegations.
Given the rejection of the mother’s allegations, the outcome of the proceedings turned upon resolution of the tension between two competing considerations: on the one hand, the emotional harm the children would suffer by continuing to live with the mother and being thereby deprived of their relationships with the father, and on the other, the emotional harm the children may suffer by being removed from the mother’s care to live primarily with the father so they could enjoy relationships with both parents.

Background

The parties’ children were born in 2006 and 2007 and are still only aged six and five years respectively.
The parties have children from former relationships – the mother has three and the father one – but those children are not the subject of these proceedings.[1]
[1] First Family Report, paras 3-4
The parties were in a romantic relationship over a period of about 10 years but never cohabited. Their relationship ended in 2009.[2]
[2] First Family Report, para 5
The parties’ communication was fraught in the months following the termination of their relationship, but their acrimony later abated. By June 2010 the children were consensually living primarily with the mother and spending time with the father for the whole of every weekend.[3]
[3] First Family Report, paras 6-12
The initial litigation over parenting orders for the children was concluded consensually when the parties obtained orders from the Court on 25 October 2010, which provided for the parties to have equal shared parental responsibility for the children, the children to live with the mother, and for the children to spend time with the father each alternate weekend and for portions of school holidays.[4] The mother was legally represented when those orders were made with her consent.
[4] Orders 1.1, 1.2, and 1.3 made on 25 October 2010
The mother formed a relationship with Ms E during 2010.[5] They commenced cohabitation in January 2011 and still remain in a committed domestic relationship.[6]
[5] First Family Report, paras 12, 55
[6] First Family Report, para 36
In January 2011 the mother ceased compliance with the orders made shortly before in October 2010 and she and the children moved away with Ms E to an undisclosed location, which was later revealed to be Town M in regional NSW.[7] Her reasons for the relocation were the father’s alleged sexual abuse of both children[8] and threats of violence allegedly made by the father to the mother.[9]
[7] First Family Report, paras 21, 56
[8] First Family Report, paras 14-16; Notation B made on 30 September 2011
[9] First Family Report, para 21
The mother alleged that the eldest child continued to make disclosures of past sexual abuse by the father,[10] all of which were investigated successively by the NSW Joint Investigation Response Team (“JIRT”) and found wanting.[11]
[10] First Family Report, paras 23-24, 31
[11] First Family Report, paras 19-20, 27, 30-33
During the course of the JIRT investigation, in March 2011, the mother learned that the father was aware of their residence in Town M so she, the children and Ms E then relocated their residence to Town A in the far south west of NSW.[12] Although there is no direct evidence from the mother as to why, the only rational inference is that she desired to be even further away from the father to reduce the chance of his interaction with her and the children. Ms E later reported to police they moved again to be safe from the father.[13]
[12] First Family Report, paras 28, 56; Father’s affidavit, para 42.4
[13] Father’s affidavit, Annexure F (para 19)
It was not known that the mother had relocated to Town A until she wrote to the Court in August 2011. She later revealed another residential address in Town A in the Notice of Address for Service she filed on 12 June 2012, at which address she informed the Court she still resides with the children and Ms E. The father continues to live in the Hunter Valley.[14]
[14] Father’s affidavit, paras 46, 67
As a consequence of the mother’s decisions, but for the children’s observed interaction with the father in the presence of the Family Consultant, they have not spent any time with the father since January 2011. Interim orders made on an ex parte basis in October 2012 for the children to spend supervised time with the father were simply ignored by the mother,[15] despite the father’s written requests by registered mail for her to comply.[16]
[15] Father’s affidavit, paras 57-66
[16] Father’s affidavit, paras 57-66, Annexures K and L

Proposal and primary evidence of father

The father abandoned the orders set out in his Amended Initiating Application and instead sought the orders set out in a minute of orders tendered during the early stages of the trial.[17] The orders were consistent with those set out in his Case Outline document and were proposed on an interim rather than final basis.
[17] Exhibit F1
The father proposed that the children live with him instead of the mother and that he have sole parental responsibility for them. His reasoning was that the mother had proven her steadfast refusal to comply with any orthodox parenting regime under which the children live with the mother and spend liberal time with him and it was only possible for the children to enjoy meaningful relationships with both parties if they live primarily with him. He asserted that whilst ever the children lived with the mother she would unjustifiably ensure his elimination from their lives.
In support of his proposal the father relied upon his affidavit filed on 14 January 2013, the affidavit of Ms R filed on 8 August 2012, and the two Family Reports of the Family Consultant dated 13 August 2012 and 13 September 2012.

Proposal and primary evidence of mother

The mother’s commitment to participation in these proceedings has been unsatisfactorily lax.
Once the mother and children were finally located, the mother first appeared in the proceedings by telephone on 30 September 2011. She was then ordered to file a Notice of Address for Service within seven days,[18] but failed to do so.
[18] Order 6 made on 30 September 2011
The mother wrote to the Court explaining her inability to appear at Court on 14 March 2012, at which time the mother was given further time to file her Notice of Address for Service,[19] but she still failed to comply until months afterwards.
[19] Order 4 made on 14 March 2012
The mother appeared at Court on 12 June 2012, when she was ordered to file her Response and any affidavit material upon which she relied in relation to pending interim applications and to also attend with the children upon the Family Consultant to enable the preparation of a Family Report.[20] The mother failed to file her Response and did not file any affidavit material, but she did attend upon the Family Consultant with the children for interview.
[20] Orders 4 and 6 made on 12 June 2012
The mother was legally represented at the next Court event on 29 August 2012 when the proceedings were fixed for both interim hearing on 8 October 2012 and for final trial on 18 February 2013. Ancillary procedural orders were made to ensure the readiness of the proceedings for both hearings. In breach of those orders,[21] the mother still failed to file any Response or any affidavit material.
[21] Orders 3, 5, 10 and 12 made on 29 August 2013
The mother’s lawyer gave notice of withdrawal of the mother’s representation by Notice filed in September 2012. Even if the loss of her lawyer caused the mother undue inconvenience, no request was made of the Court for the matter to be re-listed for consideration of amended procedural orders to alleviate her difficulty, for which purpose leave had already been granted.[22]
[22] Order 17 made on 29 August 2012
The mother failed to attend Court on 8 October 2012 and the interim hearing was conducted in her absence. Orders were then made for her to ensure that the children spend supervised time with the father at designated times over ensuing months. The mother was aware of the orders because they were sent to her by the Court and the father corresponded with her about the orders by registered mail, but she failed to comply.
The mother did appear at the final trial on 18 February 2013, but without legal representation. Leave was granted for the mother’s partner, Ms E, to act as her “McKenzie friend” (see McKenzie v McKenzie (1970) 3 All ER 1034) and sit beside her at the bar table for support and assistance.
The mother had no satisfactory explanation to offer for why she had not filed any Response or any evidence in the period of nearly six months that had elapsed since the proceedings had been listed for trial. Nonetheless, she made no application to adjourn the trial and said she was content for it to proceed.
In the absence of her filing any Response, her proposal in respect of parenting orders could only be discerned from her former representations to the Family Consultant and the remarks she made in open Court. She desired that the children remain living with her. However, it transpired that she was content for the parties to have equal shared parental responsibility for the children, rather than for her to have sole parental responsibility, as was her position when speaking with the Family Consultant. The mother was unable to make any firm proposal about the nature of the children’s future interaction with the father, although she formerly told the Family Consultant the children should never have any interaction with the father at all, or alternatively, only spend supervised time with him for two hours per month at a contact centre.[23]
[23] First Family Report, para 38

In the absence of the mother filing any affidavit evidence to explain her proposals, her reasons for such an outcome could only be divined indirectly from her past comments to the Family Consultant and the evidence adduced by the father.

Applicable legal principles

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which shared parental responsibility is to be exercised in respect of decisions relating to major long-term issues concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such major long-term issues (s 65DAE).
However, the presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption applies to the allocation of parental responsibility and not to the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286 and MRR v GR (2010) 240 CLR 461.

Best interests of the children

Primary Considerations (s 60CC(2))

There was no dispute that the children have meaningful relationships with the mother, with whom they have predominantly lived. The real issue was the quality of the relationships the children each currently have with the father and the benefit they are likely to derive from those relationships into the future (see McCall v Clark (2009) 41 Fam LR 483 at 509-510).
The children were introduced to the father in the company of the Family Consultant in September 2012. That was the first time they had seen him since January 2011.[24] The children were somewhat reserved at first, but within minutes both were actively engaging the father in activities and competing for his attention. They displayed no anxiety about him at all. The children also happily engaged with their older maternal half-sibling and her young children when they joined in the session with the father.[25]
[24] Father’s affidavit, paras 33, 45
[25] Second Family Report, paras 8-15, 22
Both children later told the Family Consultant they enjoyed playing with the father. Even though only the eldest child said he would be happy to see the father again,[26] the youngest child had formerly told JIRT officers in September 2011 that she wanted to see the father again.[27] It was obvious to the Family Consultant that at least the eldest child recognised the father and understood the nature of their filial relationship.[28]
[26] Second Family Report, para 17
[27] First Family Report, para 33
[28] Second Family Report, para 19
The positive nature of the children’s interaction with the father on that occasion was all the more poignant because the Family Consultant suspected the mother, Ms E and another adult associate had tried to sabotage the meeting by arousing anxiety in the children.[29]
[29] Second Family Report, paras 4-6, 23
The positive nature of the children’s interaction with the father implies that the children still do retain meaningful relationships with him, albeit that those relationships may not presently be as strong as the relationships they have with the mother. The evidence warrants a conclusion that the children’s relationships are still qualitatively significant to them and are capable of revival so that they are again as meaningful as filial relationships should desirably be (see U v U (2002) 211 CLR 238 at 285-286; McCall v Clark at 507-510).
The argument inferentially promulgated by the mother was that revival of the children’s relationships with the father ought be avoided because the consequences for them would be deleterious rather than advantageous. The disadvantage she envisaged was the subjection of the children to sexual abuse, or their exposure to the unacceptable risk thereof, which would cause them physical or psychological harm.
In August 2011 the mother wrote to the Court in the following terms:[30]
…I fear for the saftly (sic) of my children and myself due to previous events and now it is much more serious as it involves child sexual abuse and more assualt (sic) of both my children…I do have Evidence (sic) and facts.
[30] Exhibit M1
Although the mother asserted she had “evidence and facts” of “sexual abuse” of the children, she did not deign to share it with the Court. The mother adduced no evidence at all. Her allegations of the father’s sexual misconduct with the children were speculation at best and fabrication at worst.
The sexual abuse allegations were rejected by JIRT after investigation, with the JIRT officers suspecting the eldest child was coached to make the allegations. In addition, the father emphatically denied any sexual impropriety to the Family Consultant,[31] in his affidavit,[32] and during cross-examination.
[31] First Family Report, para 45
[32] Father’s affidavit, paras 48-49
Since the sexual abuse allegations were of profound importance to the mother’s position in the proceedings it is necessary that they be carefully scrutinised.
At the outset it should be clearly understood that the mother has no direct knowledge of any sexual abuse. She purports to rely entirely upon oral representations made to her by the eldest child. No such representations were ever made by the youngest child to either her or Ms E.
According to the mother, the eldest child’s revelations about the father’s sexual misconduct were repeated to either her, Ms E, or a doctor several times in January 2011,[33] February 2011,[34] March 2011,[35] and September 2011.[36]
[33] First Family Report, para 15
[34] First Family Report, para 23
[35] First Family Report, para 24
[36] First Family Report, para 31
By reference to police statements made by the mother and Ms E, the evidence about the child’s first disclosure in January 2011 is jumbled and inconsistent, both as to the timing and the surrounding circumstances, though it was allegedly to the effect of “Dad plays with my doodle”.[37]
[37] Father’s affidavit, Annexure E (para 13); Exhibits F2 and F3
The evidence about the eldest child’s subsequent disclosures was again sourced to the police statements made by the mother and Ms E in September 2011, which contain their interpretations in the following terms:[38]
Since then [the eldest child] has come out and said “that his father and other people, including [the father’s adult daughter]. Have sexual abused him, including his father picking him up and placing him on a hook and then pulling his pants down and sucking his doodle until he felt like doing a wee which he told me he did. [The child] has also mentioned that there are people who have colours for nicknames that film him and his sister [name] standing naked with the coloured people playing with their doodles weeing in a bucket then dad tipped the bucket of wee over me and [the youngest child] and it ran down my face” (sic).
and
“Dad makes me suck his doodle in his bed until he pees in my mouth until I vomit”.
and
“Dad has put two fingers…up my bum and then he made me sit on his fingers”.
and
“Daddy gets his shampoo and rubs it on me and [the youngest child] using daddy’s naked body”.
[38] Father’s affidavit, Annexure E (paras 18-19, 23-24); Exhibit F3
Self-evidently, even if the child did make such statements, such bizarre stories emanating from a child only five years of age should have evoked a strong sense of scepticism, but apparently it did not at all with Ms E and did only transiently with the mother.
Rather surprisingly, the mother and Ms E encouraged the child to draw pictures of his sexual experiences in a book and even helped him make the drawings,[39] even though the pictures must necessarily have been a product of only the child’s recollection – or imagination, as the case may be. How could the mother or Ms E accurately depict an event of which they knew nothing? Any drawings done by them must reproduce only their own imagination, formed by their own perceptions of the child’s descriptions.
[39] Father’s affidavit, Annexure E (para 22), Annexure F (para 14)
The mother apparently initially refused to believe that the father was capable of sexually abusing the children and briefly protested his innocence to Ms E,[40] but she obviously later changed her mind. Ms E, though, entertained no doubt. She immediately suspected the father’s sexual abuse of the eldest child, perhaps even by the use of some form of deviant sexual device, and she went to the police with her complaint the morning after the child’s first disclosure.[41] Ms E has taken principal responsibility for making many of the reports to authorities about the children.[42]
[40] Father’s affidavit, Annexure E (para 14), Annexure F (para 11)
[41] Father’s affidavit, Annexure F (paras 9-12)
[42] Father’s affidavit, Annexure F (para 17)
This is a convenient point in the narrative at which to comment upon the veracity of both the mother and Ms E. Neither gave evidence in these proceedings, despite an order formerly being made at the mother’s request permitting Ms E to be called as a witness in her case.[43] Nonetheless, the available evidence permits, and probably demands, findings that the mother and Ms E are prone to provide false information at their whim. The Family Consultant also found Ms E an unsatisfactory historian.[44]
[43] Order 12 made on 29 August 2012
[44] First Family Report, para 54
When the mother made her statement to police in September 2011 about the father’s alleged sexual molestation of the children she told police she had been in a relationship with Ms E for the preceding two years but that “[they] don’t reside together though”.[45] That statement was false because they had cohabited since January 2011.
[45] Exhibit F3 (para 6)
Similarly, when Ms E made the first of her two statements to police in September 2011 she told the police she was then in a relationship with the mother but did not live with her.[46] She recanted the falsehood in her next statement made some days later, admitting she had lived with the mother and children since January 2011.[47] In her later discussion with the Family Consultant she confirmed she had lived with the mother and children from the beginning of 2011.[48]
[46] Father’s affidavit, Annexure F (para 4)
[47] Father’s affidavit, Annexure F (paras 15-17)
[48] First Family Report, para 56
The inconsistency in their reports to police about the nature of their domestic relationship is not rationally explained by honest mistake. Most probably they lied to police. It is unnecessary to speculate about their motive. Identification of the lie is sufficient.
Additionally, despite living together in a domestic relationship since January 2011, the mother and Ms E continue to receive Centrelink benefits on the false basis that they are not living together as domestic partners. Neither of them has taken steps to correct the Centrelink records concerning the status of their relationship, meaning that they have likely been overpaid financial entitlements.[49] Such a failure over such a protracted period cannot reasonably be attributed to innocent oversight. The deceit reflects poorly on them both, demonstrating a willingness to be untruthful when it suits them.
[49] First Family Report, para 36
The mother and Ms E also both asserted in their police statements made in September 2011 that they had earlier genuinely believed the police were in some way complicit with the father in his vengeful harassment of them in response to the sexual abuse allegations when they were first made.[50] Why they would entertain the notion of such impropriety by the police is unknown, but there was no obvious rational basis for it. If their statements to police were honest, it is an indication of their propensity for impulsive hysteria. Such propensity to think the worst has obvious relevance to the potential for their misinterpretation of any ambiguous statements made by the children.
[50] Father’s affidavit, Annexure F (paras 15-16); Exhibit F3 (para 15)
Such circumstances require that considerable caution should attend acceptance of any information sourced to the mother and Ms E.
As a consequence of the eldest child’s disclosures being reported to authorities, the eldest child was interviewed by JIRT on three separate occasions in January 2011, March 2011, and September 2011.[51] The youngest child also participated in a separate interview on the last of those occasions,[52] because she was implicated in the last disclosure by the eldest child.[53]
[51] First Family Report, paras 19, 27, 32
[52] First Family Report, para 32
[53] Father’s affidavit, Annexure C, Annexure H (Q.649-691, 762-766)
After the eldest child’s first interview, the mother was informed that the allegations of sexual abuse were not substantiated.[54]
[54] First Family Report, paras 19-20
During his second interview, JIRT officers noted that the child “appeared to be reciting rather than recalling information” and were concerned that he “may have been told what to say” by being “coached” by either the mother or Ms E. The interview revealed no evidence to support the allegations against the father and even the competency of the eldest child was questioned.[55]
[55] First Family Report, paras 27, 30, 31
The eldest child’s presentation during the third interview in September 2011 was materially different from his presentation at the earlier interviews in January 2011 and March 2011, even though he had not seen or spoken to the father in the interim.
The change in the child’s presentation is noteworthy because the last allegation of sexual abuse made in September 2011 occurred shortly after the mother became aware that these proceedings had been commenced against her. It is difficult to resist the inference that the mother and Ms E were therefore motivated to prime the child to make fresh and more elaborate allegations of sexual abuse to stave off the father’s renewed attempts to intervene in their lives. That inference is all the stronger in light of conclusions subsequently reached by JIRT officers.
From the outset the child explained he knew he was being interviewed because “my naughty father touches me”[56] and during the interview he was anxious to tell the police more of his story.[57] He alleged the father “weed” in his mouth, “touched” and “sucked” his “doodle”, puts two fingers in his “bum”, “wees” in a bucket and “chucks” it on him, and puts “butt plugs” in his “bum”.
[56] Father’s affidavit, Annexure H (Q.68)
[57] Father’s affidavit, Annexure H (Q.178-180, 190-191, 202-203, 213, 217, 399)
Curiously, the child alleged that some such episodes of molestation had occurred in public places, such as near some school gates when cars were driving past[58] and inside a car,[59] or in the presence of numerous other adults.[60] The child also alleged he had been “touched” by the father’s adult daughter,[61] abused by the father and his adult daughter simultaneously by them taking turns with him,[62] and abused by another man while in the father’s care.[63]
[58] Father’s affidavit, Annexure H (Q.101-121, 278-283)
[59] Father’s affidavit, Annexure H (Q.178, 454)
[60] Father’s affidavit, Annexure H (Q.228, 264-267, 718-721)
[61] Father’s affidavit, Annexure H (Q.228-229, 268-274, 552-560)
[62] Father’s affidavit, Annexure H (Q.268-276)
[63] Father’s affidavit, Annexure H (Q.721-725)
The allegations of his sexual abuse, including instances of complicit abuse by adults and in public places where he could easily have been discovered, were so fantastic as to almost certainly be false. If too fantastic to be true, it begged the question as to why such outlandish allegations were made by the child to JIRT. The ominous answer emerged during his interview.
Significantly, during the interview the child explained he was unable to answer some questions because Ms E had not told him all of the details about the story.[64] She was the one who told him what his “naughty father” had done[65] and he needed a book to remember all of the details,[66] which Ms E had helped him complete.[67] The mother even has video footage of the child drawing in the book.[68] No doubt that was the same book to which Ms E had referred in her police statements,[69] which statements she made contemporaneously with the eldest child’s interview. The book was adduced in evidence.[70]
[64] Father’s affidavit, Annexure H (Q.111, 115, 196-199)
[65] Father’s affidavit, Annexure H (Q.440-446)
[66] Father’s affidavit, Annexure H (Q. 284-289)
[67] Father’s affidavit, Annexure H (Q.289-389, 417-445, 512-515, 564-571, 580, 586)
[68] Exhibit F3 (para 16)
[69] Father’s affidavit, Annexure E (para 22), Annexure F (para 14)
[70] Father’s affidavit, Annexure I
Perhaps most strikingly, the child referred to the father as a “dirty paedophile” when in the company of the JIRT officers, which language was clearly not a product of the child’s own vocabulary. The child also said that he was “going to get an ice cream if he talks [in the interview] about his dirty father” but would have to live with the father if he did not.[71]
[71] First Family Report, para 32; Father’s affidavit, Annexure H (Q.595-635)
The inference is inescapable that the mother, Ms E, or both of them:
a)Trained the child to use a grossly derogatory term with which to describe the father;
b)Offered the child an inducement to implicate the father in his sexual abuse during his interview with authorities; and
c)Threatened him with being turned out of their home if he did not.
The iniquity of such manipulative treatment of a child, then barely five years of age, hardly needs elaboration.
Ms E denied to police that she had said such things to the child, but revealingly, she did admit that she and the mother had told the child they “would have a special party if he told police about it [the allegations]”.[72] I do not accept the truth of that statement, as I prefer the reliability of the child’s innocent revelations to JIRT officers, but even if it was truthful, an inducement of that sort reflects just as poorly on both the mother and Ms E.
[72] Father’s affidavit, Annexure F (para 21)

I do not find the eldest child’s representations to the mother, Ms E, or the JIRT officers credible. He was still only five years of age when the last of his disclosures was made in September 2011. It is clear beyond doubt that whatever he was then prone to say was the product of contamination by either the mother or Ms E. It is also tolerably plain that the mother and Ms E did, and probably still genuinely do, desire the elimination of the father from the lives of both them and the children. They were motivated to engineer that outcome using the children as pawns. In aggregation, the existence of that motive, their proven mendacity, and the failure of both the mother and Ms E to give sworn evidence and expose themselves to cross-examination, makes it unwise to rely upon the veracity of any representation made by either of them which is adverse to the interests of the father.
The contents of the youngest child’s separate interview in September 2011 demonstrate her fundamental lack of comprehension. Her answers were often unintelligible and unresponsive to the questions posed.[73] She said the father touched her “dot”, which I infer to be a reference to her genitals, but she also said both the mother and Ms E had done so too.[74] The child said the father had touched her dot at the mother’s home,[75] the truth of which the mother would presumably refute. Nothing said by the youngest child could feasibly be interpreted as corroborative of the allegations made against the father.
[73] Father’s affidavit, Annexure J
[74] Father’s affidavit, Annexure J (Q.86-87, 102)
[75] Father’s affidavit, Annexure J (Q.93-95)
Having regard to the authorities by which I am bound (see M v M (1988) 166 CLR 69; Napier & Hepburn (2006) FLC 93-303; Potter & Potter (2007) FLC 93-326; Johnson v Page (2007) FLC 93-344) and the burden of proof which governs evidence touching upon allegations of serious misconduct (s 140 Evidence Act (Cth)), I am inexorably drawn to two crucial findings: the father did not sexually abuse either child, nor is either child at an unacceptable risk of sexual abuse by the father.
The youngest child unexpectedly revealed in her interview in September 2011 that the mother and Ms E hit her.[76] Neither the mother nor Ms E gave evidence to refute that allegation. Nor was the issue raised in their discussions with the Family Consultant, but that may have been because the Family Consultant was then unaware of it. The isolated statement of the child is not a sufficiently secure basis upon which to conclude she has been physically abused by the mother or Ms E, but it is reason to make an order restraining corporal punishment of the children.
[76] Father’s affidavit, Annexure J (Q.59-62)

Additional Considerations (s 60CC(3), (4), (6))

I pay no heed to the children’s expressed views about parenting arrangements for several reasons. Firstly, they are still young and immature and probably do not comprehend the significance of their statements. Secondly, their speech is difficult to understand in any event and the meaning of their statements may be compromised. Thirdly, even if they do have adequate comprehension and are able to express themselves clearly, their expressed views are only reflective of those impressed upon them by the mother and Ms E.
Although the mother does not think the eldest child has a “learning disability”, Ms E believes he does.[77] When the Family Consultant first interviewed the children in August 2012 they each exhibited impaired speech, although the eldest child was easier to understand than the younger child.[78] Interpretation of their statements must therefore be impeded to some extent.
[77] Exhibit F3 (para 19); Father’s affidavit, Annexure F (para 22)
[78] First Family Report, paras 61, 65
The eldest child informed the Family Consultant that he wanted to live with the mother and Ms E and did not wish to communicate with the father, about whom he made some unintelligible remarks of a sexual nature.[79] The youngest child was content to meet with the father, but the Family Consultant wondered whether she actually comprehended the question.[80] The Family Consultant decided not to introduce the children to the father on that occasion.[81]
[79] First Family Report, para 62
[80] First Family Report, para 66
[81] First Family Report, paras 66, 69
It was not until a month later in September 2012 that the children were introduced to the father by the Family Consultant, at which time the eldest child’s eager engagement with the father was wholly incompatible with his earlier stated opposition to any interaction with the father. The youngest child’s reticence to see the father again, expressed after the session, was incongruent with her enthusiastic engagement with him immediately beforehand. The positive interaction of both children with the father is a more reliable guide to their feelings about him than the statements they make about him.
As already discussed, there can be little doubt about the propensity of the mother and Ms E to infect the children’s thoughts about the father and consequently influence their statements about him. Even the mother’s own adult daughter confirmed that the mother and Ms E had “openly discussed in considerable detail in the presence of the children the allegations of sexual assault” against the father, despite having been repeatedly warned against that practice by JIRT.[82] Despite the appalling circumstances surrounding the investigation and rejection of the sexual abuse allegations made against the father, the mother still steadfastly maintains the allegations. In fact, she even contemplates agitating for further investigation involving the children in an effort to finally sustain the allegations.[83]
[82] First Family Report, para 75; Affidavit of Ms R, paras 15-16, 22
[83] First Family Report, para 51
Children’s views are invariably vulnerable to the influence of the adults who have control of them (see RCB v Forrest & Ors(2012) FLC 93-517 at [52]). This case seems an archetypal example.
The capacity of the mother to adequately provide for the children’s emotional needs is an issue of pivotal importance in the proceedings, given her unshaken assertion of belief in the father’s sexual abuse of them. The mother and Ms E have ably demonstrated their resistance to the children enjoying normal relationships with the father. Only emotional harm could thereby result for the children when there is no valid basis for the elimination of the father from their lives.
One can only muse at the extent to which the mother is influenced by Ms E. The Family Consultant perceived that Ms E “appear[ed] to be more of the decision maker than [the mother]”.[84] That perception is consistent with other evidence sourced to the mother and Ms E.
[84] First Family Report, para 33
Ms E boldly asserted to police that she had taken responsibility for making complaints to authorities about the father’s alleged sexual abuse of the children,[85] which the mother conceded was true.[86] It was Ms E who provided the guiding hand to the eldest child in the compilation of the drawings purporting to depict his sexual abuse. Ms E admitted to the Family Consultant that she was “supporting and guiding” the mother in her dispute with the father and that the eldest child “talks[s] more with her than with his mother”.[87] The mother also admitted the eldest child sees Ms E as his “hero and protector” and she only hears “little bits” about the sexual abuse.[88]
[85] Father’s affidavit, Annexure F (para 17)
[86] Exhibit F3 (para 12)
[87] First Family Report, paras 55, 59
[88] Exhibit F3 (para 10)
The mother and Ms E allow, and perhaps even encourage, the eldest child to call Ms E “Dad”, notwithstanding her female gender and non-biological association with the child.[89] The eldest child referred to Ms E as “Dad” throughout his interview with JIRT officers in September 2011[90] and told the Family Consultant in August 2012 that Ms E was his new father now.[91]
[89] First Family Report, para 59; Exhibit F3 (para 10)
[90] Father’s affidavit, Annexure H
[91] First Family Report, para 62
I accept the validity of the Family Consultant’s opinion that:[92]
…it is difficult to exclude the fact [Ms E] wants to alienate the biological father through false accusations of sexual abuse and that there is no denying that if this is the case, the children are very vulnerable to ongoing psychological harm by their carers [the mother and Ms E].
[92] First Family Report, para 33
The father contended, and I accept, that the children have been subjected to emotional abuse in the mother’s home. The actuality of that abuse transcends mere risk. They have been inculcated with a belief that they have been sexually molested by the father and others associated with him and have been used as tools in the mother’s vendetta against the father.
The children would suffer profound psychological damage if they are allowed to develop into adolescents and adults with an erroneous belief that they each have been sexually abused by their father. That will inevitably occur if the children remain living with the mother and the father is eliminated from their lives. Such conclusions find a strong evidentiary platform in the opinions expressed by the Family Consultant.[93]
[93] First Family Report, para 85
Such an outcome could only be averted by orders which reverse the children’s residence. The children would probably experience at least some short-term psychological disturbance through being removed from the primary care of the mother. Such a change would also rupture the friendship networks they have both probably established. However, the warmth of the children’s interactions with the father only six months ago suggest that they could settle into his residential care without undue prolonged trauma and there is no reason to suspect that the children will not find new friendships at a new school.
The evidence suggests the father could cope with the role of primary residential parent. He still lives in the same house, with which the children are familiar, and which is suitable for the children’s practical needs.[94] The father is self-employed, affording him flexibility to attend both to his work and to the needs of the children, since they are able to enrol at a local school.[95] Although the Family Consultant observed the father to be somewhat hesitant with the children at their meeting in September 2012, that was understandable in the context of their lengthy separation and the father handled the children sensitively.[96]
[94] Father’s affidavit, paras 67-70, 74
[95] Father’s affidavit, paras 72, 78-79, 82-83; First Family Report, para 35
[96] Second Family Report, para 16
Although the children would live alone with the father in his home, they would no doubt visit the father’s adult daughter and her children, as well as the mother’s adult daughter and her children, who participated in the session with the Family Consultant in September 2012. The Family Consultant explained in cross-examination how that would ameliorate any sense of isolation and vulnerability the children might otherwise feel.
The children are not experiencing any sense of security from placement within the broader maternal family while living with the mother. The mother became estranged from both the maternal grandmother and the children’s maternal half-sibling in March 2012 and the children have not seen any maternal aunts or uncles for years. It seems as though Ms E has embraced the mother and children within her own family, which the mother considers “wonderful”.[97]
[97] First Family Report, para 47; Affidavit of Ms R, para 25
The Court is enjoined to make orders that do not expose any person to family violence (s 60CG(1)(b)), but the reversal of the children’s residence would not appreciably increase the risk of occurrence of family violence. While the mother has previously been concerned about the father’s violent treatment of her, the prospect of future family violence between the parties must now be regarded as unlikely.
In October 2010 the mother agreed to parenting orders under which the children would spend substantial and significant time with the father and the parties would share parental responsibility for the children. She was legally represented at that time and must therefore be presumed to have reached the conclusion that such orders reflected the children’s best interests, notwithstanding the historical family violence between them. The parties have different perceptions about the severity of that violence,[98] but any concerns the mother then harboured about the father’s past aggressive tendencies must have merged in the final orders to which she agreed.
[98] Father’s affidavit, paras 11-17, 22-28; First Family Report, paras 7, 10
The evidence of perpetration of family violence by the father since those orders were made is sparse, inconsistent and weak.
The mother told the Family Consultant that threats of harm made by the father to her in January 2011 was one reason why she secretly relocated with the children and Ms E,[99] but the timing of her relocation is not easily reconciled with the allegations she made to the Family Consultant,[100] raising doubt about the reliability of her allegations.
[99] First Family Report, para 21
[100] First Family Report, para 22
The mother reported in her police statement made in September 2011 that the father had sent her threatening text messages some time during 2011,[101] but no corroborative evidence of them was adduced. It would have been relatively simple to tender text messages in evidence if they really existed.
[101] Exhibit F3 (para 14)
The mother also alleged in the same police statement that the father had telephoned her on the eldest child’s birthday and threatened to kill her[102] and she later told the Family Consultant at her interview in August 2012 that the father had “recently” threatened to kill her.[103] I do not accept the truth of those reports. The mother was so vague about at least the later threat she could not even remember whether such a heinous threat was made verbally or by text message. The father deposed he had not had any telephone contact with the mother or Ms E since January 2011[104] and flatly and credibly denied in cross-examination making any such threats to the mother.
[102] Exhibit F3 (para 18)
[103] First Family Report, para 22
[104] Father’s affidavit, para 45
Apprehended violence proceedings were instigated in the Local Court of NSW against the father for the protection of the children following the last allegations of sexual abuse being made in September 2011. Although the interim family violence orders made in those proceedings would also have protected the mother and Ms E, as persons who shared a domestic relationship with the children (see ss 5, 16, 36, 38, and 42 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)), the proceedings were not instituted by reason of any allegation of family violence by the mother. In any event, those proceedings were defended by the father and the complaint was eventually dismissed.[105]
[105] Father’s affidavit, paras 51, 54-55; First Family Report, para 34;
Fashioning any orders that enable the children to interact with both parents presents a real challenge. The residences of the parties are on opposite sides of NSW and the journey between them takes many hours at considerable inconvenience and no doubt at some cost.

Parenting orders

The acknowledged past existence of family violence means the presumption of equal shared parental responsibility does not apply, but the absence of the presumption does not preclude such an outcome. The allocation of equal shared parental responsibility may be appropriate because it meets the best interests of the children, just as the parties concluded when they sought and obtained such an order in October 2010. However, the circumstances that led the parties to the mutual conclusion in October 2010 that such an order was appropriate have long past.
The parties are now hopelessly conflicted. The mother has set about deliberately severing all contact between her and the father since January 2011. Although the father has remained living in the same house with the same telephone numbers, which are known to the mother, he has had no communication of any sort from her for over two years.[106] The father was unaware of how to find the mother when she disappeared in January 2011, necessitating his commencement of the current litigation by an application for a Commonwealth Information Order to locate the mother and children.[107] In effect, the mother has been exercising sole parental responsibility for the children since January 2011, contrary to her obligations.
[106] Father’s affidavit, paras 45-47, 66-67
[107] Father’s affidavit, paras 34-36
I am satisfied the mother’s antipathy towards the father is unlikely to abate in the foreseeable future. She continues to ardently believe that he sexually abused the children. She avoids any interaction with him and will probably continue to do so. The mother’s unexpected proposal for equal shared parental responsibility was palpably misconceived or disingenuous. The only pragmatic solution is for one of the parties to have sole parental responsibility for the children and it is logical for the residential parent to be allocated that parental responsibility.
Comment has already been made about the long-term harm the children will suffer if they remain living with the mother and the short-term harm they may endure if they are removed from her care. I am satisfied that the certainty of the former harm carries greater weight as a consideration than the probability of the latter harm.
However, as a precautionary measure, rather than make orders which require the children to live with the father instead of the mother on a final basis, I am persuaded to make only interim orders to that effect. The father’s proposal in that regard was sensible. Interim orders will enable subsequent assessment of the children’s placement with the father by the Family Consultant, who will be required to prepare a supplementary report directed to the settlement of the children in the care of the father.
Feasibly, the contents of that supplementary report will either vindicate or impugn the prediction of the children’s sufferance of only transitory emotional harm through their removal from the mother’s primary care. Vindication will justify unchanged final residential orders whereas impugnment will oblige further consideration of the ultimate result.
The orders require the mother to surrender the children to the father within 24 hours. The children are presently being cared for in Town A so both parties will need to travel to Town A for the exchange of the children to occur. The orders provide for the local police station to be the venue for the exchange and for the police to be provided with copies of the orders. The prospect of disturbance at the exchange will be alleviated if the police are close at hand and able to intervene. I am more attracted to that strategy than an exchange at the children’s school, as proposed by the father.[108]
[108] Exhibit F1, Order 3
If the mother fails to surrender the children to the father then permission is granted to the father to restore the matter to the list to enable his application for a recovery order. Notice to the mother will be unnecessary because she will be aware of her obligation under these orders and aware of the consequences if she disobeys the orders.
The orders require the father to present the children to the Family Consultant soon after he assumes their care so the Family Consultant can explain to the children both the orders and the reasons for the orders. I adopt the Family Consultant’s advice and the father’s proposal to that effect.
Given that the children will live with the father for some time hence, consideration must turn to the nature of their continuing interaction with the mother.
The Family Consultant offered the following advice:[109]
It is further recommended that if the children were to change residence and live with their father, there be a period of at least one month with the children having no contact with [the mother] and then a period of supervised contact while [the mother] was obtaining therapeutic counselling from an appropriately qualified and experienced health professional.
[109] First Family Report, para 86

I accept that opinion for two reasons. Its validity was not challenged and it is logical in light of the surfeit of evidence proving the alignment of the children by the mother and Ms E against the father. The children will need a period of time to adjust to their residence with the father and a change of school. They need time and space for their grief upon separation from the mother to subside and not be re-kindled by spending time with her too soon and too frequently.
As the Family Consultant explained in cross-examination, the children probably harbour negative views about the father because of their alignment against him. It will take some time for those negative views to be replaced by positive ones and as that process occurs the mother cannot be permitted to reinforce the negative views. The need to allow sufficient time for that process to take its course must be balanced against the need to keep their estrangement from the mother as short as reasonably possible.
The duration of the hiatus in their interaction with the mother is a difficult decision. The Family Consultant described it as a “difficult balancing act” in cross-examination, but recommended a period of “at least one month” in the Family Report. Although prepared to express an opinion about the minimum duration of that period, the Family Consultant could not be drawn to express any opinion about the maximum duration. In the absence of any further evidence, I am inclined to the conclusion that a period of six weeks is neither too short nor too long. The father’s proposal of two months was not much different.
Another problem arises upon re-introduction of the children to the mother at the conclusion of that initial embargo. Presumably the mother will be distressed by the children’s removal from her care and overwhelmed to see them again after a wait of six weeks. She may be visibly upset, which although understandable will be distressing for the children. The mother may also interrogate the children about their experiences with the father in order to satisfy her curiosity about whether they have been subjected to further sexual abuse, which would be intolerable.
The only way in which to adequately manage such potentialities is, as the Family Consultant suggested, the imposition of supervision upon the mother’s interaction with the children for a period of time.
The Family Consultant did not recommend the duration of any such period of supervision in the Family Report, but in cross-examination said the period should be “at least one month but not more than three months”. The Family Consultant did not offer any explanation as to why he capped the period at both ends in that way.
The duration of the period of supervised interaction necessarily entails making assumptions about future behaviour of the mother and the children, for which there is no historical model for use as a guide. The Family Consultant is seemingly no better placed than the Court to make such an arbitrary determination. Even if better placed to offer such an opinion, no explanation was provided as to why, nor were the reasons for the opinion elaborated. Presently, I am inclined to the conclusion that the supervision should at least apply until the updated Family Report is procured, which will be closer to a period of six months.
The time for preparation of the updated Family Report should be sufficiently far ahead that the children have had the opportunity to settle with the father and resume their interaction with the mother, but not so far into the future that the children’s expected settlement with the father goes unchecked for too long. The orders therefore provide for the updated Family Report to be available within six months and for the matter to be re-listed before the Court for further consideration within a few weeks thereafter.
I am satisfied that the father’s proposal for fortnightly supervised interaction between the children and the mother is appropriate.[110] The mother made no submission about the frequency, presumably because she could not or would not contemplate any outcome other than the children’s continued residence with her. More frequent visits than fortnightly would be too onerous upon the children, to say nothing of the travel demands upon the mother, and less frequent visits would risk deterioration of the relationships enjoyed by the children with the mother.
[110] Exhibit F1, Order 5
The father proposed that the Family Consultant supervise their interaction,[111] but I concur with the Family Consultant’s circumspection about becoming involved in such a way. It is better that any supervised time be spent by the children with the mother in a contact centre, just as the mother envisaged might occur between the children and father. She proposed in final submissions that the children could see the father at a contact centre in Town D, NSW and therefore expected him to undertake most of the travelling.
[111] Exhibit F1, Order 5.3
The orders make provision for the children to spend supervised time with the mother in a contact centre in the CBD of Sydney. It should be easier for the mother to travel by either private or public transport to Sydney rather than another regional centre, albeit that it is a lengthy journey for her. She only needs to make the return trip each fortnight and it is better that she be put to any inconvenience of long journeys rather than the children.
On the available evidence, there is no need for the mother to live in Town A. Neither she nor Ms E has any employment to hold them there. She has happily lived in the Newcastle and Town M regions in the past so it is probably open for the mother and Ms E to move to a location closer to the father or Sydney if they are inclined to do so.
An injunction precludes the mother from attending near to or upon the father’s residence or the children’s new school. That will prevent the mother trying to frustrate the purpose of both the planned initial embargo between them and then confinement of the children’s interaction with her to the supervised conditions of the contact centre.
I am also persuaded to impose an injunction precluding the children’s interaction with Ms E pending procurement of the updated Family Report. Even if Ms E is not a svengali to the mother, there is plenty of evidence to justify the finding that she is unusually influential in her life and affairs. Ms E has been a destabilising influence in the children’s lives, which influence they are presently best without. The possible re-introduction of Ms E to the children is an issue that will attract further consideration upon resumption of the proceedings.
The orders additionally require the children to refer to only the parties as “Mum” and “Dad” respectively. The Family Consultant explained how the children’s relationships with the father may be impinged if they are permitted to refer to Ms E as “Dad”. For the same reason they should refer to the father as “Dad”, they should continue to refer only to the mother as “Mum”.
Although not addressed either in the evidence or during submissions, the orders permit written communication between the children and the mother on a weekly basis, but only upon expiration of the initial embargo. That is another way in which they may stay in touch and will militate against deterioration of the children’s relationships with the mother.
Additional injunctions preclude the children from being immersed in discussion about the controversial allegations in these proceedings or exposed to denigration of the parties. The father sought such injunctions and the mother announced to the Court her agreement with such orders.
The injunction precluding corporal punishment of the children was explained earlier in these reasons.
The orders oblige the father to notify the mother of any medical complications suffered by the children and to facilitate the mother’s procurement of their school reports and school photographs. Presumably the mother would want such information and mementos when she is temporarily marginalised in their lives.
The Family Consultant proposed that the mother undertake therapeutic counselling to assist her adjustment[112] and the father adopted that recommendation.[113] While it seems a sensible idea for the mother to receive counselling, I decline to make an order that she do so for several reasons. The Court probably does not have the power to make such an unconditional order, even on an interim basis (see Marriage of L & T (1999) 25 Fam LR 590 at 603-606; Jacks & Samson (2008) FLC 93-387 at [200]-[226]), it is pointless making such an order if the mother is not sufficiently self-motivated and would breach it, conversely, the order is otiose if the mother is so self-motivated she would voluntarily seek out such therapy anyway, and lastly, there is no evidence that such psychological services are readily available to her in such a regional outpost as Town A.
[112] Second Family Report, para 86
[113] Exhibit F1, Order 8

I certify that the preceding one hundred and thirty-five (135) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 20 February 2013.

Associate:

Date: 20 February 2013

Second Family Report, para 3

[2013] FamCA 75

20 February 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Remedies

Procedural Fairness