Larsson & Larsson - [2021] FedCFamC1F 196

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Larsson & Larsson [2021] FedCFamC1F 196

File number(s): BRC 2183 of 2020

Judgment of: CAREW J

Date of judgment: 16 November 2021

Catchwords:
FAMILY LAW – CHILDREN – FAMILY VIOLENCE – where the mother alleges the father perpetrated acts of family violence – Where the father denies allegations – Where limited evidence to substantiate the allegations made by the mother – Where the behaviour and statements attributed to the father do not fall within the definition of family violence save for one incident – Evidence to establish family violence – Onus of proof.

FAMILY LAW – CHILDREN – unacceptable risk of sexual, physical and emotional harm – Where the mother alleges the father poses an unacceptable risk of harm to the children due to allegations of sexual abuse, emotional abuse and exposure to family violence – Where the father denies that he poses any risk of harm to the children – Where it is found the father does not pose an unacceptable risk of harm to the children.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
Amador & Amador 43 FamLR 268

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Briginshaw v Briginshaw (1938) 60 CLR 336

Johnson & Page (2007) FLC 93-344

Jones v Dunkel (1959) 101 CLR 298

M v M (1988) 166 CLR 69

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

Russell & Close [1993] FamCA 62

Saska & Radavich [2016] FamCAFC 179

Number of paragraphs: 164

Date of hearing: 7 – 10 June 2021 and 30 September 2021 – 1 October 2021

Place: Brisbane

Counsel for the Applicant: Mr Shoebridge

Solicitor for the Applicant: Hede Byrne & Hall

Counsel for the Respondent: Ms Cullen from 7 – 10 June 2021;
Dr Sayers from 30 September 2021 – 1 October 2021

Solicitor for the Respondent: Norris Law

Counsel for the Independent Children’s Lawyer:
Mr Taylor

Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland

ORDERS

BRC 2183 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

BETWEEN:
MR LARSSON

Applicant

AND:
MS LARSSON

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

CAREW J

DATE OF ORDER:

16 NOVEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting Orders and Parenting Plans be discharged.
2.The father and the mother are to have equal shared parental responsibility for major long-term issues (as that term is defined in s 4(1) of the Family Law Act 1975 (Cth)) for the children X (born … 2012), Y (born … 2014), and Z (born … 2015).
3.The parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)They shall inform the other parent about the decision to be made;
(b)They shall consult with each other on terms that they agree; and
(c)They shall make a genuine effort to come to a joint decision.

4.Communication between the parents shall be limited to discussions about matters directly related to the welfare of the children and such communication is to be conducted via email or an agreed parenting application only, with each party to be responsible for their own costs in relation to same.

Exchange of Information
5.The mother and father shall:
(a)Keep the other parent informed at all times of their residential address, email address and contact telephone number;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children.

6.By this Order, each parent is authorised to receive, from the children’s medical or allied health professionals, information about the children’s medical or health conditions that parents would usually receive (at the requesting parent’s cost).
7.By this Order, each parent is authorised to receive, from the children’s schools, information about the children’s educational progress and other school related activities that parents would usually receive and to receive copies of school reports, photographs, certificates and awards obtained by the children (at the requesting parent’s cost).
8.During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully;
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

Time with the parents
9.The children are to live with the mother at all such times as they are not spending time with the father.
10.The children are to spend time with the father at all such times as may be agreed but failing agreement:
(a)For the first three months, such time is to be:
(i)Each fortnight for four hours, and for that purpose;
(ii)Supervised by Mr C (or an alternative supervisor as agreed between the parents and failing agreement as nominated by the mother);
(iii)Spent on each alternate Sunday commencing at 12.00pm; and
(iv)Held at Location D in E Town or such other location as nominated by the supervisor after consultation with the parents;

(b)For the following six months, such time is to be:
(i)Each alternate Sunday from 9.00am to 4.00pm;
(ii)Unsupervised; and
(iii)At a location and time to be agreed and failing agreement as advised by the mother upon the giving of 14 days' notice to the father.

(c)Thereafter, such time is to be:
(i)Each alternate weekend (during school term) from after school on Friday until before school on Tuesday; and
(ii)For one half of school holidays being the first half of the Autumn, Winter, Spring and Summer school holidays in even numbered years and the second half of the Autumn, Winter, Spring and Summer school holidays in odd numbered years.

11.For the purpose of this Order, the school holiday time shall commence:
(a)When a parent’s time falls in the first half of the holidays from after school on the day the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays;
(b)When a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays when contact shall end at 9:00am on the day the school term commences; and
(c)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9.00am on the day the children return to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the father shall retain the additional night.

12.Notwithstanding any previous provision in this Order, the children shall spend time with their parents on special occasions as follows:
(a)For Christmas Day:
(i)From 5.00pm Christmas Eve until 2.00pm Christmas Day in even numbered years with their father and in odd numbered years with their mother; and
(ii)From 2.00pm Christmas Day until 5.00pm Boxing Day in odd numbered years with their father and in even numbered years with their mother;

(b)On the birthday of each child (with the parent they are not living with on the day) (including both children):
(i)If a school day, from after school until 6.00pm;
(ii)If a non-school day, from 1.00pm until 6.00pm;

with that parent to be responsible to collect and return the children;
(c)With their father on Father’s Day (if the children are not otherwise with the father) from 9.00am until 5.00pm with the father to be responsible to collect and return the children; and
(d)With their mother on Mother’s Day (if the children are not otherwise with the mother) from 9.00am until 5.00pm with the mother to be responsible to collect and return the children.

13.Each parent shall be at liberty to communicate with the children by telephone at all such times as may be agreed but failing agreement between 5.00pm and 6.00pm on Wednesdays and in relation to such communication the parent with the care of the children at those times shall:
(a)Ensure that the children are available to receive the telephone call;
(b)Arrange for the children to telephone the other parent on the following night if, for any unforeseen circumstance, the children miss the telephone call from that parent; and
(c)Ensure that the children have privacy during the conversation.

Collection and delivery
14.Unless otherwise agreed, during school term the father or his nominee shall collect the children from school at the commencement of the time they are to spend with him and return them to school at the conclusion of the time they are to spend with him.
15.If the children are not attending school:
(a)The father or his nominee shall collect the children from the mother or her nominee at the commencement of his time with the children at McDonald’s E Town; and
(b)The mother or her nominee shall collect the children from the father or his nominee at the conclusion of his time with the children at McDonald’s E Town.

General matters
16.Each parent shall advise the other of any medication the children are to take while the children are in the other's care (including the dosage) as well as any special dietary requirements that apply to the children.
17.The parents shall (when the children are in their care):
(a)Administer any prescribed medication in accordance with the prescribing doctor's instructions;
(b)Use their best endeavours to ensure the children's homework and projects are completed in a timely manner;
(c)Use their best endeavours to ensure that the children are able to attend their extracurricular activities.

Travel out of the Country
18.When the children are spending time with a parent during school holidays, that parent shall be at liberty, during their school holiday time, to take the children to any country which is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction and which is listed as a safe destination by the Department of Foreign Affairs and Trade and in relation to same:
(a)The travelling parent shall provide the other parent with a copy of their itinerary for the trip including but not limited to departure and return times and dates, a contact telephone number for the travelling parent and the children and the address at which they will predominantly be based (provided that they will not be required to provide details of every address at which the children will stay) at least 28 days prior to scheduled departure;
(b)Upon receipt of same the other parent shall forthwith release to the travelling parent the passports for the children;
(c)The travelling parent shall then provide to the other parent a copy of the return air tickets for the children;
(d)During the trip the travelling parent shall arrange for the children to telephone the other parent on at least one occasion in each week.

19.The process to be used for resolving future disputes about the children or the terms or operation of this Order shall be as follows:
(a)The parents are to agree on who is to be appointed as Family Dispute Resolution Practitioner;
(b)The parents shall consult with the Family Dispute Resolution Practitioner at the Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children;
(c)They shall pay the costs of the Family Dispute Resolution Practitioner equally;
(d)In the event that they are unable to for any reason to agree on an the Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability;
(e)The father shall choose one of the listed practitioners within seven (7) days of receipt of the list; and
(f)If the father fails to choose then the mother may choose.

20.In the event that either parent attends upon a counsellor or therapist they have liberty to provide a copy of the Reasons for Judgment dated 16 November 2021 to their treating counsellor or therapist.
21.Pursuant to ss65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order creates and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in this Order.

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

Larsson & Larsson

REASONS FOR JUDGMENT
CAREW J:

Mr Larsson (“the father”) and Ms Larsson (“the mother”) have three children together and are unable to agree on whether or not they should spend any time with the father, in circumstances where the mother alleges a history of sexual and emotional abuse of the children by the father and family violence. The father denies the allegations. The children have not seen the father since January 2019, apart from an occasion on 14 July 2021 when he and the children were observed together during the preparation of a family report.
Unfortunately, on day four of the trial, the mother’s lawyers’ instructions were withdrawn. The trial was adjourned part-heard to 30 September 2021 and concluded on 1 October 2021.
For the reasons which follow, I find that the father does not pose an unacceptable risk of harm to the children. Nevertheless, in order to provide the best possible chance of the children’s relationship with the father being successfully re-established, I propose to order that the father’s time with the children be supervised for a period of three months before graduating to unsupervised daytime for a further six months before extending to alternate weekends, Friday to Tuesday. Further, in light of the parent’s joint position (in the absence of a finding of unacceptable risk) that there should be an order for equal shared parental responsibility, I propose to accede to that request, as I am satisfied that such an order is in the children’s best interests in the circumstances of this case.
PROPOSALS OF THE PARTIES
The father proposes that he commence to spend gradually increasing unsupervised time with the children before moving to equal time after the expiration of 36 weeks. The father further proposes that the parents have equal shared parental responsibility for major long-term issues. The precise terms of the order sought by the father are set out in his Amended Initiating Application filed 10 May 2021.
The mother proposes that the children live with her and spend no time with the father but that the father be at liberty to send cards, letters and/or gifts to the children. The precise terms of the order sought by the mother are set out in the Amended Response filed 18 May 2021 including the further amendment to paragraph 10 for which leave was granted during the trial.
The Independent Children’s Lawyer (“ICL”) recommends that the children live with the mother and spend no time with the father given the length of time for which supervision would be required. The ICL supports the father being able to communicate with the children by sending cards, letters and/or gifts to the children.
ISSUES
With the assistance of the parties, significant issues for determination were identified on 14 January 2021 when the matter was set down for trial. During the first part of the trial, certain ambiguities arose in the mother’s case as to what issues required determination. By the end of the trial an amended list of issues was tendered by consent.[1] According to that list, the significant issues requiring determination were as follows:
(1)Has the father perpetrated acts of family violence? (on a very limited basis)
(2)Has the father emotionally abused Y and X?
(3)Does the father pose as an unacceptable risk of harm to the children by reason of alleged sexual abuse, emotional abuse and/or exposure to family violence of the children?
(4)If the father poses an unacceptable risk, can that risk be ameliorated by supervision?
(5)If the father does not pose as an unacceptable risk of harm, what time should the children spend with the father and should there be therapeutic counselling prior to the recommencement of time in order to rebuild the relationships?
(6)Does the mother have the capacity to promote the relationship between the children and the father?
(7)Is the mother engaging in conduct calculated to undermine the children’s relationship with the father?
(8)What is the likely impact on the children if they have no contact or communication with the father?
[1] See: Exhibit 12.
In light of the concessions made during submissions about issues numbered (6) and (7) I do not propose to separately consider them. Suffice it to say, the father accepts that the mother “really is genuinely capable of and willing to promote the relationship between the children and their father”. The father further concedes that “this is not a mother who has set out to act maliciously or viciously” but “by stint of her own experiences in life, finds herself with genuinely held concerns – mistaken concerns, on the father’s case, but genuinely held”.
Accordingly, I will determine issues numbered (1)–(5) and (8) and then consider what parenting order is proper in the circumstances.
Despite the father’s concessions in relation to the mother’s genuinely held belief, the mother did not argue a Russell & Close[2] type argument i.e. that despite a finding of no unacceptable risk, the mother’s parenting capacity would be adversely affected if the children were to spend time with the father.
[2] [1993] FamCA 62.
Before considering each of the identified issues it will be helpful to set out some background to the dispute and the legal principles which apply to all parenting cases.
BACKGROUND
The father and mother commenced cohabitation sometime between 2011 and 2013, married in 2017 and separated on 20 January 2019 when the father returned home to find the mother, children and their possessions gone.
The three children who are the subject of these proceedings are aged 8, 7 and 6. X (“X”) was born in 2012, Y (“Y”) was born in 2014 and Z (“Z”) was born in 2015 (“the children”). The mother was twenty-two weeks pregnant with the parent’s fourth child when she underwent a termination on medical advice in 2016. The child was named B.

The children currently attend E Town School after transferring from H School in September of 2020. The children are doing reasonably well at school.
The mother has two other children, G aged 17 and K aged 15. Until recently both boys lived with the mother. G now lives with his father. K continues to live with the mother.
The father was born in 1981 and is currently 39 years of age. The father is currently working in northern Western Australia. The father was born in New Zealand and moved to Australia in February of 2011, shortly prior to meeting the mother. Throughout most of the relationship, the father was employed in transport which involved being away from home for up to nine weeks at a time. The financial circumstances of the family (two adults and five children) were often stretched and on occasions when the father obtained local work it was insufficient to provide for the financial needs of the family. At the time the parties separated, the father’s employment required him to work a two week on and two week off roster. The father contends that when he was at home, he had “completely uninterrupted time with the children” and he would attend to school pickups and drop offs and would play with the children. It is common ground that the father’s significant absences from the family and then his return, proved challenging at times for members of the family.
Since separation, the father has returned to New Zealand on two occasions. The first being in April 2019 when he spent an initial three weeks visiting family and then returned to Australia briefly in mid-May 2019. The father returned to New Zealand in late May 2019 where he stayed until 2 July 2020 (except for one week when he returned to Australia to finalise the property proceedings). The father contends that he returned to New Zealand because he suffered a psychological breakdown. During his time in New Zealand, the father contends he was struggling to process the grief associated with the loss of their fourth child in 2016, together with the breakdown of his relationship with the mother and not being able to see the children. Whilst in New Zealand the father sought counselling and received support from his family. The father currently lives in J Town, Queensland but is intending to relocate to the same town as the children.
The mother was born in 1980 and is 41 years of age. The mother is currently employed as an allied health worker. Sometime after separation the mother moved with the children from the former matrimonial home in J Town to a neighbouring town of E Town where they currently live on a five acre property which adjoins the maternal grandparents’ property. The mother has a self-reported history of sexual assault as a teenager and her sister was sexually abused as a child by a neighbour. The mother has taken medication to treat ongoing anxiety for about 15 years.
The father has not spent any time with the children since January 2019, except for one occasion in July this year when he was observed with the children for the purposes of an addendum to a family report. When the father travelled to New Zealand for his first visit after separation, he communicated frequently with the children via telephone and Skype until approximately late May 2019. The mother thereafter stopped all communication between the father and the children. No explanation was provided to the children. The father’s frequent messages of love and affection to the children, after May 2019, sent via the mother, were not passed on to the children.
Commencing in February 2019 Y made statements to the mother which caused the mother to report her concerns about possible sexual abuse of the child by the father to child protection authorities. The mother also contends that the father emotionally abused the children and exposed them to family violence prior to the parent’s separation.
The father denies any inappropriate conduct towards any of the children and denies that he perpetrated family violence. The father does admit throwing an iPad at a wall on one occasion out of a sense of frustration when the mother was in another room.
When the father was observed with the children on 14 July 2021 they were all extremely happy to see him. Ms L, the family report writer, noted the spontaneous affection shown by the children to the father and opined that the father “behaved in a sensitive, affectionate, caring manner with the girls”.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant sections of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]
[3] Family Law Act 1975 (Cth), s 65D (“the Act”).
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in ss 60B(1) and (2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child and any other fact or circumstance considered relevant (s 60CC).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act which provides as follows:
Definition of family violence etc.
(1)For the purposes of this Act, family violencemeans violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member[4]), or causes the family member to be fearful.
[4] As defined in the Act (n 3), ss 4(1AB) and 4(1AC).
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)       an assault; or
(b)       a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)      repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposedto family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(Emphasis in original)
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities[5] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[6] and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[7] Where it is not possible to positively reject an allegation as groundless the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[8] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[9] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[10]
[5] Evidence Act 1995 (Cth), s 140.
[6] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[7] Ibid.
[8] M v M (n 6) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[9] Johnson & Page (2007) FLC 93-344 at 81,890 – 81,891, [68].
[10] Ibid at 81,891, [71].
The Full Court of the Family Court of Australia (“the Full Court”) recently reviewed the role of the court in assessing risk in Bant & Clayton[11] and said from [38]:
[11] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
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. … 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.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[12] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[12] (n 11).
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of Part VII, I have considered all sections as required when making my determination.[13]
[13] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
HAS THE FATHER PERPETRATED ACTS OF FAMILY VIOLENCE?
The focus of this first issue relates to allegations that the father perpetrated acts of family violence on the mother.
It is important to observe that family violence is a scourge of our society that potentially can have long lasting detrimental effects, not only on the direct victim, but also on the children who are exposed to it. There is simply no excuse for a person to perpetrate family violence against their partner or child, but not all findings against a person will result in a denial of or even limitations on the child’s right to know and be cared for by that parent, and not every allegation of family violence necessarily requires determination.
The paramount issue for the Court, is to determine what parenting order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive determination”^[14] on each and every factual dispute.[15] The more serious the allegation of family violence, the more likely it will be that a finding of fact will be required and the more likely it will be that the risk to the child from that person will be found to be unacceptable.
[14] M v M (n 6) at 76.
[15] Baghti & Baghtiand Ors [2015] FamCAFC 71.
Family violence is defined by the Act (see [30] above). The first element of the definition is directed to behaviour, and the second element is directed to the impact of the behaviour on the victim. As with any asserted fact, a person alleging family violence must satisfy the evidentiary burden of proving those facts on the balance of probabilities.[16]The facts that must be proven are that the perpetrator has engaged in behaviour that is “violent, threating or other behaviour” that “coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful”. The term ‘family member’ is also defined in the Act.[17] The descriptors of the impact on the victim are to be read disjunctively; not conjunctively[18] i.e. the victim will need establish that he/she was coerced or controlled or fearful.
[16] Evidence Act 1995 (Cth), s 140; see also: Amador & Amador 43 FamLR 268, at [90]-[96] (May, Coleman & Le Poer Trench JJ) (“Amador”).
[17] The Act (n 3), ss 4(1AB) and 4(1AC).
[18] Saska & Radavich [2016] FamCAFC 179 at [67] (Bryant CJ).
Unfortunately, it is too often the case, that persons alleging family violence make factual assertions in very general terms without supporting those assertions with any or any sufficient evidentiary basis. This is not to be confused with an inability to produce corroboration.[19] Family violence most often occurs in circumstances where there are no witnesses and depends upon findings made on the basis of competing evidence from the two people involved. It is trite to say that evidence from a victim alone is evidence upon which a finding of family violence may be made. The importance of providing an evidentiary basis not only enables a court to more readily make findings of fact, where required, but also gives the alleged perpetrator a proper opportunity to respond with particularity to the allegations, including calling witnesses who may contradict evidence given by the alleged victim.
[19] Amador (n 16), at [78] – [86].

An allegation of family violence that falls on the less serious end of offending behaviour may not require the Court to make findings in order to determine the paramount issue. That is because, it may be accepted, that even if an adverse finding were made, the benefit to the child of living with or spending time with that person is not outweighed by the need to protect the child from harm from that person. The Court must nevertheless be mindful of not exposing a person to an unacceptable risk of family violence and to ensure that any order includes any reasonable safeguards.
Where it is contended that allegations of family violence will have an impact on what parenting order is in the child’s best interests i.e. the paramount issue, the alleged victim should provide all evidence relevant to the particular incident/s. By way of example:
(a)The date and time of an alleged incident if known;
(b)Any significant event that was proximate to the alleged incident e.g. it may have occurred after a memorable event;
(c)Any distinguishing event that occurred on the day e.g. a particular weather event;
(d)A description of the precise place where the incident occurred e.g. the main bedroom of the house in which the parties were then living;
(e)Any relevant conversation that occurred between the parties and setting out verbatim the actual words or words to the effect used by each party;
(f)A clear and precise description of the behaviour alleged against the perpetrator;
(g)A clear and precise description of the effect of the behaviour on the alleged victim;
(h)A clear and precise description of any injuries sustained by the victim;
(i)A statement of any actions, taken by the alleged victim after the alleged incident e.g. attendance upon a medical practitioner, and if not, why not;
(j)Any witnesses to the alleged incident or the aftermath; and
(k)Any document that may corroborate the allegation or a significant fact relevant to the allegation e.g. medical records.
The failure to call a witness (whether a willing witness or by subpoena) or to tender a document, may result in an adverse finding i.e. that had the witness been called or the document tendered the evidence would not have assisted that party.[20]
[20] Jones v Dunkel (1959) 101 CLR 298.
Where allegations of family violence are unlikely to result in a denial of or limitations on the child’s rights to live with or spend time with a parent, but may nevertheless preclude the parents from making joint decisions about major long-term issues affecting the child, the evidentiary onus to displace the presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility, is arguably less onerous than the ordinary civil standard. In those circumstances the Court need only be satisfied that “there are reasonable grounds to believe that a parent of the child has engaged in … family violence”. If that finding is made, the presumption does not apply. Even where the presumption applies, it may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility.
When the current case was set down for trial, the significant issues requiring determination at trial were identified by the parties as follows:
(1)Has the father perpetrated acts of child sexual abuse and/or emotional abuse and/or exposed the children to family violence?
(2)Does the father pose an unacceptable risk of harm to the children by reason of the allegations of sexual abuse and/or emotional abuse and/or family violence?
(3)If the father poses an unacceptable risk, can that risk be ameliorated?
(4)If the father does not pose as an unacceptable risk of harm, what time should the children spend with the father and should they attend counselling prior to the recommencement of time?
(5)Does the mother have the capacity to promote the relationship between the children and father?
On the first day of trial the mother’s then counsel informed the Court that the mother was seeking a positive finding that the father had perpetrated acts of family violence on the mother, including sexual assault, during the relationship. Counsel for the father did not object to the change in the case suggesting that he was able to “glean” the change from some of the “conclusions contained in the mother’s evidence” and that it would not affect the way he would run the case on behalf of his client.
In the mother’s trial affidavit there is one indirect reference to her allegation of sexual assault where she refers to the father forcing her to be “intimate” when she clearly said “no” but eventually giving into him “until he had finished”. Perhaps understandably, given the limited nature of the mother’s evidence in chief, counsel for the mother asked very few questions of the father during cross-examination about the allegation of sexual assault. The questions related to one occasion and the father agreed that on that occasion he and the mother “were about to have sex and the mother said no”. The father was then asked to accept that after the mother said “no” he put his finger “inside of her again”. The father did not agree with that proposition. The father agreed that he and the mother argued and that he told the mother to call her parents and ask them “if it’s normal, the lack of sex in our relationship and the arguments and fights we have over it”. The father was further asked if he overheard the mother tell her father that he “had put his finger inside of her after she said no” and the father said he did not. He agreed however that the mother said something like that. He said that both he and the mother were crying. The father agreed that the mother had said to him that she “felt that [he] had put [his] finger in her after she had told [him] to stop”.
During the mother’s cross-examination by counsel for the ICL, some further particulars of the alleged sexual assault were elicited from the mother which had not been put to the father. On the third day of the trial the mother’s counsel informed the Court that the mother was no longer seeking a finding that the father had sexually assaulted her. The mother’s counsel and solicitor were subsequently granted leave to withdraw after the mother withdrew her instructions. On what was to be the fourth day of the trial, the proceedings were adjourned part-heard.
At the recommencement of the part-heard trial, the mother’s new counsel informed the Court that the findings the mother sought in relation to acts of family violence perpetrated against her were limited to the following three facts:
(a)The father verbally abused the mother;
(b)The father threw an iPad during an argument with her and it hit a wall; and
(c)The father will not respect boundaries and/or will manipulate situations as a reason to continue involvement in her life.
It was submitted by the mother’s counsel that the family violence allegations were not relied upon by the mother to limit the father’s time with the children. Further, that the allegations of family violence do not inform the assessment of risk, but rather support a submission that the parents do not have the capacity to make joint decisions about parenting issues. In particular, while the allegations of sexual assault of the mother were not withdrawn, the mother “does not rely on this evidence to establish that the father engaged in family violence during the relationship”. It was nevertheless submitted on behalf of the mother, that she relies on this evidence “as relevant to her state of mind, her understanding of the power and dynamics of their relationship and, if her evidence is accepted, is relevant to the reasonableness/efficacy of ordering shared parental responsibility”. During oral submissions, counsel for the mother further clarified the mother’s position which I summarise as follows:
(a)The relevance of the mother’s evidence as to sexual assault informs two questions only: the capacity of the parents to make joint parenting decisions and the mother’s capacity to promote the children’s relationship with the father;
(b)Findings that the mother is accurately describing the incident/s are not sought;
(c)It is accepted that on the state of the evidence it would be “extremely difficult” for the Court to make a finding on the balance of probabilities that the incidents occurred;
(d)The Court is asked only to accept that her evidence represents her “genuine memory” and “perception … of the intense intimate sexual relationship she had with the father”; and
(e)If so found, it will inform the “reasonableness of imposing either parental responsibility as shared on her, or imposing on her an obligation to present these children for changeovers at all, let alone for unsupervised time”.
Given the limited reliance placed upon the sexual assault allegations I do not propose to consider them in detail. Neither parent nor the ICL contends that this is a case where findings on that issue should be made, one way or the other. I also note that despite the submissions made on behalf of the mother (at [55(e)] above), the mother proposes (in the event the father is not found to pose an unacceptable risk to the children), that the parents have equal shared parental responsibility.
Turning then to consider the evidence relied upon by the mother to support her allegation of verbal abuse. It is as follows:
(a)When the mother was showering, the father made a comment with reference to her pubic hair saying – “Are you going to plait that?”;
(b)The father would refer to the mother as “my wife” when he was talking to the girls and tell them what to say to her;
(c)The father did not listen to the mother when she talked to him and regularly interrupted her and changed the subject to something that related back to him; and
(d)The father said to the children that the mother was talking gibberish again when she was trying to teach herself Spanish.
In relation to the particulars of verbal abuse relied upon by the mother, the father denies verbally abusing the mother and provides a reasonable context for comments made as alleged e.g. his comment about the mother’s pubic hair was a joke and one the mother laughed about at the time. The father was not challenged about the context of his comments or behaviour.
In relation to the iPad incident: on an unidentified date during the relationship, it is common ground that the mother and father had an argument late one evening over the mother’s refusal to assist the father to complete an online induction for his employment on the mother’s iPad. The mother went to bed and the father was in the lounge room. The father became frustrated when attempting to complete the induction and concedes he was swearing. He does not recall yelling, but I accept the mother’s evidence that he was yelling. The father threw the mother’s iPad against the wall causing a hole in the wall. The father concedes that the mother would have been lying in bed on the other side of the wall.
The evidence relied upon by the mother in relation to the father not respecting boundaries and/or manipulating situations to continue involvement in her life is as follows:
(a)On 21 April 2020 an order was made that the father was at liberty to send cards, letters, and/or gifts to the children and the mother was to pass them on;
(b)On 7 August 2020 a further order was made (by consent) providing that “the children shall have no contact or communicate with the father other than” by way of the cards, letters, and/or gifts that the father was at liberty to send pursuant to the earlier order;
(c)During the period 28 October 2020 and 16 November 2020 there were 21 text messages from the father to the mother to pass onto the children;
(d)During the period 10 August 2020 to 16 November 2020 the father sent 124 Facebook messages to the mother to pass onto the children;
(e)On 17 November 2020 the mother through her solicitors requested the father to stop sending the messages (the letter states that the mother had already made it clear to the father that he was “not welcome to contact her”);
(f)In late 2020 the father sent a text message to G requesting that he wish X a happy birthday from him and to tell her that he loves her;
(g)On 29 March 2021 the mother received a message from the father via WhatsApp to pass onto the girls;
(h)When challenged about this during cross-examination, the father said “Well, there were no orders stopping me from doing that. I was allowed to send letters the orders said”; and
(i)The father’s single attendance at the children’s day care centre which was also the mother’s place of work, which resulted in the lockdown of the centre and the attendance of police.
The mother contends that the father’s messages were in breach of the order made on 7 August 2020 or at least the spirit of the order. The mother does not contend that any of the messages were abusive. To the contrary, they were brief expressions of love and salutation directed to the children (e.g. Good night, girls. I love you), in circumstances where the father was not spending any time with the children. When the mother formally complained about the messaging in the letter from her solicitor dated 17 November 2020 the messaging ceased save for two further messages as identified above. I also note that on the face of the copies of the messages in evidence, the mother appears to have had the option to “block” the father from messaging her (see Exhibit 11).
Prior to his attendance at the children’s day care the father was informed by police that there was nothing preventing him from going there. The paternal grandmother accompanied him. The attendance by the father, on this one occasion, was unwise but when asked to leave by police, he did so. Neither the father nor his mother engaged in any abusive or threatening behaviour.
Conclusion on family violence in relation to the mother
I find that the incident culminating in the father throwing the mother’s iPad was an act of family violence that involved damage to property and caused the mother to be fearful. I am not otherwise persuaded that the behaviour and statements attributed to the father fall within the definition of family violence.
HAS THE FATHER EMOTIONALLY ABUSED Y AND X?
The nature of the alleged emotional abuse is said to involve the father playing favourites i.e. giving preferential treatment and attention to Y over X. Secondly, that the father often caused the children pain in the guise of play and laughed when they cried. The mother provides two particulars. The first is that the father “regularly” dropped X on her bed causing her to bite her tongue and then laughed at her. The second is that on one occasion on approximately 12 January 2019, Z was sitting on the father’s leg when the father “deliberately” jerked his leg causing the child to fall off and land on her head. The father then blamed Z for not holding on. The mother contends that the father regularly “gas lighted” the girls into believing they were responsible for his “mistreatment” of them. Thirdly, that the father regularly called the girls derogatory names such as “stink-rat”, “weirdo” or “MY daughters” and rarely used their names. The mother contends that she, and the girls, were in a “constant state of cognitive dissonance and confusion”.
It is submitted on behalf of the mother that “some credence” for the mother’s allegations is to be found in Ms L’s assessment of X as quite insecure and Y’s comments to Ms L in October 2020 that “Us three little girls don’t really care about Dadda, he didn’t like any of us. He wasn’t nice to us girls”.
The father denies emotionally abusing the children whom he describes as being “everything” to him. He nevertheless acknowledges that there were times, particularly after the untimely death of B, that he may not have been as emotionally available to the children as he should have been. The father’s responsibility for meeting the majority of the financial needs of the family also required significant absences from home and when at home, he contends he tried to make up for lost time. The father deposes to having addressed a number of his emotional vulnerabilities while living in New Zealand and expresses an intention to undertake parenting courses when his employment permits.
Ms L opines that on the day of the interviews on 15 October 2020 – “X stood out as quite insecure, as she did not seem to recognise or fully express her own feelings and distress, and instead quickly minimising her feelings and giggled nervously … also appeared very quick to trust and bond with the writer”. While Ms L speculates that X’s presentation may be the result of “emotionally harmful parenting”, and expresses understandable concern if the father favoured Y and “exhibited a lack of interest, insensitivity or cruelty towards X”, she readily acknowledges that there could be “a range of possible explanations for X’s somewhat vulnerable presentation, including insecurity resulting from parental attention being drawn away from her and towards younger siblings twice during X’s early years, a reaction to her parents’ separation or the absence of her father, or a particularly sensitive or anxious disposition”. Ms L further acknowledges that the father’s alleged behaviour “could be entirely related to relationship issues with [the mother], and his parenting could improve dramatically once in a position to focus solely on the children”. Ms L opines that the father would benefit from receiving “psycho-education about the importance of emotional availability and responsiveness to children, as well as building self-esteem and communication strategies, and maintaining routines, particularly around school-work”.
During cross-examination the mother conceded that she did not think the father set out to hurt X when he dropped her on the bed, but maintained she did not think it was “appropriate to hold a child responsible when you hurt them”.
I accept the father’s evidence that he had pet names for the children such as “Y”, “chicken nugget burger” and “Ms X” and that he called them “stink rat” at times when they passed wind in his presence. The various names he or the girls came up with was simply part of his playful interaction with the children. I note that in one of the recordings (7 June 2019) the mother tells one of the children she “stinks” (in a playful way). The mother also used nicknames for the children rather than their real names at times e.g. the mother called Y by her nickname “Y” and X by her nickname “X”.
It certainly appears that at least from the mother’s perspective, this was an unhappy marriage. The father was away for extended periods of up to 10 weeks at a time but generally six weeks and then home for 12 days. It is very apparent that his return caused problems from the mother’s perspective. She accuses him of deliberately “sabotaging” her routines with the girls e.g. giving the children an ice cream at 7.30pm when that was their bedtime. While I have no doubt the mother was unhappy (and perhaps justifiably so), her propensity to project her own feelings to the children is replete in her evidence e.g. she accuses the father of emotionally abusing the children in order to hurt her and treating X the same way he treated her.
The fact is these parents had very different parenting styles. The father is a self-described “farm boy” used to roughing it. He encouraged the girls to think of themselves as “farm girls” and to do things such as urinate outside. The mother took exception to this, and to many other practices encouraged or permitted by the father e.g. letting the children sip from the rim of his rum and coke can. The father was very relaxed about nudity in the house while the mother was not. The mere thought of the father and a child showering together was described by her as “disgusting”. The mother perceived the father’s involvement in household matters to be an interference. The mother contends that the children acted very insecurely when the father returned home e.g. Y would sit behind the couch and say that no one liked her and the girls fought often and X was very anxious. The father’s perception was that he maximised his time with the children when he was home and that they fought for his attention. The following description by the mother demonstrates how perceptions differ:
There was always a sense of unexpectedness when [the father] was home. Bed times were non-existent, school was not a priority as [the father] made himself the priority and the centre of everything and everyone.
The fact is, the mother and father had very different standards and routines and this caused friction from time to time.

I am not persuaded that the father emotionally abused Y and/or X. I specifically reject the allegation that the father deliberately set out to hurt the children. I accept his evidence that the children are “everything” to him. In my view, the mother’s perceptions of the father interfering and emotionally harming the children must be considered in the context of numerous factors including the following:
(a)A very difficult employment roster for the father which I have no doubt disrupted the family’s routines and emotions;
(b)An unhappy mother feeling ignored and overborne;
(c)An at times insensitive father who was unable to read cues;
(d)The loss of their fourth child in a late stage termination;
(e)Children seeking attention from a substantially absent father; and
(f)Very different parenting styles.
DOES THE FATHER POSE AS AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REASON OF ALLEGED SEXUAL ABUSE, EMOTIONAL ABUSE AND/OR EXPOSURE TO FAMILY VIOLENCE OF THE CHILDREN?
The allegations relating to emotional abuse and family violence have already been considered. The mother does not raise separate allegations under this issue. The mother nevertheless contends that “the same evidence is capable, on a qualitative assessment in the context of assessing risk, of grounding a finding of unacceptable risk of family violence/emotional abuse”.
Although I have found that the father perpetrated family violence on one occasion I am not persuaded that this finding and the evidence relied upon by the mother in relation to family violence generally, supports a finding of future risk of emotional abuse or family violence to the children. In my view, the behaviour of the father about which criticism is made by the mother was situational i.e. arising in the context of a difficult marital and post separation relationship. The father would nevertheless be well advised to undertake professional assistance, as suggested by Ms L, to improve his parenting ability.
Turning then to consider the allegations involving sexual abuse. Sexual abuse of children is a heinous crime but one that can be very difficult to prove particularly when the child concerned is very young. The fact that criminal charges are not brought against an alleged perpetrator does not resolve the broader question for this Court i.e. is there a risk of future sexual abuse and is the risk unacceptable? When assessing the magnitude of any risk, the Court will have regard to the whole of the evidence relevant to such a finding. When making, what can often be a difficult assessment, the Court is acutely conscious of the possible consequences of coming to the wrong conclusion i.e. a child may be exposed to abuse or on the other hand a child’s right to know and be loved by a parent may be denied.
Understandably, having regard to the standard of proof required to establish a positive finding that abuse has occurred, the mother does not seek such a finding. Rather, she contends that the evidence relied upon by her supports a finding that the father poses an unacceptable risk of sexual abuse in the future.
It is argued on behalf of the mother, that there are three “patterns” to the evidence which would cause the Court to find that the father poses an unacceptable risk of sexual harm to the children. The first “pattern” is that the disclosures made by the children always reference “private parts” and “hurt”. It is further submitted that the mother’s observations of sexualised behaviour in the children lend weight to the magnitude of risk. The second “pattern” is that it is always the father who is the alleged perpetrator. The third “possible pattern” is that the children consistently state that the incidents occur when the mother is out and that this combined with the father’s “boundaries issues” lend weight to the submission that the risk is unacceptable. In relation to the “boundaries issues”, these are said to be demonstrated by the father’s view that he considered (in the abstract) that it was acceptable to shower with pre-school age children even though he knew the mother found such a practice “disgusting” and further demonstrated by his frequent messaging to the children (via the mother) in the period October to November 2020 when he knew the mother objected to it. It is argued by the mother that these examples give the Court an understanding of the father’s lack of insight and dismissive attitude towards the mother.
It is of course necessary to review in detail the evidence relied upon by the mother to inform the assessment of the risk which she contends is unacceptable and I do so below.
‘Disclosures’ and behaviours
What are referred to as ‘disclosures’ in this case are statements attributed to Y (almost exclusively) commencing from 2 February 2019.
The mother frankly concedes in her trial affidavit that she did not hear clearly what Y said to her on 2 February 2019. The mother “thought” she heard the child say someone puts their “finger in their bum”. The mother asked the child “who puts their finger in their bum?” and the child responded:
Daddy puts his finger in his bum all the time when you’re at work. He does it all the time when you’re at work and does not do it when you’re at home. When you’re at home he does not do that.
The mother contends that the sentences attributed to Y above, were all said at the one time in a continuous stream (although with some pauses) without any interspersed questioning from the mother. She also contends that when the child said “bum” she pointed to her groin. Y was five years old at the time.
The mother was troubled by what Y indicated (perhaps understandably) and sent a text message to a colleague, Mr M, “to see what he made of what Y had said”. Mr M was not a witness in the mother’s case. He apparently holds an allied health degree. The mother’s text message to Mr M said the following:
I just had a very scary conversation with Y.
She told me a lie. I said, “Come here, I want to talk to you. You’re not in trouble.” She came over. I held her hands and said “you must never tell mama a lie”. She said “ok”. Then I picked her up and she was sitting facing me on my lap. We had a cuddle and said we love each other.
Then said something about putting a finger in a bum. I said “Who puts their finger in their bum”.
“Daddy puts his finger in his bum all the time when you’re at work.” “He does it all the time when ur at work and does not do it when ur at home. Where r u when he does that “In my room”
She was adamant that he would put his finger in his bum all the time when I’m not there. Whenever she said “his bum”, she would point to her groin. I didn’t push any further. What do I do?
(Punctuation added)
I note the reference to the child telling a lie to the mother. I also find it of some interest that the mother says in her text to Mr M that the child was “adamant”, which seems to imply some level of challenge by the mother to the child, contrary to her evidence that the sentences (in [80]) were spoken in a continuous uninterrupted stream.
Mr M responded and acknowledged - “what [the mother] had been going through lately”. The mother conceded that she had spoken to Mr M previously about “past difficulties [she] had been having with [the father] in [their] relationship” but could not recall specifically what she had told him.
Mr M further responded:
…Her disclosure is serious on two levels. One level is she has been exposed to some form of sexuality by seeing something inappropriate. The other level is more concerning, as she might have been physically harmed. Either way, you must be warm and loving to her for her honesty. Do not question her any further, as this can be interpreted as you coaching her. You will need to seriously consider contacting Child Protection or police, as they have trained experts...
The mother contacted the Department of Children, Youth Justice and Multicultural Affairs (Qld) (“the Department”), and on 4 February 2019 the mother was told by a police officer, Detective Sergeant (“DS”) P, that it was okay for her to record Y if she spoke about the incident again.
The mother did not wait for Y to raise the “incident” again but rather, that same evening, while putting Y to bed the mother placed her phone “discreetly” near Y’s pillow. I note that Y and Z shared a bedroom and that Z was present. Z was three years of age. The recording[21] commences with the mother’s statement:
Do you remember the other day when you were telling me what happened when you were at home with daddy? You don’t remember?
[21] The mother made numerous recordings that were tendered into evidence along with various transcripts prepared by her.
It is clear that the child does not remember. The mother refers to where they were sitting and that she had called the child over. The child then asks:
And where was Daddy?
The mother responds:
He wasn’t here. Do you remember?
…
But do you remember what happened?
The mother and child then have a conversation about Y being called a “joker” in some exchange on that day with her sister. The mother again asks the child whether she remembers what happened after that and the child says she does not. The child is asked what she said and when she responds the mother corrects her and says “no, that’s not what you said”. The following exchange then occurs:
Y:       What... what... what did I say?
Mother: You said daddy did something, he'd do something when I was at work. What was it?
Y:       Put his finger in his bum bum.
Mother:          Oh, in his bum?
Y:       Yeah.
Mother:          Or your bum?
The child, Z, is then heard to say “He put his finger in his bum” which the mother agrees was Z mimicking her sister. Y then says:
His own bum bum, his bum belongs to his feet.
A little later in the recorded conversation the mother asks Y if she remembers where she was and Y responds:
You have to tell me then.
The conversation continues as follows:
Mother: No. I don't know where you were 'cause I wasn't here. But you... so how did you know he was doing that?
Y:       Urn... because he does that every morning when you're not even here.
Mother:          He... he does it when?
Y:       Every morning when you're not even here.
Mother:          Every morning when I'm not here.
Y:       Yeah and he does not do it when you're even here.
Mother:          Right.
Z:                   He does it when you're not here. Daddy's a bit silly.
Mother:          Mm... ah... so... okay.
Y:       And that was it. Now you have to talk to Z.
Mother:          What finger was it? Can you show me which one?
Y:       This hand.
Mother:          On this hand? On my right hand?
Y:       Yeah.
Mother:          Do you know which finger?
Y:       [Inaudible]
(As per the original)
During the recording, the mother reminds the child that the mother was not there and after the child says – “And that was it” – the mother continues to question the child. Y becomes quite silly and playful and in response to the mother’s comment that it is “disgusting” (that the father puts his finger in his bottom), Y says he – “did a poop in the shower” – and – “then he ate it”. When the mother challenges the child, she laughs. Y again deflects and directs attention to Z. The mother continues questioning Y and again the child says – “Do you want to talk about Z the same thing? It’s okay I’ll hold” (as per the original). The child is clearly aware of the phone because the mother tells her not to touch it. Eventually, the children are permitted to go to sleep.
The mother contends that although she found the father’s behaviour (as described by Y) to be disgusting, she was no longer concerned, at that time, that the child was at risk from the father. Such a contention appears to be at odds with the mother’s step-father’s evidence, Mr C who says: “In all my discussions with Ms Larsson she has never disregarded Y's serious allegations nor made any such comments to make me believe that she has ever doubted what Y has said”.
On 10 March 2019 the mother contends that while her sister, Ms N, was visiting her, she heard Ms N call out – “Hey! Did you see what just happened?” and when the mother asked her to explain, she allegedly said that she had seen X put her fingers inside Z’s underpants. Ms N is not a witness in the mother’s case.
On 26 March 2019 the mother contends that on the way to school, when all five children were in the car, Y said – “When we were in the bath, we licked our tongues” – while pointing to X. The mother did not think anything of it at the time.
On 29 March 2019 during bath time, the mother observed X insert her middle finger into her vagina and then put her finger under her nose as if she were smelling it. When the mother said – “Why are you doing that?” the child responded – “I don’t know. I do it all the time” – and then wiggled her middle finger. Contrary to X’s suggestion that she did it all the time, there is no evidence that the mother (or anyone else) observed this behaviour on any other occasion.
The mother contacted the Department about her “concerns” and was told to ensure that the father did not have any contact with the children. It is not clear to me what the mother’s concerns were at that time or why she was advised to stop the father having any contact.
On 7 April 2019 the mother observed Y “rubbing her private parts” and when asked why, she said – “Because it’s the best part” – and when asked to show her, the mother contends she pointed at her “clitoris”. How the mother was able to determine this remains unclear.
On 12 April 2019 the mother took the children to her General Practitioner and obtained a referral to Ms O, a psychologist.
On 15 April 2019 the mother was “shocked” to observe Y point a syringe (a toy in the bath which the children used to fill with water and squirt it out) towards Z’s bottom and attempt to insert it. The mother intervened and told Y that “we do not touch other people’s private parts”. I note that up to this point, Y and Z had not used the term “private parts” but rather the word “bum”.
The mother and children had their first session with Ms O on 7 May 2019. Ms O describes herself as having had 50 years’ experience in “assisting individuals, couples, children and families with their mental health issues” and as having “significant experience in dealing with cases of sexual abuse”. Ms O clarified this statement during her oral evidence and said that her experience relates to providing therapy to people who have been sexually abused (on self-report) and she conceded that she had no particular training in relation to the assessment of sexual abuse and has never been involved in child protection matters. Ms O further clarified that she had no experience as a forensic psychologist nor any experience in recording interviews with children for the purpose of trying to establish whether or not sexual abuse may have occurred. Ms O nevertheless confirmed that on 14 May 2019 she advised the mother to record a conversation with Y for this very purpose.
In her first contact with the mother, Ms O describes her as “very anxious and distressed” with “grave concerns about the possibility that her children, then aged 6, 4 and 2, had been sexually abused by their father”. Ms O had no knowledge of the mother’s own

self-reported history of sexual assault as a teenager and that her sister had been sexually abused as a child by a neighbour. Ms O acknowledges that victims may be hypervigilant about the same thing happening to their children or alternatively they may be in denial. Ms O agreed that in the absence of that information she was deprived of the opportunity to assess whether the mother responded to her own self-reported history as a hypervigilant parent or one in denial. Given the evidence before me, it could not be said the mother was a parent in denial.
Ms O’s first session with the children on 7 May 2019, involved a joint session (with the children) for one hour and a separate session with Y for 40 minutes. Ms O then saw G and K on 14 May 2019 and was informed by the mother that she now had “grave concerns re Y and sexual abuse by [the father]”. Subsequent sessions involved Y alone on 23 May 2019, X alone on 3 June 2019, X alone and then the mother on 7 June 2019. Ms O did not see the mother or the children after 7 June 2019, although she had some further communication with the mother until 10 June 2019. Contrary to the mother’s evidence, Ms O denied she had advised the mother to cease all contact between the father and children.
In her written report dated 11 March 2021, Ms O described the children as “outgoing” and Y as “charming”. In oral evidence, Ms O said the X was “flat emotionally and quite unresponsive” although her notes indicate that such an observation was made in the context of “some issues at school” as at 7 June 2019. Ms O’s notes describe all three children as “lovely little girls” and “quite open and outgoing in their communication” during her first session with them on 7 May 2019. Ms O said in her report that the children became “quite inhibited and shy” when she approached the topic of “inappropriate touching etc”. There is no evidence about what the “etc” involved.
The children made no ‘disclosures’ during their sessions with Ms O. Ms O did not observe any sexualised behaviour, although Ms O was careful to clarify that she would not have expected to, given her limited involvement with the children.
The mother made another recording on 13 May 2019 i.e. the day before she was advised to do so by Ms O. It was my understanding during the trial that the mother undertook this recording on the advice of Ms O. If the dates are correct then this was not the case, but it may explain why the mother reported her “grave concerns” to Ms O on 14 May 2019. In any event, a recording was made by the mother. Parts of the recording include the following:
Mother: Yeah. Do you remember when we were talking a little while ago about when daddy was in the shower?
Y:                 Ah ha.
Mother:          What's he do in the shower?
Y:                 He... he poos in the shower.
Mother:          He wee'd in the shower?
Y: He poos and wees in the sh... I didn't say he wee'd. He pooed in the shower.
Mother:          Ewww did he?
…
Mother:          How do you know he did that though?
Y: … 'cause I hear daddy say, he closed the door and he says. "I pooed in the shower. "
…
Mother:          What else does he do in there?
…
Mother:          What's he do?
…
Y:                 He only washes his bottom.
Mother:          Oh, does he?
Y:                 Nothing else.
…
Y:                 And daddy doesn’t turn on the light.
Mother:          … When?
Y:                 When it’s night time.
…
Y:       …He only turns the light on when it’s morning.
(As per the original)
The child can be heard giggling as she recounts this information. I also note that if what the child said is to be treated as literally true, she did not observe the father defecate in the shower, rather the father said he did. The mother then introduces the topic of washing different parts of the body in the shower and the following further exchange occurs:
Mother:          Does he wash his tail?
Y:                 Mm yes.
…
Mother:          …Do you wash his tail?
Y:                 Nup[22]. Otherwise I’ll get it his germs on me.
[22] The transcript has the word “Nut” but on the recording is sounds more like “Nup”. Whether it is “Nup” or “Nut” the context seems to be a word meaning “No”.
…
Y:       I don’t want his wee germs from his tail.
…
Mother:          What else does he do with his tail?
Y:                 Um he [inaudible] his tail.
Mother:          Oh. Have you ever touched his tail?
Y:                 Nup.
…
Mother:          Has he touched your bottom?
Y:                 Nup.
…
Mother:          Has daddy tickled your bottom?
Y:                 No. Only one time when you wasn’t here daddy did it.
Mother:          Oh and whereabouts?
[transcript includes comment - “points to vagina and makes sound to indicate”]
…
Mother:          And were your sisters here?
Y: Yes … In their bedroom and daddy was sleeping with me … Because I wanted daddy to sleep with me.
…
Y:                 He was in the shower doing that.
…
Y:                 He went like tickle tickle tickle
Mother:          Oh, When he tickled your bum? … Then what happened?
Y:                 Nothing else
Mother:          And what did he tickle your bottom with?
Y:                 His fingers.
Mother:          Which one?
Y:                 His rude finger. His rude finger is right next to the thumb.
Mother:          His rude finger is right next to your thumb?
Y:                 Yeah.
Mother:          So were you in bed or were you in the shower when he tickled ya?
Y:                 In bed and then daddy cam sneaking up on me.
Mother:          Yeah? He came sneaking up on you?
Y:                 Then he tickled my bottom.
Mother:          Oh, on the inside or the outside?
Y:                 The inside.
Mother:          What of your front bottom or your back bottom?
Y:                 My front bottom.
Mother:          Oh, and what did that feel like?
Y:                 Hard
Mother:          It felt hard?
Y:                 Mm hmm.
Mother:          Oh, did it hurt or it didn't hurt?
Y:                 It did, definitely hurt.
Mother:          It definitely hurt?
Y:                 Yes. Because daddy doesn't cut his nails.
Mother:          'Cause he doesn't cut his nails?
Y:                 Mm.
…
Y: I hate long nails. They scratch me really hard. … And I get white scratches on me. … Like last time Q tried to scratch me and last time R did scratch me and I got a white mark and then went away.
…
Y:                 He said, "Nup."And then I pushded him out with a ladder
Mother:          With the ladder?
Y:                 Yeah, where you paint.
Mother:          Oh, where was the ladder?
Y:                 Urn... in the..
Mother:          Can you remember where the ladder was?
Y:                 In the shed, in the granny ft... in that thingy.
Mother:          In the granny flat? No? Or the garden shed?
Y:                 Yes.
Mother:          It was in the garden shed?
Y:                 And then I found it in there then I pushded daddy out with it.
Mother:          And what did he say?
Y:He said, "I'm never gonna come back, you dumb girl."
(As per the original)

It is difficult to know what weight, if any, to place on the statements made by the child. The child might be describing an actual event which involved the father touching her inappropriately or alternatively touching her for a legitimate reason e.g. bathing or toileting, or she may be describing innocent play. On the other hand, the child may simply be responding to persistent questioning and not referring to actual events at all. There may be a mixture of fact and fiction.
There are a number of features about the recording which cast considerable doubt that the child is disclosing sexual abuse, including the following:
(a)The child denies on a number of occasions that the father has engaged the child in inappropriate sexual conduct e.g. she denies she has washed his penis or touched it;
(b)The child initially denies the father has touched or tickled her bottom;
(c)The child appears to know that she is being recorded or at least is aware that the mother’s phone is of some significance;
(d)The conversation does not occur spontaneously but only after the mother seeks to remind the child about an earlier conversation involving the father in the shower;
(e)Some of the child’s comments in the recording are inherently unbelievable e.g. that the father defecates in the shower and eats his own faeces and that the child pushed the father with a ladder that was in the garden shed (unsurprisingly, the father denies that any of these acts occurred and the mother accepts that the child could not have retrieved the ladder from the shed);
(f)The mother asks numerous leading questions i.e. that suggest the answer or suggests there should be an answer including the following:
(i)Does he wash his tail? (it is common ground that this was the term used in the household for ‘penis’)
(ii)Do you wash his tail?
(iii)What else does he do with his tail?
(iv)Have you ever touched his tail?
(v)Has daddy tickled your bottom?
(vi)What did he tickle your bottom with?
(vii)Which one? (when the child says the father tickles here with his fingers i.e. plural)
(viii)So were you in bed or were you in the shower when he tickled you?
(ix)On the inside or the outside? (when the child says the father tickled her bottom)
(x)What of your front bottom or your back bottom?
(xi)And what did that feel like?
(xii)Did it hurt or didn’t hurt?
(xiii)Did you say anything when he was tickling on the inside?
(g)The mother also repeats things said to her by the child potentially reinforcing the significance of the child’s comments. By way of example:
(i)‘Cause daddy doesn’t cut his nails;
(ii)It hurts when you get scratched with long nails;
(iii)You know how you said daddy tickled you on the inside of your bottom; and
(iv)When he was tickling on the inside.
(h)While the mother and ICL place some significance on the child’s reference to the father’s nails and that it hurt, I note that the child also refers to others (plural) scratching or attempting to scratch her and names two persons, Q and R, and that it left a white mark that went away; and
(i)There is nothing in the recording to indicate that the child was recounting an actual event which caused her pain. To the contrary she sounds cheery and playful throughout.
The mother recorded a further conversation on 27 May 2019. I note that this recording occurred four days after Y’s second session with Ms O. The recording involves all three children. It certainly could not be said that it involved any spontaneous statements by the children. The mother introduced the topic and asked numerous leading questions. In the recording, the children are all fighting for their mother’s attention. At one point, Y actually joins in the questioning of her sisters, saying – “So, what else happened?” Y says she only remembers – “daddy tickling me underneath my bottom” – and does not remember anything else. She says that she knows – “daddy poos and wees in the shower” – but does not remember –“all the other words I said”.
On 30 May 2019 Y was interviewed by a police officer, DS Ms P. The mother was present for the interview. The child points to the police officer’s identification and identifies the photo as the mother. Clearly it is not. The child is unable to state her middle or last names. The child says that the father lives with them. The father had not lived with them since January 2019. The child does not appear to know what her ‘private parts’ are and at one point indicates her tongue is a private part. The police officer asks numerous leading questions. In any event, the child makes a number of responses including the following:
(a)The father tickles her under her bottom (and indicates he did so with many fingers);
(b)He did so only once;
(c)It did not hurt;
(d)She denies telling the mother anything;
(e)She wishes the father could come back home;
(f)The father likes to come into her bed to sleep with her (it is common ground that there were occasions when the father fell asleep on the children’s beds with the children for a few hours);
(g)She denies that anyone had put their finger in her bottom;
(h)She never feels unsafe at home; and
(i)She says she told the whole family that the father had tickled her.
Throughout the interview the child presents as happy and playful.
On 7 June 2019 the mother recorded another conversation with Y. The mother reminds the child of her interview with DS Ms P, the police officer, thus introducing the topic of interest again. It is apparent from the recording that the child is acutely aware of the mother’s interest in the father tickling her bottom. Y is again aware of the presence of the phone. At the commencement of the recording the child says she is cold. She asks for the light to be turned on so she can show the mother about the father tickling her. Y mentions Ms S on the bed with “G” (it is common ground this is a reference to G and his girlfriend). The child giggles at the mention of this. She talks about “G” taking up all the space and Ms S not having a pillow and sleeping on the hard doona.
On 1 December 2019 the mother records another conversation with all three children. The mother makes it clear to the children that this is an important conversation. She sits them down and asks them to repeat what they were just saying. It is apparent that the children are aware that the topic for discussion concerns the father and touching. The following exchange occurs:
Mother: Hang on, just wait. No, because you said that he did something... so can you please tell me again what it was that you said he did, or what happened?
Y:                 He pushed his finger into my private parts.
Mother:          And then what?
Y:                 Then he smelled it then it taste like nothing.
Mother:          Okay, so um... how did you feel when that happened?
Y:                 Sad.
Mother:          You felt sad? Why did you feel sad?
Y:                 Because that was the wrong thing for him to...
Mother: Can you please sit still. I want you both to sit still coz this is very important okay?
It is apparent that the children are restless and the mother is insisting they remain seated and respond to her questions. The conversation continues:
Mother: Alright. X [X] you said something happened as well, can you please tell me what you were just saying?
X: He squeezed my private parts and I felt sad like Y [Y]. He squeezed [Y]’s private parts over here and he did that to [Y] to and we felt sad.
Mother: Can you just tell me what happened to you because … please stop [Y]. Because it’s very important that I know exactly what happened, if anything … did … if anything did happen to you.
X:                  Um … Daddy squeezed me in the private parts.
Mother:          And where were you when that happened? Y please stop.
X:                  I can’t remember.
Mother:          Please stop Y. Cross your legs.
X:                  In the lounge room?
Mother:          Well I don’t know darling.
X:                  I was in the lounge room.
Mother: Okay. And so, so what hap … what was happening? Where was mama? Where was everybody else?
X: You were in the kitchen and all of us girls were in the lounge room and K, and then daddy was tickling us so hard. I didn't really … I don't know if he actually touched me in the private parts.
(As per the original)
It is unclear if X is describing something that happened to her or something that she witnessed happening to Y or neither. The child says she cannot remember and seeks the mother’s guidance about what answers she should be giving e.g. was it in the lounge room? X also says the mother was in the kitchen i.e. not out or at work. Y is disruptive which may indicate she does not want to continue. Despite this, the mother sends X and Z out of the room to have an ice block and continues questioning Y. The following further exchange occurs:
Y: I was coming out of the toilet when daddy was doing that. I washed … I wiped my bottom and I was pulling up my pants.
Mother:          Yeah.
Y:                 And daddy squeezed my bottom.
Mother:          Which...well where abouts?
Y:                 There...
Mother:          So, you're pointing to your front bottom?
Y:                 Yep.
Mother:          So, what do you mean he squeezed it? How? What do you mean?
Y:                 He put his finger in there.
Mother:          And did... okay. And ... What did that feel like?
Y:                 A knife going in there. But it was actually his finger.
Mother: It felt like a knife going in there but it was actually his finger? Wow... okay. And so... where were you when that happened?
Y:                 I was coming out of the toilet.
Mother:          Was I home when that happened? Where was I?
Y:                 You were at the shop.
(As per the original)
Despite describing an apparently extremely painful incident there is no hint of distress in the child. Y sounds quite matter of fact, as though she is just recounting a story. The conversation is interrupted by X when she asks if the mother wants an ice block and the mother tells X to leave. When she leaves, the conversation continues:
Mother: Alright, now you can have your ice block but it's very important that that you let me know what happened coz we haven't talked about this in a long time have we?
Y:                 No, when I was a baby.
Mother:          No.
Y: Didn't to when I was a baby. He done it when I was four years old. He does it... he done it when I was four years old and I was coming out of the toilet.
Mother:          Okay. Which toilet were you in? The ensuite one or the main one?
Y:                 The main one, in yours.
Mother:          Which one?
Y:                 In your toilet.
Mother:          Okay. That's the... that's the ensuite one.
(As per original)
My impression at this point of the recording is that Y will say anything just to have her ice block and leave the room. Interestingly, the child is twice corrected by the mother when she gives the ‘wrong’ answer i.e. when she says it happened when she was a baby, the mother says “No” and when the child says that the mother’s bathroom is the “main one” the mother corrects her and says it is the “ensuite one”.
Y later says the father “actually touched” her bottom and that she remembers that part when she was coming out of the toilet.
Y was interviewed for a second time by DS Ms P on 9 December 2019. The child speaks fondly of the father and makes no statement indicating that he had hurt her or done anything to her.
The next recording produced by the mother was done on 17 October 2020 and involves herself and Y. The mother once again raises the topic for discussion by referencing a conversation they had had the night before. The child says “Daddy poked me there. That where we started from” (as per the original). It is also apparent from the conversation that the child had recently been interviewed by Ms L and the mother was keen to know why no ‘disclosures’ had been made by the child to her. The mother tells the child that it is important for everybody to do the right thing. The child responds that “But the boys don’t, either does daddy”. The mother then specifically asks Y if K or G had ever done anything to her private parts and she says – “only daddy did”. The child refers to a knife and suggests the mother could put the knife into the father’s private parts. The child then giggles. At one point Y says – “Let’s just pretend that daddy did something wrong”. The mother asks the child if she (the mother) has told her to say that “his finger was inside you” and the child giggles and says no. The mother reinforces that it is important for the child to tell Ms L and engages in a role play with Y where the child ‘practises’ what she is to say to Ms L. The mother suggests that she will telephone Ms L so that the child can speak to her again. As the child answers the mother’s questions about what happened and where, she laughs at times. There is certainly no hint of distress. There is no evidence that the child spoke to Ms L a further time in 2020.
Family Reports
Ms L is a family consultant with formal qualifications in psychology. She was retained by the ICL in 2020 to undertake interviews with the family and prepare a family report. An addendum to her report was prepared in 2021 after observing the children with the father.
Interviews for her family report were conducted on 15 October 2020 and follow up telephone interviews were conducted on 2 November 2020. Her report is dated 2 November 2020. The children were not observed with the father at the time of the interviews because of a consent order (dated 7 August 2020) prohibiting the father from spending time with the children. A notation to the consent order indicates the father’s intention for that prohibition to be reconsidered after the release of the family report and perusal of subpoenaed documents.
During his interview with Ms L, the father conceded that the mother suffered from anxiety. He contended that during the relationship, the mother had anxiety and depression “a lot of the time” but he said she was a good mother although always “a bit over-protective”.
When Ms L interviewed X (then aged 7 years and 10 months), she said – “I miss Daddy a lot”. She said that she would tell her mother, father or a teacher if anyone ever touched her in a private part of the body but she has never had to do that. X told Ms L that there were rules at home that girls and boys are not allowed to go into the bathroom at the same time but if somebody is in the bath and needs to go to the toilet, they are allowed to enter the bathroom.
Y was six years and eight months at the time of interview. When asked to draw a picture of her family, Y included the father but said he was not living at home and – “Us three little girls don’t really care about Dadda, he didn’t like any of us. He wasn’t nice to us girls”. She said she feels sad when her brothers tickle her because they have sharp nails. When asked about any fun things she used to do with the father she replied – “there were lots of fun things we did together”. She spoke of the father swearing a lot but when asked if he ever did anything apart from swearing to make her feel sad or scared she replied in the negative and said –“I’m really not scared of anything”. Y was asked to draw a picture of a girl and indicate where her private parts were. She pointed to three parts on the drawing and listed – “on the bottom, between the legs, and the belly button”. She also indicated her tongue. Y said she had never been touched in those places and if she were she would tell – “Mumma or Dadda”. Y also said she had never told either of her parents about the private parts of her body being touched – “because nobody ever has. I would just be telling Mumma a lie or a trick”.
Z was five years and five months at the time of interview and when told she was there to talk about her parents separating and how life had been since, she immediately said – “Miss Daddy”.
K was also interviewed. He was 14 years of age at the time. He described the father as “nice” and said he was “funny and looked after us”. When asked about how the father was with the girls he said – “He liked them, but he didn’t seem to worry about them a lot, okay no he did worry about them a lot”. K did not explain this statement but added – “Mum told me about him being a perv”. K said he had seen Y and X trying to kiss each other and told them to stop. He also saw them lying on top of each other but – “it didn’t look sexual”. He said the only way the girls could have seen anything sexual was if they woke up at night and saw an “MA” rated program, as the television is in his mother’s room where they often sleep.
G was 16 years of age at the time of interview. In his view the father – “didn’t seem that bad”. He said he had a good relationship with him however he worked a lot. G said the father and mother argued “a lot” but the father seemed relaxed even on those occasions. G added that K “acts out a lot” and on one occasion had held a knife to his throat. He said that the father had acted appropriately towards K on that occasion by “hitting K on the back of the head and telling him to snap out of it”. When asked if the girls could have seen anything sexual on his or K’s mobile phones or devices, including pornography he said he only looked at “Fortnight” and “Resident Evil” but added he did once walk in on K when he was watching pornography.
Ms L provided a number of opinions including the following:
(a)X, Y and Z were at an age where they are vulnerable to the effect of coaching;
(b)Y seemed genuinely unaware of the reason for her interview and did not appear coached to disclose abuse, however, the speed at which she said she and her sisters did not miss the father, who was not nice to them, was notable, suggesting it may have been something they had overheard;
(c)X and Z’s expressions of missing the father probably constitutes a wish to spend time with him;
(d)The girls were all too young to fully understand the consequences of emotional and sexual abuse to adequately protect themselves if required;
(e)There was a high degree of risk to the children’s relationships with the father, due to his extended absence from them and the fact that they probably have some awareness that their mother has concerns about their safety in his care;
(f)The girls could come to question why their father is absent from their lives, and either blame themselves or their mother, creating future issues in their relationships with the mother, and their ability to trust and confide in her;
(g)Children often feel a desire to please adults who are asking them questions;
(h)Sexualised behaviours in children can be an indication that inappropriate sexual behaviour has occurred;
(i)While a level of sexual play and exploration, including external masturbation, is normal in children, internal masturbation is likely to be outside the realm of normal childhood exploration; and
(j)Singling out one child for favourable attention may indicate ‘grooming’ behaviour but may also reflect the existence of a strong and innocent bond.
On 14 July 2021, Ms L conducted separate interviews with each of X, Y and Z and observed them with the father. Each of the girls were asked to think about how happy they would feel about seeing their father and to rate their happiness on a scale of 0 – 10 where 10 indicated extremely happy to see him. The children all responded with number 10. Unlike the time of their earlier interview, Ms L assessed that each of the children “demonstrated an accurate awareness of private body parts, and articulated that these parts of their bodies should not be touched by others, apart from a doctor, with their mother present”.

During her separate interview with Y (at date of interview she was seven years and four months), Ms L noted her to be happy and friendly and she consistently answered that she had not been touched in private places and asserted that if she had been she would tell her mother, father or Ms L. When asked to recall life when her parents were living together, Y told Ms L that – “Mummy and Daddy kept fighting” and added – “Somebody could have hurted [sic] each other”. When asked if she could recall anything else that was “not so good”, Y responded – “Oh yeah. Daddy dropped us three girls on the couch”.
X (at date of interview she was eight years and seven months) presented as very excited and happy. When asked if she thought much about her father she responded – “sometimes” – and added – “Mum doesn’t like us talking about him”. X stated spontaneously that she missed her father. When asked if she had any idea why her parents no longer live together, X answered immediately – “He dropped Z on the head and put his finger in Y’s bum. That’s why they broke up”. X added – “I don’t remember him doing anything to me. If he did anything to me, I don’t remember”.
Z (at date of interview she was six years and two months) presented as a happy and intelligent little girl who engaged in a relaxed and confident manner. When told that her father was present she said she wanted to see him. Z said she had never been touched in her private place and did not know anyone who had been.
When the girls were observed with the father Ms L noted the following:
When [the father] was accompanied to the children's playroom to see the girls, X ran to him excitedly, he picked her up and cuddled her and they embraced warmly. Z and Y then both went and cuddled [the father] gently, and he appeared close to tears.
…
They reminisced happily about various memories and laughed while looking at the photographs for at least 10 minutes and eating chocolate.
…
… quite spontaneously, Y said, "Dad, I thought we were coming to your house," and then approached him and hugged him.
…
… Y then stated, "Daddy I was excited that you were coming." X and Z both replicated this sentiment, stating, "me too," and the three girls and Mr Larsson embraced warmly.
When the writer again knocked at the door to end the session, the girls hugged their father warmly but did not seem distressed at all to say goodbye.
…
… [The father] behaved in a sensitive, affectionate, caring manner with the girls and managed their questions about his whereabouts and whether he would see their mother extremely well under the circumstances. He conveyed an openness to establishing an arrangement in which the girls spend time with him in the future without pushing the topic unnecessarily, exhibited interest in their wellbeing and school progress, and did not prolong the "goodbye" unnecessarily.
Conclusion on risk of sexual abuse
It is submitted on behalf of the mother that a finding of unacceptable risk is “finely balanced”. In my view, the preponderance of the evidence does not support a finding that the father poses an unacceptable risk of sexual harm to the children.
I have considered the “patterns” in the evidence which are submitted on behalf of the mother (and the ICL) to support a finding of unacceptable risk.
In relation to the first so-called “pattern”, I reject the submission that Y always referred to “private parts” and “hurt” in the context of the allegations. At times she refers to “bum” or “front bottom” and “sad” rather than “hurt” and at times said it did not hurt. As to the children’s behaviours which the mother describes as “sexualised”, I note Ms L’s opinion that self-exploration by young children is not unusual and is part of normal developmental behaviour, save for what she describes as internal masturbation which she considered to be outside the realm of normal childhood exploration and therefore quite concerning. I am unaware of evidence that any of the children engaged in what could be described as “internal masturbation”. The mother describes one incident when X was in the bath and put her finger in her vagina and appeared to smell her finger. Although X said to her mother than she did this all the time, there is no evidence that it was repeated, and in any event, I do not believe this act could be described as masturbation.
In relation to the second “pattern”, I reject the submission that Y has only identified the father as the “perpetrator”. On occasion she has referred to “Q”, “R”, “the boys”, “G” and “K” as having done the wrong thing or scratching her with their nails. Y also identified her brothers as having tickled her with sharp nails.
In relation to the third “pattern”, I reject the submission that children always said the mother is “out”. On occasion, X said the mother was in the kitchen and after asking the mother if she i.e. (X) was in the lounge room, settled on saying she was in the lounge room. I further reject the submission that the father’s “boundaries issues” lend weight to a finding of unacceptable risk. In my view, the alleged “boundaries issues” were more to do with the parents very different parenting styles and the father’s failure to comply with the mother’s expectations. The father’s repeated messaging of the mother during the period October 2020 to November 2020 must be seen in the context of his perception that the children had been removed from his life.
When considering the statements made by Y, I consider it to be significant that the first statement which caused some degree of alarm for the mother, was a statement that the mother did not hear clearly. Thereafter the mother commenced to frequently question Y and the other girls, often asking leading questions. The girls were acutely aware that this was a topic of conversation about which the mother was very interested. In my view, it became a means by which they could deflect attention from their own behaviour which the mother may have found wanting e.g. there was an occasion that the mother reprimanded the girls about something in the bathroom and they responded by making statements about the father. The topic also became a means by which they could obtain attention from the mother e.g. there was an occasion when Y was able to avoid bedtime and have her mother turn off the light so she could show the mother how the father had tickled her.
It is also significant that the children may well have been unintentionally exposed to sexual activity engaged in by their half-brother G and his girlfriend, Ms S. G and Ms S, were sexually active in the house at the relevant time. The mother initially denied that they were having sex at her home despite them sharing a bed. Ultimately, the mother conceded they were likely to have been sexually active, when confronted with the evidence that Ms S’s mother had contacted her and told her that she had found G and Ms S in a compromising position in Ms S’s bedroom. Ms S was on her back with no top on with whipped cream on her chest and G was on top of her. While the mother did not recall a conversation in the family car shortly thereafter, I accept the father’s evidence that when G asked if Ms S could stay over, Y responded by saying that he should tell Ms S to leave the whipped cream at home. The mother dismissed the possibility that the children may have seen G and Ms S engaging in sexual activity solely on the basis that she asked G whether that had occurred and he denied it. G may have been oblivious to being observed.
Further, the children may also have been unintentionally exposed to sexual activity by observing pornography. G told Ms L that he had walked in on K watching pornography.
Y’s statements about what the father did, contain many inconsistencies including the following:
(a)He put his finger in his bottom;
(b)He tickled underneath her bottom with his hand; with his fingers; with his rude finger;
(c)He squeezed her private parts;
(d)He put his finger inside her front bottom;
(e)He touched her bottom;
(f)He squeezed her bottom;
(g)He pushed his finger into her private part; and
(h)He poked her.
Y has given various accounts of the location including:
(a)In the shower;
(b)In the bed;
(c)In the main toilet;
(d)In the ensuite; and
(e)Coming out of the toilet.
Y has also repeatedly denied that anything occurred at all, including to the mother, the police and Ms L. Y also consistently identified the father as a trusted person she would tell if anyone touched her private parts.
There seems to be only one occasion that X said something to the mother that might have indicated inappropriate touching. She said the father squeezed her bottom but this was said during what appeared to be more of an interrogation by the mother with all three children present and said in a way that suggests she was trying to please the mother.
I accept Ms L’s opinion that young children are vulnerable to coaching (even if there was no intention to coach) and will often say things to please a trusted adult. In my view, the recordings provide ample support for such an opinion.
There are numerous explanations for Y making comment about the father’s penis (which the mother told Ms L she had been told about by the maternal grandmother, who was not a witness in the mother’s case). When the family were together it seems the children may well have seen the father’s penis if they walked in on him while he was having a shower. They were a family of seven with two bathrooms and X told Ms L that if one of them had to go to the toilet they were able to enter the bathroom even if someone was showering. I accept the father’s evidence that this happened on occasion. Additionally, the mother concedes and indeed complains about the father not having clothes on while in bed on occasions when the children came into their bed. It was not uncommon for the children to be in their parents’ bed. It is more than conceivable that Y and the other children have observed the father naked.
The fact that all three girls responded so positively to the father in July 2021 does not, of course, of itself rule out the possibility of the father having acted inappropriately, but when considered with all of the other evidence it lends weight to my finding that the father does not pose an unacceptable risk of sexual harm to the children. In fact, while I do not conclude the allegation made by the mother is groundless I consider any risk to be remote.
IF THE FATHER POSES AN UNACCEPTABLE RISK, CAN THAT RISK BE AMELIORATED BY SUPERVISION?
Given my finding that the father does not pose an unacceptable risk of harm I do not need to determine this issue.
IF THE FATHER DOES NOT POSE AS AN UNACCEPTABLE RISK OF HARM, WHAT TIME SHOULD THE CHILDREN SPEND WITH THE FATHER AND SHOULD THERE BE THERAPEUTIC COUNSELLING PRIOR TO THE RECOMMENCEMENT OF TIME IN ORDER TO REBUILD THE RELATIONSHIPS?
The children responded very positively to the father during the observations by Ms L in July 2021 but it has been a long time since they spent any time with him. In the event of a finding that the father did not pose an unacceptable risk, the mother did not submit a need for therapeutic counselling. The children all appear to be functioning well and no party proposed that therapeutic counselling should be ordered.
The father does not submit that the mother has acted with any malice. He appears to accept that given her own predisposition and personal experience, her motivation was protective rather than vindictive. I see no utility in determining otherwise.
It is very much in the children’s interests for the time they spend with the father to be successful. It is essential, therefore, that the children’s time with the father be spent in a way that will optimise the mother’s acceptance that the children will be safe. The mother is naturally anxious, and in my view, it would be beneficial for the children if she undertook therapy to assist her to come to terms with the children spending ongoing time with the father. To assist in that therapy the mother is at liberty to provide a copy of these Reasons to her therapist.
In the event of a finding that the father did not pose an unacceptable risk, the mother proposes a short period of supervision by her step-father, Mr C or someone nominated by her. The father accepts that if supervision is to occur, Mr C is an appropriate person. Mr C is willing to undertake the task.
In my view the father’s time with the children should commence slowly and be supervised for the first three months. This is a longer period than that proposed by either parent, but one that is more likely to ensure a successful re-introduction. After the three month period of supervision I consider a period of daytime only will provide a further buffer for both the children to become used to the father and to give the mother further time to adapt before increasing time to include overnights.
WHAT IS THE LIKELY IMPACT ON THE CHILDREN IF THEY HAVE NO CONTACT OR COMMUNICATION WITH THE FATHER?
Given the findings I have made and the order I propose to make, it is not necessary for me to determine this issue. However, I accept Ms L’s evidence that in time the children may come to blame themselves if they do not have a relationship with the father or alternatively they may come to resent the mother.
WHAT PARENTING ORDER IS PROPER?
I have found that the children are not at an unacceptable risk of harm from the father. In the circumstances of that finding, the mother accepts that the children should spend time with the father, albeit supervised for four weeks before moving to unsupervised daytime and gradually increasing to four nights per fortnight and some holiday time. The precise terms of the order proposed by the mother in such circumstances is set out in Exhibit 9.
The mother also accepts that the risk, as she sees it, is a diminishing risk given the following factors:
(a)The ages of the children (and therefore the capacity to tell someone if the father does something to cause them harm);
(b)The children’s awareness of what is and what is not appropriate touching; and
(c)The fact, as the mother sees it, that the father “knows he is being watched” by a vigilant mother and will be aware that he needs to behave.
The mother also accepts that another protective factor is that the three children will be spending time with the father together.
In my view an appropriate regime for the father spending time with the children taking into account all of the competing factors is for him to initially spend supervised time with the children for four hours each fortnight, and after three months for the supervision to be lifted and the children spend extended daytime with the father for a further six months before extending to alternate weekends (Friday to Tuesday) and half holidays.
I have in many respects adopted the father’s proposed order (other than the time he spends with the children) but where I have departed from it, I have done so because I do not consider particular provisions to be in the children’s best interests e.g. phone calls three times per week are likely to be too disruptive. I also consider some of the provisions proposed by the father to be too difficult to enforce e.g. prohibiting the parents from discussing “adult issues” with the children. In the absence of a definition, such a provision invites further dispute. I expect the parents to be sensible and child focussed. I have also adopted some of the provisions in the mother’s proposed order e.g. limiting communication between the parents to matters directly related to the children’s welfare. In addition, the changeovers will largely occur at school thus further limiting the need for the parents to come into contact. This is important given the mother’s perceptions of the father and their life together.

I certify that the preceding one hundred and sixty-four (164) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 16 November 2021

File number(s):	BRC 2183 of 2020
Judgment of:	CAREW J
Date of judgment:	16 November 2021
Catchwords:	FAMILY LAW – CHILDREN – FAMILY VIOLENCE – where the mother alleges the father perpetrated acts of family violence – Where the father denies allegations – Where limited evidence to substantiate the allegations made by the mother – Where the behaviour and statements attributed to the father do not fall within the definition of family violence save for one incident – Evidence to establish family violence – Onus of proof. FAMILY LAW – CHILDREN – unacceptable risk of sexual, physical and emotional harm – Where the mother alleges the father poses an unacceptable risk of harm to the children due to allegations of sexual abuse, emotional abuse and exposure to family violence – Where the father denies that he poses any risk of harm to the children – Where it is found the father does not pose an unacceptable risk of harm to the children.
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	Amador & Amador 43 FamLR 268 Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Briginshaw v Briginshaw (1938) 60 CLR 336 Johnson & Page (2007) FLC 93-344 Jones v Dunkel (1959) 101 CLR 298 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 Russell & Close [1993] FamCA 62 Saska & Radavich [2016] FamCAFC 179
Number of paragraphs:	164
Date of hearing:	7 – 10 June 2021 and 30 September 2021 – 1 October 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Shoebridge
Solicitor for the Applicant:	Hede Byrne & Hall
Counsel for the Respondent:	Ms Cullen from 7 – 10 June 2021; Dr Sayers from 30 September 2021 – 1 October 2021
Solicitor for the Respondent:	Norris Law
Counsel for the Independent Children’s Lawyer:	Mr Taylor
Solicitor for the Independent Children’s Lawyer:	Legal Aid Queensland

ORDER MADE BY:	CAREW J
DATE OF ORDER:	16 NOVEMBER 2021