KADIR & NEJIZ

FAMILY COURT OF AUSTRALIA

KADIR & NEJIZ

[2018] FamCA 778

FAMILY LAW – CHILDREN – Child related proceedings – Best interests of the children – Meaningful relationship – Need to protect the children from harm – Unacceptable risk – Where the father seeks orders that the children live with him and have no contact with the mother for three months – Where the mother seeks orders that the children live with her and spend no time with the father – Where the Independent Children’s Lawyer seeks orders that the children live with the mother and spend time with the father in accordance with their wishes – Where the mother alleges that the father has sexually abused the children – Where the father denies all allegations of misconduct on his part – Where previous family therapy has been unsuccessful in facilitating a relationship between the children and the father – Where the father alleges that the mother has sought to alienate him from the children – Where the Court finds that the father has likely not sexually abused the children – Where the Court finds that the children genuinely believe that they have been sexually abused by the father – Where the Court finds that requiring the children to spend time with the father would expose them to an unacceptable risk of psychological and/or physical harm – Orders made in accordance with those sought by the Independent Children’s Lawyer for the children to live with the mother and spend time with the father in accordance with their wishes.

Convention on the Rights of the Child art. 3
Family Law Act 1975 (Cth) ss. 4AB, 43, 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC,
Mental Health Act 2007 (NSW) s. 22

The Hon. John Fogarty AM, ‘Unacceptable Risk — A return to basics’ (2006) 20 Australian Journal of Family Law 249

Bant & Clayton [2015] FamCAFC 222
Blinko & Blinko [2015] FamCAFC 146
Cotton & Cotton (1983) FLC 91-330
Dundas & Blake (2013) FLC 93-552
Fitton & Kimble [2017] FCWA 106
G & C [2006] FamCA 994
Jurchenko & Foster [2014] FLC 93-598
M v M (1988) 166 CLR 69
McCall & Clark (2009) FLC 93-405
N & S (1996) FLC 92-655
Stott & Holgar [2017] FamCAFC 152
VR & RR (2002) FLC 93-099
W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235

APPLICANT:

Mr Kadir

RESPONDENT:

Ms Nejiz

INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

FILE NUMBER:

PAC 3955 of 2014

DATE DELIVERED:

28 September 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

12 - 16 February 2018, 19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ahmad

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr Morley

SOLICITOR FOR THE RESPONDENT:

Matthews Folbigg

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Daniel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders

All parenting orders previously made in this matter be discharged.
The mother have sole parental responsibility for X, born … 2006 and Y, born … 2008 (“the children”).
The children live with the mother.
The children spend time and communicate with the father in accordance with their wishes and the mother is to facilitate that.
The father be permitted to send the children letters and gifts and the mother is to ensure that the children receive them.
The father be permitted to contact each of the children via email on a monthly basis and for this purpose, the mother is to keep the father informed of the children’s email addresses and advise the father of any change to the children’s email addresses, within 48 hours of such change occurring.
The father and the mother be prohibited from discussing any aspect of these proceedings, including the allegations of sexual abuse raised by the mother, in the presence or hearing of the children or allowing any other persons to do so.
These orders serve as authority for the father to contact the children’s schools and discuss the children’s progress at school and for this purpose, the mother is to provide to the father with the name/s of the children’s school/s and their contact number, within 48 hours.
These orders serve as authority for the father to obtain copies of the children’s school materials normally available to parents, including but not limited to, school reports, school photographs and school newsletters.
These orders serve as authority for the father to contact the children’s treating medical practitioners and for this purpose, the mother is to provide to the father with the names and contact details of each of those persons, within 48 hours.
Pursuant to s 11(1)(b) of the Passports Act 2005, the mother be authorised to obtain passports and travel documents for the children.
The children be permitted to travel internationally with the mother for a period of no longer than six weeks, with such travel to be restricted to countries which are signatories to the Hague Convention or the Civil Aspects of International Child Abduction.
At least 30 days prior to any intended international or domestic travel with the children, the mother shall provide the father with details of the following:
(a)Relevant dates of the intended travel, including dates of departure and return to Australia;
(b)Copies of any travel tickets, including return airfares to and from Australia; and
(c)Addresses of where the children will be staying throughout that travel period.
The parties have liberty to apply in respect to the issue of costs, including costs payable to the Independent Children’s Lawyer and the question of reimbursement to the father of the amount of $12,540.00, for one half of the cost of Dr B’s Single Expert Report.

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 Kadir & Nejiz 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 SYDNEY

FILE NUMBER: PAC 3955 of 2014

Mr Kadir

Applicant

And

Ms Nejiz

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern an application brought by the father for parenting orders in respect to the parties’ children X, born in 2006 (“X”) and Y, born in 2008 (“Y”) (collectively referred to as “the children”).
The children live with the mother and, other than limited time in the context of family therapy, have not spent time with the father since 4 January 2015.
The father seeks that orders be made for the children to live with him and have no contact with the mother for a period of three months. Following that three month period, the father seeks that the children spend supervised time with the mother for a further three months and thereafter, unsupervised time.
The mother seeks that orders be made for the children to live with her. She does not seek orders in relation to the children’s time with the father but it is her position that they spend no time with him.
Both parties seek an order for sole parental responsibility for the children in their favour.

Background

I will now set out the relevant background facts of the matter and, where not agreed, the respective contentions of the parties.
In 1975, the father was born in Country C.
In 1978, the mother was born in Country C.
In May 1988, the father immigrated to Australia.
In 2003, the parties were married in Country C. Their marriage was arranged by their parents.
In October 2003, the mother immigrated to Australia. The parties lived at the home of the father’s parents in Suburb D NSW, with the father’s parents, the father’s sister, Ms E Kadir (“Ms E”) and the father’s brother, Mr G Kadir (“Mr G”), at that time.
In August 2004, the mother travelled to Country C to visit her family. The mother refused to return to Australia unless the father arranged for them to move into their own apartment, away from the father’s parents. Upon the mother’s return to Australia, the parties lived independently of the father’s parents.
In 2006, the parties’ child X was born and is currently aged 12 years.
In 2008, the father completed a Bachelor degree.
In 2008, the parties’ child Y was born and is currently aged 10 years.
In 2010, the mother commenced a Bachelor degree.
The mother contends that, in 2010, the father engaged in acts of family violence including slapping her across the face in front of the children and pulling Y out of a toy car in such a manner that her elbow was dislocated.
In February 2011, X commenced attending F School in Suburb H NSW.
The father contends that in December 2012, the children reported to have pain when urinating. The mother states that she noticed a bloody discharge coming from X’s vagina.
The mother states that in 2013, she saw the children “attempting to touch the father’s private parts” while playing with him. The father denies all allegations of him inappropriately touching the children.
In February 2013, Y commenced attending F School in Suburb H NSW.
In December 2013, the parties separated, but remained living under the same roof. The mother commenced sleeping in the children’s bedroom.
In March 2014, the mother called the Police in relation to an incident where X’s finger became caught in a door. The father maintains that it was an accident. No police action was taken.
The mother contends that, in March 2014, the father pushed her down the stairs in the presence of the children.
The mother contends that on 9 August 2014, X disclosed to her that she had been sexually abused by the father.
The father contends that on or about 14 August 2014, he discovered that the mother had returned to work when X informed him of the same.
On 19 August 2014, the mother moved out of the former matrimonial home with the children. The father contends that this occurred without prior notice to him. Since that time, the mother has lived with the children at an undisclosed address.
The father contends that, from 20 August 2014, the mother ceased sending the children to school. The mother agrees that she did not send the children to school for a period of time.
Also on that date, the father commenced these proceedings by way of an Initiating Application filed in the Federal Circuit Court.
On 4 September 2014, the mother filed a Response and Notice of Risk, in which it was alleged that the father had abused the children.
On 16 September 2014, the children were interviewed by the Joint Investigative Response Unit (“JIRT”). The father contends that, at that first interview, neither of the children made disclosures confirming the mother’s allegations that he had touched them inappropriately.
On 19 September 2014, the father was interviewed by JIRT. The father asserts that he was advised by a representative from JIRT that they would be suspending the investigation.
On 30 September 2014, Judge Donald made interim orders for the mother to have sole parental responsibility for the children and for the children to live with the mother. The matter was transferred to the Magellan List of the Family Court and the children were placed on the Airport Watchlist.
On 17 October 2014, an Independent Children’s Lawyer (“ICL”) was appointed.
On 31 October 2014, orders were made for the preparation of a Magellan Report.
On 12 December 2014, the Magellan Report of Ms J (“Ms J”) was released. The Department of Community Services did not choose to intervene in the proceedings.
On 15 December 2014, interim orders were made by Justice Foster, as follows:
1. The children spend time with the Father as follows:
a. As agreed between the parties in writing … and in default of agreement as follows:
b. Each Thursday commencing 25 December 2014 from 9:00am to 5:00pm up to and including Thursday 8 January 2015;
c. Each Sunday commencing 28 December 2014 until and including Sunday 11 January 2015 from 9:00am to 5:00pm and thereafter each alternate weekend commencing Saturday 17 January 2015 from 9:00am Saturday until 7:00pm Sunday.
2. The Father’s time with the children shall at all times be under the supervision of either:
a. [Mr G], the Father’s brother;
b. [Ms E], the Father’s sister; or
c. [Ms L], the Father’s sister-in-law.
On 25 December 2014, 28 December 2014, 1 January 2015 and 4 January 2015, the father spent time with the children in accordance with the above orders made on 15 December 2014.
On 8 January 2015, the children were to spend time with the father in accordance with the orders made on 15 December 2014. On that date, X ran away from the mother’s vehicle at the commencement of that time. I set out the details of that incident below under the heading “Unacceptable physical risk”.
The father has not spent time with the children since that date, apart from minimal interaction during the course of family therapy with Dr K (“Dr K”).
The mother attests that, on 17 January 2015, X again disclosed to her that she had been sexually abused by the father.
On 23 January 2015, the children commenced attending upon Ms M, Counsellor.
On 27 January 2015, the father filed an Application in a Case seeking orders for the reinstatement of the children’s time with him.
The mother attests that, on 9 February 2015, X again disclosed to her that she had been sexually abused by the father.
On 18 February 2015, Justice Foster made orders for a Chapter 15 Single Expert Report to be prepared by Dr B.
On 24 March 2015, X was reinterviewed by JIRT.
On 12 June 2015, Dr B’s report was released to the parties.
In November 2015, the parties commenced attending upon Dr K for family therapy.
On 4 February 2016, the matter was listed for a five-day final hearing, commencing 30 May 2016.
On 17 May 2016, by consent, orders were made to vacate the final hearing in order to enable the parties to continue to participate in family therapy with Dr K.
On 15 September 2016, an order for divorce was made.
On 12 December 2016, further trial directions were made by Justice Foster.
On 27 January 2017, the mother commenced full time employment as a public servant.
On 26 June 2017, the following interim orders were made by consent:
1. That the parties and the children engage in family therapy with [Ms N] of [O Group] with a view to addressing and resolving any difficulties in the relationship between the father and the children, or either of them, as well as resolving any anxiety that exists with the mother in permitting a relationship with the father …
2. That the children spend time with their father as follows:-
a. For a period of two (2) months, each Saturday, for three (3) hours, supervised by [P Group], at a venue selected by the father or, if he has not selected a venue, as selected by [P Group].
b. Following the completion of the period in (a) which for clarity means following nine (9) successive Saturdays from and including the first occasion under (a), each Wednesday from the end of school until 7.30 pm, and each Saturday from 10.00 am until 5.00 pm.
…
7. THE COURT NOTES that it is the aim of the father, in entering into these interim consent orders, to address and, with the professional assistance, overcome problems that have arisen in his relationship with the children, however caused, the best interests of the children being his paramount consideration.
8. THE COURT NOTES that it is the aim of the mother, in entering into these consent interim orders, to address and, with professional assistance, overcome problems that have arisen in the children’s relationships with their father, and her anxieties, on the basis that the risks she asserts have been addressed and diminished, and that she, with the best interests of the children as the paramount consideration, wishes to foster the relationships between the children and their father.
9. That all therapy for the children with M be ceased immediately.
10. The matter is listed for final hearing before McClelland J for 4 days to commence at 10.00 am on 12 February 2018.
On 27 June 2017, the following further interim orders were made by consent:
1. That the mother within 24 hours provide to the father by email at … a list of the following information:
a. the present address of the children and the mother will keep the father informed of any change of address
b. the name of the school that the children attend
c. the names or particulars any treating medical health professionals, including but not limited to general practitioners, paediatricians and dentists.
2. By consent, that the mother be restrained from engaging in any counselling or therapy for the children without the written consent of the father.
3. By consent, that the mother notify the father in the event of any serious medical condition of the children, excluding common colds and illnesses by phone as soon as practicable.
4. That the mother will provide the children’s school with authority to attend at school by way of telephone, electronic communication or in person for the purpose of obtaining information about the children’s progress at school as well as attending parent-teacher interviews on the condition that those interviews are at a different time than the mother.
5. By consent, that should the mother make any decision as to the children’s secondary schooling that prior to doing so she propose options for the same to the father by way email for his consultation.
6. That the parties be restrained by injunction from discussing these proceedings with the children as well as communicating any negative impression of either parent in earshot of the children.
In July 2017, the parties and the children commenced attending upon Ms N (“Ms N”) for family therapy.
On 22 July 2017, 29 July 2017 and 5 August 2017, supervised visits between the children and the father were attempted. The mother attests that the children refused to interact with the father on those occasions. From that time onwards, the children have refused to attend supervised or unsupervised contact visits with the father.
In 2017, the father married Ms Q (“Ms Q”). Ms Q has a son, Z, who was aged two years at the time of the hearing. Ms N describes Ms Q in her report, as follows:
She presented as being warm, personable and thoughtful. She is [a professional] and has full time employment. ... [Ms Q] indicated that [the father] made her aware of the allegations that have been made against him so as to allow her to take them into account when deciding whether or not to marry him. She said that she found them disturbing and difficult to process at first but that, based on her perception of how he feels about [the children] and her knowledge of him, she could not see that he would behave in the ways that have been alleged.
In 2017, the children both commenced attending R School in Suburb S. The father says that the children commenced attending that school without prior notice to him.
In January 2018, the father says that he received correspondence from the mother’s solicitors stating that the children had commenced attending T School. The father says that this occurred without prior notice to him, despite the mother having consented to orders being made in June 2017 which prevented her from making any decisions in relation to the children’s schooling without first consulting him. The father says that the children’s school was changed purely on the basis that the children’s paternal cousin also attended their previous school, R School. At the hearing, the father stated that he remains unaware of which campus of the T School the children are attending.
On 19 March 2018, following six days of final hearing, I made the following interim orders:
…
3. That parents shall do all acts and things and give all consents necessary so as to ensure that the children shall:
a. Attend consultations with [Ms N] for 3 weeks in a row on a date as soon as practicable after the making of the orders;
b. Attend further consultations with [Ms N] and the father for a further 3 weeks in a row;
c. On the second and third appointments provided for in Order 3 b hereof the father shall use his best endeavours to ensure that his wife shall be present;
d. Attend further consultations with [Ms N] at such frequency and with such parents or persons as [Ms N] may direct but no more frequently than once per month; and
e. The parties shall share the costs of [Ms N].
4. After a period of 8 weeks from today’s date, the children shall spend time with the father:
a. A period of 8 weeks each Saturday commencing 10am to 12 noon and increasing by one hour each week; and
b. Thereafter for a period of 8 weeks, from 10am Saturday until 7pm Sunday.

On 23 May 2018, orders were made in accordance with an application made by the mother for a further Affidavit sworn by her and an Affidavit of Mr U, Social Worker, to be accepted into evidence.
The father currently resides with Ms Q and Z in a three-bedroom house at Suburb V NSW.
The mother currently resides with the children in a two-bedroom apartment in Suburb W NSW.

Applications

Orders sought by the father

The father sought that orders be made in accordance with his Further Amended Initiating Application filed on 23 January 2017 and as amended at the hearing, as follows:
1. That the Father have sole parental responsibility for the children.
2. That the children live with the Father.
3. That pursuant to Section 68B and for a period of 3 calendar months from the date of these Orders, the Mother shall be and is hereby restrained from:
3.1 Contacting the Father and;
3.2 Contacting the children by any means whatsoever (save for the purpose of attending any counselling or family therapy appointment arranged by the Father and at the request of that Counsellor or Therapist and with the Father's knowledge and consent);
3.3 Attending at or being within 200 metres of:
3.3.1 The Father's home;
3.3.2 The school attended by the children or either of them.
4. That after the conclusion of a period of 3 calendar months from the date of these Orders, the Mother shall communicate and spend time with [the children] as follows:
4.1 For a further period of 3 hours each Saturday from 12 noon until 5pm with such time to be supervised by a supervisor as agreed between the parties and failing agreement as nominated by the Father;
4.2 After the conclusion of the 3 month period, as provided for in Order 4.1:
4.2.1 Each alternate weekend during the school term, from the conclusion of school Friday until the commencement of school Monday:
4.2.2 For one half of each of the NSW school holidays as agreed between the parties and failing agreement, for the first half of the holidays in 20l8 and each even year thereafter and the second half of the holidays in 2019 and each odd year thereafter.
4.2.3 On the children's birthdays, as agreed between the parties and in the absence of agreement, in the event that the children are not already living with the Mother, from 1 pm until 7pm on a non school day and from the conclusion of school until 7pm on a school day.
4.2.4 On Mother's day, in the event that the children are not already living with the Mother, from 9am until 5pm.
4.3 That the children are to spend time with the Mother pursuant to Orders 4.1 and 4.2 and shall be suspended as follows:
4.3.1 On the children's birthdays, as agreed between the parties, or in the absence of agreement from I pm until 7pm on a non school day and from the conclusion of school until 7pm on a school day.
4.3.2 On Father's day in the event that the children are not already living with the Father, from 9am until 5pm.
4.4 For the purposes of 4.2.2 the following will apply:
4.4.1 School holidays are defined as commencing from the conclusion of the last day of school term which the children are required to attend school and shall conclude at the commencement of school on the first day of the new school term which the children are required to attend.
4.4.2 Changeover half way through school holiday periods is to occur at 12 noon on the midpoint day of each school holiday period.
4.4.3 In the even there are 2 consecutive "mid point days" in any school holiday period, then changeover is to occur at I 2noon on the first of those 2 mid point days.
5. That for the purposes of changeover, the Mother shall collect the children from school or the Father' residence in the event of a non school day, at the commencement of a period that the children are to live with her and the Father shall collect the children from school or the Mother's residence in the event of a non school day at the commencement of a period that the children are to live with him.
7. That both parties be restrained from physically disciplining or chastising the children.
8. That until further Order, each party, their servants and/or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated in Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children until the eighteenth (18th) birthday of each of the children.
AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watchlist for the said period, or until the Court orders its removal.
9. That within 28 days of the date of these Orders, the Mother pay to the Father, the amount of $12,540.00, being re-imbursement to the Father for one half of the cost of [Dr B’s] report.
l0. That the Mother pay the Father's cost of and incidental to these proceedings.
In written submissions, Counsel for the father further clarified that the restraint sought pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) by the father at order 3 is subject to the following directions:
(i) If the Children do run from the father’s home to the mother (which is not an uncommon scenario) it is important the mother understand an obligation to:
a. first call the father and advise and seek direction;
b. after consultation with the father and subject to any other agreement, immediately return the Children to the father; and
c. finally, be restrained from permitting the Children to stay in her care subject to the two matters raised above.

Orders sought by the mother

Following the hearing and pursuant to the orders made on 23 May 2018, the orders sought by the mother are, as follows:
1. That all prior parenting Orders are discharged.
2. That the airport watch list Order made on the 30 September 2014 be discharged.
3. That the mother shall have sole parental responsibility for the care of the children.
4. That the children shall live with the mother.
5. That the children be permitted to travel internationally and the mother shall be permitted to take the children out of the Commonwealth of Australia for a holiday.
6. That the preceding Order shall be sufficient to comply with section 65Y(2) and section 65Z(2) of the Family Law Act.
7. That the mother shall notify the father by email 30 days prior to travel as to the dates of the intended international travel and details of the relevant itinerary.
8. That pursuant to section 11(1)(b) of the Passports Act 2005, the children be permitted to be issued with passports and travel documents. That the mother shall be authorized to obtain passports and travel documents for the children.
…
In her Affidavit filed on 19 January 2018, the mother states that she proposes to keep the father updated in relation to any medical issues of the children and that in the event that the children expressed a wish to communicate with the father, she would facilitate that. She also says that she will ensure that, in the event that the father sends a gift, card or letter to the children, she will ensure that they receive them.

Orders sought by the Independent Children’s Lawyer

Following the hearing and pursuant to the orders made on 23 May 2018, the orders sought by the ICL are, as follows:
1. That all prior parenting Orders are discharged.
2. That the mother have sole parental responsibility for the children.
3. That the children live with the mother.
4. That the father be permitted to send to each of the children letters and gifts and the mother is to ensure that the children receive these gifts.
5. That the father be permitted to contact each of the children via email on a monthly basis and for this purpose the mother is to keep the father informed of the children’s email addresses and advise the father of any change within 48 hours of such change occurring.
6. That the father and the mother be prohibited from discussing any aspect of these proceedings, including the allegations of sexual abuse raised by the mother, with the children or allow any other persons to do so.
7. That the children spend time with the father in accordance with their wishes.
8. These orders serve as authority for the father to obtain copies of all of the children’s school material including, but not limited to school reports, school photographs, and school newsletters.
9. These orders serve as authority for the father to contact the children’s schools and discuss the children’s progress at school.
10. These orders serve as authority for the father to speak to each of the children’s medical treating practitioners and for this purpose, the mother is to provide to the father with the names and contact details of each of the children’s treating medical practitioners within 48 hours from the making of these orders.

Evidence

The father relied upon the following documents:
a)His Affidavit filed on 9 February 2017;
b)His Affidavit filed on 10 October 2017;
c)His Affidavit filed on 6 February 2018;
d)Affidavit of Ms E filed on 9 February 2017;
e)Affidavit of Mr G filed on 9 February 2017; and
f)Affidavit of Ms L filed on 9 February 2017.
The mother relied upon the following documents:
a)Her Affidavit filed on 9 February 2017;
b)Her Affidavit filed on 19 January 2018;
c)Her Affidavit filed on 10 May 2018;
d)Affidavit of Ms M filed on 9 February 2017;
e)Affidavit of Ms AA filed on 9 February 2017; and
f)Affidavit of Mr U filed on 23 May 2018.
The ICL relied upon the following documents:
a)Affidavit of Dr K filed on 3 March 2017; and
b)Single Expert Report of Dr B dated 18 May 2015.

The law - concepts and principles

The relevant statutory provisions applicable to proceedings in relation to children are set out in Part VII of the Act. Section 60B(1) sets out the objects and principles of Part VII. These are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(4) of the Act notes that an additional object of Part VII is to give effect to the Convention on the Rights of the Child (“the Convention”). Article 3 of the Convention provides:
3. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
More generally, the Act makes clear that in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare”: s 43(1)(c).

Presumption of equal shared parental responsibility

Section 61DA of the Act relevantly provides:
(1) 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.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
In Dundas & Blake (2013) FLC 93-552, the Full Court held that s 61DA is mandatory in the sense that the presumption must be applied until a level of satisfaction is reached that it would not be in the interests of a child for the presumption to apply. In that context, at 87,409, their Honours said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
In VR & RR (2002) FLC 93-099 the Full Court said at 88,940:
… in our view, it is clear from the legislative scheme that any intervention by the court in the due performance of an aspect of parental responsibility, that seeks to interfere with or diminish the responsibility of either parent to care for the child in the manner the parent deems appropriate, should be made only where the court is of the view the welfare of the child will be clearly advanced by that order being made. [Emphasis added].
At the same time, it needs to be appreciated that ss 65DAC(2) and (3) of the Act provide that, in the event of an order being made for shared parental responsibility, then, in circumstances where that responsibility involves making a decisions about a major long-term issue in relation to a child:
(2) The order is taken to require the decision to be made jointly by those persons. …
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
Throughout most of the children’s lives, the relationship between the mother and the father has been characterised by a high degree of distrust and conflict. This is confirmed by Dr B in his report.
As will be discussed in greater detail below, I am not satisfied, on the balance of probabilities, that the father has engaged in sexually abusive conduct in respect to the children. Nonetheless, the mother has, for some time, maintained the view that the father has behaved in such a manner. The father has absolutely denied any misconduct on his part and a positive finding in relation to the likelihood of that alleged conduct having occurred has not been made by JIRT. As a result, there is a complete absence of trust and effective communication between the parties.
In those circumstances, the parties do not have the capacity to jointly make decisions regarding major long-term issues for the children, as contemplated by ss 65DAC(2) and (3) of the Act.
Accordingly, I am satisfied that it would not be in the children’s best interests for there to be an order for equal shared parental responsibility. In those circumstances, an order will be made for the parent with whom the children live to have sole parental responsibility. For the reasons that I will set out, that parent will be the mother.
As an order for equal shared parental responsibility will not be made, the presumption of the children spending equal or substantial and significant time with both parents does not apply. Therefore, the task before the Court is to make orders that are in the children’s best interests, having regard to the considerations set out in s 60CC of the Act.

Paramount consideration in making parenting orders

Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in a child’s best interests. The primary considerations set out in s 60CC(2) are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to s 60CC(2)(b), being the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(3) sets out additional considerations for determining what is in a child’s best interests. Those additional considerations broadly deal with the following matters:
a)Issues relating to the child – their views, level of maturity, culture and relationships;
b)Issues relating to the parents – decision making, time spent with the child, fulfilled obligations, attitude, capacity and exercise of responsibility;
c)Issues of family violence;
d)Effect of change;
e)Practical difficulty of implementation of orders;
f)Avoiding further proceedings; and
g)Other relevant matters.

Approach

In this matter, the most significant issue is the potential risk to the children of them spending time with the father. As will be discussed, it is my view that the children are not at risk of being physically harmed by the father. Most significantly, I am not satisfied that the father has sexually abused the children or that he will do so in the future. Nevertheless, for reasons which I discuss, the children and particularly, X, hold a genuine belief that they have been sexually abused by the father. As will be explained, in those circumstances, there is an unacceptable risk of the children suffering psychological and/or physical harm if they are required to spend time with the father against their wishes.
To explain the conclusions that I have made with respect to unacceptable risk, I will firstly deal with the primary considerations set out in s 60CC(2) of the Act.

Primary considerations

Meaningful relationship

As previously noted, one of the primary considerations in determining the best interests of a child is “the benefit of the child having a meaningful relationship with both of the child’s parents”.
In considering that first matter, I note that, in McCall & Clark (2009) FLC 93-405 at 83,476, the Full Court said:
No doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child, by a Court attempting to pass orders to foster a relationship with one parent, if it would not be in the best interests.
While it is clear that, at the present time, the children do not have a meaningful relationship with the father, the Full Court in McCall & Clark (supra) referred to the comments made by Bennett J in G & C [2006] FamCA 994, where it was said that the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child in the future.
In Fitton & Kimble [2017] FCWA 106 at [36], Walters J said:
That the Court is required to consider, as one of a large number of factors, the benefit of a child having such a meaningful relationship.
His Honour referred to several other authorities, including the Full Court decision in Jurchenko & Foster [2014] FLC 93-598 at 79,420, where the Court noted that:
Having a meaningful relationship with both parents is but one of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered, before deciding what outcome is in the child’s best interests.
Similarly, in Cotton & Cotton (1983) FLC 91-330 at 78,252, Nygh J qualified the desirability of a child maintaining a meaningful relationship with both parents in the following terms:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist. [Emphasis added].

In the circumstances of this matter, Dr B expressed the view that it was important for the children to have a meaningful relationship with the father for the following reasons:
a)Generally, children who can maintain a satisfactory relationship with both parents are less likely to experience emotional, behavioural, educational and relationship difficulties in the future;
b)In circumstances were the children likely wrongly believe that they were the subjects of sexual abuse by the father, if they do not have a relationship with the father, they may carry that view into adulthood and could live with the apprehension of falling victim to further abuse, which could cause problems:
i)With any future romantic relationships that they may have; and
ii)When they become parents and worry that the same thing will happen to their children;
c)In circumstances where the children have taken on the beliefs of the mother, a “siege mentality” can develop, causing the children to avoid various places where they are likely to run into the father or people who are connected to him and to develop “a degree of self-imposed isolation, which lends an artificiality to the children’s lives”; and
d)Once the children are old enough to be independent, they may re-establish contact with the father, resulting in a sense of guilt about their past conduct towards him and damage to their relationship with the mother.
In summary, Dr B cautioned that children who are bought up in circumstances where one parent plays an active role in maintaining their false belief that they have been sexually abused “seemed to be a particularly miserable group”.
For reasons which I set out below, I am not satisfied that the children have been sexually abused by the father, but I accept that they genuinely believe that they have been. As I will further discuss, that belief has, in part, been informed by conduct of the mother. In those circumstances, having regard to the opinion of Dr B, I accept that it would be in the children’s best interests for them to have a meaningful relationship with the father.
The essential question, therefore, becomes whether there is a possibility of the children having such a meaningful relationship with the father and, if so, whether that can be achieved without the children being exposed to an unacceptable risk of harm, in terms of s 60CC(2)(b) of the Act.

Unacceptable risk

The law

As previously noted, the second primary consideration for determining the best interests of the children is, as set out at s 60CC(2)(b), “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
In Stott & Holgar [2017] FamCAFC 152, the Full Court said at [34]:
The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
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.
Their Honours further said at [37]:
As an eminent former judge of this Court (Hon. John Fogarty AM in ‘Unacceptable Risk — A return to basics’ (2006) 20 Australian Journal of Family Law 249 at 261) has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ … [Original emphasis].
In this matter, Counsel for the father referred to M v M (1988) 166 CLR 69 as providing guidance in terms of the standard of proof that must be met for assertions of sexual abuse. In that decision, their Honours stated at [76]:
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] HCA 34; (1938) 60 CLR 336, at p. 362 ... There Dixon J said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
Further, in W & W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at 79,910, the Full Court stated that a positive finding of sexual abuse “should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred”.

No positive finding of sexual abuse

During the course of this matter, the mother has alleged that the father has sexually abused the children. The mother says that she makes those allegations on the basis of disclosures made to her by the children. The substance of the disclosures made by the children, in that regard, were accurately summarised in the written submissions of Counsel for the mother, as follows:
The principal allegation being made by the children … is of the father inappropriately touching them on their “bottom” while sitting with them in the family home watching television outside the observation of the mother. The principal allegations being made by [X] against the father are of the father touching her on her genital area while sitting watching television in the family home outside the observation of the mother and the father fondling her genital area both outside and under her clothing while she is in bed and the father is alone in the bedroom with the children after they had gone to bed at night.
The mother contends that on 9 August 2014, X disclosed to her that the father had touched her lips, chest and vagina. The mother states that X then ran into her bedroom, laid down on her chest and repeatedly cried “I accidentally said it”. The mother said to X: “I didn’t hear you properly, can you please tell me again”, but upon X continuing to cry, the mother went downstairs.
The mother contends that a few days later, X said to her: “Mama when I was watching a movie [the father] slipped his hand under my bum and was squeezing it”. The mother asked X why the father had done that, to which X replied “because he likes it”. A few moments later, the mother again asked X what had happened, to which X said: “Yes I told you”. The mother then asked X: “What else has [the father] done that you don’t like?” to which X replied: “I do not like it when he kisses me and when he makes me say bye, bye, bye again and again”. The mother states that in the following days, she took X to be assessed by Dr BB.
The mother contends that X’s disclosures prompted her to leave the former matrimonial home with the children on 19 August 2014.
The mother says that on 10 January 2015, being the day after the children were meant to spend time with the father, but did not after X fled the mother’s vehicle, X said to the mother, in the presence of the mother’s friend Ms AA : “I do not want to spend time with [the father]”. When the mother asked X why that was the case, X responded: “He squeezed by [sic] bum and did this”, while she rubbed her bottom, vagina, breasts and lips. Ms AA similarly corroborates X’s disclosure and says that X said: “It hurt me and I once told [the father] to stop but he said I am your father, I can do what I want to do”.
The mother says that she contacted the Department of Family and Community Services in relation to X’s reports on 10 January 2015 and 11 February 2015.
The mother contends that subsequent to being told by X that she had been touched inappropriately by the father, Y also advised the mother that she had been touched inappropriately by the father while sitting on the lounge and watching television.
The father asserts that he first became aware of the mother’s allegations that he had sexually abused the children on 17 September 2014, when he received copies of the mother’s Response and Notice of Risk. The father says that, that same day, he was contacted by Ms CC of JIRT. The father attended an interview with JIRT on 19 September 2014. JIRT subsequently suspended their investigation.
In May 2015, the father says that he received a telephone call from Ms DD of JIRT, who requested that he attend an interview. The father attended that interview on 11 May 2015. He has not been further contacted by JIRT.
The father vehemently denies all allegations that he has acted inappropriately in respect of the children. All parties acknowledge that the evidence in this matter is insufficient to make a positive finding that the father sexually abused the children.
However, the mother contends that the evidence is such that the Court is similarly unable to make a finding that the sexual abuse alleged by her did not occur and further, that there is an unacceptable risk of the children being subject to that behaviour, at the hands of the father, if they are to spend time with him in the future.
In M v M (supra), the High Court said that in assessing whether a child faces an unacceptable risk of harm, the “existence and magnitude of the risk … is a fundamental matter to be taken into account”.
In N & S (1996) FLC 92-655 at 82,714, Fogarty J said that “the essential weight must be attached to the magnitude of the harm to which the risk relates”.
In Blinko & Blinko [2015] FamCAFC 146 at 83, the Full Court confirmed that having identified a risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”.
Therefore, according to those authorities, and consistent with the analysis of the Hon. John Fogarty AM in ‘Unacceptable Risk — A return to basics’, referred to above, the task is one of assessing the magnitude of the potential harm to a child if the event or conduct was to occur and also the magnitude of the existence of the risk of the event occurring. If the risk is evaluated as being an unacceptable risk, then it is necessary for the Court to examine what steps can be taken by way of a safeguard to manage or ameliorate that risk.
In this matter, in determining whether a risk exists, it is relevant that, on three separate occasions, X has told investigating Police officers working with JIRT, that she was the subject of a sexual abuse at the hands of the father. On one occasion, Y was interviewed by JIRT officers and alleged she had also been the subject of sexual abuse at the hands of the father in the form of inappropriate physical contact, while she was sitting beside him watching television.
In his report, Dr B provides a summary of his assessment of a video recording of the interviews with the children conducted by JIRT on 16 September 2014 and with X on 24 March 2015. It appears that Dr B’s reference to an interview that occurred on 16 September 2014 actually occurred on 15 September 2014.
I have observed both interviews. I viewed the first interview, provided by the New South Wales Police Force Child Abuse Squad (“Child Abuse Squad”), in Chambers and the second interview during the course of the hearing.
I agree with the summary of the interview conducted on 15 September 2014 provided by Dr B, as follows:
[X] was adamant that she would tell everything. She gave quite a detailed account, which she repeated and demonstrated several times, of her father putting his hand under one of her buttocks and squeezing and tickling it. She also referred to her father touching her private parts, but this was not accompanied by any more demonstration than a cursory wave in the groin area. She was unable to provide a great deal of detail about what she meant by this although she did refer to him touching her there with his index finger but was not able to say how. Later she seemed to refer to this having occurred in the context of her father having his hand under her buttock and then she slid backwards (such that his hand may have come in contact with a more forward part of her body), but this was not completely clear. She also referred to telling her father to stop and then telling her mother that she had something to say to her and going up to her bedroom and telling her mother what had happened. She also apparently said the same thing had happened to [Y]. Her mother basically told her to avoid situations when her father might do that. She indicated she was not exactly sure that he had squeezed [Y's] butt. Despite apparently not understanding the term penis, she did appear to give a satisfactory denial that she had ever touched her father’s penis area during a game. However she was adamant that when her father touched her on the buttock, he was not playing.
Dr B also, in my view, accurately summarised the interview conducted on 24 March 2015, as follows:
[X] was reinterviewed, but on this occasion the interview appears to have occurred at her school. Her overall demeanour was one of significant modesty. Her descriptions were rather vaguer and the terms she used were more muted, referring to her bottom most of the time whereas on the first occasion she had used the term ''butt" a great deal, and being extremely vague about what she meant about her private parts. She recounted the incidents of being touched on the bottom in the lounge and she then provided an account of further incidents of touching in her bedroom which involved her father coming in when he thought she was asleep and touching her on her bottom and private parts. When asked about being touched on her private parts, she gave an account which seemed to be implausible in terms of their respective positions and she changed her account from saying that she was facing away from her father to that she was facing him on that particular occasion, although she insisted there had been another occasion when she was facing away and he just touched her on the bottom. She also indicated there had been numerous of these incidents. She indicated that after the second last occasion she told her mother who said that she was going to move into the bedroom with the girls. She thought this was in winter. She also referred to her father touching her chest with his hands when he hugs her.
I note that the reference to the mother sleeping in the children’s bedroom is somewhat incongruous. The mother says that she commenced sleeping in the children’s bedroom in December 2013, however, she says that X first made disclosures to her that the father had sexually abused her in August 2014. Further, as set out below, in the mother’s statement to the Child Abuse Squad on 15 September 2014, she said that she commenced sleeping in the children’s bedroom because the father was addicted to pornography and she was sick of him masturbating in their bed.
I have also reviewed, in Chambers, an interview of X conducted by the Child Abuse Squad on 14 September 2017. That interview commenced with X being asked about her understanding of the difference between telling the truth and telling a lie. She confirmed an appropriate understanding, in that respect. She stated that she was attending the interview because a Police officer had a concern and wanted to ask a few things. She was initially reluctant to describe her concerns. Having been reassured by the Police officer that she could take her time in responding, X can be seen to take a few moments to collect her thoughts. X looked uncomfortable during the interview process, with her gaze often fixed to the floor to the right of her, away from the interviewing officer who was sitting to her left. X also spent a considerable amount of time clasping and unclasping her hands during the interview.
At the commencement of the interview, when asked, X declined to state her father’s name and requested that she be permitted to write his name on a piece of paper. She wrote “father” on a piece of paper. She stated that she would not tell the Police officer the name of her father because “I hate him”. She stated that this was because “he did a lot of bad things to me”. When asked to identify whether she wished to refer to the father as “father” or “him”, she replied “him”.
X essentially complained of three things during the interview. The first was that the father would frequently scream at her and hit her “for no good reason”.
The second was that her father had inappropriately touched her while she had been sitting on the lounge beside him watching television. In that respect, when initially asked to provide her account as to what had occurred, X described the father as putting his hand behind her backside and squeezing. Subsequently, however, X stated that the father “used to rub my front part”. X was unclear what she was wearing at the time of that incident, but stated that she was probably wearing pyjamas. She could not identify which hand the father had used to touch her. X also stated that she elbowed the father and asked him to stop it. That was additional information that was also not included in the two earlier interviews.
X thirdly complained of the father entering her bedroom, kneeling beside her bed and touching her genital area. That information was substantially the same as the account that she provided to investigating officers on 24 March 2015. However, X added an additional factor stating that “it really hurt”.
There is, however, evidence that casts doubt on the veracity of the children’s reports of having been sexually abused. In that respect, the Police report provided following the interviews conducted on 15 September 2014 stated:
[X] … was interviewed, made disclosures that her father would come into the bedroom at night, put his hand under the blanket and touch her bottom and vagina.
This allegation was different to, and slightly more serious than, allegation made during a prior JIRT investigation between September – November 2014, where it was alleged that the father had put his hand under her bottom while they were sitting on the lounge.
The timing of the new disclosure was when overnight visitations were to commence, in accordance with the Family Court Orders. When asked why she hadn’t mentioned the latest allegation during her first interview, X said she was scared. The author reviewed the first JIRT interview, and there was nothing to suggest that [X] was scared, anxious, being reluctant to disclose, or hiding anything.
As part of the ongoing Family Law Court proceedings, both JIRT interviews were reviewed by an independent child psychiatrist, who had doubts about the disclosures.
There is insufficient evidence to proceed criminally in this matter case to be closed.
Further, X’s evidence of being sexually abused by the father sits uncomfortably with the video footage of time spent by the children with the father during the period 15 December 2014 to 4 January 2015 (Exhibit “F-4”). In one such video, X is seen to be sitting beside the father on a lounge and, at her instigation, placing her legs across the father in a relaxed manner, while they were playing a game. Having viewed that video, the mother acknowledged that the footage surprised her, that X’s actions looked quite natural, that X looked like she was having a reasonable time with the father and that X did not look scared. The video footage of X’s easy interactions with the father during that period are inconsistent with her assertions that, prior to that time, he had sexually abused her.

Having considered the content of X’s evidence and the manner in which it was given to JIRT investigators, as compared to the relaxed and comfortable interaction between X and the father in video footage of their contact visit, I find that it is unlikely that the father has sexually abused X. Similarly, and in circumstances where the evidence of the father having perpetrated sexual abuse of Y is less comprehensive, I find that it is unlikely that the father has, in fact, done so.
The difficulty I have, however, is that, in each of the video clips that I have viewed, X appears to be sincere in respect to her account of the alleged sexual assaults. In the investigator’s report following the interview on 15 September 2014, it is noted that X is quite “articulate and very believable”. I observed that X’s presentation during the course of the interview conducted on 14 September 2017 was more intense and committed than the two earlier JIRT interviews. On that date, when describing the father inappropriately touching her genital area, X began to cry. There did not appear to be any contrivance on her part in doing so.
Further, seemingly to support her position that the father has sexually abused the children, the mother gives evidence that the father frequently watched pornography. In providing a statement to investigating Police officers on or about 15 September 2014, the mother referred to her observations of the father watching pornography and stated that she had seen images of small breasted women on the computer screen. In that respect, the report prepared by the Child Abuse Squad dated 15 September 2014 recorded the following:
[The mother] explained that she moved out of the bedroom because [the father] was addicted to porn and she was tired of him masturbating in bed. She said she had “allowed him to use my body, whatever way he wanted, to try and help him get over it,” but he kept doing it. She said he would watch it on a desktop computer in the bedroom. She claimed that he started putting passwords on the folders he saved the porn in, after she expressed her request that he stop watching it. She claimed that one day, he was in a hurry to leave in the morning and left himself logged on. She said she went to check her emails, and saw that things were still open. She claims that the photos were of females, whose breasts were not developed.
The investigator noted, however, that the mother “stopped short of saying they were [images of] children”.
The father says that he “occasionally” used pornography “as an aid to physically masturbation” [sic]. In that respect, the report of the Child Abuse Squad states:
[The father] admitted he watched [pornography] on his desktop computer in the bedroom he shared with [the mother]. He said it was only adult male/female, that it was streamed from the Internet, and there was nothing actually saved on his computer. [The father] stated that the children did not have access nor were they exposed to the pornography. He said that he and [the mother] watched it in private, and denied that [the mother] had ever raised it as a concern for her instead stating that there were times when [the mother] introduced it to the bedroom.
It does not appear, however, that anyone has undertaken a search of that computer’s memory or sought to access details of websites visited by the father. As I indicated during the course of the hearing, an unsatisfactory aspect of this case is that there is no information before the Court as to the nature of the pornography viewed by the father. If it was the case that the father did, in fact, view pornography involving minors, that would be relevant to the accusations levelled against him by the mother.

Unacceptable risk of psychological harm

In light of X’s presentation in the interviews to which I have referred, it is my view that it is likely that X and Y, believe that they have been the subject of sexual abuse at the hands of the father. In that respect, Dr K gave oral evidence that “memories are very suggestible and – and, you know, if a story is told enough times it becomes your reality”.
In response to that evidence, I asked Dr K the following question:
Question: Is it possible that a series of interviews with JIRT traversing these sort of issues may contribute to that phenomena?
Answer: Absolutely. And, you know … one of the things that concerned me is that there comes a point where reinterviewing and interviewing and therapy that is stuck becomes systems abuse and that’s – that’s a real concern. And of course the – the nature of litigation doesn’t really help children take on any alternate views or challenges to – to their positions and views.
Significantly, Dr K expressed the opinion that X probably does believe that she has been the subject of sexual abuse at the hands of the father. That opinion accords with my observations of the sincerity with which X provided her statements in the JIRT interviews.
In that way, the effect of the father’s proposed order would see X, a 12 year old girl, being taken from her home and placed in the exclusive care of the father, who she genuinely believes sexually assaulted her and who she has not spent time with in over three years, for a period of three months, without any contact with the mother.
In giving oral evidence, Dr B stated that he was of the view that such a course of action was viable. His reasoning was as follows:
… when there is a reversal of custody, one of the things that … happens is that – and particularly if there has been a very egregious process going on prior to that, the – the children often settle in surprisingly quickly. And … a part of that is that they relinquish whatever seems to be an absolutely entrenched belief. They’re usually beliefs to do with sexual abuse, but not always. Other things – you know, they may believe the father is – is a dangerously violent person, or there’s an array of other beliefs that they – that they may do. But … the surprising thing from following up these children is that … typically, what happens is counselling is, in fact, put in place for exactly that reason … coincide with the placement, but the – the children, as I say, often relinquish those – those beliefs quite quickly because it’s not being reinforced and reiterated in a whole variety of ways any more.
Dr K was, however, far more conservative, stating:
… it is massive for a child to be removed from – from a parent and put into the care of a parent who they believe has been abusive.
Dr K confirmed her view that such an event would be traumatic for the children. I accept that opinion.
Ultimately, I find that while a meaningful relationship with the father would be of benefit to the children, based on the current situation, that is not possible. Further, while, as noted by Dr B, counselling is often implemented to assist children in dealing with transitions such as that proposed by the father, in this case, unfortunately, repeated attempts at family therapy have failed. I consider that further attempts to restore the relationship between the children and the father would pose an unacceptable risk of psychological and physical harm to the children and in this way, that it is not in their best interests for this to occur. My reasons for making that finding are set out below.

No prospect of effective counselling

To his great credit, the father twice consented to an adjournment of the final hearing of this matter so as to attend family therapy with the mother and the children in an attempt to resolve the issues in dispute.
In November 2015, the parties commenced attending upon Dr K for family therapy. In the report annexed to her Affidavit filed on 3 March 2017, Dr K states that she conducted six appointments with the children between 3 February and 2 September 2016. The mother and the father also participated in individual appointments prior to those dates.
In relation to the mother, Dr K stated:
[The mother] is highly critical of [the father] who she continues to believe poses a risk to the children. She also holds members of his family in low esteem for having controlled and used her and her father in law for having made sexual advances to her. In comparison, she spoke in glowing terms of her own family of origin and experience as a member of that family.
Dr K notes that the mother questioned the thoroughness of the JIRT investigations and believes that the children would not lie about the allegations they have made against the father. In that way, the mother is unwilling to move in her position that the children are at risk in the care of the father. She says that she is motivated by what the children want and that they have expressed a wish not to spend time with the father or members of the paternal family.
Notably, Dr K states:
[The mother] considered therapy with me as a setback for the children as their behaviour had settled and they had been well engaged with their previous therapist.
Dr K stated that the father considers that, prior to the parties’ separation, he had a significant role in the care of the children. He now feels helpless as to how to reconnect with the children, as he has complied with all directions to date, but there has been no progress. He considers that the visits with the children in December 2014 went well and that the children’s reactions to the final visit on 8 January 2015 were “set up with their mother”.
Dr K described that X “presented as a troubled and burdened child. She struggled to open up in the interview and was quite avoidant”.
Dr K further recorded the following:
[X] stated she has no happy memories of her father. She said that he is not important to her and she has told everyone who has interviewed her that she does not want to see him. She said that she is "happy to have lost him and his father".
…
[X] stated that she hopes the Court believes her version of events of when she visited her father. "It depends on who they believe. I'm hoping it's us. Me, Mum and [Y] are a team against Dad".
[X] said she now has ezema [sic] because her father did not vaccinate the cat.
[X] spoke very positively of her mother. "Mum does nothing" when she misbehaves. She said that her mother has told her she doesn't need to listen to what her paternal family said.
In terms of Y, Dr K observed:
[Y] disclosed she remembers her parents fighting when the family lived together. She attributed blame for the fights to her father.
[Y] accused her father of becoming a bad person swearing, being rude and shouting at her and X and of being very mean.
[Y] recalled a ball hitting her in the eye when she was playing with her father and she blamed her father for not giving her a warning. She added she can't imagine doing one single fun thing with her father.
… In one session, [Y] told me her mother hit her. In the subsequent session, she told me that "I accidently told you Mum hit me. I meant to tell you my friend's mother hits me".
At times, [Y] seemed to be confused about what to say. "I am saying different things today'' to what she had told the previous counsellor she had seen.
[Y] disclosed that she and [X] had colluded about what they should disclose in their sessions.
Two attempts were made for the children to have joint therapy sessions with the father.
At the first session, X refused to acknowledge the father, instead turning her back to him and reading a book. She ignored the father’s attempts to engage her. Dr K states that Y initially engaged with the father and showed interest in a photo album that he had made of the activities that he and the children had enjoyed when they lived together. However, as time passed, she followed X’s cues and began ignoring the father. The children did not take up a suggestion that they spend time with the father separately.
In relation to the second session, Dr K states:
On the second occasion when the children were due to see their father, [the mother] arrived an hour late for the appointment. She said that the children had refused to get into the car. When they arrived as the session the children refused to get out of the car and [the mother] was quite hostile. The session did not proceed.
In summary, Dr K states:
Whatever the children's experiences, their answers seemed rehearsed. They had adopted very black and white responses about their parents and are strongly aligned with their mother. The observation of the children's interaction with their father was that they were extremely hostile towards him.
On 23 January 2015, the children commenced attending upon Ms M, Counsellor.
Ms M prepared a report dated 6 May 2016 for the purpose of these proceedings, which forms Annexure “C” to her Affidavit filed on 9 February 2017. That report is in respect to sessions with the children that occurred approximately fortnightly between 28 November 2015 and 30 April 2016. Ms M states:
There has been no further history of abuse provided by either of the children. Neither young girl raises topics relating to their father, except to say how happy they are in their current lifestyle and do not miss him at all. Indeed, if the topic of their father is introduced into the session by myself, [X] becomes rigid in posture, looks down at the floor and becomes almost inaudible in speech. [Y] sighs and moans about having to talk about her father if the topic is raised.
…
I was quite concerned about [X] in particular during late May when there was a scheduled reconciliation meeting for 25 February 2016. She expressed an intense fear and terror at the thought of being in his presence with only the protection of someone whom she hardly knew [Dr K]. She expressed feeling confused as to why the Court would make her be with someone who had abused her when she thought the Court was to protect her.
…
During the session that followed the reconciliation meeting, both children described in detail their sense of panic and fear they experienced during the reconciliation meeting.
[X], in particular, recalls 'freezing' in the foyer of the building when she sighted her father already there, a desire to run mixed with a worry that she would get into trouble if she did not stay. She described how she kept her face covered by a book hoping to block out the sight of him, sobbing and crying as she waited for the meeting to start. She vaguely recalls how her father tried to talk with her, but having no intention of participating. She stated that when she could not cope with being in his presence any longer, that she wrote a note and passed it to the psychologist saying 'I don't want to see him or speak to him ... he used to yell at me, hit me, he touches me in my private parts'. She described feeling a sense of relief when the psychologist ended the meeting shortly after receiving the note and feeling 'listened to'. [Emphasis added].
Ms M stated that X did not attend school on the day of that appointment with Dr K.
Ms M prepared a further report dated 23 January 2017, which forms Annexure “E” to her Affidavit. That reports provides a similar account of the difficulties faced by the children in meeting with a “Court Liaison Officer” (presumably Dr B) and the father. Ms M concludes that report by stating:
Since my last report, I have had 17 sessions with [X] and [Y]. We have worked within a narrative and play therapy model. The girls have been consistently bright and cheerful since September. They interact well with each other, demonstrate support, care and compassion when one is distressed, and developing skills in resilience, communication and assertiveness. Neither girl has any desire to see their father. [X] chooses not to talk about past memories, but is hoping to have an opportunity to speak to the Judge who will be in a position to make the final decision. [Y] is mostly concerned about the impact of the events on her sister, enjoying being with her mother and having fun at school.
In July 2017, the parties and the children commenced attending upon Ms N for family therapy. The children attended three appointments with Ms N during the period 15 September 2017 to 6 October 2018. Ms N stated that on 6 October 2017, she informed the mother of her intention to suspend the therapy, as she was “unable to gain any foothold whereby progress might be made in terms of facilitating in [the children] alternative ways of thinking about [the] father and/or members of his family”.
Ms N also interviewed the mother and the children jointly on 19 January 2018 and had a separate discussion with the father, in order to “ascertain if anything had changed that might alter my opinion”. The father and his new partner, Ms Q, were interviewed on 25 January 2018. Therapy did not progress beyond that point.
Ms N has provided a report in relation to that family therapy (Exhibit “F-2”). In that report, Ms N states that in the course of family therapy:
[The children] refused to look at photographs provided by their father which apparently reflected relaxed and happy moments with him but rather maintained that the photographs were false (that is, that the girls had been projecting an emotional state that was not really how they felt…). This was challenged but [X] and [Y] remained steadfast in their refusal to contemplate any other possibility.
Ms N also comments on the children’s views in relation to the therapy that took place with Dr K, as follows:
Both of the [children] complained about [Dr K], the previous therapist who made attempts to reintroduce them to their father. [X] said they had been two hours late for the session in which the reintroduction was to have been facilitated and that [Dr K] had been "really angry" because of the combination of this and their refusal to see their father. She said that [Dr K] had "raised her voice" at them and had not been "exactly kind". [Y] described [Dr K] as having been "really mean" and as having talked to them "in a really mean way". She said that she felt as if [Dr K] was "screaming" at them. She also described having refused to sit with their father with [Dr K].
In relation to her recommendations as to how to best manage the relationship between the father and the children moving forward, Ms N states that whether or not the Court finds that the father likely sexually abused the children:
… the [children], particularly [X], need therapeutic treatment, either to deal with their feelings about the ways in which their father treated them if he has been abusive, or to attempt to correct distortions in their perception of him if he has not been abusive or if the allegations in this regard represent exaggerations of his actual behaviour.
The mother also attended counselling with Dr EE, Psychologist and Mr U. The mother contends that, since the February hearings, she has done her best to comply with the advice given to her as how to best facilitate the children’s time with the father. She was not challenged in respect to that assertion.

Unacceptable physical risk

The conduct of the children when required to spend time with the father has been such that they have placed themselves at physical risk. Specifically, on two occasions, immediately prior to seeing the father, the children have run away from the care of the mother. Given their young ages, that conduct places them at risk of physical harm.
As noted above, on 15 December 2014, orders were made for the children to spend time with the father. That time was to progressively increase to a point where the children would spend overnight time with the father from 17 January 2015. The children did spend time with the father on 25 December 2014, 28 December 2014, 1 January 2015 and 4 January 2015.
On 8 January 2015, the children were to spend time with the father at the home of his brother, Mr G. Upon arriving outside Mr G’s residence, X got out of the mother’s car, said “I don’t want to go” and ran up the street. The mother followed X. Y got out of the car and went inside Mr G’s house. The father attests that, after several minutes of not seeing the mother or X, the mother returned to the front of the residence, without X, and called out to Y, who was inside the house, playing with her cousins. When Y came outside, the mother led her to the car and drove off in the direction of where X had run.

The father carries the onus of establishing that the mother has intentionally engaged in a course of conduct with a view to alienating the children from him.
Dr K’s evidence that, during her discussions with the children, they communicated a similar opinion to one another, which suggested at least collaboration on their part and possibly coaching, is consistent with the theory that the mother has deliberately attempted to influence the children in respect to their negative views of the father. That is further supported by statements made by the children, which appear to be influenced by a more mature voice, such as X saying to Dr K that “she now has ezema [sic] because her father did not vaccinate the cat”. X was 9 years old at the time she made that statement.
As stated, Dr B, Dr K, Ms N and the investigators from JIRT who prepared reports in relation to the allegations that the father had sexually abused the children each found that it is unlikely that the father has, in fact, engaged in such abuse. I accept that to be the case. While the mother maintains that such abuse did occur, it remains unclear whether she formed that view genuinely. If the mother does not genuinely believe that the father has sexually abused the children, but has allowed them to believe that, and potentially encouraged that belief either directly or indirectly, that would be a most egregious breach of her responsibilities towards them as a parent.
However, there is no evidence of the mother having directly coached the children or engaged in conduct with a view to alienating them from the father. The more likely explanation for the shared belief on the part of the mother and the children that the children have been sexually abused by the father is the phenomena of confirmation bias, as referred to by Dr K. That is, in circumstances where, as result of her feelings about the father’s use of pornography, the mother became hypervigilant regarding the father’s conduct towards the children. In that state of hypervigilance, it is likely, in my view, that the mother asked questions of the children in a manner in which led the children to provide answers that confirmed the mother’s suspicions of the father’s conduct.
During the course of the hearing, I expressed concern that in the period between the filing of the mother’s Affidavit on 3 December 2014 and the date of the hearing on 15 February 2018, someone had been through a diary retained by X (Exhibit “F-8”) and replaced references to the father as “Papa” with the word “him”. It was accepted that the word “Papa” is the Country C equivalent of “Dad” or “Father”. In particular, I questioned whether that action had been taken by X following encouragement by the mother. The mother contends that in the period since 2015, X has commenced referring to the father as “him” and that she understands that any amendments to X’s diary were made by X acting on her own volition. Having viewed the video recording of X’s interview with JIRT officers on 14 September 2017, I am satisfied that X refused to state the name of the father and referred to the father as “him”. The mother’s evidence is consistent with that observation. Accordingly, I do not make a finding that the mother encouraged X to amend her diary to replace references to “Papa” with “him”.
Dr B agreed with the proposition put to him by Counsel for the mother that a possible explanation for the mother and the children incorrectly believing that the children have been sexually abused by the father could be, as follows:
But, nevertheless, as human beings, all three – [the] mother [and the children] – all three in the process of the human mind can come to believe things that hadn’t happened simply by putting block upon block upon block and not coming to the right conclusion, but coming to the conclusion they find, form their belief and that rules their conduct.
In other words, while I accept that the mother has not acted in accordance with her responsibilities as a parent to proactively encourage the re-establishment of the children’s relationship with the father, her failure to do so needs to be seen in the context of her possibly genuine belief that the children have truthfully told her that they have been sexually abused.
Ultimately, however, even if it is the case that the mother has deliberately, rather than subconsciously, engaged in a course of conduct to cause the children to become estranged from the father, it remains the case that they maintain an intense unwillingness to spend time with him. In those circumstances, for the reasons that I have set out, making orders requiring the children to spend time with the father presents an unacceptable risk of both physical and psychological harm to them.
The father further contends that the mother has positively discouraged the children’s relationship with members of the paternal family. In that respect, the father contends that approximately one week prior to the mother and the children moving out of the former matrimonial home, being sometime in August 2014, his sister, Ms E, attended the home to provide the children with gifts for Eid. The father states that the mother did not allow the children to see Ms E. The father further states that when he and Ms E went upstairs to see the children, the mother told the children to stay in their beds and said to them: “Don’t say ‘hello’ and do not take the presents”. Ms E left the gifts on the children’s beds and left the room. The father says that the mother then threw the gifts down the stairs, so that they landed at Ms E’s feet. The father contends that the mother then walked down the stairs screaming words to the effect of “fear Allah, fear Allah”. The father says that he ignored the mother, who then went back upstairs.
The mother provides a description of that incident, from her perspective, at paragraphs 187 and 188 of her Affidavit. The mother contends that Ms E attended the home at a very late time, when the children were already in bed. The mother says that the father called for the children, and so she went downstairs to explain to the father and Ms E that the children were in bed and that Ms E could go upstairs to see the children. The mother contends that Ms E replied: “you are such a trouble [Ms Nejiz]”. The mother further contends that the father and Ms E went into the children’s bedroom and became upset when the children did not get out of their beds straight away. The mother states that Ms E threw gifts that she had brought for the children on the floor and said: “teach your kinds manners [Ms Nejiz], on how to greet adults”. The mother further contends that Ms E then went downstairs and that she followed her saying: “Ms E, fear Allah, they are only kids”. The mother did not acknowledged throwing the gifts down the stairs.
The evidence in these proceedings is insufficient to enable me to make a determination as to precisely what occurred when Ms E provided gifts to the children. However, the evidence of the mother was, with respect, disingenuous, in terms of a photograph tendered by the father of the gifts on the staircase of the home (Exhibit “F-5”). The following exchange took place between Counsel for the father and the mother during the course of her cross-examination:
Question: … That photograph, [the father] says, is a photograph of the presents on the stairs after the incident; do you agree with that?
Answer: I’m not sure about that.
…
Question: So what do you see in that photograph?
Answer: There’s some wrapped gifts on the staircase.
Question: Right. And it doesn’t ring any bells with you about that incident at all?
Answer: No.
Question: Not at all? It could be a Christmas, it could be Easter, it could be any Eid – any present on the stairs?
…
Answer: It could be anything. Yes.
Having regard to that photograph and the mother’s tentative evidence, I accept that it is likely that the mother did, in fact, throw the gifts down the stairs as the father and Ms E were walking to the front door of the house. The evidence of the father and Ms E, in that regard, supports the theory of Dr B that the mother may be “more volatile and oversensitive than she presents”. I am satisfied that it is likely that, on that occasion, the mother overreacted to an act of generosity on the part of her sister-in-law in a manner that had little regard to the sensitivities of the children.

Issues of family violence

Any family violence involving the children or a member of the children’s family

Section 60CC(3)(j) requires the Court to consider any family violence involving a child or a member of the child’s family.
Section 4AB of the Act defines family violence as:
(1) … violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.

Alleged violence between the parties

The mother states that throughout the parties’ relationship, and particularly after her return from Country C in 2004, the father would hit and argue with her. The mother says that the father would then email her brother, Mr MM, relaying his version of the incident. The mother annexes to her Affidavit, as Exhibits “1” to “8”, emails sent by the father to Mr MM throughout the period 5 March 2012 to 28 September 2013. That evidence is insufficient to enable me to determine what actually occurred during the course of those various incidents. While it is quite possible that the children were aware of the volatility in their parents’ relationship and witnessed acts of violence between them, I am not able to determine whether that has contributed to their anxiety about seeing the father.
The father asserts that in mid-2005, the mother scratched him and ripped off his shirt in anger, as she did not want him to visit his parents.
The father states that in 2010, he and the mother had an argument in the presence of the children. He states that the mother, initially, commenced saying to him words to the effect of: “You’re a loser”, “You’re no good” and “You’re a failure in life”. The father asserts that he and the mother then commenced yelling at each other. The father states that the mother pushed him and that he slapped her in retaliation. The father asserts that the mother then started hitting herself and took a phone into another room to call the Police. The father states that he was later making the children’s breakfast, when the Police arrived. The father states that he and the mother were subsequently required to attend the Local Court at Suburb NN in relation to that incident. The matter was dismissed and the parties resolved to work on their relationship.
The mother’s account of that incident is set out in paragraphs 145 and 146 of her Affidavit. She states that in 2010, she and the father were in the kitchen of their home, when she jokingly nudged the father on his shoulder. The mother asserts that the father then slapped her across the face in front of the children and shouted: “Bitch you are hitting me”. The mother states that she then called the Police. The mother says that the father threatened to throw her and the children out of the house if she told the Police what had happened. The mother says that the children remained frightened and shocked after that incident.
The evidence is not such that I am able to determine which of parties’ versions of that incident is correct. It is admitted that the father slapped the mother’s face. That constitutes an act of family violence. It is not clear whether the children witnessed that incident, although it is possible that they did. It is clear, however, that on either parties’ version, the children witnessed Police officers attending the home to interview their parents. That, in itself, would have been traumatic for them. The children were, however, very young at that time and the Court is without evidence as to whether that incident is a factor in the children not wanting to see the father.
The father contends that, on or about 5 March 2014, he and the mother had an argument during which the mother said words to the effect of: “Leave me” and “Divorce me so that I can leave”. The father contends that he responded: “You don’t need my permission and if you want to leave then leave”. The father states that he walked away from the mother multiple times, as the children were in the home, but that the mother continued to follow him and make similar statements. The father says that the mother subsequently blocked him from going upstairs, pushed him and pressed her fingers into his chest. The father called the Police. While he was doing so, the mother also called the Police. The Police attended the home, but did not take further action.
The mother’s account of that incident is set out at paragraph 147 of her Affidavit. She states that in March 2014, the parties had an argument, during which the father said to her: “I am going to divorce you and return you to your shit family”. The mother states that she asked the father to not argue with her in front of the children. The mother attests that when she tried to go upstairs, the father pushed her down the stairs, while the children were watching. The mother asserts that she called the Police and that upon seeing this, the father also called the Police.
Again, the evidence in relation to that incident does not enable me to determine which version is accurate. In 2014, the children were at an age when it can reasonably be assumed that the experience of the Police attending upon their home to interview their parents would have been traumatic for them. The Court is, however, without evidence as to whether that incident is a factor in the children not wanting to see the father.

Alleged violence between the father and the children

The mother contends that the father has been physically abusive towards Y, including hitting her and holding her down while he attempted to force feed her. The mother asserts that on one occasion, when Y would not come out of a toy car at a shopping centre, the father pulled on her arm so hard that her elbow became dislocated. The father gave oral evidence that he had accidentally dislocated Y’s elbow when attempting to lift her and that he was informed by the doctor who treated Y that that injury was “unfortunately a common thing the doctors see with parents. So since then we stopped lifting her like that”. As I have noted above, both parties make allegations against the other that they have engaged in excessive physical force in disciplining the children. The evidence does not satisfy me that this has occurred.
On or about 22 March 2014 (the mother asserts April 2014), the father contends that X’s finger became caught in a door he was closing. The father states that, when X cried out, he opened the door and checked that she was okay. The father contends that shortly thereafter, X stopped crying and had no mark on her finger.
The mother gives her account of this incident at paragraphs 181 to 186 of her Affidavit. The mother attests that she heard X screaming and struggling to breathe. The mother states that when she asked X what had happened, X said to her: “[The father] grabbed my wrist very tight and dragged me from the couch to the front door and he pushed me out of the house. I tried to open the door but it was locked and then I knocked on the door for him to open”. The mother does not say that X’s fingers became caught in the door, but says that the source of her pain was her wrist, which had red markings on it. The mother says that she called the Police twice that day and that when they arrived at the home, the red markings “had calmed down”.
The Police attended the home and explained to the father that the mother had accused him of having physically abused X. The Police interviewed the father, the mother and X, but took no further action. I am satisfied that the father did not deliberately attempt to injure X and that the mother calling the Police was unnecessary and an overreaction. Again, however, X was subject to a stressful situation in being interviewed by Police.

Whether any family violence order has or continues to apply

Section 60CC(3)(k) requires the Court to consider any family violence order that applies or has applied involving a child or a member of their family and if applicable, taking into account a number of stated matters.
This is not a relevant consideration in this matter.

Effect of change

Section 60CC(3)(d) requires the Court to consider the likely effect of any changes in a child’s circumstances, including the likely effect on a child of any separation from either of their parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
The father’s proposed orders would see the children moving from the home that they share with the mother, their closest attachment figure, to be placed in his exclusive care, in circumstances where they genuinely believe he has sexually assaulted them. The children have not spent quality time with the father in over three years. Moreover, under the father’s orders, the children would have no contact with the mother for a period of three months. Thereafter, the father proposes that the children’s time with the mother be supervised for a further three month period.
This outcome would be a massive change for the children. It would be traumatic and for reasons that I have set out above, it would expose them to an unacceptable risk of physical and/or psychological harm.
The orders proposed by the ICL will not involve a change for the children. For reasons set out above in respect to the issue of unacceptable risk, I propose to make those orders.

Practical difficulty of implementation

Section 60CC(3)(e) requires the Court to consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This is not a relevant consideration in this matter.

Avoiding further proceedings

Section 60CC(3)(l) requires the Court to consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to a child.
This is not a relevant consideration in this matter. In making orders on a final basis, it is the intention of the Court that an end be brought to the parties’ litigation.

Other relevant matters

Section 60CC(3)(m) requires the Court to consider any other facts or circumstances that the Court considers relevant.

The father’s use of pornography

During the course of these proceedings, the mother has given evidence of observing the father watching pornography and masturbating while doing so. The mother has also asserted that the father has pressured her to engaging in sexual activities that she was uncomfortable with, while watching pornography. The father denies that this is the case and asserted, during the course of his cross-examination by Counsel for the mother:
I didn’t like watching it. It was more of a, you know, when I felt like watching it. I did describe to [Dr B] that it was primarily out of, you know, lack of intimacy in my relationship with [the mother] now. So it was more of a, sort of a – a need to just view it when I wouldn’t have that intimacy in the relationship with my [the mother] basically. So it was something that I was not really fond on continuing. Basically wanted to give it up. And I have, essentially. That was a while ago.
The father also stated that he watched pornography when the mother and the children were asleep.
The father’s evidence to that effect, is somewhat inconsistent with the statement that he gave to during the JIRT interview that occurred on 15 September 2014, as follows:
He said that he and [the mother] watched it [pornography] in private, and denied that [the mother] had ever raised it as a concern for her instead stating that there were times when [the mother] had introduced it to the bedroom.

In my view, that statement can only reasonably be construed as suggesting to the investigating Police officer that the mother willingly engaged in introducing pornography into the parties’ bedroom. That statement is inconsistent with the father’s complaint of a lack of intimacy, to which I have referred.
As a result of those inconsistencies in the father’s evidence, I prefer the evidence of the mother that she was troubled by, and objected to, the father viewing pornography and that she began sleeping in the children’s room to avoid seeing him do so. However, the evidence is not sufficient to establish that the father pressured the mother into watching pornography with him and re-enacting scenes from those videos.
As discussed above, the mother’s lived experience of the father’s conduct in respect to pornography has, in my view, made her hypervigilant in respect to the children’s interactions with the father. Dr B agreed with Counsel for mother that the mother’s questioning of the children regarding the father’s conduct towards them and, in particular, whether he had engaged in acts of sexual misconduct, may have been influenced by her state of hypervigilance. Dr K agreed with Counsel for the mother that it was possible that the combination of the mother’s hypervigilance and the nature of the questions that she asked the children resulted in a situation of “confirmation bias”, to which I have earlier referred.

The mother’s relationship with the extended paternal family

The father contends that there have been difficulties in the relationship between the mother and his parents since the mother immigrated to Australia to live with them. The father says that, after the parties moved out of the home of his parents in 2004, at the request of the mother, there was a “wedge” between the mother and his parents, with the mother seeking to prevent the father from visiting them.
The mother contends that in 2010, the paternal grandfather began sending her text messages late at night regarding the timing of the father’s work commitments, the children’s schooling and the mother’s university schedule. The mother says that the paternal grandfather would call her and say words to the effect of: “I miss you immensely and your absence is felt by me greatly”. The mother asserts that the father deleted her phone records pertaining to that contact by the paternal grandfather. The father denies that occurred.
The mother contends that on one occasion, when she was home alone, the paternal grandfather visited her and asked her to sit next to him. The mother asserts that the paternal grandfather touched her chest and lap and attempted to kiss her. The mother attests that she told the paternal grandfather to leave and that he did. The mother contends that when she reported the incident to the father, he told her “not to tell anyone in your family regarding this and when I come back from the office I will look into this matter”.
The mother contends that the father took the next day off from work to support her and that during the day, the paternal grandfather telephoned her. She put the phone on loudspeaker, so that the father could hear what the paternal grandfather was saying. The paternal grandfather said words to the effect of: “I am sorry for yesterday’s behaviour”, at which point the father alerted him to the fact that he was in the room and took the phone from the mother, so that he could have a private conversation with the paternal grandfather. The mother says that she also notified the father’s sister, Ms E, of what had occurred.
The mother asserts that, shortly thereafter, the father denied having heard the paternal grandfather apologise to the mother on the telephone. The mother says that this lead to conflict between the parties and a reluctance on her part to visit the home of the paternal grandparents or allow the children to do so. The mother says that when the father visited the home of the paternal grandparents alone, he would say to her words to the effect of: “You better not leave the house or go anywhere or I will break your legs”.
The father refers to that incident involving the paternal grandfather in his Affidavit, wherein he says that on or about 15 May 2010, the paternal grandfather attended the parties’ home to collect a key. The mother subsequently reported to the father that the paternal grandfather had “tried to give [her] a hug and a kiss”. The father contends that he sought to clarify what had happened with his father, but that the mother had urged him not to speak to the paternal grandfather about the matter as “he [would] only deny it”. The father attests that when he and his brother, Mr G, spoke to the paternal grandfather about that incident, he strongly denied any improper behaviour.
The father, nonetheless, acknowledges that, after that incident, the amount of time that the paternal grandparents spent with the children decreased substantially.
In his Affidavit, Mr G says that the father reported to him the allegations of the mother as against the paternal grandfather. Mr G says that the father was angry and asked for advice at that time. Mr G says that he advised the father that it was his responsibility to protect the mother and the children and that the mother should not be required to see the paternal grandparents for some time. Mr G says that, when he approached the paternal grandfather in relation to the allegations, he repeatedly denied having acted inappropriately in relation to the mother. Mr G says that when he approached the mother in relation to the denials of the paternal grandfather, she became angry and made threats such as: “You watch Mr G, you watch what I do to your family now”. Mr G says that he and his wife continued to show their support for the parties and the children after that incident.
The evidence is not such that I can determine what occurred between the mother and the paternal grandfather, in relation to those allegations. However, irrespective of which version of events is correct, it is clear that an event occurred that gave rise to ongoing tension between the mother and the paternal grandparents. This, in turn, impacted upon the amount of time that the children spent with the paternal grandparents and is relevant to the extent that it explains one of the reason why the children do not currently have a close relationship with them.

Electronic and postal communication

The ICL has sought that an order be made that the father be permitted to send the children letters and gifts and to contact them via email on a monthly basis. Given that I have found that the father, himself, does not pose a risk to the children, I consider it appropriate that he be granted that liberty. It is hoped that this may go some way to encouraging a relationship between the father and the children in the future. For that reason, I have similarly made an order, as sought by the ICL, that the parties be prohibited from discussing any aspect of these proceedings, including the allegations of sexual abuse raised by the mother, in the presence or hearing of the children or allowing any other persons to do so.

Future international travel

The children’s names are currently maintained on the Airport Watchlist. The father has sought an order that the children’s names remain on the Airport Watchlist, pending further order. The mother has sought an order that the children’s names be removed from the Airport Watchlist and that she be at liberty to take them overseas for holidays.
The father states that he first held a concern that the mother would remove the children from Australia when she left the former matrimonial home with the children, taking important documents with her, including the children’s passports. The father says that the mother’s parents and many of her family members live in Country C. The mother says that her parents live in City OO in the United States, along with her sister, Ms PP, and brother, Mr MM. The mother’s sister Ms QQ lives in City RR, Country SS.
The father asserts that during their relationship, the mother said to him words to the effect of: “There is a bigger world out there why don’t you apply for jobs in the United States or the Middle East”.
The father contends that the mother has maintained a separate bank account since the children were born and that in early-2012, he saw a statement for the account which showed a balance of $12,000.
The father states that, during the parties’ relationship, the mother travelled to Country SS with the children and her mother and before leaving Australia, said to the father: “I’m not sure if I’m coming back”. The father states that, when the mother and the children were in Country SS, the mother’s sister Ms PP telephoned him and said: “[The mother] is not happy in Australia and she will not be returning … You need to make arrangements to move there”. The father notes that the mother returned to Australia some three months later.
I also note the evidence of the father that the mother refused to return to Australia from a trip to Country C in August 2004, unless he organised alternative accommodation for them, at a time when they were living with the father’s parents.
The mother acknowledges that, in late-October 2014, she sought to travel to the United States with the children to visit her father, who has been diagnosed with terminal lung cancer. On 6 November 2014, the mother’s solicitors wrote to the father’s solicitors in relation to that proposed travel. The father did not consent to that travel. The mother similarly sought to travel with the children to the United States in 2015. The father, similarly, did not consent to that travel.
The mother attests that she has no intention of leaving Australia permanently, as it is the only place that she and the children call home. The mother says that the children are enrolled in school here and that she is employed on a full time basis and rents a property. The children have a support network in Australia, which includes family friends and social workers.
The children both expressed to Dr K a desire to travel to the United States to visit their maternal family. Dr K notes:
[Y] stated that she would like to see her cousins in the U.S.A. and she wishes she and her mother could live with them some day. She stated that she wishes she could "go around the world" rather than being "stuck here".
It is understandable that the mother would like to visit family members who live overseas. However, it remains the case that the mother has no family living in Australia, no property of significance in Australia and has changed the children’s school twice in recent years, without prior consultation with the father. The prospect of the mother relocating with the children to another country has been an issue of controversy in these proceedings and cannot be dismissed as a possibility.
In circumstances where the children have no relationship with their paternal family and have likely been challenged in maintaining their friendships in recent years, having moved schools twice, a relationship with their extended maternal family would be immensely valuable to them. X, in particular, has developed an enmeshed relationship with the mother and the opportunity to develop relationships with persons other than the mother, including relationships of trust with other adults, would benefit her greatly. Moreover, given the stress and trauma to which the children have been exposed since the breakdown of their parents’ relationship, the opportunity to travel and spend time with relatives would hopefully provide a reprieve from that negativity.
I will, therefore, make orders requesting that the children’s names be removed from the Airport Watchlist and that the mother be permitted to travel overseas with the children.
Given the father’s concerns that the mother will travel overseas with the children and not return, the liberty of the mother to travel with the children will be restricted to countries which are signatories to the Hague Convention. Such travel is not to be undertaken for more than 6 weeks at a time and the mother is to provide the father with relevant details of the travel, including copies of return airfares for the children to and from Australia.

Orders

For the reasons that I have discussed, including, in particular, the priority that the Court is required to give to avoiding the risk of the children being exposed to an unacceptable risk of physical and/or psychological harm, I make orders as sought by the ICL, with additional orders removing the children from the Airport Watchlist and permitting the mother to travel overseas with the children, on certain conditions.

I certify that the preceding three hundred and twenty-seven (327) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 28 September 2018.

Associate:

Date:

[2018] FamCA 778

28 September 2018

Key Legal Topics

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Family Law

Statutory Interpretation

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Jurisdiction

Standing

Procedural Fairness