Kingston and Donald

FAMILY COURT OF AUSTRALIA

KINGSTON & DONALD

[2017] FamCA 324

FAMILY LAW – CHILDREN – Where the mother makes allegations of family violence perpetrated by the father – Where the parties’ elder daughter has made allegations of physical and sexual abuse perpetrated by the father – Where the father has been found not guilty of criminal charges based upon the allegations of the elder daughter – Where the elder daughter is estranged from the father – Where the father seeks to spend time with the parties’ younger daughter and she has expressed a wish to do so – Where the mother has a genuine belief that the father has physically and sexually abused their elder daughter – Where the mother has been diagnosed with post-traumatic stress disorder and persistent depressive disorder – Whether there is wilful blindness on the mother’s behalf in failing to find out details of the elder daughter’s allegations – Where the mother’s reluctance to find out details of the allegations is found to be a result of her current mental disorder, her subjective experience of the father’s behaviour and her feeling guilty, believing she failed to protect her child – Where the mother’s treating psychologist opines that an order for the younger daughter to spend time with the father would have a catastrophic consequence on the mother’s mental health but the single expert disagrees with that opinion – Where there is no unacceptable risk that the father would sexually or physically abuse the child – Where there is an unacceptable risk that the younger child’s primary carer will become emotionally unavailable to the child – Where an order is made for the mother to have sole parental responsibility – Where an order is made for father to spend no time with the parties’ younger daughter until she is 16 years of age at which time he can do so only if the child seeks him out and consents to spending time with the father.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Freedom of Information Act 1982 (Cth)

Donaghey & Donaghey (2011) 45 Fam LR
Johnson & Page (2007) FLC 93-344
L v T (1999) FLC 92-875
M & M (1988) FLC 91-979
Re Andrew (1996) FLC 92-692
Slater & Light (2013) 48 Fam LR 573

APPLICANT:

Mr Kingston

RESPONDENT:

Ms Donald

INDEPENDENT CHILDREN’S LAWYER:

Ms Burgess

FILE NUMBER:	CAC	1070	of		2013
DATE DELIVERED:	18 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Canberra

JUDGMENT OF:

Watts J

HEARING DATE:

1 - 5 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Archer

SOLICITOR FOR THE APPLICANT:

Evans Family Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Christie

SOLICITOR FOR THE RESPONDENT:

Dobinson Davey Clifford Simpson

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Yeend & Associates

Orders

All previous parenting orders in respect of the children C born … 2000 (“C”) and B born … 2003 (“B”) (collectively “the children”) be discharged.
The mother have sole parental responsibility for making decisions about major long-term issues in relation to the children about anything other than the children’s names and changes to B’s living arrangements so that she would ordinarily reside more than 50 kilometres from the mother’s current residence.
The children live with the mother.
The father spend no time with C.
Prior to 14 September 2019, the father spend no time with B. The applications for the father to spend time with B, by the father, mother and the Independent Children's Lawyer are otherwise dismissed
On or after 14 September 2019, the father only spend time with B if B invites and consents to spending time with her father.
On or after 14 September 2019, the father only be permitted to contact B via text, instant messaging, email or by other electronic means at all reasonable times, if B invites that communication.
For the purposes of orders 6 and 7, 14 days prior to 14 September 2019, the father is to provide the mother with his then current email address and the mother is to provide that address to B.
The father is restrained from attempting to spend time with B or communicate with B except as provided in these orders.
The mother shall continue to ensure B consults with her current treating psychologist, Ms H or such psychologist as nominated by Ms H on such occasions as is recommended by Ms H or her nominee.
Within 7 days of these orders, the mother shall arrange for B to meet with the Independent Children's Lawyer to enable the Independent Children's Lawyer to explain these Orders to B. In the Independent Children's Lawyer’s discretion, the Independent Children's Lawyer may do this in a joint meeting with Ms H.
The Independent Children's Lawyer is to provide Ms H with a copy of these Reasons and Ms H is at liberty to provide any further psychologist that she nominates to provide therapy to B with a copy of these Reasons.
The mother shall be restrained from discussing the father or any allegations about the father with, or in front of B.
The mother shall take all reasonable steps to prevent C and/or Ms D discussing the father with, or in front of B.
The father be restrained from attending any school attended by C or B and from participating in activities arranged by the school to which parents may be invited (including parent teacher interviews and meetings about C’s individual learning plan).

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 Kingston & Donald 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: CAC 1070 of 2013

Mr Kingston

Applicant

And

Ms Donald

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

The parents and the Independent Children's Lawyer seek parenting orders in relation to C born in 2000 aged 16 years nine months (“C”) and B born in 2003 aged 13 years eight months (“B”) (collectively, “the children”).
The children reside in the home of their mother. Their older half-sister, Ms D (aged 24), is a current member of that household.
C has made allegations of physical and sexual abuse against her father. The father has been tried on the more serious offences and found not guilty by a jury in the Supreme Court of the ACT in December 2016. He was also found not guilty of a less serious charge of assault on C in the Magistrates Court of the ACT in August 2016.
C is totally estranged from her father.
The mother has a genuine belief that C has been sexually abused by her father. That belief is shared by C and Ms D. Conversely, the paternal family do not believe that he did so.
The mother asserts she has been the subject of family violence by the father during their cohabitation. She says that has contributed to her current medical condition. The mother’s treating psychologist has diagnosed the mother with post-traumatic stress disorder (“PTSD”) and persistent depressive disorder (Dysthymia). The mother’s physical demeanour in the witness box and her presentation in the court room (as noted on the transcript) over a five day hearing were extremely compromised.
The mother’s therapist says that an order for B to spend time with her father would have a catastrophic consequence for the mother’s mental health to the extent that the mother would become emotionally unavailable for the children. The single expert disagrees with that opinion.
B, at the age of 13 years and eight months, has expressed the wish to see her father.
On 21 April 2016 (confirmed on 27 May 2016), Benjamin J made an interim order that B not spend time with her father and consequently B has not seen her father for over 12 months.
I need to make orders that are in the best interests of both the children.

APPLICATIONS

The orders sought at the commencement of the hearing by the father, the mother and the Independent Children's Lawyer are set out at Schedule 1 (Exhibit 1), Schedule 2 (Exhibit 2) and Schedule 3 (Exhibit 3) respectively.

The position of the Independent Children's Lawyer during final submissions

In final submissions, the Independent Children's Lawyer no longer sought an order that the parents have equal shared parental responsibility for B nor sought an order that the mother not take B to a medical or psychological service without first notifying the father about that proposal. The Independent Children's Lawyer sought an order for sole parental responsibility for B in the mother’s favour in relation to decisions about major long term issues in respect of health, education, religion and culture. The Independent Children's Lawyer sought that the parental responsibility order would not extend to B’s name nor allow the mother to change B’s living arrangements so that it made it significantly more difficult for B to spend time with her father.
The Independent Children's Lawyer proposes that B spend gradually increasing time with the father in five defined stages as follows:
13.1.11am to 2pm each second Saturday
13.2.11am to 7pm each second Saturday
13.3.11am Saturday until noon on Sunday
13.4.5pm Friday until 5pm Sunday
13.5.5pm Friday until 7.30pm Sunday
The Independent Children's Lawyer proposed that the first four levels be four occasions each, the effect being that after 32 weeks the fifth stage would be reached.
However, the Independent Children's Lawyer proposed that the timing of B moving from one stage to the next would be a matter for B and that the mechanism for determining when B would move to a new stage would be by way of written notification by B’s psychologist to both of the parties.
The Independent Children's Lawyer abandoned seeking an order that B would not reduce the time she spent with her father once each stage had commenced. The Independent Children's Lawyer proposed B could move up and down between the stages set out by the Independent Children's Lawyer.
The Independent Children's Lawyer proposed that B spend half school holidays with the father after the conclusion of stage four.
The Independent Children's Lawyer also submitted that in the event that the court decided it was in B’s best interest to adopt the mother’s position that B should not spend time with her father, then the order as sought by the mother that the father spend no time with B should not be made but rather, no order should be made in relation to time. The Independent Children's Lawyer submitted that that was an appropriate outcome given B’s age and given that any order for no time would be good until B was 18 years of age. The Independent Children's Lawyer submitted that B should be left free to seek her father out should she so desire.

The father’s position in final submissions

The father also changed his initial position and agreed with the order for parental responsibility as sought by the Independent Children's Lawyer but went further by saying that he did not seek an order that he be informed of a decision the mother had made about a major long term issue in respect of which she had sole parental responsibility. The father joined with the Independent Children's Lawyer to exclude from sole parental responsibility, decisions about B’s name and about changing B’s living arrangements in a way that made it significantly more difficult for B to spend time with the father.
The father’s proposal in relation to B’s staged reintroduction to him was slightly different to that proposed by the Independent Children’s Lawyer and had one less stage with the effect being that after 24 weeks the fourth stage would be reached:
20.1.Sunday 12 noon to 3pm
20.2.Sunday 9 am to 5pm
20.3.After school Friday to 5pm Saturday
20.4.After school Friday to before school Monday
The father proposed half school holidays after stage four was reached.
The father in oral evidence said he did not press order 17 in Schedule 1 which was an order seeking the mother seek professional assistance to develop strategies to cope with her anxiety.

The mother’s application at final submissions

The mother maintained the application that she sought at the commencement of the hearing (Schedule 2), save that she conceded that sole parental responsibility would not extend to the names of the children or in the event that some order was made that would allow B to spend time with the father, taking a decision that would change B’s living arrangements that made it significantly more difficult for B to spend time with her father. In final submissions, counsel for the mother suggested a condition that the mother not change her residence outside a radius of 50 kilometres.
Initially the mother sought an order that she would keep the father informed of all significant health and education matters. As already noted, the father, in contrast, was prepared to concede that that order would only impose additional pressure on the mother’s fragile mental state. Although it was not beyond doubt, it appeared that the mother adopted that position in final submissions.
The mother opposed any order that would involve B’s psychologist providing written advice to both parties as to whether or not B wished to progress to the next stage of any defined regime which provided B time with her father.
The mother also opposed the order sought by the Independent Children's Lawyer that she seek professional assistance to develop strategies to cope with her anxiety around B spending time with the father and to understand the impact of her anxiety on the child. It was submitted, inter alia, that there was no power to make that order.

DOCUMENTS RELIED UPON

Documents relied upon by the father:
27.1.Initiating Application filed 17 July 2015;
27.2.Notice of Risk filed 17 July 2015;
27.3.Affidavit of the father filed 17 February 2017;
27.4.Affidavit of Mr I Kingston filed 17 February 2017;
27.5.Affidavit of Ms J Kingston filed 17 February 2017;
27.6.Affidavit of Ms K filed 17 February 2017; and
27.7.Affidavit of Ms L filed 17 February 2017.
Documents relied upon by the mother:
28.1.Affidavit of the mother filed 24 March 2017;
28.2.Affidavit of Ms M Donald filed 24 March 2017;
28.3.Affidavit of Mr N Donald filed 24 March 2017;
28.4.Affidavit of Ms D Donald filed 24 March 2017;
28.5.Affidavit of Ms O filed 6 April 2017;
28.6.Affidavit of Mr P filed 6 April 2017;
28.7.Affidavit of Ms Q filed 6 April 2017;
28.8.Affidavit of Mr R filed 6 April 2017; and
28.9.Affidavit of Dr S filed 18 April 2017.
Both parties also filed tender bundles and relied upon the expert reports of Dr E dated 5 February 2016 and 26 April 2017 as well as certain paragraphs of the expert report of Dr G dated 8 January 2014.

SHORT HISTORY

The father was born in 1972 and is currently 45 years old.
The mother was born in 1973 and is currently 44 years old.
In 1993 the mother’s child from a previous relationship, Ms D, was born and is currently 24 years old.
The parties commenced a relationship in 1998 and married in 1999.
In 2000 the parties’ first child, C, was born and is currently aged 16.
In 2003 the parties’ second child, B, was born and is currently aged 13.
The parties separated on a final basis in October 2012.

CREDIT

The father

The father in his oral evidence suggested that C may have made up the allegations against him without any assistance from the mother. That evidence does not sit comfortably with paragraph [421] of the father’s affidavit which says “[C] has always tried to link the fact that, although she doesn’t wish to spend time with me, that that should be a situation that persists for [B]. I consider the current allegations made against me a further attempt by [C], but more so [the mother], to alienate me from the very good relationship that I have with [B]”.
At paragraphs [312] and [313] of his affidavit the father gives evidence about “a number of the Friday nights before separation” where Ms D and C would come out of C’s bedroom and C would give him an “angry stare” and Ms D would not speak to him. However, in his oral evidence, the father said that this only occurred on one occasion and his evidence about “these occasions” was incorrect. Both of these versions were given on the father’s oath. One of them is wrong.
The father denied that he had expressed the view that the mother wanted to see him gaoled. Rather, he said that he had expressed the view that he couldn’t believe the mother’s family would allow him to possibly end up in gaol. In her affidavit filed 17 February 2017, Ms K, a friend of the father’s, states at paragraph [36] that the father had said to her, “[the mother] just wants to see me in jail”. The father said that he could not recall telling Ms K that but did not dispute her account. The father filed an affidavit and relied upon a statement by a witness of something that he had said and then denied that he had said it. I find the father did use these words and his denial he did so is disingenuous.
The father denied in his oral evidence that he had been asked by the mother to give C a smack on the bottom prior to the incident that occurred in C’s bedroom in August 2006 (discussed in detail below). Rather, the father said that the mother had asked him to “deal with” C. That evidence seems to be correct as in her oral evidence the mother said that she had told the father to help the children get ready for bed. It is therefore disconcerting that in the record made by Child and Youth Protection Services contemporaneously with the father making a statement in July 2015, it is noted that he said “I was asked to give [C] a smack on the bottom”.
I do not accept the father’s evidence about how he held C by the hand during the incident in 2011 (discussed in detail below). It is inconsistent with what he said in the criminal proceedings and inconsistent with the evidence given by Mr T (a bystander to the incident) in the criminal proceedings in the Magistrate’s Court. Similarly, in the father’s oral evidence he alleged for the first time that that morning, in 2011, C was hitting B whereas previously, in the criminal proceedings, the father had referred to there being an “interaction” between C and B. When this inconsistency was pointed out to the father, he asserted that “interaction” and “hitting” had the same meaning. As discussed below, I don’t accept the father’s version of what happened in the home on the morning of the 2011 incident.
The father gave evidence about his position in relation to the application by the prosecution to allow C to have her assistance dog, visor and fiddle toys with her when giving evidence at his criminal trials. Initially the father denied that his opposition to C’s application was him putting his own needs ahead of hers. The father did concede however that he was taking an approach which was protecting himself without any consideration of what might be best for C.
Overall I formed the view that the father minimised his level of aggression during the cohabitation of the parties and I treat his evidence with caution.

The mother

The mother was overwrought during much of the time that she gave evidence. The mother’s affect was extremely subdued. For most of her cross examination whilst sitting in the witness box, she assumed an almost semi-foetal position. She almost entirely avoided eye contact even when speaking with myself. That affected the way in which she gave her evidence. Counsel for the father cross examined the mother in the father’s criminal trial in the Supreme Court. Notwithstanding the sensitivity with which counsel for the father cross examined the mother before me, I formed the view that the mother found her cross examination very difficult. I also formed the view however that the mother was attempting to be as honest as she could possibly be and to respond as best she could to the questions that were being asked. For example, she freely conceded that in arguments with the father she also on occasion screamed and shouted. Notwithstanding these limitations I find the mother to be a more reliable historian than the father.

I only have written documents setting out C’s statements and oral evidence. C was diagnosed with Asperger’s syndrome in 2010. Dr E agreed that someone with an autism spectrum disorder wouldn’t necessarily be incapable of telling lies, were more or less manipulative than any other child their age or would be more or less likely to reconstruct a memory incorrectly and would not be more likely to have perfect recall of events compared to other children.

Ms D

In cross examination Ms D said that she was shocked but not surprised about the allegations raised against the father when being interviewed by Care and Protection Services by way of Skype in July 2015. However, in the notes taken by Care and Protection Services from that interview, they state that the “allegations of sexual abuse took her [Ms D] by surprise”. I do not place any weight on that subtle difference of language.
Ms D gave her evidence in very straightforward manner and what she said seemed plausible and believable. However, at paragraph [19] of Ms D’s affidavit filed 24 March 2017 she gives evidence that significantly affects her credibility. It is appropriate to set the paragraph out in full.
Throughout the time I lived at home, including after the girls became older, I have seen [the father] smack both girls to discipline them, with the power of that smack forcing them to fall over. I cannot now recall specific dates when this occurred, but it was frequent. I do recall that when my mum started working early mornings, it was [the father’s] role to get the girls ready for school. It was a common occurrence for there to be turmoil in the house on these mornings. [The father] yelled at the children over little issues, such as doing their hair, getting their shoes on and eating breakfast. The girls were smacked in this context. As each day went by, [the father’s] fuse grew shorter and the intensity of the shouting at the girls increased. The days built on top of one another. I observed that [B] sought to manage the tense environment by becoming compliant with [the father], whereas [C], who has a more oppositional personality to begin with, would sometimes challenge him. This angered [the father]. It was a scene like this that led up to [C’s] fleeing from the home in 2011. Although I was not there when she ran away, I was home earlier in the morning but left home before she ran away. I recall the morning had been another intense period of [the father] shouting at the children.
Had it not been for the last two sentences of paragraph [19] and Ms D repeating and embellishing it in her oral evidence, her evidence would have been very powerful in support of the mother’s case. It turned out that the evidence in the last two sentences of paragraph [19] was entirely false for the following reason. It is an agreed fact that Ms D ceased to be an ordinary member of the parties’ household in February 2011. It is a common fact that the incident about which Ms D is speaking in the last two sentences of paragraph [19] took place in October 2011. Ms D indicated that after she moved out of the parties’ home she was living with a friend of hers in Suburb GG in the ACT and was employed casually with the public service. In her oral evidence Ms D said that on that morning one of her friends had picked her up and taken her to school. Ms D subsequently accepted that she had finished school in 2010. When I offered Ms D the opportunity she was unable to explain how she came to give this evidence.
In relation to the evidence of Ms D, counsel for the mother submitted that her evidence should be accepted as straight forward except that she conflated the fights with the father and her half-sisters on the occasion where she could not have been present on any objective view. Counsel said the court should not disregard the entirety of Ms D’s evidence just because of one mistake in her evidence and could be confident in her memory whilst being sceptical about timing.
Notwithstanding the apparent strength of Ms D’s evidence and the extremely positive impression created by her demeanour, I am unable to overlook the glaring unreliability of evidence she gave about an important topic which would have been very damaging to the father’s case had it been accepted. Whilst not discounting Ms D’s evidence entirely, it means I have to treat it with some circumspection.

The paternal grandmother

The paternal grandmother gave incorrect evidence about her electronic communication with the mother. The paternal grandmother originally said that the reason she had not directly texted the mother to make arrangements to see B was because the mother did not return her text messages and that she didn’t even have the mother’s mobile number. She later agreed that that was not true and that the father might have told her not to contact the mother. The paternal grandmother accepted that when she sent messages to B on Father’s Day and on 22 December 2016 she was not thinking about B’s emotions or her wellbeing.
The paternal grandmother agreed that she had assisted the father in researching the law in relation to whether or not C should be entitled to have her assistance dog with her while she was giving evidence in her father’s criminal trial. The paternal grandmother initially stated that her actions were not indicative of her putting her son’s interests ahead of her granddaughter’s rather she was looking after the interests of both her son and granddaughter. However, the paternal grandmother could not explain how C would have benefited if the father’s application was successful
The paternal grandmother is understandably very loyal to her son. The paternal grandmother confirmed what she says in her affidavit by saying that at no time has she believed the allegations made by C are true. She said that she knows her son and he wouldn’t do anything like that. She did agree that C’s beliefs are genuine. The paternal grandmother opined that she couldn’t concede that the father was physically violent to C even in circumstances where C was exhibiting very difficult behaviour. The paternal grandmother stated that she had never seen the father angry (although she said she had seen the father shouting). She was for example not given any information about the circumstances of the assault by the father on the mother which led to the first separation.

The paternal grandfather

The paternal grandfather was slightly less dogmatic than his wife about him not seeing his son get angry but in general terms his evidence was that his son was not a person who was easily angered. He said that he had on occasion observed the father deal with C during times when she was having tantrums. He observed that often the mother asked the father to handle C’s behaviour at those times.
At paragraph [18] of his affidavit filed 17 February 2017 the paternal grandfather states, “[i]t does concern me that even after separation the girls have been treated for a range of illnesses and conditions. For example, I understand that [B] has been treated for a condition called “periodic fever syndrome”. I have never observed [B] to experience high fevers or other symptoms.” The paternal grandfather initially said that he was no longer concerned about the way in which the mother pursued medical treatment for the children, rather he was concerned earlier on and in his affidavit he was referring to the party’s initial separation in 2005 not their final separation. It was pointed out to the paternal grandfather that B was not diagnosed with periodic fever syndrome until after the parties’ final separation. He said that he heard something mentioned in about 2012 about B having high temperatures. He agreed that he would not hold concerns about the mother’s approach if the children had those illnesses and conditions and conceded that the word “concern” was the incorrect word to use.

The maternal grandfather

The maternal grandfather was an impressive witness and I had no difficulty accepting what he says as being truthful.

Witnesses not cross-examined by the father

There were a number of witnesses in the mother’s case who gave evidence principally about the father’s aggression and were not called for cross examination. I accept their evidence on its face.

DETAILED CHRONOLOGY

The father was born in 1972 and is currently 45 years old.
The mother was born in 1973 and is currently 44 years old.
In 1993 the mother’s child from a previous relationship, Ms D, was born and is currently 24 years old.
The parties commenced a relationship in 1998 and married in 1999.
In 2000 the parties’ first child, C, was born and is currently aged 16.
In 2002 the father’s brother committed suicide. Since that time, the mother says that the father’s behaviour and language towards her escalated in that he was often irritable, angry and hostile.
On 1 January 2003 the mother says an incident occurred where the father grabbed her by the wrist (discussed below).
In 2003 the parties’ second child, B, was born and is currently aged 13. The father says that following B’s birth, the mother became very depressed.
At the end of 2004 the mother says an incident occurred where the father grabbed her hand during an argument (discussed below).
In 2005 the father says the mother began to drink alcohol to excess and did so until 2010. The mother says she consumed alcohol to excess from 2006 to 2009 and particularly in 2009.
The parties separated for several months from about 18 June 2005 to 1 October 2005. In this period the father says he continued to spend time with the parties’ children every weekend and a number of weeknights. During this time the parties attend counselling together and the father attended upon a counsellor alone and completed a course. There was some dispute during the hearing as to whether or not the course which the father completed was an anger management course. At paragraph [23] of his affidavit the father says that during that first separation period he undertook a course called “Emotional Intelligence for Men” run by U Group. The father explicitly says in his affidavit that “[t]his was not an anger management course but a type of parenting course aimed at men/fathers”. He says he did the course because he thought it would assist in his attempt to reconcile with the mother. The father was cross examined about entries in his diary. The father had researched a course called “Stopping the Violence for Men”. He also had made an appointment (which he said he didn’t keep) under the diary entry “book anger management for men”. The paternal grandfather said that he was aware that the father had undertaken an anger management course after the parties’ separation in 2005. The paternal grandfather was of the opinion that the father did so simply to appease the mother and her family who thought the father did have anger management problems. The paternal grandfather did not think any such program was necessary for his son. The parties reconciled after the mother thought the father had received assistance for anger management. About 12 months after the parties had reconciled, the mother says that the father’s controlling behaviours started again including the father exerting financial control over the mother.
From 2006 to 2009 the mother sought treatment for anxiety.
On 9 August 2006 C alleges that she was struck on the head by the father in her bedroom. The father says C hit her head on the end of a bed post in her bedroom sustaining significant bruising to the bridge of her nose. She was taken to SS hospital to be checked for concussion. The mother went to the hospital with the father and C. This incident is discussed in greater detail below.
In 2007 the mother sought advice in relation to C’s sexualised behaviour. The mother was advised by her GP to continue to observe C and was referred to the Child at Risk Health Unit. A notification was made to the Child at Risk Health Unit in relation to C’s conduct, behaving inappropriately sexually to family members and other children. The father was unaware that a notification had been made at the time.
In 2009 Ms V, a Behaviour Management Counsellor, was engaged to assist with C’s behaviour.
Between 27 March 2009 and 3 April 2009 the mother travelled to China.
In 2010 C was diagnosed with Asperger’s syndrome and severe anxiety by Dr W.
From 2010 to 2012 C attended upon a psychologist, Ms X. The father says that the mother did not involve him in this arrangement. He attended upon an alternative person in the same practice to obtain strategies about his relationship with C. He later also spoke to Ms X.
In 2010 C attended upon Dr Y, psychiatrist.
On 16 March 2010 B attended upon Dr Z, a Paediatric Dermatologist, for management of her chronic atopic dermatitis and resulting eczema.
In July 2010 in term 3 C moved to AA School.
In February 2011 Ms D moved out of the matrimonial home.
On 4 May 2011 B commenced attending upon Dr S, Paediatric Gastroenterologist.
On 17 August 2011 B attended upon Dr BB, a specialist in paediatric allergy and immunology, for assistance with her eczema and recurrent staph infections; facial angioedema; recurrent abdominal pain; recurrent fevers; fatigue reflux esophagitis and chronic loose stools. Dr BB recommended that B be screened for periodic fever syndrome.
On 26 October 2011 an incident occurred which led to charges against the father in the ACT Magistrates Court. C alleged that the father physically assaulted her by punching, slapping and choking her and pushing his hand into her mouth after which she fled the home to try to get to the safety of her school. The father denies C’s version of events and was later acquitted of the charge of assault. This incident is discussed in greater detail below.
On 22 November 2011 B attended upon Dr CC, Paediatric Rheumatologist, and was diagnosed with severe eczema, chronic staphylococcal infection, gastro-oesophageal reflux disease; dysfunctional colon; angular stomatitis; multiple food allergies and angioedema.
On 3 August 2012 B attended upon Dr CC, Paediatric Rheumatologist, who diagnosed her with recurrent fevers and possibly periodic fever syndrome, bowel issues and eczema.
The parties separated on a final basis in October 2012. The mother and the children commenced residing with the maternal grandparents. From the time of their separation to mid-2013 the mother says the father harassed her and bombarded her with text messages and phone calls.
After the parties’ separated the father spent time with B on each alternate weekend from Friday to Sunday, one Saturday morning in the off week, each Wednesday after school until 7pm and half of the school holidays.
At Christmas in 2012 the father only spent half an hour with the children after he says the mother withdrew her consent for him to spend time with them. This is the last occasion that C spent time with the father.
In 2013 C commenced high school at DD School and was placed in the Learning Support Unit Autism. She now attends high school at EE School.
On 6 April 2013 the father says the mother organised to attend Canberra Zoo with the children at a time when B normally spent time with the father. The father requested that he spend make up time with B but received no response from the mother.
On 23 April 2013 the father discovered that B no longer attended Girl Guides, having not been informed by the mother.
On 26 April 2013 the father says the mother did not allow B to spend additional time with the father so she could attend a dinner with the paternal grandparents before they travelled overseas on holiday.
On 23 July 2013 the mother commenced proceedings in the Federal Circuit Court.
On 30 August 2013 the father requested that he spend Father’s Day with B between 9.30am and 2.30pm. The mother allowed him to spend time with B from 9.30am to 12 pm.
On 11 September 2013 the father requested additional time with B on the weekend of 14 and 15 September so that B could attend her cousin’s Christening and spend additional time with the father on her birthday. The mother allowed the father to spend time with B from 2.30pm to 4pm and B was only able to attend the function held after her cousin’s Christening. The father was able to extend the time B stayed at the party to 4.30pm.
On 18 September 2013 orders were made by Judge Henderson for B to spend time with the father each alternate Friday until Sunday at 5pm and each Wednesday from the end of school until 7.30pm. Those orders also provided for the father to make arrangements for him and C to attend upon Dr F for family therapy such therapy only to commence if the mother and Independent Children’s Lawyer agreed.
On 20 September 2013 the father says he became aware that the mother had arranged for C to attend upon Dr Y, paediatric psychiatrist, again. He later made an appointment to see Dr Y on 18 October 2013 and he was advised that C had been prescribed with Risperidone.
On 27 September 2013 the father caused correspondence to be sent to the mother’s solicitors requesting that C be referred to as “C Kingston” not “C Donald” after he saw a copy of her individual learning plan from DD School which requested, under “additional information” that she be known as “Donald”.
On 2 October 2013 the mother advised the father that she did not agree for therapy with Dr F to commence pursuant to the orders made on 18 September 2013.
On 15 November 2013 the father says that when he collected B to spend his alternate weekend time with her, B told him that the mother had advised her that B gets a sore stomach when she spends time with the father because she is stressed.
On 2 December 2013 interviews were carried out by Dr G in the course of him preparing an expert report for the court.
On 24 December 2013 the father says that the mother arranged for B to attend upon a counsellor on that day without his prior knowledge or consent.
The father says he was only able to spend a few hours with B on the afternoon of Christmas Day in 2013. He did, however, spend two weeks with B over that school holiday period.
In January 2014 the father says that B’s swimming lessons and squad training times were varied so that on a Sunday her swimming lesson ended at 5.20pm, shortly after changeover should have occurred. He says that he would stay for the remaining 20 minutes of the training but the mother insisted he depart the swimming pool at 5pm. The father says the mother did not advise him that there was any change to B’s lesson times.
In February 2014 the father requested that B’s time with him be varied from after school on Wednesday to after school Tuesday to the commencement of school on Wednesday, so that he was able to spend his birthday with B. The mother initially rejected his proposal but later agreed.
On 5 March 2014 the father requested that his time with B be extended to 5pm on the Monday of a public holiday weekend so he and B could spend the weekend at the south coast at the paternal grandparent’s holiday home. The mother rejected this proposal.
On 1 April 2014 the father received a notice from B’s school advising that she had been diagnosed with periodic fever syndrome and was being trialled on prednisone under the treatment of Dr CC. The father was previously unaware of this information.
The parties were divorced on 7 April 2014.
By 30 April 2014 C had participated in a writing competition called “What Matters” and submitted an essay on abuse. As discussed below, in her first version of that essay, reading it carefully, C makes an assertion that the father perpetrated emotional, physical and sexual abuse against her. She uses the words “hiding a dirty secret” and “hidden behind closed doors” and “having no contact with my abuser any more”.
On 20 May 2014 parenting issues were set for a final hearing before Judge Hughes. The recommendations made by Dr G were not in the mother’s favour. The mother says that after Judge Hughes made some preliminary comments, she agreed to settle the matter. She also claims that during negotiations her lawyers indicated that the father’s lawyers would “destroy” Ms D during cross examination (Ms D was alone overseas and was to be cross examined on her affidavit by electronic means). Final orders were made by consent for the parties to have equal shared parental responsibility for the children, for the children to live with the mother and spend time with the father each alternate weekend from after school Friday to before school on Tuesday and on Monday from 3pm to 7.30pm in the off week as well as half of school holidays. An order was also made for C and the father to participate in therapeutic counselling with Dr F. Between 20 May 2014 and July 2015 in the main B saw her father in accordance with the orders. The mother said that on occasion B was upset both before she was due to go to see her father and after she had returned from her father. The father says that B enjoys the time she spends with him and looks forward to that time.

After the consent orders were made on 20 May 2014 C sought legal advice independently from the mother as to whether or not she had to see Dr F. The mother denied that she had any role in encouraging C to seek her own legal advice and I accept that is so.
On 15 October 2014 B was scheduled to attend upon Dr S, Paediatric Gastroenterologist and Dr CC, Paediatric Rheumatologist, in Sydney. The father says the mother requested at the last minute that he not attend the appointments. The father did not attend but did not receive any update or feedback from the mother. He did receive a follow up call from Dr CC and some notes from Dr S.
In late 2014 the mother and the children moved out of the maternal grandparent’s home.
In December 2014 C then made an application under the Freedom of Information Act 1982 (Cth) to obtain information about the level of communication between the father and her school. Specifically, C sought to obtain the emails that the school was sending the father on a three weekly basis reporting to the father in relation to C’s progress. I am comfortably satisfied the mother played no significant role in assisting in making that request and in fact attempted to assure C that nothing of any sensitive nature would have been provided to the father in relation to C by the school.
On 12 February 2015 the father says he was advised by Dr Y that C was being prescribed with an anti-depressant, Sertraline, as well as Risperidone.
On 9 April 2015 the father says that he sent the mother an email asking if they could discuss B’s high school options. He says that the mother responded advising that he could outline it to her in an email, which the father did. However, he says the mother since refused to discuss B’s high school apart from an email she sent him on 19 May 2015 advising that she would take his views into account in her discussions about high schools with B.
On 18 May 2015 the father says that the mother sent him an email advising that B had not been feeling well for weeks and had undertaken blood and urine tests. On that day, B attended a doctor’s appointment. The father says that the GP attended upon by B advised him that part of the discussion related to B’s absenteeism from school which the mother asserted was due to her anxiety about being at the father’s home.
In term 2 2015 the mother says B developed anxiety around eating food in the presence of other people. She says that B agreed to attend upon a psychologist or counsellor about this issue and did attend upon her GP. The father says he was never advised about B’s issues with eating and says that B eats well when in his presence or that of the paternal family, although he says that B did tell him that she is concerned that she is not able to eat in front of people.
On 28 May 2015 C made allegations of sexual abuse against the father to her school. An investigation by the Office of Children, Youth and Family Support subsequently occurred and the police became involved (discussed in more detail below).
On 5 June 2015 the mother attended FF Police Centre in Suburb GG to discuss the investigation following C’s disclosures.
On 7 June 2015 two detectives attended upon C at her home and explained the interview process to her.
On 12 June 2015 the mother says she contacted the ACT Disability, Aged and Carer Advocacy Service to inquire whether they could act as an advocate for C in her interview with the police. On 15 June 2015 they advised that they could do so.
On 18 June 2015 AA School sent the parties a letter in relation to the amount of B’s absences from school.
On 19 June 2015 the father says that he did not spend any time with B over the weekend after the mother advised him that B was too unwell to do so. On this date, the father also says that he received correspondence from the ACT Education and Training Department in relation to the enrolment of B into high school. The father says he later received an application form indicating that B was enrolled at GG High School.
On 22 June 2015 the father says he attended B’s school to collect her but B walked straight past him and went to the mother who was waiting for her in the carpark.
Following C’s allegations of sexual abuse by the father, the mother ceased working.
The father did not spend time with B during his week of the school holiday period from 11 to 18 July 2015 after the mother did not respond to his requests for her to confirm the arrangements and did not make B available in this time. The mother decided not to allow B to spend time with the father during this period due to concerns for her safety following C’s allegations.
The father did not spend time with B on Father’s Day in 2015 or on her birthday in 2015.
On 25 June 2015 the police interviewed C. An advocate from the ACT Disability, Aged and Carer Advocacy Service was in attendance.
On 9 July 2015 the father was interviewed by the Australian Federal Police in relation to allegations made by C.
On 17 July 2015 the father recommenced proceedings in the Federal Circuit Court seeking an order for sole parental responsibility and for B to live with him.
On 22 July 2015 an order was made in the Federal Circuit Court appointing an Independent Children’s Lawyer for B.
On 31 July 2015 the mother says the father collected B from school before the scheduled time at which the mother would have collected her.
In September 2015 the Office for Children, Youth and Family Support took the view that B was at risk of sexual abuse from the father due to “substantiation” of C’s allegations against him. The father says he was advised of this by the Office on 3 September 2015. The father is critical of the Office, specifically the conduct of a Ms II.
On 24 September 2015 the matter was transferred to the Family Court from the Federal Circuit Court. Pursuant to orders made on that date by Judge Hughes, B was to continue spending time with the father in accordance with the consent orders made on 20 May 2014.
In November 2015 the father says he became aware that B was experiencing stress in relation to some friends at her school and that she experienced stress and anxiety in relation to C and how the mother was coping. The father says he followed these issues up with B’s teachers.
On 10 November 2015 the father says the mother unilaterally removed B from school without his knowledge (apart from sending him a text message that morning to advise him) and took her on a week’s holiday to Queensland with C and other members of the maternal family which prevented him from spending time with B prior to the appointments with the family consultant.
In late 2015 the mother says B started to have difficulties with menstruation, experiencing extremely painful and heavy periods. On 25 November 2016 she attended JJ Hospital for an iron infusion and has also been seen by Dr KK, a paediatric gynaecologist, who prescribed her with hormone medication to assist with the timing of her periods and to reduce cramping pain.
On 29 November 2015 the father says B advised him that C had received a service/anxiety dog called LL.
On 15 December 2015 the father appeared in the ACT Magistrates Court in relation to the allegations made by C.
The mother returned to part time work in 2016 until just prior to the Supreme Court proceedings.
In February 2016 B commenced high school at GG High School.
On 23 February 2016 the mother alleges B was distressed because the father said he would hurt the mother if B did not see him. The father denies that B was distressed when he dropped her to school that morning and says he had no communication with her throughout the day.
On 8 March 2016 the mother says that B was upset because the father told her that the mother was trying to prevent B from seeing her father. The father denies that he said this.
On 15 March 2016 B had an appointment with Dr S in Sydney. The father says the mother advised him that B had requested he not attend.
On 5 April 2016 the father attended GG High School for B’s parent teacher interviews. He says he was advised that a few weeks previously that the mother had attended the school and an “exit card” was organised for B in the event that she was feeling anxious.
On 6 April 2016 B attended upon Dr CC, Paediatric Rheumatologist, who diagnosed her with back pain; eczema; tight hamstrings; gastro-oesophageal reflux; gut dysmotility; food intolerance; pfapa syndrome; periodic fever, aphthous stomatitis and adenitis.
On 21 April 2016 orders were made by Justice Benjamin by consent for the father not to approach C’s school or seek information from that school. An order was made suspending the time and communication B spent with the father pending the determination of an interim application on 27 May 2016.
On 27 May 2016 orders were made by Justice Benjamin suspending the orders made in 20 May 2014 for B to spend time with the father and for the father to spend no time and have no communication with B. On that date, orders were made for the mother to have sole parental responsibility for C. Orders were also made restraining the father from attending C’s school and participating in any activities arranged by the school.
In mid-2016 the mother says B’s health started to improved.
On 2 August 2016 the father opposed an application for C to have access to her support dog (and other supports) for the purpose of her recorded evidence. It was determined that C could have access to her support dog and other supports when giving evidence in the proceedings against the father.
On 4 August 2016 the mother attended upon Mr R.
On 17 August 2016 the common assault charge was heard in the ACT Magistrates Court. These proceedings related to the incident that occurred on 26 October 2011. Both C and the mother gave evidence in the proceedings. The father was acquitted.
On 18 August 2016 the mother attended upon Mr R.
On 1 and 29 September 2016 the mother attended upon Mr R.
On 9 September and 10 October 2016 B spent time with the paternal grandmother.
On 13 October 2016 B commenced counselling with Ms MM. A couple of weeks after this appointment, Ms MM left that practice and could no longer work with B.
On 20 October 2016 the mother attended upon Mr R.
On 3 and 24 November 2016 the mother attended upon Mr R.
On 14 December 2016 the ACT Supreme Court proceedings commenced relating the charges against the father of one charge of assault occasioning actual bodily harm and two charges of indecent assault. The charges related to the incidents that occurred between 1 January 2009 and 30 June 2010 relating to the father inappropriately touching C and an event in August 2006 relating to C sustaining an injury to her head. The father was acquitted of all charges.
On 25 December 2016 the mother alleges B was upset about receiving a text message from the paternal grandparents which was sent at the father’s request in apparent breach of orders, saying that her father wanted to wish her a happy Christmas and to tell her that he loves her.
On 12 January 2017 the mother attended upon Mr R.
On 13 January 2017 B spent time with the paternal grandparents.
On 2 and 26 February 2017 the mother attended upon Mr R.
On 2 March 2017 the mother attended upon Mr R. Since this time, he has seen the mother on three further occasions.
In April 2017 the mother took B to see the victims of crime coordinator to obtain a referral to a counsellor. At about this time B commenced attending upon Ms H and has had two consultations with her.

FAMILY VIOLENCE

The mother makes allegations of family violence against the father which the father substantially denies.
The mother says that during their relationship, the father was controlling, intimidating, coercive and angry. Generally, she says that when they would have arguments, the father would scream close at her; block her way out of a room; push, shove and poke her. The mother in oral evidence said that the father behaved towards C the same way that he behaved towards her.
It is agreed that an incident of physical violence occurred at the end of 2004. The father grabbed the mother’s hand during an argument after the mother attempted to pick up a phone to call the paternal grandparents after she says the father indicated that he was suicidal. The mother says the father crushed her hand causing her skin to split and bleed. The mother gave a similar account to her psychologist, Mr R, of this incident who states in his report dated 20 March 2017:
[The father] had physically backed [the mother] into a corner, was yelling at her at how we [sic] was going to take his life and that it would be all her fault, and [the mother] had attempted to use the phone to call his family to ask for support. [The father] grabbed her hand and crushed it to the point that her skin split and she started to bleed. The three children had witnessed all of this and were very frightened. She had pleaded with him to desist for the sake of the children but he continued in his verbal and physical attack on her.
The father says that in attempting to get the phone from the mother he caught his fingernail on her finger and left a scratch. The father denied initially that he said anything that would lead the mother to believe that he was suicidal. The father ultimately agreed that during this argument he had made reference to an incident, which had been on the news, of a man jumping to his death in a shopping centre and landing near the place where children were having their photo taken with Santa Clause. Ultimately the father agreed that that would have caused the mother to have concern about his mental state. I find that the father had said words to the mother that made the mother fearful as to what the father might do particularly in the context of the family history of his brother’s suicide. I accept the mother’s version of this event. Whilst I accept the father may have wished to spare his parents the pain of receiving a call about his suicidal ideation given what his parents went through with his brother, the father’s explanation for this incident was an attempt to justify his behaviour and to minimise his role in his physical assault on the mother on this occasion.
The father asserted that this was the first occasion upon which he had been physically abusive towards the mother causing her injury. The mother gives other examples of the father being physically abusive:
170.1.On 1 January 2003 the mother says an incident occurred where the father grabbed her by the wrist and pushed her into the flyscreen door of the back door of their home. The mother left the home and stayed at her sister, Ms Q’s, house until she calmed down. She says that from this time she was subjected to physical violence by the father.
170.2.The mother says the father grabbed and twisted her wrist on other occasions when he was angry and yelling at her. The mother said that this phase of the father physically hurting her on her wrist lasted up until the first separation in 2005.
170.3.In July 2012 the mother says the father screamed and threw a dinner plate because the lights were dimmed to assist C with her sensory difficulties.
170.4.On 11 October 2012 the mother says a fight occurred between the parties and the father chased her through the house.
I accept the mother’s evidence about these occasions.
The father accepted that on one other occasion he “made contact” with the mother stating in his affidavit:
18. I recall one time about seven years ago, in the kitchen that we had an argument. I was pointing at [the mother] with my finger and I did make contact with her chest once. It was not hard or done out of aggression. [The mother] in some arguments would state, “You’re blocking me.” I would say, “No I’m not.” I would move or step away.
Initially the father denied that he would ever block the mother whilst trying to talk to her to get his point across and more generally the father denied that he had ever blocked the mother. However, as set out below, in final submissions counsel for the father conceded that it was likely to be found that he did so.
The mother said the father poked her in the chest forcefully on multiple occasions and I accept her evidence about that.
The father was asked whether Ms D had ever physically intervened between himself and the mother when they were arguing. The father recollected one occasion when she did so. He said he and the mother were arguing in bed and Ms D came into their bedroom to say “I can hear you from the other end of the house”. The father later said that he didn’t actually know where Ms D had come from and she could have been directly below them in a room downstairs. While Ms D does not cite this specific incident in her affidavit, she says that she does recall being woken up at night by heated arguments between the parties. The father, in his oral evidence, said that Ms D’s bedroom was at the other end of the house.
At paragraph [26] of the father’s affidavit he says:
[The mother] and the children would instigate a process that I have called ‘the red alert process’ for the girls. If [the mother] and I were arguing, [the mother] would signal to someone to call the maternal grandmother and then [the mother] and the girls would huddle together in the bedroom with the phone whilst talking to the maternal grandmother. I thought that this was extremely emotionally abusive of the children.
The father said this “process” was happening around 2008. In oral evidence the father said it was “unnatural” the way the mother would give a signal to the children when they were arguing to ring the maternal grandmother. The father alleged that the mother would argue with him more loudly to give a signal to the children. The father could not explain what he meant by the mother’s “red alert process” being extremely emotionally abusive of the children. The father agreed it was emotionally abusive for the children to witness the conflict between him and the mother.
I find that what happened during arguments between the parents is that the girls would use as a technique in attempting to stop the argument either ringing their grandmother and alerting their mother to the fact that her mother was on the phone or actually getting their grandmother to telephone the house. The father’s perception of what was happening with the children when they were ringing their maternal grandmother during these incidents shows a disturbing lack of insight into the effect his behaviour was having upon the children at that time. When pressed, the father was able to accept that the children were highly distressed and that was the probable cause as to why they rang their grandmother.
At paragraphs [15] and [16] of her affidavit, the mother’s sister Ms Q recalls that on one occasion in 2008/2009 when C was about eight years old she received a telephone call from C. C sounded very distressed. C reported that her parents were fighting and she was scared and asked her to come and collect her. Ms Q says she immediately drove over to the parties’ home. C was waiting for her inside the front door. She took C away. Ms Q also recalls other occasions after this event when C would call her and ask for her grandmother (at that stage Ms Q was living in the home of the maternal grandmother). The father had no recollection of Ms Q attending the house to pick C up following an argument between him and the mother. The father however was not in a position to dispute Ms Q’s evidence about C being in a very distressed state on one occasion in around 2008/2009.
Mr P, the ex-husband of the wife’s sister, Ms O, similarly recounts an incident in mid-2009 where he received a telephone call from Ms D at a time when the mother was away. He says that Ms D asked him to collect her from the parties’ home and when he arrived, he could hear the father’s “very loud screaming coming from inside the house”. Mr P says that once Ms D got into his car, she started to sob hysterically and told him that the father was screaming at her so much and so close to her that the father’s spit was running down her face. Ms D generally told Mr P that the father was verbally and emotionally abusive to her.

The mother accepts that the children often witnessed the parties’ arguments and that on occasions she screamed back. In documents produced by the Department of Education and Training is a counselling record with C dated 28 June 2012 (page 1040 father’s tender bundle). That document notes that C told the counsellor that she was “[c]oncerned about her parents fighting.” The Independent Children’s Lawyer submitted that that entry indicated that both parents were arguing and it was not one sided. I accept that is so but I find the father was the principal protagonist. Ms D also gave evidence that her mother would cease arguing with the father when her attention was drawn to the fact that the children were observing them but her stepfather would maintain the fight. In her interview with Dr E for the first report, B stated that “her father used to be quite angry when in a relationship with her mother” and has memories “of her father arguing with ‘everyone’ when the family lived together” as well as “memories of her father hurting [C] and their mother”. C similarly told Dr E that she had observed the father “act aggressively towards her mother” and cited the occasion when the father grabbed the phone from the mother. C also said that her parents fought “all the time” and her father would “corner” her mother and “scream at her”.
The mother said in cross examination that she believes that a time will come as B is now a teenager, that she will say or do something that is completely out of line or will stand up to her father and the father will not back down and the mother believes that B will inevitably get hurt in some way, shape or form.
Ms D alleges that she was involved in numerous heated arguments with the father and that there was an occasion when he was physically aggressive to her. She says that when she was about 12 years of age the two of them were arguing and she tried to escape by going into her bedroom. Ms D says the father yelled at her “I have not finished talking” and grabbed her torso and tried to turn her around to face him. Ms D says that the father pulled her with such force that he scratched the skin on her ribs and she started to bleed. She was wearing a pyjama top at the time. In her oral evidence Ms D said that she and the father were arguing because she was sick from school with tonsillitis and the father believed that she should have gone to school. She was tested on her memory of the incident but said she believed that she was in year 7 so would have been about 12 years of age. Ms D denied any assertion that this event did not occur. Notwithstanding the comments I have made about Ms D’s credit, I accept Ms D’s evidence about this incident in preference to her father’s.
I also accept that the father on occasions would roughly pick C up and throw her over his shoulder in a way that risked injuring her ribs. This behaviour led to contemporaneous complaint by Ms D on one occasion where the mother followed the father into C’s bedroom where an altercation took place between them about the way the father had manhandled C.
The history of violence deposed to by the mother is supported by her witnesses who were not called upon for cross examination. I accept their unchallenged evidence.
The maternal grandmother, Ms M Donald, gives evidence in her affidavit of observing the father, on several occasions, to behave aggressively and in a confrontational manner towards the mother. She says that the parties’ disagreements involved “raised voices and physical proximity” with the father getting close to the mother and shouting in her face. She observed the father was the main instigator and that he would frequently get very angry. Sometimes he would have closed fists. The maternal grandmother also gives evidence supporting the mother’s description of the incident that occurred at the end of 2004, although the maternal grandmother says it occurred in June 2005. She says that the mother and the children arrived at her home and the mother had a gash on her hand, with the skin split open. She says the mother told her that the father was distressed and threatened suicide and when the mother went to call his parents, the father grabbed her hand and twisted it. The mother told the maternal grandmother that the father had flung himself on the car as they were leaving. Ms D reported to her grandmother that the father had really hurt her mother.
The mother’s sister, Ms Q, says that she observed many occasions where the father would follow the mother into a room and “berate her, using an aggressive tone of voice” with the father standing over the mother and his face very close to hers. Usually the complaint was about an inconsequential matter. Often the arguments would only end when the mother walked away. She says that this behaviour occurred on a regular basis towards the end of the parties’ relationship. As mentioned above, the mother’s sister also gives evidence about the occasion she removed C from her parent’s home when C, who was then about eight, rang her very distressed.
The maternal grandfather gave evidence about an incident in or around June 2013 when the father became uncontrollably angry and screamed verbal abuse at the maternal grandmother at the front door of her house. This was during a period of time when the mother and the children were residing at the home of the maternal grandparents. At the time of the incident, the maternal grandfather was at the back of the house but the father’s screaming was so loud that he was able to hear it and he left what he was doing to intervene. When he arrived at the front door, he observed the father standing very close to the maternal grandmother. The father’s face was red and his facial features were scrunched together. His mouth and eyes appeared very tense. He was shouting and getting louder and louder. The maternal grandfather could see the maternal grandmother starting to back away from him. The maternal grandfather said he had previously seen this type of aggressive interaction by the father towards his daughter. The incident was defused when the maternal grandfather intervened. I accept the maternal grandfather’s evidence about this event.
The mother’s sister, Ms O, also gave unchallenged evidence that she witnessed many occasions where the father was hostile and intimidating towards the mother. She says that on these occasions the father used a raised and aggressive tone of voice and would often stand very close to the mother. Ms O says that during some of those incidents, the mother would attempt to walk away but the father would block her exit or if she did manage to walk away, he would follow her and continue to shout at her. Sometimes this could last up to 30 minutes. Ms O gives evidence about a specific incident where she received a telephone call from the mother asking her to collect Ms D and C (at a time prior to B being born) because the father was “having a go” at the mother and the two girls were “terrified”. Ms O says that when she arrived at the parties’ home, the father was confronting the mother and following her around the house. Ms D and C were upset. She says he did not stop this behaviour when he saw her and understood that she had arrived to take the two children away.
Mr P is the ex-husband of the wife’s sister, Ms O. In his affidavit, he gives evidence that he observed the father on many occasions (approximately 20-30 times) quickly lose his temper with C and when he did so, would scream at her, putting his face within close range of hers. Mr P says that he did not observe the father to scream at B in this manner but B was often present when he observed the father screaming at C. Mr P also says that when the mother tried to walk away from the father, “or was pleading with him to stop, it only seemed to incense him more to the point where his behaviour escalated and he screamed and yelled at a close range to [the mother] or physically blockaded her into corners”. He says he never observed the father to be physically violent to the mother, but he “used is body to stand over her and invaded her personal space” in an “intimidating manner”. He particularly remembers the mother cowering on one occasion when she was pregnant with B.
As already mentioned, Mr P gives evidence of an occasion in mid-2009 when he had received a telephone call and had to rescue a highly distressed Ms D from her home. When Mr P arrived at the house he heard the father screaming very loudly from inside the house. Mr P also gives evidence about an incident he says occurred in early February 2013, after the parties separated. He says that the father pulled his car into Mr P’s driveway, blocking Mr P’s exit, and started to ask him about the mother and why she left him.
I place some weight upon the unchallenged evidence of the mother’s witnesses. That evidence and particularly Mr P’s evidence would lead me to approach with caution any suggestion made by the father that the mother is not genuinely concerned that the father could yell at the children in the same way she says he has yelled at her. I accept the submission of counsel for the mother that the unchallenged evidence of the mother’s witnesses “speaks not to the hostility and conflict which would allow this to just be dismissed as a product of a not particularly functional adult relationship or marriage, but to support the conclusion that at the end of the relationship, the mother was the victim of a sustained period of family violence perpetrated by the father”.

Conclusion about family violence

Counsel for the mother sought a finding that the father was violent to the mother during their relationship in the sense that “family violence” is understood in the Family Law Act 1975 (Cth) (“the Act”); that he was verbally abusive to the mother and the children and Ms D and that on occasions he was physically violent to the mother and either in the course of physical discipline or otherwise in relation to C and B.
I also accept counsel for the mother’s submission that the mother’s evidence about the father putting his face close to hers in an argument was mirrored in C’s evidence in Dr G’s report.
Counsel for the father submitted that it was likely to be found that the father frequently yelled at the mother during their relationship and in that context, he would get quite close to the mother and block her with his body. He submitted that it would be reasonable to find that the event with the phone in 2004 occurred which caused a cut to the mother’s hand (discussed above). The father denied the allegations that he poked the mother in the chest and held her by the wrist. Counsel for the father submitted that the father’s behaviour is mitigated by:
193.1.the mother conceding that the arguing was mutual;
193.2.the mother admitting to drinking alcohol to excess for a period between 2006 and 2009;
193.3.C’s condition involved extreme behaviour at times which presented a challenge to both parties; and
193.4.physical violence was not a regular feature in their relationship.
In the father’s interview with Dr E, the father agreed that there were times when he acted, on reflection, aggressively, but denied that he was abusive.
Dr E says that while the father denies being angry and aggressive, “it seems likely, on the balance of probabilities, that he often behaved in an angry and aggressive manner, at least during the latter stages of the marriage to [the mother]. That being said, it does not appear that this is a long-standing or generalised pattern.”
The Independent Children’s Lawyer submitted that the father most likely downplayed how “cranky” he got and how much he yelled or smacked within the household. However, the Independent Children's Lawyer suggested the father’s behaviour was in the context of the father being in a difficult situation being in an unhappy marriage and caring for a small child with serious behavioural problems and a stepdaughter who felt usurped by her half siblings. I do not accept the Independent Children’s Lawyer’s suggestion that, apart from the incident about the phone in 2004, the mother has probably up played the father’s behaviour. The Independent Children’s Lawyer, whilst acknowledging the mother would often try and walk away, submitted that the arguments between the parties were an ongoing feature of their relationship and that the mother would sometimes choose to verbally fight back. The Independent Children’s Lawyer submitted that the evidence in relation to domestic violence does not indicate an inherently domestic violent relationship to the extent that the father presents a physical risk to B. She submitted that while the mother’s main concern is that the father will use physical force on B if she defies him, there is no evidence after 2006 of the children being subjected to physical harm at the hands of the father apart from being physically disciplined by him albeit at times in a heavy handed way.
Whilst I accept that the father may not have done an anger management course in 2005 the entry in his diary is indicative of two things. Firstly, that the mother prior to the first separation and perhaps afterwards, raised with the father her perception that he had anger management issues that required therapy and secondly, the father may at that time have had some level of insight which led him to at least explore the possibility of anger management courses. I find the father did have anger management issues in 2005.
The father agreed that the mother had agreed to reconciliation on the basis that he had obtained therapy during the period of separation. The father also agreed that their relationship had improved significantly when they reconciled in October 2005. It was put to the father by 2008 things had broken down again. The father was taken to an entry in the medical notes of the mother’s doctor where the mother has reported to her doctor that there were problems in the parties’ marriage and the father had anger issues. The father agreed there were problems in the marriage but denied that he was angry. I place some weight on the mother’s contemporaneous report to her doctor as to what was happening in the household.
I accept the mother’s description of family violence in Dr E’s first report that “[the father] was an aggressive, intimidating and unsupportive partner, who was also reliably critical and disparaging towards her. [The mother] denied physical violence as having been a regular feature of the marriage but she described [the father] as engaging in frequent intimidating, threatening and aggressive behaviours that frightened her and left [the mother] ‘cowering’”. The family violence perpetrated by the father is an integral part of the aetiology of the mother’s PTSD. Whilst the objective risk of physical violence to B when with the father may not be great, the mother’s genuine apprehension about B’s safety is grounded in the mother’s lived experience of the father’s behaviour.

ALLEGATIONS OF PHYSICAL AND SEXUAL ABUSE MADE BY C AGAINST HER FATHER

C has made allegations of physical and then sexual abuse against her father.

Legal principles

In M & M (1988) FLC 91-979, the High Court said at 77,080 – 77,081:
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw(1938) 60 C.L.R. 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. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences."
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child's welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a "risk of serious harm" (A. v. A. (1976) V.R. 298, at p. 300), "an element of risk" or "an appreciable risk" (M and M (1987) FLC 91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), "a real possibility" (B and B [Access] (1986) FLC 91-758, at p. 75,545), a "real risk" (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an "unacceptable risk" (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. 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.

In her interview for Dr E’s updated report in April 2017, B told Dr E that contact with the father would likely be “awkward” due to the length of time that has elapsed since they last spent time together. However, B maintained her desire to see her father saying that “she would prefer this contact to start slowly and in public places … Then over time, as [B] feels more comfortable, she claimed that she would like to spend time at her father’s house, eventually progressing to overnight stays”.
In her updated report dated 27 April 2017 Dr E notes that she spoke to the mother who stated that “[B] feels that she has repeatedly told people what she wants but that ‘no one listens’.” Similarly, B reported frustration and fatigue with the court process and the need to tell “her story again and again to various people” with no change.
Dr E opines in her first report at paragraph [229]:
Whatever happens, [B] is clearly suffering. She has significant anxiety and is experiencing physical health and social relationship problems. To this end, in my opinion, [B] feels stuck between her parents and she is trying to protect her mother from further distress by not “rocking the boat” so to speak and being compliant. I also believe that [B] feels keenly for her sister and she is aware [C] is upset and stressed for some reason to do with their father and this is impacting further on [B] and exacerbating her stress and anxiety.
She opined in her first report, “[B] is an anxious and fragile child and I would expect her mental health to deteriorate if an Order were made contrary to her wishes and any such deterioration would likely have an impact on other domains of her existence, including her school functioning and peer relationships”. However, she says if an order was made for B not to spend time with the father she believes although B would experience “some mild levels of distress, “this would not likely be substantial, persistent or debilitating”.
In her updated report Dr E notes B to describe her anxiety as “the same but in different proportions”. B went on to say:
…although she does not suffer anxiety symptoms as often, her anxiety is very intense when she does experience it. [B] claimed that the triggers to her anxiety are unchanged and associated with being in crowded areas, being in an ‘uncomfortable situation’ or having ‘something important coming up’ … [B] acknowledged that she continues to suffer with panic attacks at times and usually these occur when she is at school … [B] noted that a ‘build up of stress’ will usually be the trigger for a panic attack.
In her updated report, Dr E opined that the distress B experienced from receiving communications from the father through her grandparents was a result of B being “an anxious child, who does not like to feel she is not in control or that things can happen to her that she does not anticipate”.
The mother submits that B’s views are ambivalent, on the one hand expressing a desire to see the father yet becoming anxious when considering extended time with him.
Mr R was asked whether the mother had raised with him B’s wishes in terms of seeing her father. Mr R said that the mother had told him that B had expressed different points of view at different times as to whether she wanted contact with her father.
Dr E opines in her first report that that “[B] describes a somewhat ambivalent relationship with her father and it seems that she seems to go to see him because it is the “right thing” to do and she does not want to make a fuss about it” I accept that there is some ambivalence in B’s position. Dr E writes in her updated report dated 26 April 2017 at paragraph [32]:
[B] claimed that she has experienced difficulties in some teacher relationships of late. Apparently there were recently parent teacher interviews at school and after these, [B] stated that some of her teachers talked to her about her father. She suggested that [the father] must have attended these interviews at some point when he presumably asked some teachers to pass messages to her that he loves her and wants to see her, as several teachers told her this. [B] reported that she suffered with a panic attack after this and she described how her school does not feel like such a safe place for her anymore. Further to this, [B] described how difficult it is for her that teachers at the school need to know so much about her, such as her family situation and both mental and physical health problems and this makes her feel uncomfortable.

Relationships of the children with the parents and other persons (s 60CC(3)(b)) participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))

The mother submits that B’s relationship with the mother and C are material to the question of the time, if any, B should spend with the father.
The father raises concerns that B may feel pressured from the mother and C about spending time with him. He is concerned that the mother is using B’s medical conditions as a response to her time in his care. The mother says, and I accept, that C has only encouraged B in her relationship with the father.
Dr E did not observe B and the father together.
The mother says that C and B have a very close relationship. B described to Dr E a positive relationship with her mother and two sisters.
B has a good relationship with the members of the paternal family and in particularly her paternal grandmother whom she spent time with as recently as January 2017. Dr E also says that B has positive relationships with her maternal grandparents.
The paternal grandmother had a very involved relationship with her grandchildren up until 2012, seeing them at least once a week and on extended holiday periods at the beach house every second year.
The Independent Children's Lawyer asked Dr E about the text messages that had been sent by the paternal grandmother to B and B’s response. It is an agreed fact that on 22 December 2016 the father asked his mother to send a text message to B which contravened orders made on 27 May 2016 for the father not to contact B. Dr E opined that it was better for B to know that her father loves and misses her but that comes with a caveat. She said that as B is quite an anxious child, if messages are coming to her in a way that she can’t predict or anticipate it may trigger her anxiety and she may become distressed as a result. Dr E agreed that due to that, any order in relation to B receiving any communications would need to be specific in terms as to the time and as to medium that messages were sent to her.
The father says that he and C did have a good relationship. The father continued to attend C’s school events in 2016 which he was invited to by the school. The mother says, and I accept, that the father and C have had a “very fraught relationship” and there was been a “lot of antagonism” between them. She says that the father had little patience with her and was unable to cope with her needs. Ms D gives evidence that by the time she left home in 2011, C and the father were no longer speaking. The father denies this assertion. The father says that C’s relationship with him only started to change six to eight weeks before the parties’ separation. The father opines that the reason why his relationship deteriorated with C in the weeks prior to the separation in October 2012 was that the mother had told C early on before the father and B knew that she had planned to leave the father. The father amplified that opinion by giving evidence about an incident with he and C in a motor vehicle during this period where C asked him why he and the mother fought all the time and he told her that mum and dad love each other and he said that C then had a breakdown in the car. The father said that he thought that C was trying to process something he said with what the mother had told her about wanting to leave the father. The mother agreed that she had told C about her intention to separate from the father but said she did so about two weeks beforehand.
At paragraph [305] of his affidavit the father gives evidence that in May 2011 the parents had agreed that he would accompany C on a camp at TT Town. He gives evidence that C requested that the mother stay with her instead of the father as originally planned. The father denied that that change was indicative of the problems in his relationship with C in 2011 saying it was not unusual to swap a parent. I don’t accept the father’s evidence about that. The parents agree they had reached an arrangement in relation to this camp which subsequently did not meet with C’s approval. It is corroborative of the mother’s version that the relationship between C and the father in 2011 was not good and does not corroborate the father’s version that the change in the relationship between C and he only took place in the second place of 2012 prior to the separation.
I accept the evidence in the mother’s case that C’s relationship with her father had significantly broken down well before the parties finally separated.
The father has not spent time with C, except for half an hour on Christmas Eve in 2012, since the parties’ separated.
Dr E noted that C does not refer to her father as “dad” rather calling him by his first name because she claims the word “‘Dad’ has a degree of love and respect associated with it and she does not believe that [the father] deserves this”.
The father says he had a positive relationship with Ms D. The father gave evidence that when Ms D was a teenager she withdrew from him but he felt that she had withdrawn from everyone and it is only more recently that he has discovered that she says that she only withdrew from him. Similarly he said that he has only recently discovered that Ms D moved out of the house aged 17 because of her relationship with him whereas he thought it was because of her gap year.
Ms D gives evidence in her affidavit that her relationship with the father deteriorated after C was born in 2000. She states, “our relationship was distant at the best of times, and toxic at its worst”.
The father was asked whether the extent to the activities he says he participated in with Ms D was exaggerated and he denied that was the case, saying that in 2006 they played squash together and went on a work ski trip together. However, the father conceded that he was unsure whether he and Ms D had only played squash for a period of about a month. The father conceded that there were (what he described as a handful) of heated arguments between him and Ms D but described them as typical teenage daughter/father arguments.

Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))

The father says that he was an active parent prior to the parties’ separation and assisted in the home.
The mother has been the children’s primary parent and attachment figure.

Likely effect of any change in the children’s circumstances (s 60CC(3)(d))

Dr E opines that if an order were made for B’s time with her father to be reduced or to cease, she would experience mild levels of distress although this would not be “substantial, persistent or debilitating”.
Dr E agreed that if B did not spend any time with her father she would be able to recover and deal with it but Dr E said that B may potentially have longer term developmental impacts. Dr E referred to the absence of a male role model in the mother’s household. I am unclear about the closeness of B’s relationship with the maternal grandfather. Dr E referred to B possibly experiencing difficulties in understanding the dynamics between males and females and how to resolve conflict both in intimate and social relationships. She also opined that B would experience problems in developing a sense of identity by not having any contact with her paternal family. Dr E agreed that B living in a household with her mother and C who both have anxiety problems and in a household which seems to have a lot of unhappiness and anxiety would have some sort of impact on B in terms of her world view but she said that potentially B seeing her father who doesn’t appear to suffer from those things may be likely to give her balance in her adolescence.

Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))

The parties live close to one another and this consideration is of no relevance.

The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))

After C was diagnosed with Asperger’s Syndrome the mother enrolled herself in any and every course that she could. She took time of work and researched about Asperger’s and spoke to as many people as she could to understand C’s diagnosis.
During the mother’s period of using alcohol to excess (particularly in 2009) the mother became emotionally unavailable to the children. Ms D said that she was upset by it and felt very uncared for and perhaps the mother’s alcohol use could have contributed to the fact that she didn’t raise things with her mother like the father smacking the children.
At paragraphs [32] and [33] of his affidavit the father says in the latter years of our relationship, the mother appeared to be focused on a number of matters, including being overly focused on a diagnosis or similar for C; prescribing anti-anxiety medication for C; that C may need home schooling and that B may have some further health related matters such as periodic fever syndrome. He says that he also did not agree with the frequency and level of medical intervention for the children, the frequent changing of schools and the repeated application for financial and carer’s support that were made by the mother on behalf of the children. The father agreed that medical intervention for the children was one of the most common triggers for he and the mother to argue whilst they were together.
The father somewhat surprisingly said that he meant by the words “overly focused” the fact that he was uncomfortable how he and the mother went from one professional to another almost looking for something that he didn’t think was as bad as the mother did. C received her ultimate diagnosis of Asperger’s in 2010. The father said that prior to that time in his view C wasn’t “as bad” as the mother thought she was. In the quest for a proper diagnosis of C’s condition, the mother’s sensitivity to C’s problems were considerably superior to that of the father’s.
Dr E saw no evidence, as the father alleges, that the mother is exaggerating B’s health concerns. She also saw no evidence of the mother alienating the children from the father, despite C’s refusal to see him. She says however that the children would be sensitive to the mother’s distress which may have resulted in them becoming aligned with her.
The maternal grandfather comments that he has not heard his daughter speak negatively about the father in her conversations with the children and he has observed that the mother has avoided being drawn into negative conversations by the children about their father.
Dr E concluded in her first report:
[The mother] presents with a sound understanding of the roles and responsibilities of parenthood, she appears to have made decisions in the best interests of her children and she also appears to have a good appreciation of her daughter’s needs and experiences. To this end, in my opinion, [the mother] presents as a stable and committed parent, who seemingly possesses the skills to discharge her responsibilities safely and consistently. The main vulnerability present to my mind is [the mother’s] high levels of distress as a function of the current situation, which, even though she claimed she does not discuss with her daughters, is likely to be having an effect on [C] and [B].
Dr E opines in her report that the father “presents with a reasonable insight into the responsibilities of parenthood, including child protection and his analysis of his children’s needs and his capacity as a parent seem reasonable.”
C was concerned about the level of the father’s drinking and the effect that it had upon him. He denied that he drank to excess during the period of time the parties were living together to levels that would cause C to make observations as she described them. The father accepted that he had a high range PCA conviction subsequent to the separation.
In relation to the mother speaking to the children about the proceedings, Dr E says that the mother has probably told C some information in response to questions but opined that there was no evidence that the mother “has poor boundaries with her children, or that their relationships are enmeshed and therefore, I have some confidence that she is appropriately able to shield her children from inappropriate matters”.
Dr E says that the mother is “the parent better positioned to meet [B’s] emotional and psychological needs. That is not to say that [the father] is not capable of meeting [B’s] needs to this end but in my opinion, [the mother] is better equipped to do this given their shared gender, their attachment to one another, the fact that [the mother] is the primary attachment figure for [B] and given that, in [B’s] opinion, [the mother’s] behaviour has been more consistent and non-problematic”.

The maturity, sex, background and lifestyle of the children and parents (s 60CC(3)(g))

B has experienced a variety of health issues. The mother says at paragraph [66] of her affidavit:
386.1.[B] has had recurrent episodes of at times, severe joint pain. She has had eczema with chronic bouts of staphylococcal infections. [B] has gastro-oesophageal reflux disease. She has a dysfunctional colon. She has chronic angular stomatis which can at times become infected. She has a dust mite allergy and a range of food intolerances. She has experienced many bouts of angioedema. [B] has suffered at times from Periodic Fever, Aphthous stomatitis and adenitis/PFAPA syndrome. This includes joint pain, fevers above 38.5 degrees, mouth ulcers and enlarged lymph nodes that occasionally explode in her intestines (causing acute pain). [B] also had chronic gastritis for a lengthy period, but this has not been an issue for her since April 2016. [B] also has some gynaecological issues.”
The mother says that B’s health appears to be much better in recent times since the time that she stopped spending time with the father. B herself reported to Dr E in the interview for her updated report “that her gastrointestinal health has been much better in the last year or so”.
Dr S is a paediatric gastroenterologist who B has attended upon since 4 May 2011. In a report dated 27 March 2017 he states that B has “remained on treatment for both her chronic reflux and chronic constipation tendency”. He says that she has been referred to a specialist in paediatric allergy and immunology for recurrent skin lesions, bowel symptoms and recurrent unexplained temperature as well as a paediatric rheumatologist.

If the children are Aboriginal or Torres Strait Islander (s 60CC(3)(h))

Not applicable.

Any family violence involving the children or a member of the children’s family and any relevant inferences from a family violence order (s 60CC(3)(j) and (k))

Family violence has been discussed above. No family violence order has been made in this case.

Likelihood of order leading to further proceedings (s 60CC(3)(l))

This is an important consideration. I have discussed the importance of the mother’s parenting capacity for B. Orders should be fashioned which minimise the likelihood of further litigation. The Independent Children's Lawyer, in the alternative, proposes that at this time no order be made. It is pointed out that any order that B not spend any time with her father would be potentially good until B was 18 years of age. Not making any order would leave B free to contact and spend time with the father as she chooses. However, making no order about B spending time with her father is likely to open the door to further disagreements about B’s views, the influence that others are having on B’s views and invite further applications to the court. Some orders should be made, at least for the time being, about whether or not B spends time with her father.

Any other relevant fact or circumstance (s 60CC(3)(m))

Not applicable.

CONCLUSION IN RELATION TO BEST INTERESTS

In relation to the staged proposal by the father and the Independent Children's Lawyer for B’s time with the father, Dr E agreed that starting off by allowing B to see her father for a few hours was an appropriate first step. Dr E opined that B was at an appropriate developmental level to be able to say whether or not she wished to proceed to the next proposed stage.
There are three difficulties with this model of order. Firstly, I have no evidence that Ms H would be prepared to comply with the orders as sought by the father and the Independent Children’s Lawyer. Secondly, there are difficulties in how the therapist would come to reach a conclusion that B was expressing a view that she should be at a particular stage. It may well involve a therapist exercising a judgment call on what weight should be placed on something B has said. Thirdly, there is the possibility of re-litigation if there is an issue as to whether or not the therapist is accurately reporting B’s expressed view, particularly if B is saying something different in her mother’s household to what she is telling her therapist. Alternatively, there is the possibility of re-litigation if B tells her therapist that she does not want to see her father and he seeks orders for further therapeutic intervention. The father was asked what his reaction would be if B told her psychologist that she didn’t want to spend time with him. The father said he would be very surprised and would hope that some sort of therapeutic intervention could happen so they could spend time together.
Dr E made it clear that if she had the therapist’s role under the orders, she wouldn’t have a session primarily aimed at producing a document setting out B’s view but rather she would approach it in a more holistic way and would wait until she was comfortable that B’s views were appropriately formed and not unduly stressed. If she had concerns about B’s wishes, in giving the advice to the parties, Dr E said that she would say B has communicated a desire for a particular arrangement but that the therapist has concerns in relation to a particular aspect of the proposal and would delay putting the next stage of the orders into effect for a couple of sessions to work out and evaluate B’s wishes. This evidence by Dr E demonstrates that the form of order proposed by the father and the Independent Children's Lawyer may become problematic. The more fundamental question is, should an order be made for B to spend time with her father.
The mother is B’s primary carer. An asserted genuine belief of risk by B’s primary carer does not mean that the mother has the ability to “veto” B’s time with her father (Donaghey & Donaghey (2011) 45 Fam LR at [228]).
I have objectively found that there is no unacceptable risk to B if she is with her father in a staged structured regime. But as I have said, that is not the end of the relevance of the allegations of abuse by the father against C. I am comfortably satisfied that the mother, C and Ms D all hold a genuine belief that B is at risk because of what they each genuinely believe has happened in the past. That belief cannot be said to be fanciful given the things that C has written and said and the history of the father’s behaviour whilst the parties were together.
I accept Mr R’s opinion that the mother’s parenting capacity will be catastrophically compromised if an order was made that B spend time with the father. In those circumstances, there is an unacceptable risk that B’s primary carer will become emotionally unavailable to B. B currently has some emotional vulnerabilities. It is very important in my view that B’s primary carer is emotionally available to her. Apart from the obvious detriment to B if the mother’s parenting capacity was significantly compromised, there is the added dimension of B possibly feeling that she could not confide in her mother should anything untoward happen to her at the hands of the father.
I acknowledge the strength of B’s views and the weight that should be placed upon them given her age. Even though there is evidence B would not be devastated by a no time order, the effect of such an order should be explained to B in a controlled professional setting.
Both the mother and father seek that I discharge the final orders that were made on 20 May 2014. I am satisfied that there are significantly changed circumstances since orders were made on that day.
I find that it is in B’s best interest that an order be made that she not spend time nor communicate with her father until her 16^th birthday. This will ensure a period of time in which the mother’s mental health may improve particularly if she engages with professional assistance as she has indicated she will. Once B is 16, she should be free to seek her father out. I will order a mechanism to assist that happening should B wish to do so. It is not necessary for any recognition contact or communication to be ordered in the meantime nor is it necessary to make any orders about what should happen when B turns 16 except to restrain the father from attempting to spend time with B or communicate with B unless B has first extended an invitation to her father to do so.

CONCLUSION ABOUT EQUAL SHARED PARENTAL RESPONSIBILITY

The existence of family violence in this case means that the presumption of equal shared parental responsibility does not apply. There is currently no effective communication between the parents and I find there is no realistic prospect of the parties being able to reach a joint decision about a major long term issue if they held different views. By final submissions all parties accepted that there should be no order for equal shared parental responsibility.
The father abandoned any application for him to be given information about decisions in respect of making long term issues in respect of the children. As earlier indicated, counsel for the mother seemed to agree with that proposition in final submissions and accordingly I shall not make any order that requires the mother to communicate with the father about decisions she makes in respect of issues relating to B.

OTHER PROPOSED ORDERS

It is appropriate to make an order that the mother continue to ensure that B sees her current treating psychologist Ms H for such time or times as Ms H believes is appropriate to assist B, particularly in respect of dealing with any difficulties arising from my decision which is not in accordance with B’s expressed view. Within seven days of these orders, the mother should arrange for B to meet with the Independent Children's Lawyer to enable the Independent Children's Lawyer to explain the orders to B. In the Independent Children's Lawyer’s discretion, the Independent Children's Lawyer may do that in a joint meeting with Ms H and B.
The father and the Independent Children's Lawyer sought orders restraining the mother from discussing the father or any allegations about the father with or in front of B and to take all reasonable steps to prevent C and/or Ms D from discussing the father with or in front of B. The history to date has been that the mother and Ms D have gone to considerable lengths not to know the details of C’s allegations of sexual abuse. Although B told Dr E she knows why C doesn’t see her father. I don’t know exactly what B knows about the allegations. B will be given information about the outcome of these proceedings by the Independent Children's Lawyer and by Ms H. Whilst acknowledging the difficulty in enforcing these orders, there is some virtue in making them so that B’s information about what has happened comes via Ms H. For that purpose, I will make an order that the Independent Children's Lawyer provide Ms H with a copy of these Reasons.
The father and the Independent Children's Lawyer also sought orders for B to be given the opportunity to attend protective behaviour programs. B will be seeing Ms H. The mother will have parental responsibility. It is not necessary to make an order that the mother take all necessary steps to ensure B is given an opportunity to attend protective behaviour programs.
It is appropriate that an order be made as sought by the mother in relation to the father not attending C’s or B’s school.
The Independent Children's Lawyer sought an order that:
The mother shall seek professional assistance to develop strategies to cope with her anxiety around [B] spending time with the father and to understand the impact of her anxiety on the child
The mother opposes that order on the basis that it is a free standing non-conditional order and there is no power to make it (see L v T (1999) FLC 92-875). The order is properly sought as a condition of B spending time with her father. However, given that I am not going to make that order then I agree there is no power for me to make an order that the mother seek professional assistance in the terms sought by the Independent Children's Lawyer and the father.
However, I would endorse the recommendation made by Dr E in both her reports that the mother continue treatment. As I understand it, the mother intends to continue to see Mr R, to assist her with her mental health difficulties and it is obviously in B’s best interests that she do so.

I certify that the preceding four hundred and nine (409) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 18 May 2017

Associate:

Date: 18.5.2017

SCHEDULE 1 – Orders sought at the commencement of the hearing by the father

That all previous parenting orders in respect of the children [C] born … 2000 and [B] born … 2003 be discharged.
The parents have equal shared parental responsibility for the child [B] born … 2003.
The child [B] born … 2003 live with the mother.
The father spend time with the child as follows:
a.For a period of 3 hours from 12 noon to 3pm on each alternate Sunday for a period of 4 weeks, commencing the first Sunday from the date of the Orders; and thereafter
b.For a period of 8 hours from 9am to 5pm on each alternate Sunday for a period of 4 weeks; and thereafter
c.From afterschool Friday to 5pm Saturday for 4 alternate weeks; and thereafter
d.From afterschool Friday to the commencement of school Monday in each alternate weekend;
e.From 3pm to 7pm on the father’s birthday each year;
f.From 3pm to 5:30pm on the child’s birthday each year;
g.From 10am until 4pm Sunday on Father’s Day each year;
h.On Christmas day in accordance with the child’s wishes.
Upon the father spending time in accordance with 4(d) he shall spend time with the child as follows:
(a)for one half of each of the ACT school terms 1, 2 and 3 holidays each year commencing from after school Friday and concluding at 5pm on the middle Sunday of the holiday; AND
(b)for three weeks of the Christmas school holidays each year commencing on 27 December.
Notwithstanding these Orders, the child shall be with the mother:
(a)From 10am until 4pm Sunday on Mother’s Day each year;
(b)From 3pm to 7pm on the mother’s birthday each year;
(c)From 3pm to 7pm on [C’s] birthday each year providing [C] is with the mother at the time;
(d)From 3pm to 7pm on [Ms D’s] birthday each year providing [Ms D] is with the mother at the time.
The father be permitted to contact the child via text, instant messaging, email or by other electronic means at all reasonable times, subject to the child’s wishes.
When changeover of the child does not take place at school changeover shall occur at the …, [Suburb H] Mall.
Neither parent shall take the child to medical or psychological services (save in emergencies) without first notifying the other parent of the details of the proposed service and authorising that service to meet with and provide information to the other party.
The parents shall continue to ensure the child consults with her current treating psychologist ([Ms H]) or such other psychologist as agreed between the parties in writing.
The father be permitted to attend the child’s school for the purposes of parent teacher night and other school based activities that parents would usually attend and that the father permitted to obtain copies of the child’s school report, school photograph’s and other information about the child from the school, such costs to be borne by the father.
The increases in the time the child spends with the father as particularised in these orders shall be subject to the child’s agreeing to each increase as articulated to her psychologist. It is not intended that the child will reduce the time she spends with her father once each stage has commenced.
For the purposes of Order 9, the parents shall provide the child treating psychologist with a copy of these orders and shall request the psychologist to discuss the timing of each increase with the child. The parents shall also ask the psychologist to advise both of them in writing as to whether the child wishes to progress to the next stage at the indicated time. When the parents are advised that the child wishes to progress to the nest stage of time, the parents shall facilitate that occurring.
The mother shall be restrained from discussing any allegations about the father with, or in front of, the child.
The mother shall take all reasonable steps to prevent [C] and/or [Ms D] discussing the allegations about the father with, or in front of, the child.
The mother shall take all steps necessary to ensure [B] is given the opportunity to attend protective behaviours programs.
The mother shall seek professional assistance to develop strategies to cope with her anxiety around [B] spending time with the father and to understand the impact of her anxiety on the child.
The father is restrained from discussing the allegation made by the child [C] or any of these or other court proceedings with [B].
The mother shall arrange for the child to meet with the ICL within 7 days of these Orders to enable the ICL to explain the Orders to the child.

SCHEDULE 2 – Orders sought at the commencement of the hearing by the mother

That the orders made on 20 May 2014 be discharged.
That the mother have sole parental responsibility for the children [B] (born … 2003) (“[B]”) and C (born … 2000) (“[C]”).
That notwithstanding order 2, the mother will keep the father informed of all significant health and education matters.
That [B] and [C] live with their mother.
That the father spend no time with [B] and [C].
That the father be restrained from attending any school attended by [C] or [B] and from participating in activities arranged by the school to which parents may be invited (including parent teacher interviews and meetings about [C’s] individual learning plan).

SCHEDULE 3 – Orders sought at the commencement of the hearing by the Independent Children's Lawyer

The parents shall have equal shared parental responsibility for the child [B] born … 2003.
Neither parent shall take the child to medical or psychological services (save in emergencies) without first notifying the other parent of the details of the proposed service and authorising that service to meet with and provide information to the other party.
The parents shall continue to ensure the child consults with her current treating psychologist ([Ms H])
The increases in the time the child spends with the father as particularised in these orders shall be subject to the child’s agreeing to each increase as articulated to her psychologist. It is not intended that the child will reduce the time she spends with her father once each stage has commenced.
For this purpose, the parents shall provide the psychologist with a copy of these orders and shall request the psychologist to discuss the timing of each increase with the child. The parents shall also ask the psychologist to advise both of them in writing as to whether the child wishes to progress to the next stage at the indicated time. When the parents are advised that the child wishes to progress to the next stage of time, the parents shall facilitate that occurring.
The child shall live with the mother.
The child shall spend gradually increasing time with the father as follows:
a)From 11am until 2pm each second Saturday for 4 Saturdays in public venues
b)Thereafter from 11am until 7pm each second Saturday for 4 Saturdays
c)Thereafter from 11am Saturday until noon on Sunday each second weekend for 4 weekends
d)Thereafter from 5pm Friday until 5pm Sunday each second weekend for 4 weekends;
Once the child has reached the end of the increases in order 7 she shall spend time with the father as follows:
a)from 5pm Friday until 7:30pm Sunday each second weekend;
b)for one half of each of the terms 1, 2, and 3 school holidays each year commencing on the first Saturday after the conclusion of term and concluding in the middle Sunday of the holiday.
c)for three weeks of the Christmas school holidays each year commencing on 27 December.
d)from 3pm to 7pm on the father's birthday each year
e)from 3pm to 5:30pm on the child's birthday each year.
f)from 10am until 4pm Sunday on Father's day each year.
Notwithstanding these Orders, the child shall be with the mother
a)from 10am until 4pm Sunday on Mother's day each year
b)from 3pm to 7pm on the mother's birthday each year
c)from 3pm to 7pm on C's birthday each year providing [C] is with the mother at the time.
d)from 3pm to 7pm on [Ms D's] birthday each year providing [Ms D] is with the mother at the time.
The mother shall be restrained from discussing the father or any allegations about the father with, or in front of, the child.
The mother shall take all reasonable steps to prevent [C] and/or [Ms D] discussing the father with, or in front of, the child.
The mother shall take all steps necessary to ensure [B] is given the opportunity to attend protective behaviours programs.
The mother shall seek professional assistance to develop strategies to cope with her anxiety around [B] spending time with the father and to understand the impact of her anxiety on the child.
The father is restrained from discussing the child [C] or any of these or other Court proceedings with [B].
The mother shall arrange for the child to meet with the ICL within 7 days of these Orders to enable the ICL to explain the Orders to the child.

[2017] FamCA 324

18 May 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies

Procedural Fairness