Lasker & Franke
[2024] FedCFamC1F 751
•8 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lasker & Franke [2024] FedCFamC1F 751
File number(s): SYC 1322 of 2021 Judgment of: BEHRENS J Date of judgment: 8 November 2024 Catchwords: FAMILY LAW – PARENTING – Magellan matter –Where each parent sought orders for sole decision-making responsibility and that the child live with that parent – Where the child has lived with the mother – Where the mother sought a finding that the father has sexually abused the child or, in the alternative, that the child is at unacceptable risk of sexual abuse by the father – Where Court is comfortably satisfied that the father has not sexually abused the child – Where mother has fixed false belief that child has been sexually abused by the father – Where mother’s belief is genuine but a product of the mother’s anxiety – Where child is not safe from emotional and psychological harm while living with the mother – Where both parents allege that the other engaged in family violence – Where finding made that the father engaged in family violence by way of abusive text messages after separation – Relevance of family violence to matters in addition to safety – Where mother’s parental capacity is impaired by her mental health but may be improved through treatment – Where father’s parental capacity is “good enough”– Where child has a good relationship with the father and wants to spend time with him – Where there is benefit to the child from having a relationship with both parents – Where the father is more likely to promote the child having a relationship with both parents – Where orders made for the father to have sole decision-making responsibility – Where orders made for a moratorium on the child spending time with the mother – Where orders made for child’s time with the mother to progress from supervised time provided she receives psychological treatment and complies with reporting obligations. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60CC, 60CG
Family Law Amendment Act 2023 (Cth)
Cases cited: In the Marriage of L & T (1999) 25 Fam LR 590; [1999] FamCA 1699
Re W and W (Abuse allegations; Expert evidence) 28 Fam LR 45; [2001] FamCA 216
Division: Division 1 First Instance Number of paragraphs: 234 Date of last submission/s: 19 September 2024 Date of hearing: 11-13, 16-17, 19 September 2024 Place: Sydney Counsel for the Applicant: Mr Guterres Solicitor for the Applicant: Sharon Moss Legal Pty Ltd Counsel for the Respondent: Ms Kennedy Solicitor for the Respondent: Tiyce & Lawyers Counsel for the Independent Children's Lawyer: Mr Cook Solicitor for the Independent Children's Lawyer: Phillip A. Wilkins & Associates ORDERS
SYC 1322 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR LASKER
Applicant
AND: MS FRANKE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BEHRENS J
DATE OF ORDER:
8 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Parental responsibility
2.Mr Lasker (“the Father”) shall have sole parental responsibility and sole authority to make major long-term decisions for the child X born 2017 (“X”).
3.The Father shall keep Ms Franke (“the Mother”) informed by email of:
(a)Any major long-term decisions concerning X, including such decisions in relation to his health and education;
(b)The names and contact details of any specialists providing health or medical treatment to X; and
(c)The names and contact details of any counsellor, psychologist or psychiatrist providing treatment to X.
Live with order
4.X shall live with the Father and spend time with the Mother in accordance with these orders.
Spend time orders
12 weeks of no time
5.For a period of 12 weeks following the making of these orders, X shall spend no time with the Mother and the Mother is restrained by injunction from contacting or attempting to contact X or causing anyone else to do so except in accordance with these orders.
12 weeks of supervised time
6.At the conclusion of the period provided for in Order 5, X shall spend time with the Mother as follows: each Saturday for 12 weeks for a period of three hours as agreed between the parties and failing agreement from 10.00 am to 1.00 pm, with such time to be supervised by B Contact Service or such other service as agreed between the parties in writing.
7.For the purposes of Order 6:
(a)Forthwith upon the making of these orders, the parents are to do all acts and things and sign all documents necessary to facilitate X spending time with his Mother supervised by B Contact Service.
(b)The Mother is to pay all costs associated with X spending time with her supervised by B Contact Service.
8.The Mother will, forthwith upon each occasion of supervised time occurring, obtain and pay for reports of the time she has spent with X pursuant to Order 6 above and will provide the reports to the Father within 7 days of receiving them.
Progression to unsupervised time for six months and special occasion time
9.At the conclusion of the period provided for in Order 6 and subject to:
(a)the Mother’s compliance with Order 8 above; and
(b)12 supervised visits having occurred; and
(c)compliance by the Mother with Order 16(a) and (b) below.
X shall spend time with the Mother as follows: on each alternate Saturday and Sunday from 10.00 am to 6.00 pm for a period of six months.
10.In the event that the Mother does not comply with the requirements listed in Order 9 above, X’s time will continue in accordance with Order 6 until such time as the Mother does comply with those requirements, when it will progress to time in accordance with Order 9.
11.Upon the commencement of time pursuant to Order 9 and thereafter, and notwithstanding anything to the contrary in these orders, X shall spend time with the Mother and the Father on the following special occasions as agreed and, failing agreement, as follows:
(a)With the Mother on Mother’s Day from 10.00 am until 6.00 pm.
(b)With the Father on Father’s Day, from 10.00 am until 6.00 pm.
(c)On Christmas Day as follows:
(i)In even–numbered years, with the Father from 9.00 am until 3.00 pm, and from 3.00 pm until 9.00 pm in odd–numbered years.
(ii)In odd–numbered years, with the Mother from 9.00 am until 3.00 pm, and in even–numbered years from 3.00 pm until 9.00 pm.
Progression to overnight and holiday time
12.At the conclusion of the period provided for in Order 9 and subject to compliance with Order 16(c), X shall spend time with the Mother as follows:
(a)During school terms, each alternate weekend from after school or 3.00 pm on Thursday until at school or 9.00 am on Tuesday;
(b)For half of all school holidays as agreed between the parents but, failing agreement, for the first half in even–numbered years and the second half in odd‑numbered years and on a “week about” basis during the long summer holiday, commencing with the Mother in even–numbered years and with the Father in odd–numbered years.
13.In the event the Mother does not comply with Order 16(c), X’s time will continue in accordance with Order 9 above until such time as the Mother does comply with that requirement, when it will progress to time in accordance with Order 12.
Therapy for the Mother to enable progression of time
14.As soon as practicable, the Mother shall engage and attend upon a clinical psychologist for the purpose of mental health treatment, in accordance with the following schedule:
(a)The Mother is to attend upon the clinical psychologist no fewer times than once a month and more frequently if that is recommended by the clinical psychologist;
(b)The Mother is to attend upon a clinical psychologist for a continuous period of 12 months;
(c)In the event a clinical psychologist who is treating the Mother becomes unavailable, the Mother will engage an alternate clinical psychologist as soon as practicable.
15.The Mother will provide to any clinical psychologist who she engages pursuant to Order 14 above:
(a)A copy of these orders;
(b)Justice Behrens’ Reasons for judgment; and
(c)All three reports prepared by Ms C.
16.The Mother will provide to the Father:
(a)Upon commencement of treatment with a clinical psychologist – written confirmation from her treating clinical psychologist of the date that the Mother commences treatment with the clinical psychologist, and that the clinical psychologist has been provided with the documents listed in Order 15 above; and
(b)After six months from the date of commencement of treatment – written confirmation from her treating clinical psychologist that the Mother has attended at least six appointments over a six month period with a clinical psychologist who has been provided with the documents listed in Order 15; and
(c)After 12 months from the date of commencement of treatment –
A recent report from her treating clinical psychologist confirming that the clinical psychologist has been provided with the documents listed in Order 15 and setting out: the dates upon which the Mother has attended appointments with the treating clinical psychologist; any diagnosis of the Mother; a description of the treatment provided to the Mother; and attaching copies of any reporting letters provided by the clinical psychologist to the Mother’s General Practitioner.
17.The Father is restrained by injunction from showing or giving a copy of any document provided to him pursuant to Order 16 above to any person other than a legal practitioner acting in that capacity.
Changeover
18.For the purpose of these orders and unless otherwise agreed between the parties in writing, changeovers which do not occur at a supervision centre or at X’s school will occur at Suburb D McDonalds.
Facetime
19.X shall have Facetime communication with the Mother on Christmas Eve 2024 between 9.00 am and 10.00 am, with such communication to be monitored by the Father.
20.Following the commencement of the time arrangements provided for in Order 6, X shall have Facetime communication with the Mother each Tuesday, Sunday, on X’s birthday, and on the Mother’s birthday, when he is not otherwise spending time with the Mother between 5.00 pm and 6.00 pm, provided that such communication will be monitored by the Father until the Mother’s time progresses to unsupervised.
21.For the purpose of the Facetime calls, the Mother is to contact the child on a mobile telephone number provided by the Father.
Therapy for X
22.Within seven days of the date of these orders, the Father is to do all acts and things and sign all documents necessary to:
(a)Contact one of the following:
(i)E Psychologists;
(ii)F Psychologists; or
(iii)G Health Service
to make enquiries of a suitable Family and Child Psychologist (“the Psychologist”).
(b)Book and attend the first available appointment with the Psychologist;
(c)Attend all appointments and follow all recommendations of the Psychologist;
(d)Use his best endeavours to ensure that X attends all appointments as required by the Psychologist; and
(e)Be responsible for the costs of therapy with the Psychologist.
23.For the purposes of Order 22, the goals of the therapy are to include supporting X and the Father in X’s move from his Mother’s residence to his Father’s residence, as well as assisting X in his relationships with his Mother and Father.
24.The Father has leave to provide a copy of the following documents to any counsellor, psychologist or psychiatrist providing treatment to X at any time:
(a)A copy of these orders;
(b)Justice Behrens’ Reasons for judgment;
(c)Copies of all three reports prepared by Ms B; and
(d)Dr J’s report dated 29 August 2024.
Other orders
25.Each parent will notify each other within 48 hours of any change in their residential address, email or mobile telephone number.
26.The Mother is at liberty to send a Christmas card and Christmas presents to X at the residential address provided to her by the Father, and the Father will ensure that X is provided with any such card or presents as well as any cards or presents which are sent to X from his extended maternal family.
27.Each parent will notify the other in the event that X suffers a significant illness or injury or is hospitalised whilst in that parent’s care.
28.The Mother is hereby authorised to obtain information in relation to X’s progress from any doctor, health practitioner or therapist providing treatment to.
29.Forthwith upon the making of these orders and continually thereafter, the Father is to give written authority to X’s school to provide all information, including reports and notices of events and any other details of X’s progress, to the Mother and once unsupervised time has commenced to include the Mother’s name on the school records as an emergency contact.
30.After the commencement of time pursuant to Order 9 (unsupervised time), both parents are permitted to attend all parent teacher interviews, assemblies and other events at X’s school which parents can ordinarily attend.
31.That each parent is hereby restrained from:
(a)Making critical or derogatory remarks about the other parent to or in the presence or hearing of X or allowing any other person to do so; and
(b)Abusing, threatening or belittling the other parent including by text message.
32.Each parent is hereby restrained from discussing these Court proceedings in the presence of or hearing of X except under the guidance of a doctor, counsellor, psychologist, psychiatrist or therapist or in accordance with the advice of a Court Child Expert.
33.Each parent will immediately remove X from the presence or hearing of any third person who is doing any of the things which a parent is restrained from doing pursuant to Orders 31 and 32 above.
34.The Father has leave to provide a copy of these orders to any school and any medical practitioner upon which X may attend.
35.The Father shall follow up the recommendations of Dr J as set out in her report dated 29 August 2024.
36.The Father shall ensure X remains enrolled at and attends H School until the conclusion of year six.
37.The Father shall be restrained from drinking alcohol in excess of the legal limit for driving (0.05) while he is caring for X.
Changeover and other matters on and immediately following 8 November 2024
38.The Mother shall leave the Court building at the conclusion of judgment delivery, without returning to Court Children’s Service on Level 2.
39.Changeover will be effected by the Father, together with the Independent Children’s Lawyer, upon conclusion of judgment delivery attending upon the childcare facility of the Court Children’s Service on Level 2 of the Sydney Registry.
40.The Independent Children’s Lawyer, together with a Court Child Expert, shall explain these orders to X, and the Court Child Expert is requested to provide the Father with such advice as he reasonably requests in relation to what, if anything, he should say to X about the outcome of these proceedings.
41.The Court Child Expert is requested to prepare a Memorandum for the Court in relation changeover on 8 November.
42.Only the Father and any support person accompanying him are authorised to remove X from Court Children’s Service on 8 November.
43.On or before 10.00 am on Tuesday 12 November 2024, the Mother is to provide the Father, via her solicitors or the Independent Children’s Lawyer, written details of the child’s treating medical practitioners together with the locations, dates and times of any future appointments.
44.The Independent Children’s Lawyer is requested to facilitate an agreed arrangement for the Mother to provide X’s school uniforms, favourite toys and other items and clothes to the Father as soon as practicable and the Mother shall comply with any such agreed arrangement.
ICL’s costs
45.Unless a waiver is granted by Legal Aid NSW, each parent shall pay to Legal Aid NSW the sum of $6,740.90 within 42 days or such later time as is agreed with Legal Aid NSW, being their share of the costs of the Independent Children’s Lawyer.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Lasker & Franke has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BEHRENS J
BACKGROUND
These parenting proceedings concern X, born 2017 (“X”). X is now aged seven. X’s parents are Mr Lasker and Ms Franke. Mr Lasker is a tradesperson and Ms Franke is a freelancer.
The matter is in the Magellan List in the context of allegations by Ms Franke that X has been sexually abused by Mr Lasker. Both parents are now seeking final parenting orders that they have sole parental responsibility for X and that he lives with them.
X’s parents started living together in about 2012, married in 2013 and separated in October 2018. When they separated, X was one year old. Since that time, X has lived with Ms Franke. Initially after separation, he spent daytime only with Mr Lasker. He commenced spending some overnight time with Mr Lasker in December 2019. Ms Franke stopped time in October 2020, at around the same time as she made her first report to the New South Wales Department of Communities and Justice (“DCJ”) in respect of Mr Lasker’s behaviour towards X.
Ms Franke’s report was followed by an investigation and assessment by the New South Wales Central Metropolitan Joint Child Protection Response Program (“JCPRP”) in relation to X’s safety (“the first JCPRP investigation”). The first JCPRP investigation was finalised in December 2020. The Magellan Report ordered in this matter on 3 August 2023 and dated 6 September 2023 (“the Magellan Report”, which became Exhibit ICL1) reveals that the outcome of the first JCPRP investigation was that the allegations that X had been sexually abused were not substantiated, nor were “any risk concerns”.
Mr Lasker commenced these proceedings in March 2021, and at that time sought interim and final orders that he and Ms Franke have equal shared parental responsibility for X, and that X live with Ms Franke and spend time with him.
In June 2021, after the commencement of these proceedings, there was a second JCPRP investigation and assessment (“the second JCPRP investigation”). The outcome of the second JCPRP investigation was the same as the first.
Between October 2020 and 22 January 2022, X spent no time with Mr Lasker.
The first interim parenting orders were made after a contested hearing on 23 December 2021 and provided for Mr Lasker to initially spend supervised time with X, which would then progress to unsupervised time. Ms Franke did not comply with those orders so far as they provided for unsupervised time between X and Mr Lasker. Between 22 January 2022 and 20 June 2023, X had time with Mr Lasker professionally supervised. Ms Franke then stopped that time on the basis of an allegation that Mr Lasker had sexually abused X during professionally supervised time.
In June 2023, there was a third JCPRP investigation and assessment (“the third JCPRP investigation”). That investigation followed the making of a report to DCJ by X’s treating psychologist Ms K regarding a disclosure by X, as well as further reports by Ms Franke, including that X had been sexually abused during professionally supervised time. The outcome of the third JCPRP investigation was that “DCJ will be substantiating suspicious indicators consistent with sexual abuse for [X]”, although “the primary alleged risk of concerns around actual sexual harm have not been substantiated.”
X was interviewed for each of the three JCPRP investigations, including twice at his school for the third JCPRP investigation (such that he was interviewed twice at age three for the respective purposes of the first and second JCPRP investigations, and then twice at age five in respect of the third JCPRP investigation). He did not make any disclosures of sexual abuse during those interviews.
Further interim parenting orders were made for professionally supervised time on 9 October 2023. X then spent supervised time with Mr Lasker from 25 November 2023 to 24 February 2024.
In early 2024, there was an incident at X’s school in which he engaged in violent behaviour and problematic harmful sexualised behaviour (“the school incident”). This was preceded by X acting aggressively towards other children in multiple ways during 2023 and 2024. As a result of the school incident, X was not able to stay enrolled at his school. Ms Franke then moved with him to her property at Suburb D and enrolled him in H School. He has been attending there since.
X has now only spent professionally supervised time with his father since October 2020, when he was just three. He has spent no time at all with his father since February 2024. The periods when he has spent no time with his father span October 2020 to January 2022, June 2023 to November 2023 and February 2024 to date.
Following orders made in Chambers on 3 March 2021 for the appointment of an Independent Children’s Lawyer (“ICL”), X has been represented by the same experienced ICL since 16 March 2021. I was told that the ICL had met with X shortly before the final hearing.
The Court and the parties have had the benefit of the evidence of a single expert, Ms C (“the single expert”), a forensic psychologist who has prepared three Family Reports in these proceedings – the first on 14 December 2021, the second on 1 March 2024 and the third on 28 August 2024. The third Family Report was ordered following the school incident referred to above and its aftermath.
At the request of the ICL, X was assessed by a paediatrician, Dr J, in August 2024. As noted in her report, which became Exhibit ICL 5, Dr J was specifically asked to address the following:
(1)Developmental screening including fine motor, language, social interactions and cognitive abilities
(2)Consideration of family medical history, social supports and home environment
(3)Recommendations regarding therapies and by whom
(4)Any other matters relevant to [X’s] well–being.
Her brief report dated 29 August 2024 is the only medical evidence before the Court.
PROPOSALS OF THE PARENTS AND THE ICL
By his Case Outline filed 4 September 2024, Mr Lasker sought sole responsibility for making decisions for X, that X live with him and, after a moratorium on time, that X then spend supervised time with Ms Franke. By her Case Outline filed 4 September 2024, Ms Franke sought sole decision–making power and authority, that X continue to live with her and that he spend no time with Mr Lasker. The Case Outline filed on behalf of the ICL prior to the trial did not indicate a position.
Prior to the single expert giving evidence on day five of the trial, I directed the parents each to file in Court a Minute of Order in which they outlined their positions “in the alternative”– namely, for Ms Franke, what orders I should make for X to spend time with her in the event I order he live with Mr Lasker, and for Mr Lasker what orders I should make for X to spend time with him in the event I order that he is to remain living with Ms Franke. Mr Lasker filed such a Minute, which provided for joint parental responsibility and a substantially shared care arrangement (“the alternate minute”). I was told that Ms Franke did not give instructions to provide such a Minute. While not required to, she also did not propose an alternate position in the event I found that there was no unacceptable risk to X.
Prior to submissions, the ICL filed a Minute of Order Sought. That Minute is annexed to these Reasons as Annexure A. The ICL sought that Mr Lasker have sole parental responsibility for X, that X live with his father, and that there be a 12 week moratorium on time with Ms Franke. This moratorium was to be followed by supervised time, which would then progress to daytime only unsupervised time, with such progression being conditional on Ms Franke attending on a clinical psychologist for treatment of “her anxiety disorder”.
Counsel for Mr Lasker indicated that his client consented to the making of orders in the terms sought by the ICL.
I subsequently directed each counsel to address me in relation to orders otherwise in the general terms of those sought by the ICL but moving, after a period of 18 months’ treatment and a report, to overnight time. Both counsel for the ICL and counsel for Mr Lasker indicated that there was no objection to me making orders generally in those kinds of terms. In submissions, counsel for the ICL sought that there be a report from Ms Franke’s psychologist after 18 months of treatment, and that time then progress to overnight. Properly, counsel for the ICL did not seek orders that the progression depended on the substantive content of the report. He did not indicate what configuration of overnight time the ICL sought, nor did I press him to do so.
BRIEF SUMMARY OF OUTCOME
Having considered the evidence and for the reasons set out below, I find that:
(1)X has not been sexually abused by Mr Lasker.
(2)An arrangement where X continues to live with Ms Franke or immediately spends unsupervised time with her is not one which will promote X’s safety from further emotional and psychological harm because he will continue to be exposed to her fixed false belief that X has been sexually abused by Mr Lasker.
(3)The “least worst” outcome for X is that he move to live with Mr Lasker.
(4)It is in X’s best interests for him:
(a)not to spend time with Ms Franke for a period of 12 weeks;
(b)then to commence spending supervised time with Ms Franke for a further period of 12 weeks;
(c)subject to Ms Franke having then had six months’ of treatment with a clinical psychologist and complying with reporting requirements, that time move to unsupervised but day-time only;
(d)subject to Ms Franke having then had 12 months’ of treatment and complying with reporting requirements, that time move to a substantially shared care arrangement.
EVIDENCE
Mr Lasker was the only witness in his case. He relied on his trial affidavit filed 31 July 2024, which was read without its annexures. I required documents to be individually tendered.
Ms Franke relied on her trial affidavit filed 1 August 2024, which was read without its annexures, and also on an affidavit of her sister, Ms M filed 1 August 2024 with its annexures (“maternal aunt’s affidavit”).
Documents were tendered and received into evidence. I have read and considered those Exhibits.
In addition to the Magellan Report (“Exhibit ICL1”), the Court received into evidence:
(1)The Family Report of Ms C dated 14 December 2021 (“the first Family Report” or “Exhibit ICL2”);
(2)The second Family Report of Ms C dated 1 March 2024 (“the second Family Report” or “Exhibit ICL3”);
(3)The third Family Report of Ms C dated 28 August 2024 (“the third Family Report” or “Exhibit ICL4”);
(4)A report of paediatrician Dr J dated 29 August 2024 (“Dr J’s Report” or “Exhibit ICL5”).
THE PARENTS AS WITNESSES
Mr Lasker gave his evidence mostly in a straightforward way, although he was evasive at times, particularly when answering questions about text messages between him and Ms Franke in the period after their separation. His affidavit evidence to the effect that, even prior to the allegations first being raised, Ms Franke had dictated the terms of his relationship with X and the time X would spend with him, was successfully challenged under cross examination. He did not impress as particularly reflective or insightful. He had not given any evidence in chief about his behaviour towards Ms Franke after separation. Under cross examination, he did not adequately accept responsibility for some of his behaviour during that period. Nonetheless, the way in which he gave his evidence persuaded me that he is motivated by X’s best interests, rather than by revenge or vindication.
Ms Franke had an unusual presentation. She frequently asked for questions put to her in cross examination to be repeated – notwithstanding that they were generally clearly and carefully put. She appeared at times to be confused and to “second guess” herself. There were occasions when she seemed to be seeking additional time to consider the implications of her answer, rather than answering in a straightforward and forthright way. At one point, she asked for a question to be repeated so that she could “regroup” and had to be told by me that this was not appropriate. At another point, she said words to the effect that she did not want to “ruin the case”. At another stage, when a discrepancy between her affidavit and the oral evidence she had given regarding the timing of a conversation with X was brought to her attention, she responded “I should have just said I can’t recall”.
She did not become visibly angry or distressed. She did cry at a couple of points – this occurred when she was having difficulty with her evidence, rather than where the subject matter was particularly emotional. At times, her presentation was inconsistent with the subject matter – for example, she would laugh or respond in an apparently light–hearted way to questions about serious topics. When I asked the single expert about this incongruent behaviour, she opined that a possible explanation was that it was a manifestation of Ms Franke’s attempts to suppress her feelings of anger. The single expert had observed the mother engaging in such behaviour during her interview for the third Family Report, and to that end had recorded as follows at paragraph 81:
[t]he impression was gained that the [m]other feels guilty when she experiences anger or when her preconceptions are challenged. At times in her attempt to displace her anger, her emotional expression was incongruent with the subject under discussion.
Ultimately, I did not form the view that Ms Franke was deliberately lying to the Court, but it was often difficult to understand her answers to questions and I have no confidence in the reliability of her evidence about historical events. She had not been diligent in ensuring that her affidavit evidence – particularly about X’s words and actions – was accurate. I have approached her evidence with caution.
RELEVANT LAW (PARENTING ORDERS)
When making parenting orders, X’s best interests are the paramount consideration.
In working out what is in X’s best interests, I am required to have regard to the considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). As X is not an Aboriginal or Torres Strait Islander child, the considerations that apply only to such children are not extracted below.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) …
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
I am also required to apply s 60CG of the Act which provides:
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
ANALYSIS OF THE EVIDENCE IN RELATION TO BEST INTERESTS CONSIDERATIONS
Safety
Findings sought in relation to safety from harm of sexual abuse
At the conclusion of the evidence, Ms Franke sought a finding that X had been sexually abused by his father or, in the alternative, no such finding but a finding that X is at unacceptable risk of sexual abuse in the care of Mr Lasker. No oral submissions were made in support of either of those findings. The Case Outline filed on behalf of Ms Franke contained brief written submissions on the point. Having not been told anything to the contrary, I have assumed that Ms Franke continued to rely upon those submissions at the conclusion of the evidence.
Mr Lasker contended for a finding that he had not sexually abused X. The ICL also contended for such a finding.
Ms Franke’s evidence relevant to safety from harm of sexual abuse
Of the evidence which might support a finding that X has been sexually abused by his father, the majority is constituted by Ms Franke’s reports of things X has said to her and how X has behaved over the period September 2020 to date, when she has been alone with him.
In her trial affidavit, Ms Franke gave the following evidence regarding what she said were X’s disclosures and other behaviours:
(1)In September 2020, she smelt what she thought could be semen on X’s breath and observed him, upon waking, to be crying and wiping his tongue after having been returned from swimming lessons by Mr Lasker (paragraph 79). Later that same day, when she asked X why he had been crying, he did not respond and instead took her hand, placed it on her lap and began sucking her thumb and making choking noises. She subsequently observed X, on a number of occasions after this date, moving his index finger in and out of his mouth and sometimes making choking noises or gagging noises while doing so (paragraphs 80–81, 90, 95).
(2)In September 2020, after returning from Mr Lasker’s care, X sucked Ms Franke’s thumb, and advised her that he would suck his father’s thumb when in his company. When instructed by Ms Franke to tell Mr Lasker that he did not like sucking his thumb, X was reported to have replied to the effect “I keep telling him but he puts it in again”. When X proceeded to move his index finger in and out of his mouth, he made gagging noises, and when asked by the mother where those sounds came from, he advised to the effect “[w]hen I suck dad’s thumb” (paragraph 81). X then responded “[n]o” to Ms Franke’s question as to whether Mr Lasker “make[s] you suck him anywhere else” (paragraph 81).
(3)In October 2020, X used words to the effect of “’he rubs my penis and makes me feel better’” to describe the father’s conduct after spinning X around and causing him to feel dizzy (paragraph 88). When asked by the mother when and where this had occurred, X replied “’Saturday’”, and answered in the negative to the mother’s questions about whether Mr Lasker held X’s penis to assist him in going to the toilet or to administer cream for soreness (paragraph 88). She deposed that X described Mr Lasker’s actions as “he rubs it from the inside” (paragraph 88).
(4)In November 2020, in the context of a discussion about why X was not able to go in a vehicle with his father in July 2020 and whether adults are allowed to drink and drive, X was observed by Ms Franke to move his index finger quickly in and out of his mouth. He then replied to the effect “Dad does that to my finger now I do this” to her question as to why he was engaging in that behaviour. He then stated “’I like it when dad rubs my willy it feels nice’” (paragraph 90).
(5)In November 2020, X told her “Dad licks my nose” and spoke about “’Dad licking a friend at [a shop] toilet’” whilst X was present in the toilet, sitting in his pram (paragraph 91). When questioned by her as to whether he too had ever licked his father’s friend, X replied “’yes’” (paragraph 91).
(6)In June 2021, whilst in the bath, X stuck his fingers up his bottom and when reprimanded by his mother, said words to the effect “’I like doing it, it feels nice, Dad tells me to do it’” and advised that his father would also stick his fingers up X’s bottom (paragraph 113).
(7)In August 2021, X woke Ms Franke up and said words to the effect “’[i]t’s OK mum, it’s only a finger in the bum. It’s OK mum’”, and when questioned as to whether someone had said that to him, advised that his father says this (paragraph 120). Later, X responded “’[n]o’” when asked by the mother if the father had recently said this to him (paragraph 120).
(8)In February 2022, she discussed X’s upcoming supervised visit with his father and asked how he was finding seeing his father. X was reported to have responded “’[g]ood! He doesn’t touch my penis anymore’”, or words to that effect (paragraph 133).
(9)In March 2022, after having spent supervised time with Mr Lasker earlier that day, X was observed, when in the company of his uncle, to thrust his hips forward and say “’[y]ou can touch me with your penis if you want’” (paragraph 144). Later that same day, when X and Ms Franke were alone, he poked her and said “’put my penis in there’” whilst she was leaning on the kitchen bench (paragraph 144).
(10)Between April 2022 and May 2022, during which period X did not spend time with Mr Lasker due to illness, Ms Franke observed him making comments such as “’stick it in there’” whilst simultaneously placing his finger in her bottom (paragraph 146). X would also stick his finger in Ms Franke's bottom whilst they were walking down the street or she was cooking dinner, rub his penis up against her when she was getting him ready for bed, attempt to suck her finger whilst making moaning noises and also perform such acts with his own finger (paragraph 146).
(11)In August 2022, after being advised by Ms Franke that he was seeing Mr Lasker later that day, X began sucking her finger and moving it in and out of his mouth (paragraph 187). Upon Ms Franke removing her finger from his mouth, he proceeded to attempt to place his finger in her mouth in the same manner (paragraph 187).
(12)Around September 2022, being the date of X’s first appointment with Ms K, he said to Ms Franke words to the effect “’Dad and me had a penis competition’” in a playful manner whilst swinging his penis around, a behaviour which she deposed was not unusual for X to engage in after getting out of his bath (paragraph 197). In reference to swinging his penis around, X then said words to the effect “’Dad did this with his and we had a competition’” (paragraph 197).
(13)On three occasions in March 2023, X poked his mother in the bottom, and when at a birthday party during this period, he also poked a fellow attendee in the bottom (paragraphs 223–224). He was reprimanded by his mother for this behaviour at the party, and she observed that his behaviour “seemed ‘off’”, he appeared angry and was staring into the distance (paragraph 223). He was also observed by the mother to poke his cousin in the bottom in April 2023 and hit his maternal uncles in the groin during a Mother’s Day lunch in 2023 (paragraphs 230, 232).
(14)In May 2023, X and Ms Franke engaged in a conversation about secrets, during which he advised her “’[i]t’s a secret, I can’t tell!’” and she suggested that he draw the secret instead (paragraph 233). After he had finished drawing, the mother began to ask him questions about what he had drawn, and he said that the picture was of X, his father, a present and a lollipop (paragraph 234). Ms Franke deposed to becoming frustrated when questioning X, and whilst he was in the bath, X told Ms Franke that Mr Lasker would ask him to suck a lollipop, and that he would receive a present (paragraph 234). When asked by Ms Franke what the present was, X pointed to his penis, and he grabbed his penis at a later point in the conversation, when the mother asked him whether he had to suck anything else to receive the present (paragraph 234). The mother deposed that when she asked him whether anything else had happened, X responded “’Dad has a camera, he makes me suck the lollipop, then his penis and then I get a present’” (paragraph 234). Sometime later, in response to a question from Ms Franke as to whether Mr Lasker was holding the camera, X advised that the camera was placed on a stick nearby (paragraph 235). When Ms Franke asked X, during this later conversation, whether Mr Lasker was “sucking your private parts or do you have to suck his”, X advised “Dad only sucked mine one time. I have to suck his like the lollipop” and pointed to his penis (paragraph 235).
(15)In June 2023, when he was being put to bed, X said to the mother words to the effect “’Dad rubs my penis while we are playing matchbox cars behind the car tower and goes under the table’” (paragraph 256). In response to a question by Ms Franke as to when this occurred, X advised that this behaviour took place during supervised visits, and stated “‘[supervisor Mr L] is always doing work on his computer’” (paragraph 256). At Ms Franke’s request, X then showed her how the father rubbed his penis (paragraph 256).
(16)In July 2023, X was looking at his sketchbook, and upon encountering the picture he had drawn in May 2023, stated “Dad gave me a lollipop if I touched his penis and I say no, and then he said he’d give me a present, so I did” (paragraph 272).
(17)In early 2024, she attended a meeting with the N School principal, school psychologist and a teacher, and was advised that X, with the assistance of two other students, had taken a student to the toilet, aggressively asked the student to take his clothes off and engaged in sexualised behaviour towards the student (paragraph 326). The principal advised Ms Franke that “’[w]e have had some incidents where [X] was in the bathrooms previously’” (paragraph 326). Around that same day, when Ms Franke questioned X why he had behaved in this way, he responded with words to the effect ‘”Dad did it to me and I was angry’”, and said in response to Ms Franke’s question that this had not occurred during recent supervised contact visits (paragraph 333). The following day, X advised Ms Franke that his father had behaved in that way towards X because X had witnessed someone else performing such an act on Mr Lasker (paragraph 334). When asked by Ms Franke how he had seen this and whether it was a dream, X responded “’I was under the table’” (paragraph 334).
(18)In early 2024, Ms Franke was advised by the mother of one of X’s school friends that her son was exhibiting behaviour towards her daughter which emulated the “‘strange things’” X had taught him, and that there was an occasion when she thought she had witnessed X poke her daughter in the vagina (paragraph 336).
(19)In April 2024, during a conversation with his mother about their impending move to Suburb D, and in the context of discussing whether “a Judge” would decide whether he could see his father in the future, X stated that if he were a judge, he would say “Dad is a bad man who should go to jail. He lied to the police about not touching my private parts” (paragraph 358).
The significant difficulties with this evidence are, in summary:
(1)Ms Franke has given inconsistent accounts to different people and at different times about what X has said and done;
(2)Even on Ms Franke’s affidavit evidence, “disclosures” by X have been pre-empted by (or “lead” by) her;
(3)There are other explanations for X’s thumb-sucking and other behaviours;
(4)Ms Franke has not changed her view that X’s “disclosures” pertain to sexual abuse by his father, even upon X saying things to her which are inherently unlikely– including that he was sexually touched by Mr Lasker during professionally supervised time;
(5)X has now not had anything but professionally supervised time with Mr Lasker since October 2020 and yet apparently continues to “disclose” to Ms Franke;
Each of these matters is addressed below.
Inconsistent accounts
From the documents tendered, I infer that Ms Franke’s first reports to authorities were as follows:
(1)In October 2020, she contacted and spoke to a social worker at the O Hospital, and was provided with the number for the Child Protection Helpline. The record of that conversation, being a document called the Child Progress Note “Final Report”, became Exhibit F4.
(2)On the same day, she contacted the NSW Child Protection Helpline and made a report. The record of that report became Exhibit F2.
(3)In November 2020, she contacted NSW police and made a report. The record of that report became Exhibit F3.
It was put to Ms Franke that there were inconsistencies between her telling of the incidents in the reports themselves, between the reports and her affidavit, and in some cases between the reports, her affidavit and her diary. For example, she conceded that nowhere in what she described as her contemporaneous diary (which was not tendered in evidence) does she record X inserting his index finger in and out of his mouth and saying “’dad does this’”, notwithstanding her evidence that this occurred.
It was put to Ms Franke that when she made her first report to the Child Protection Helpline in October 2020 (Exhibit F2), she did not refer to X’s breath as having smelt like semen in September 2020. I was told that she raised this first in a report to police in November 2020 (Exhibit F3), when she is recorded as having alleged that “she could smell the distinct scent of semen on his breath”. This is not correct, because the Child Progress Note “Final Report” dated October 2020 (Exhibit F4) records Ms Franke having told the writer that “[h]is breath also smelt like sperm, Mo [sic] said this is similar to chlorine.” It is true, however, that there is no reference to X’s breath smelling like semen in the Child Protection Helpline report made later on the same day. Ms Franke could not explain this disparity, although she did say that, at the time, she had doubts about what she was smelling and that she would not have said, despite police having recorded as such, that the smell was “the distinct scent of semen.” She also said that semen being the cause of the scent on X’s breath was “not a possibility I wanted to explore.”
It is hard to believe that, if Ms Franke did hold suspicions that X’s breath smelt of semen in September, she would not have acted sooner than when she did, being almost two weeks later. She admitted under cross examination that she did not even tell her sister or her mother at the time. It is also hard to believe that if she had these suspicions when she made her first report to the Child Protection Helpline in October, she would not have raised them to the reporter. I cannot, however, discount the possibility that she did hold such suspicions at that time, because she told the social worker at the hospital on the same date that she did. By the time she spoke with police the next month, the police record suggests she had crystallised her view that it was semen she had smelt on X’s breath. This would be a bizarre incident to fabricate. In light of Ms Franke’s own strong initial doubts, the fact that X had gone swimming immediately prior to her smelling his breath such that there is arguably a more feasible explanation for any unusual smell, the inherent unlikelihood that Mr Lasker would have ejaculated into his three year old’s mouth and then sent him home with his breath smelling of semen and the lack of any plausible reason as to why X’s breath would smell of semen, I am comfortably satisfied that Ms Franke did not smell semen on X’s breath. Her belief that she may have done so is most likely a sign of her state of anxiety at that time and her tendency, in that state of anxiety, to assume the worst may have occurred. That process was described in evidence by the single expert as detailed below. The fact that she has maintained that position, even in the face of cross examination as to the implausibility of this scenario, is part of the fixed belief she has come to hold that X has been sexually abused by his father.
In the Child Protection Helpline report in October 2020, Ms Franke is recorded as reporting that “[when asked] … if anybody does that to him, [X] replied ‘Dad’. Last weekend when [X] got back from [his] father’s house, he displayed the same behaviour and he told the mother that his father does that to him” (Exhibit F2). In the police report in November 2020, she is also recorded as saying that, after X sucked her thumb she asked him “’[d]oes dad get you to suck his thumb like that?’”, to which he replied “’[y]es’” and “’[d]oes he get you to suck anything else?’” to which X responded “’[n]o’” (Exhibit F3). In the Child Progress Note “Final Report” there are different details provided although it is not clear which date or dates Ms Franke may have been reporting about– “Mo asked is this what he gets your [sic] to do and [X] said yes”. She is also recorded as having “asked if the Fa touches him anywhere else and he said no”. In the Child Protection Helpline Report in October 2020 Ms Franke is recorded as having asked X whether the father showed X his private parts, to which X replied no. She does not give evidence about the fact that she asked X whether his father did this in her affidavit.
What is consistent across Ms Franke’s versions of events is that she has asked X leading questions. Based on the records referred to above, I find that Ms Franke has asked X additional leading questions about which she does not give evidence in her affidavit. I deal with the issue of leading questions further below.
Again, in her report to police in November 2020, Ms Franke said that X started making gagging noises whilst sucking her thumb in September 2020. In the Child Progress Note “Final Report” in October 2020, Ms Franke is recorded as having said “[t]he last time they had this conversation [X] demonstrated choking noises when sucking Mo’s [sic] finger”. In the Child Protection Helpline report, made later on the same day, she is recorded as having said that X, when being questioned about what he does or doesn’t like about his father’s house, put her thumb on his lap and sucked it suggestively while making choking sounds. In her affidavit at paragraph 81, she gives evidence that the noises were made when X moved his own finger in and out of his mouth, with no mention being made of X making such noises when her finger was in his mouth.
Ms Franke’s evidence about her and X’s respective comments in October 2022 (the “spins me around” incident) is different in some significant respects from what she is recorded as having reported to the Child Protection Helpline in October 2020 (Exhibit F27).
Under cross examination, Ms Franke agreed that in a previous affidavit filed 9 April 2021, she had given evidence that X said “dad licks his nose” – that is, Mr Lasker would lick his own nose. On the other hand, her evidence in her trial affidavit was that X had said “’Dad licks my nose’” (paragraph 91).
Despite her initial denials during cross examination as to the occurrence of a conversation with her mother, prior to the “semen on the breath” episode, in which she raised the possibility that X had been sexually abused, she ultimately conceded that she had given evidence in a previous affidavit filed in these proceedings that this discussion had taken place. She also retracted her affidavit evidence that X had made disclosures to “other family members” (mother’s trial affidavit, paragraph 75).
In relation to the shop incident, the mother is recorded as having reported to DCJ in June 2023 that “’[X] said that dad does finger in the mouth [sic] to [X] in the [shop] toilets’” (Exhibit F14). This differed from her trial affidavit evidence, in which she had deposed that X had said his father was licking a friend in the shop toilet, and that he had answered “’no’” to her question “’[d]id anybody touch you?’” when they were discussing this event (mother’s trial affidavit, paragraph 91).
Ms Franke’s trial affidavit account of the bath incident in June 2021 is different from what she told the police at the time – namely, that “she witnessed the child insert his finger in his anus and move it in and out” (Exhibit F18). Both versions of this event are inconsistent with the account, contained in Exhibit F12, which she is recorded as having given to DCJ, namely:
[Ms Franke] was washing up and [X] was having his bath. [Ms Franke] went to get [X] out of the bath and saw [X] was ‘crouched down’. [Ms Franke] asked [X] ‘are you weeing in the bath?’ and [X] responded ‘no, I’m putting my fingers in my bum’. [Ms Franke] responded by saying to [X] ‘ok it’s time to get out of the bath’. [Ms Franke] initially didn’t think much of it, considered whether it was related to a medical concern. [Ms Franke] then spoke with [X] saying ‘we don’t put fingers in our bum’, ‘why are you doing that, we don’t do that, let’s get out of the bath now’. [X] said ‘Dad likes me to put my fingers in my bum’. [Ms Franke] asked [X] ‘[d]oes he (dad) put his fingers in his bum?’ [Ms Franke] explained this was in a light hearted way and was meant to demonstrate to [X] that dad doesn’t so he shouldn’t. [X] replied ‘he puts his fingers in my bum’.
Ms Franke was not able to give any explanation for these inconsistencies, other than speculating that her comments had been recorded incorrectly.
When Ms Franke was asked in cross examination whether she had seen X put his fingers in his bum on that occasion, she replied “I can’t recall.”
There were other examples of inconsistencies in the accounts and evidence which Ms Franke has given which were exposed during cross examination of her, including in relation to her evidence about Mr Lasker’s alcohol use.
During her oral evidence, Ms Franke said that X “discloses constantly”, and that she would try not to reply, but would sometimes engage in conversations with him about his disclosures. I asked her when X had last disclosed, and although she answered that this had occurred “probably a week ago”, she was unable to recall anything about what he had said.
Making allowances for the possibility of some inaccuracy in the records, there is no doubt that – as her counsel appropriately conceded – Ms Franke has been a “poor historian” in relation to these matters.
“Leading” Questions put to X by Ms Franke
As counsel for Mr Lasker put in submissions, some of the exchanges between Ms Franke and X, about which Ms Franke gave evidence, were “textbook examples” of how to lead a child – with the consequence that the things X is reported to have said are inherently unreliable. The single experts evidence about this issue is summarised later in these reasons.
For example, in relation to X’s disclosure in May 2023, Ms Franke’s affidavit evidence was that X had advised her he had a secret he couldn’t “’tell’”, and so she had suggested “’if you can’t tell, why don’t you draw it’” (mother’s trial affidavit, paragraph 233). Ms Franke then asked X to describe his drawing, upon which he prompted her to guess and said words to the effect “’I can’t tell because it’s a secret’” (mother’s trial affidavit, paragraph 234). While her conversation with X was initially about what he had drawn, the nature of her questioning then progressed to matters beyond the drawing, such as what X had to “do” to receive a “present” from his father:
[Ms Franke]: Ok well I see a present, and two people.
[X]: Yes. Me and Dad.
[Ms Franke]: What's this?
[X]: A lollipop.
[Ms Franke]: So, you can’t tell me because I don’t like you to have sugar and lollies?
[X]: No.
[Ms Franke]: You have to keep a secret because it's a present and I only get presents on birthday [sic] and Christmas?
[X]: No.
[Ms Franke]: Ok, so there’s a lollipop and a present. And Dad and [X]. [X] is giving [D]ad a lollipop?
[X]: No, Dad gives me a lollipop to suck it.
[Ms Franke]: And then he gives you a present?
[X]: Yes. If I suck the lollipop, I get a present.
[Ms Franke]: If you suck the lollipop Dad gives you a present? Do you have to do anything else?
[X]: Yes!
[Ms Franke]: What’s the present?
[X]: It’s a secret.
[Ms Franke]: Can you point to it? Is it in this room?
At this question, Ms Franke gave evidence that X pointed at his groin, entered the bath and then prompted Ms Franke to once again “’guess the secret’” (mother’s trial affidavit, paragraph 234). Ms Franke then continued to make inquiries of X which extended beyond his drawing, including by repeating questions (mother’s trial affidavit, paragraph 234):
[Ms Franke]: Dad gives you a lollipop, you suck it, you get a present. Do you have to suck anything else?
[X]: Yes.
[Ms Franke]: Can you point to what it is – in this room? Out there?
[X] proceeded to grab his penis in the bath.
[Ms Franke]: So you[r] [D]ad gives you a lollipop to suck and then [D]ad or you sucks there?
[X]: Yes.
[Ms Franke]: And then you get a present?
[X], whilst putting his head down: Yes
[Ms Franke]: Did anything else happen?
[X]: Dad has a camera, he makes me suck the lollipop, then his penis and then I get a present.
[Ms Franke]: Ok I can see that’s a big secret. Adults should not do that to you. Does that happen when [Mr L] is there? Or is this ages ago?
[X]: Ages ago.
[Ms Franke]: You are so brave for telling me. I love you so much and I’m sorry I wasn’t there.
It was not X, but Ms Franke who brought up this disclosure again later that evening. When X was in bed and ready to read a book, Ms Franke asked him a question to the effect of “’[c]an I ask you a few more questions about what happened?’”, to which X responded that he was “‘excited’” he had told Ms Franke this information (mother’s trial affidavit, paragraph 235). Again, these questions were about the purported actions of the father, rather than X’s picture:
[Ms Franke]: So, Dad is holding a camera and there is down there? How is Dad doing that?
[X]: No, [D]ad has a camera over there on a stick, he just comes there and back.
[Ms Franke]: Is [D]ad sucking your private parts or do you have to suck his?
[X]: Dad only sucked mine one time. I have to suck his [pointing to his penis] like the lollipop.
[Ms Franke]: Ok that’s clear. That is full on. I’m so sorry that happened. That should never, ever happen. You are so brave and for telling me. I am so proud of you. We need to tell someone else.
[X]: No, because [D]ad will get in trouble.
[Ms Franke]: How about [Ms K] [sic]?
[X]: She is awesome. Yes.
During cross examination, Ms Franke agreed with the proposition that it was she who suggested a link between the present and the lollipop, introduced the idea that X was “doing something else” and asked X to point to something in the room, despite knowing that there were no presents in the bathroom and that X was not recalling an incident that had taken place in that room, let alone in that residence. She also agreed with the proposition that she had engaged X in further discussion after his bath because she “wanted to get further disclosures”.
A further confounding aspect of this “disclosure” is that, if what X said in fact happened, it must have happened during unsupervised time. X has not had unsupervised time with his father since October 2020. The “disclosure” occurred in May 2023. Whilst the single expert acknowledged that for a child of that age, “there could be some memories”, when the prospect of X’s memory improving over time was put to her, she opined that this was “less than likely”.
As set out above, there were a number of recorded examples of Ms Franke leading X which were not included in her trial affidavit.
The single expert gave evidence at paragraph 395 of the first Family Report that:
[t]he manner in which [X] is alleged to have made his initial disclosure to the mother involved prompting language used by the mother … leading questions identifying an individual or a concerning behaviour, can result in a child providing affirmation to a proposition.
I do not find that Ms Franke has deliberately “coached” X. I do, however, find that her anxious and repeated questioning of him, particularly through the use of leading questions, has likely led him to say things to which he would not have said of his own volition and render whatever he has said to Ms Franke about these matters inherently unreliable.
Other explanations for X’s conduct
The single expert identified that both parents had reported to her that X had been licking objects. In an interview with the JCPRP in December 2020, Ms Franke is recorded as having told them that X was “licking everyone, [he] goes and licks peoples [sic] arms, goes up to randoms and licks” and that he “licked [the] Aldi floor once” (Exhibit F6). Ms Franke confirmed in cross examination that behaviour had occurred.
The single expert also noted that throughout the first police interview X sucked or put his fingers in his mouth “but not in a sexually suggestive manner or in a manner which indicated he was very distressed” (Exhibit ICL2, paragraph 392). She then referred to the literature which normalises this kind of behaviour in toddlers and very young children (as X then was). She concluded “[t]he fact that [X] sucked his mother’s thumb in the manner he did does not indicate sexual grooming has occurred” (Exhibit ICL2, paragraph 394). Notably, Ms Franke had also deposed in her trial affidavit that X had been sucking on his fingers when sitting in a room with a police officer before his first interview began, and had attributed this behaviour to nerves (paragraph 95).
In relation to X being upset after visits with his father, the single expert opined as follows (Exhibit ICL2, paragraphs 326–327):
The mother advised that [X] had often been upset after visits with his father. She attributed this to something going wrong during those visits. An alternative explanation is that [X], as a very young child, was unsettled by changes in his parenting arrangements and at times had not adequately said farewell to his father on parting. Changeovers which occur during a young child’s sleep can result in the child being unsure about the availability of a missing parent when they awaken.
Such insecurity can be heightened for children in conditions when a parent is unreliable in their attendance at pick up’s [sic] and returns. Whilst parental flexibility (co‑operation) can be an asset when unexpected delays occur, in changeover arrangements it can still cause young children anxiety, especially in circumstances when the parent they are with exhibits anxiety, frustration or anger. Stability and predictability in changeovers and routines can foster security in young children who do not have the cognitive development to understand change, especially when this occurs in an emotionally charged environment.
Ms Franke’s conclusion of sexual abuse during professional supervision
The extent to which Ms Franke has, and continues to be, fixed in her view that Mr Lasker has sexually abused X is evident in her belief that X was sexually abused by his father during professionally supervised contact. She told the single expert that she believes Mr Lasker had sexually abused X by touching X’s genitals during a supervised contact visit: “[t]he [m]other advised that this event had confirmed her belief that no level of contact between [X] and his father would be safe for [X]” (Exhibit ICL3, paragraph 51). The incongruity between professional supervision and the perpetration of sexual abuse was explained by Ms Franke to the single expert on the basis that “’[i]f there’s a rule [Mr Lasker] will break it’” (Exhibit ICL3, paragraph 56). She appeared to put this alleged behaviour in the same category as her accusations that Mr Lasker had failed to turn up on time to collect X in the period after separation and before the sexual abuse allegations were first made: “’[e]ven before this it wasn’t workable. Times etc. I used to work around things in [X’s] best interests’” (Exhibit ICL3, paragraph 56). The idea that there is some apparent similarity between these two kinds of circumstances is very strange. I bear in mind, however, that Ms Franke was not cross examined on this point and may have had an explanation for why she used this comparison – although it is hard to think what that might be. To the single expert at the interview for the third Family Report, she elaborated upon her explanation of the father’s motivation for sexually abusing X during supervised contact: “…the [m]other described the [f]ather being motivated by ‘”[n]o-one tells me what I can’t do”, For him, I know it’s like that’” and she is recorded as having said some other strange things, including the unprompted statement “’[i]f you’re secretive everything is under the table’” (Exhibit ICL4, paragraph 74).
In addition to the inherent unlikelihood of sexual abuse during professional supervision, tendered in evidence in Mr Lasker’s case (Exhibit F32) was a statement from Mr L, who supervised the time X spent with Mr Lasker that is the subject of the allegations, and had been supervising visits for nearly a year. Mr L gave an account of the visit which did not allow for the possibility that X had been sexually assaulted. In the face of this evidence, Ms Franke nevertheless persisted in her belief that X had been sexually assaulted during professionally supervised time, and in cross examination would not accept that it was inherently improbable this had occurred.
Upon X making the “disclosure” when settling down to sleep, Ms Franke proceeded to ask him to show her what Mr Lasker had done. After he had demonstrated the alleged touching by way of making a circular motion on his penis and testicles but without taking off his pants, she took X out of his bed at about 8.00 pm and to the police station, where she encouraged him to tell a police constable what had happened. She took this course of action without contacting the supervision service to make inquiries, and apparently without giving any serious consideration to the inherent unlikelihood of any such thing occurring during professional supervision. On the balance of probabilities, I infer that Ms Franke was “desperate” for X to make a disclosure to authorities. I also infer that, by this stage, X was very aware that his mother wanted him to make such a disclosure.
Conclusion in relation to Ms Franke’s evidence about harm from sexual abuse
For the following reasons, I do not find that Ms Franke has acted maliciously, nor that she has deliberately lied to the Court:
(1)As I set out below, I accept that she was perhaps more than is usual in cases the Court sees supportive of X’s relationship with Mr Lasker in the period after separation, and worked hard to ensure that the father knew X wanted to see him. Such behaviour is inconsistent a decision to now act out a malicious plan to exclude Mr Lasker from X’s life on the basis of a concocted false allegation.
(2)She seemed bemused about the differences between the various accounts when they were put to her.
(3)She appeared genuinely to believe that X has been sexually abused by his father.
(4)Given what she must have known was at stake, it is highly unlikely she would have persisted in her evidence that X has been abused by his father if her belief was not genuine.
(5)The single expert opined that Ms Franke has a genuine and firm conviction that X has been sexually abused by his father (for example, Exhibit ICL2, paragraph 389 and Exhibit ICL3, paragraphs 49 and 84). She opined further that “the [m]other is fixed in her opinions as regards the [f]ather and his potential for harm and those opinions appear highly unlikely to alter” (Exhibit ICL4, paragraphs 153 and 154).
While she has neither acted maliciously nor deliberately lied, given the matters set out above, I am simply unable to accept Ms Franke’s evidence about what X said and did whilst alone with her, nor do I attach any weight or significance in making findings of fact about what has occurred to Ms Franke’s own conviction that X has been sexually abused by Mr Lasker.
Mr Lasker’s evidence relevant to safety from harm of sexual abuse
Mr Lasker has been spoken to in forensic processes and by experienced professionals on a number of occasions over the period December 2020 to June 2023. He has consistently denied that anything has occurred, and it does not appear that anything in his accounts raised any concerns for those professionals. He is recorded as having been spoken to on the following occasions:
(1)In December 2020 by a JCPRP Caseworker (Magellan Report, p 8);
(2)In August 2021 by a different JCPRP Caseworker (Magellan Report, p 9);
(3)In June 2023 by two different JCPRP Caseworkers (Magellan Report, p 11). The transcript of this interview was received into evidence and marked Exhibit M1. The interview was lengthy and the transcript runs to 20 pages.
Given the very limited evidence suggestive of sexual abuse by Mr Lasker, and the fact that he gave no evidence about any “innocent” explanation for what X was reported to have said, there was little scope for him to be cross examined at any length in relation to the allegations that he had sexually abused X. The following allegations were put to him:
You caused [X] to perform oral sex acts on you.
…
You performed oral sex acts on [X].
…
You put your finger in [X’s] anus.
…
You inserted items in [X’s] anus.
…
You caused some form of recording involving a selfie–stick of acts you did or had did [sic] to you by [X].
…
During a period of time when you had [X] in your care, you took him into [a shop] toilet and had a sex act with another person in view of [X] in the [shop] toilet.
He denied the allegations firmly and clearly and no further challenge was made to that evidence. The following further questions were then put to him:
During the period [X] spent time in your care, have you ever masturbated while he has been in the vicinity?
...
Have you ever accessed porn in periods where [X] has spent time in your care?
He denied those matters firmly and clearly and no further challenge was made to that evidence.
Other evidence relevant to safety from harm of sexual abuse
Apart from Ms Franke’s evidence about what X has said to her and X’s behaviour, I have before me the following evidence which could support a finding that X has been sexually abused (although not necessarily by his father):
(1)the conclusion of the third JCPRP investigation, which substantiated suspicious indicators consistent with sexual abuse;
(2)X’s problematic and sexualised behaviour at school – particularly the incident in early 2024;
(3)the evidence of X’s treating psychologist and, in particular, her evidence that she believes X has been sexually abused;
(4)the maternal aunt’s evidence about X’s behaviour; and
(5)statements X made to a police constable at a Police Station in June 2023.
The third JCPRP investigation
It appears from the Magellan report that the significant factors resulting in the JCPRP assessment of “substantiated suspicious indicators consistent with sexual abuse”, notwithstanding that X had made no disclosures in the interviews which formed part of that investigation, were that (Magellan Report, p. 12):
[X] has made several disclosures to his mother about incidents of sexual abuse by his father since October 2020.
… [at] the end of May 2023 [X] has also made a disclosure about licking his father’s penis to his [p]sychologist [Ms K].
…
[X] has been presenting with sexualised behaviours when attending childcare, has been observed by [Ms Franke’s] family to inappropriately touch [Ms Franke’s] brothers in their genital area, and has had incidents of wetting his pants after contact visits with his father or when talking about him to his psychologist.
I deal with X’s disclosures to his mother above. I deal with Ms K’s evidence below.
In relation to X wetting his pants, although Ms Franke had informed Dr J during the consultation with X that she was of the view his daytime wetting increased when he was under stress or experiencing change, the report of Dr J concluded that his daytime wetting was “likely due to an irritable small volume bladder” (Exhibit ICL5, p. 3). It was also noted by Dr J that X has “a strong family history” of nocturnal enuresis, with Ms Franke herself experiencing this condition as a child (Exhibit ICL5, p. 2) and that this condition, though possibly persisting for some time, could be addressed following a demonstrated improvement in the daytime wetting (Exhibit ICL5, p. 3).
When asked about Ms Franke’s oral evidence attributing X’s daytime wetting to stress, the single expert agreed that people can lose control of their bladder due to extreme stress or distress, but questioned how Ms Franke was able to reach this conclusion in respect of X’s daytime wetting. The single expert opined that “confirmation bias” may be playing a role in the formation of Ms Franke’s view– that is, she was “perhaps seeing what aligns with her preconceived ideas”.
Given the evidence summarised above, I cannot attach any significance to X wetting himself.
I am then left with the evidence that X has presented with what might be sexualised behaviour when attending childcare and has been observed by Ms Franke’s family to inappropriately touch Ms Franke’s brothers in their genital area.
In relation to childcare, as at the date of the first Family Report, X was noted to be developing normally and interacting well with his peers, and the daytime wetting incidents that had occurred during attendance at childcare were reported by staff to have been caused by “inattention” and X being absorbed in playing (Exhibit ICL2, paragraphs 249, 287). The single expert also reported that although childcare staff had been advised by the mother that “’something serious is happening to [X]’”, they had not observed any behavioural changes (Exhibit ICL2, paragraph 286). However, by the time of the second Family Report, the single expert had received updated information to the effect that in late 2021, X was seen at childcare attempting to touch a child’s “’private parts’”, and he was also reported to have placed cotton around and attempted to place a peg on his penis, advising staff who questioned him that he intended to place the peg in his bottom (Exhibit ICL3, paragraphs 11, 146).
The single expert was of the view that “normative and relatively common ‘sexual’ or exploratory behaviour” of children at or around X’s age could encompass touching one’s own or another’s genitals in public settings (Exhibit ICL3, paragraph 161). With respect to the cotton incident, the single expert opined that X may have been wrapping his penis in response to his “embarrassment” about daytime wetting events, and similarly may have expressed an intention to place a peg up his bottom because he was angry and embarrassed about the childcare staff’s questions (Exhibit ICL3, paragraph 162). Both Ms Franke and Mr Lasker had been involved in communications with the childcare centre about X’s behaviour (Exhibit ICL3, paragraphs 78, 146).
In relation to X inappropriately touching his maternal uncles in their genital areas, the maternal aunt deposed that during a Mother’s Day lunch in May 2023, X hit two of his maternal uncles in the groin when they greeted him, and that upon witnessing this behaviour, she verbally reprimanded him (maternal aunt’s affidavit, paragraph 29). She further deposed that her partner had advised her in July 2023 that X had hit another one of his maternal uncles on the groin during that same lunch, and that her son had also informed her in August 2023 that X had hit him on the groin during the Mother’s Day lunch (maternal aunt’s affidavit, paragraph 29). During the limited cross examination on this point, the maternal aunt indicated that she was unsure whether X’s behaviour on this occasion was sexual in nature, and she did not know whether she had raised this possibility with the mother.
The single expert opined that whilst these behaviours “could be interpreted as suspicious indicators of child sexual abuse, there are other explanations available” (Exhibit ICL3, paragraph 159). In particular, at the time of the second Family Report, the single expert observed that “[X] has been repeatedly questioned now regarding sexual abuse which may well have generated [X’s] focus on such behaviours which is one explanation for [X] touching others inappropriately” (Exhibit ICL3, paragraph 160).
X’s problematic sexualised behaviour at school in early 2024
At the time of the first Family Report, the single expert, when assessing matters of risk, regarded it as relevant that “[X] has not exhibited specific sexualised behaviours or other behaviours associated with child sexual victimisation” (Exhibit ICL2, paragraphs 396). X’s behaviour at school in early 2024 is a clear example of such behaviour and requires careful consideration. It cannot, however, be viewed in isolation from the evidence regarding X’s deteriorating behaviour over the previous year, and in a context in which he was not spending time with his father between June and November 2023.
In early 2024, X was reported to have coaxed a student into the school toilet block, told the child to remove their clothing and then proceeded to engage in sexualised behaviour (Exhibit ICL4, paragraph 8). Two of X’s peers had assisted X in luring the student into the school toilets, but the sexualised behaviour towards the child was perpetrated by X alone (Exhibit ICL4, paragraph 8; mother’s trial affidavit, paragraph 326). It appears that the early 2024 incident brought to light other incidents (or purported incidents) where X has acted out towards other students in problematic ways. To this end, in her third Family Report at paragraph 326, the single expert opined that the material available to her indicated that:
[i]n the considerable leadup to [the school incident], [X] had been acting aggressively towards other children in multiple ways. He had also been acting out aggressively towards other adults. The number of incidents which had predated the school incident and which he had apparently been corrected over had not diminished his behaviour.
The school’s report became Exhibit M13 and contained a record of a meeting between Ms Franke and staff at the school in mid-2023, where X’s class teacher reported that there had been “daily minor incidents” and that “[r]ecent behaviour is consistent with behaviour throughout the year.” By mid-2023, X was not spending time with his father.
The single expert opined that X’s actions in early 2024 had been neither “reactive or impulsive”, given the secrecy with which he had behaved and his awareness, as evidenced by his initial inclination to lie so as to avoid responsibility, of “the harm he would cause or the wrongness of his actions” (Exhibit ICL4, paragraph 238). However, both in her oral evidence and her third Family Report, the single expert was of the view that, given X’s age and stage of development, it would be “unlikely, if not impossible” that his motivations for this behaviour were sexual in nature (Exhibit ICL4, paragraph 250).
The single expert posited that there were two possible explanations for X’s sexualised behaviours, which turned upon whether the allegations of sexual abuse at the hands of his father were true. The single expert opined that if X has been sexually abused, his behaviours may be an expression of the consequent distress he is experiencing, as well as confusion as to why he is being encouraged to spend time with someone against whom he is simultaneously being encouraged to make disclosures (Exhibit ICL4, paragraphs 242–244). In the event X has not been sexually abused by his father but is receiving messaging from his mother that the father has so behaved, the single expert opined that X’s actions may be a vehicle for his anger and frustration, and that he is aware that engaging in such conduct will cause the greatest concern in those close to him because of the attention they have given to “sexually abusive behaviours” (Exhibit ICL4, paragraphs 245, 249–250).
I take from the single expert’s evidence that there is an alternate explanation for X’s behaviour at school, other than that he has been sexually abused. His conduct can be seen as a concrete manifestation of the damage being done to X from living with a parent who believes he has been sexually abused and who encourages his disclosures in that regard.
The single expert also noted in her third Family Report that the mother had not turned her mind to the possibility of other explanations for X’s behaviours and disclosures, and that she had presented herself as aligning with those who support her conviction that X has been sexually abused by his father (Exhibit ICL4, paragraphs 227, 229).
Ms K’s evidence
Ms K was initially engaged by a joint letter of instruction. Orders made by consent on 18 August 2022 provided for the mother to arrange for X to attend upon Ms K as soon as possible, and for the parents to “do all things and attend all meetings [and] sessions” with Ms K at her request. During her cross examination, Ms K indicated that the father had participated in two “parenting sessions” with her, and that otherwise her parental contact was solely with the mother, and that this included conversations immediately prior to counselling sessions with X.
X attended seven sessions with Ms K from September 2022 until December 2022, following which there was a break until April 2023 (first report of Ms K at annexure MK3 to her affidavit filed 5 September 2024). X recommenced appointments with Ms K from April 2023, and by the time of the third Family Report in August 2024, he had seen her for a total of 27 sessions since September 2022 (first report of Ms K at annexure MK3 to her affidavit filed 5 September 2024; Exhibit ICL5, paragraph 210). Ms Franke deposed that X’s attendance upon Ms K was paused in July 2024 as he was engaging with a therapy program (mother’s trial affidavit, paragraph 377). During her oral evidence, Ms K stated that she understood that Ms Franke had contacted her practice to advise that X “has not engaged” with his program therapist, and indicated that she intended to follow up with the mother after these proceedings.
Ms K provided two reports dated 27 September 2023 and 20 August 2024 respectively, and those reports were annexed to an affidavit filed in the proceedings. Ultimately the ICL did not rely on Ms K’s affidavit and I ordered that, if her evidence was to be called, it should be in Ms Franke’s case. That occurred, and Ms K gave evidence at the conclusion of Ms Franke’s evidence. She was cross examined by counsel for Mr Lasker and counsel for the ICL.
A short service subpoena had been issued for her notes. They were provided to the Court on the morning she gave oral evidence.
Ms K was cross examined about her reports. In those reports, she referred to dates on which she had seen X, and dates on which he had made disclosures to her. The reports contained little detail about disclosures and notably did not provide details as to the exact words used by X. The references to disclosures in her first report were as follows (As per original):
Additionally, an integral component of the therapy has been to address protective behaviours, which became particularly relevant following [X’s] recent disclosure of abuse.
…
[In] June 2023, [Ms Franke] advised that [X] had made another disclosure to her. She had encouraged [X] to discuss this disclosure during therapy. After some initial hesitation, [X] made a statement regarding historic sexual abuse involving his father.
Under cross examination, Ms K corrected this date to May 2023, and her notes confirm this is the date on which she had an appointment with X and when the disclosure occurred. She made a report to DCJ in May 2023 as detailed below.
In relation to a psychology session in August 2023, Ms K described the following:
… [Ms Franke] brought [X] to his scheduled therapy session following the school holidays. [Ms Franke] advised that [X] had made another disclosure to her a couple of weeks earlier and that she had taken [X] to the local Police station. She believed that [X] had repeated his disclosure to the Police Officer. However, during his therapy session, [X] conveyed that he was not currently willing to repeat what he had previously told his mother but expressed a willingness to share it at another time.
In relation to a subsequent session in August 2023, Ms K stated:
In a follow–up session scheduled for the following week, [X] made a disclosure about experiencing sexual harm during a recent supervised visit with his father…Given [X’s] young age and limited verbal skills, his disclosure was not entirely clear, but he conveyed a significant level of upset that aligns with the experience of harm. Furthermore, [X] reaffirmed this disclosure during a later therapy session [in] September […] 2023.
She agreed under cross examination that she may have incorrectly identified September 2023 as the date on which X reaffirmed his disclosure.
The following matters are positive indicators of Mr Lasker’s parenting capacity:
(1)It was not contested that the supervision reports are uniformly positive. The reports for AA Contact Service for the period November 2023–January 2024 were received into evidence and marked Exhibit F25. There is also the statement of Mr L, who was the supervisor of 32 visits between August 2022 and July 2023. That statement was received in evidence and marked Exhibit F32. Mr L stated that:
On every visit that I have supervised between [X] and [Mr Lasker] I would describe [X] as thoroughly enjoying himself. He loves playing with his father and has a competitive streak. There have been occasions where [X] indicates that he doesn’t want to leave [Mr Lasker’s] residence at the conclusion of the supervised visit.
(2)There is also the fact that, during these proceedings, Mr Lasker has continued to take whatever he can get in terms of time with X – including by paying for supervision and spending time with X under supervision when a progression to unsupervised time had been ordered.
(3)In the first Family Report at paragraph 324, the single expert described X’s interactions with Mr Lasker as follows:
When [X] greeted his father at this assessment he displayed ‘unreserved’ happiness. He was not reluctant to engage with his father despite considerable time passing in his young life since spending time or interacting with his father. [X] impressed as picking up where he had left off with his father. He did not appear overly excited but was clearly happy to see his father. He did not display any negative emotions whilst with his father nor did he appear aversive or anxious in his father’s company.
(4)The single expert opined at the time of the first Family Report in December 2021 that “[d]espite a considerable period of time having elapsed since [X] has spent time in his father’s company, [X] and his father appeared to have a warm and caring relationship (Exhibit ICL2, paragraph 401).
(5)It is not contested that Mr Lasker was an involved father prior to separation. Even Ms Franke told the single expert that “[Mr Lasker] had been quite hands on as a parent, ‘involved’. She described him taking care of the baby by bathing, nappy changes and feeding etc.” (Exhibit ICL2, paragraph 177). The maternal aunt gave evidence that when she saw X and Mr Lasker together, he “took care of [X] and showed him love” and agreed with the propositions that he was a good father and that had she observed any concerning behaviour from Mr Lasker towards X, she would have deposed as such in her affidavit.
(6)In relation to the period after separation, while Ms Franke raised issues about Mr Lasker being late or not attending to spend time with X as agreed, Mr Lasker said that this only occurred occasionally and was for a good reason. The evidence by way of text messages suggests this was more frequent than occasionally, but I accept the period after separation was a difficult one for Mr Lasker and do not attach any significance to this. He has steadfastly spent time available to him during these proceedings- notwithstanding time was required to be supervised and the cost of that.
(7)The single expert opined at paragraph 333 of the first Family Report that:
[o]ther indicators of a parent not being reliable or involved did not appear obviously present for the father, it appeared he regularly took [X] to swimming lessons, pick–ups from childcare, medical appointments (the father advised that due to the mother’s squeamishness he had taken [X] to early childhood immunisations). It appeared that the father had also attended hospital admissions for [X] and stayed with the child. The father was able to outline a regular routine during his time spent with [X].
(8)The single expert observed Mr Lasker to be “sensitive to [X’s] nonverbal cues”, to use age appropriate language and noted that they engaged easily and played together (Exhibit ICL2, paragraph 247). She spoke with Mr Lasker’s psychologist, Ms Q who “could not identify any risk factors arising from psychological conditions which would cause her concern in [Mr Lasker’s] potential to care for [X]” (Exhibit ICL2, paragraph 261).
(9)The single expert administered the FSNA and the father’s assessment “provided a ratio where parenting strengths outweighed parenting weaknesses” (Exhibit ICL2, paragraph 317).
(10)Mr Lasker has completed parenting courses.
(11)Mr Lasker has sought assistance, including by reengaging with psychologist Dr BB “for as long as needed” for the purpose of assisting X with his transition into Mr Lasker’s care and to develop strategies to address X’s behaviours, including when he wishes to see Ms Franke (father’s affidavit filed 31 July 2024, paragraph 188–189). Mr Lasker told the single expert that he has found sessions with his psychologist helpful (Exhibit ICL4, paragraph 134).
(12)Mr Lasker has consented to an order that he maintain X’s enrolment at H School until the conclusion of year six- notwithstanding that will likely require Mr Lasker to move to the area and change employment. That is very much to his credit. Mr Lasker also consented to an order that he be restrained from being over the legal blood alcohol limit for driving – which again is to his credit.
Issues of Mr Lasker’s mental health were raised on the basis that there was some suggestion of an historic diagnosis of Post Traumatic Stress Disorder(“PTSD”). The single expert assessed this issue in the first Family Report and contacted Mr Lasker’s treating psychologist. The single expert did not have concerns about Mr Lasker’s mental health. She described that “[a]t this assessment a detailed account of triggering events was collected from the father without him displaying core symptoms of PTSD. The PAI did not detect the presence of PTSD for the father” (Exhibit ICL2, paragraph 339). I am satisfied that the state of Mr Lasker’s mental health does not pose any risk to X or jeopardise Mr Lasker’s parenting capacity.
Benefit to X of a relationship with his parents and others
Irrespective of the criticisms I have made of the behaviour exhibited by both parents, I am satisfied that X is likely to benefit from a relationship with both of his parents.
The single expert gave evidence that his mother’s anxiety, and the way which it has had an impact on her conduct, risks not only X’s relationship with his father, but also, as X gets older, his relationship with her. The single expert opined that if X were to live with his father but gradually spend increasing time with Ms Franke – provided he resolves his “current challenges” and adapts to his new school community – he could use his own experiences with his father as a “framework” to counter his mother’s messaging about Mr Lasker, even if she remains steadfast in her views that the father has sexually assaulted X.
A significant benefit of Mr Lasker’s proposal over Ms Franke’s is that it provides at least the opportunity for X to benefit from a relationship with both his mother and his father – although there are many uncertainties. During cross examination by Mr Lasker’s counsel, the single expert opined as follows in relation to the respective prospects of Mr Lasker and Ms Franke enabling X to pursue a relationship with his other parent:
Mr Guterres: In the event Her Honour finds that there is no sexual abuse and orders that [X] live with his father, is one of the advantages of that scenario is [sic] that the father was far more receptive to [X] having a relationship with his mother than the [sic] vice versa?
[Ms C]: Yes.
Mr Guterres: Do you agree with me that the mother simply would not be able to facilitate any relationship between [X] and his dad because she believes that he has been harmed by him in a sexual way?
[Ms C]: Yes.
Mr Guterres: Did you form the view or did you have confidence that the father can facilitate a relationship with his mum if he were to live with the father?
[Ms C]: I think it would depend, actually.
Mr Guterres: On?
[Ms C]: On whether the transition into the household went smoothly, whether [X] was acting out in a challenging manner prior to or after visits with the mother, all of those things will contribute. [X’s] general adaptation now to so many changes in the recent-
Mr Guterres: One of the features in this case has been I think, as you identified, [X’s] strong relationship with his dad. He has expressed, I think you agree, a desire to see his dad?
[Ms C]: Yes.
Mr Guterres: and the contact reports appear to show appear to show, I think, that he has got a good relationship with his dad?
[Ms C]: That was my reading of them.
Mr Guterres: And that was your observation yourself?
[Ms C]: Yes.
Under Ms Franke’s proposal, X would lose his father. Even if I made Mr Lasker’s alternate orders, I cannot be satisfied that Ms Franke will comply with them, let alone that she will not continue to question X about sexual behaviour in his father’s house.
As indicated above, Mr Lasker has a better attitude to Ms Franke and her role in X’s life than Ms Franke does about him. I am satisfied that if I make orders for X to live with Mr Lasker and to progress back to time with Ms Franke, Mr Lasker will at least comply with my orders. I am satisfied that there is a better prospect of X having a relationship with both his parents if he lives with his father than if he lives with his mother.
ORDERS TO BE MADE
Recommendations of the Single Expert as to parenting orders
At the time of the first Family Report at the end of 2021, the single expert opined at paragraph 426 that:
[i]t is not envisaged that a relaxed and highly co–operative parenting relationship can be achieved in this case. However, if properly managed, with minimal interaction between the parties, [X] should be able to enjoy a meaningful relationship with both parents.
At the time of the second Family Report, the single expert outlined that, if it is determined that X is not at risk of sexual abuse, one arrangement the Court could consider is X moving to live with his father, the imposition of a moratorium on time with his mother and then a reintroduction of time, first being supervised and then progressing to unsupervised at the discretion of Mr Lasker (Exhibit ICL3, paragraphs 188–189). The single expert did not go so far as to recommend that outcome, but she opined that if the Court determines it would be in X’s best interests to remain living with his mother (Exhibit ICL3, paragraph 193):
…then it is considered unlikely that [X] will be able to sustain a meaningful relationship with his father. It is considered probable that the [m]other will continue to behave in line with her beliefs and express opinions about the [f]ather which will not allow for a normal relationship between [X] and his father.
At the time of the third Family Report the single expert opined that, if the Court determines that X has not been abused by his father, “…a change of residence for [X], to live with the [f]ather, would be the only circumstances under which [X] can have a relationship with his father and possibly his mother” (Exhibit ICL4, paragraph 254). Also, “…further attempts to establish a parenting plan which includes both parents may to [sic] continue to amplify [X’s] distress” (Exhibit ICL4, paragraph 255). When the single expert was asked by counsel for Mr Lasker whether the risks for X, in the event I found he has not been sexually abused, were greater if he continued to live with his mother on the one hand, or be separated from this primary attachment figure on the other, she first noted that “these things are very hard” before opining that it was a “significant risk” for X to be raised “believing a lie” and experiencing the demise of his relationship with one of his parents “because of a lie”.
Thus, there was no firm recommendation made by the single expert, but neither in the Family Reports, nor in her oral evidence, did she identify any benefits for X of Ms Franke’s proposal. She did identify benefits for X of a change of residence.
Summary of reasons for making the orders I have
In summary, I have made the parenting orders that I have because I am satisfied that they will:
(1)Protect X from likely further emotional and psychological harm while he continues to live with his mother and while she is:
(a)not properly treated for anxiety; and
(b)continues to have a fixed false belief that Mr Lasker has sexually abused X and is likely to continue to expose X to that belief.
(2)Provide X with a break from living in a home where he is exposed to adults who hold the belief he has been sexually abused by his father.
(3)Provide X with the opportunity– while he is still young and expressing a wish to be with his father– to live with his father and thereby to develop his own reality of his father and his father’s behaviour towards him such that, in the event his mother maintains, and X is exposed to, her belief that Mr Lasker has sexually abused him, X is less likely to be harmed by that.
(4)Enable X to spend time with Ms Franke which is safe, thus reducing the impact on X of separation from his mother.
(5)Provide a mechanism for time with his mother to progress to a substantially shared care arrangement upon Ms Franke completing 12 months of treatment with a clinical psychologist.
(6)Represent the “least worst” outcome for X.
Live with order
I have decided that an arrangement where X continues to live with Ms Franke – whether he spends time with Mr Lasker or not – is not one which will promote X’s safety from further emotional and psychological harm. X has already demonstrated behaviours, the consequences of which have been hugely detrimental for him and other children, and which I find are likely a manifestation of the damage being caused to him by exposure to Ms Franke’s belief that he has been sexually abused. I also find that there is an unacceptable risk also that Ms Franke would remove X when faced with an order that he spend unsupervised time with Mr Lasker and/or not comply with orders.
I have considered and weighed the impact on X of separation from his primary attachment figure, and the likely distress the move will cause X – at least in the short term. The single expert agreed that the detrimental consequences of being removed from a primary attachment figure can be lifelong, and would represent a “significant risk” for X, particularly if his father, as the parent into whose care he entered, was not capable of meeting his needs – most particularly his emotional needs. Nonetheless, she opined that children being removed from a primary attachment figure for one reason or another is not a unique situation, and that “…given his age and the apparently strong connection he has with his father…[X] would most likely adapt to [a change of living arrangements]” (Exhibit ICL3, paragraph 188). In any case, the orders which I make will not see an end to X’s relationship with Ms Franke, and will gradually progress to a substantially shared care arrangement if Ms Franke engages in the treatment and other steps as ordered.
I have made findings that, during the period after separation and until the end of 2020, Mr Lasker used family violence against Ms Franke by way of sending her abusive and threatening text messages. This was now a significant time ago, and there has been no repetition of this behaviour in recent times. I am satisfied that the injunctive order that I have made means that X and Ms Franke are safe from family violence.
I have the concerns outlined above regarding the extent of the father’s parental capacity, particularly when under strain and when faced with difficult circumstances. I am worried about the lack of obvious support available to Mr Lasker. On the other hand, I have made findings above about numerous matters which are in favour of the change include the fact that X is still young and still wants to spend time with his father, as well as the matters set out in paragraph 202 above. I am satisfied that Mr Lasker’s parenting capacity is “good enough”.
I explored with the single expert another possible alternative to a change of residence order- namely, orders which would provide for X to remain living with Ms Franke but to have a large block of holiday time with Mr Lasker. The single expert’s response was:
…given that there have been new allegations each time there has been contact with dad and even under supervision, I expect the mother would find that, and her belief that this is occurring, I expect that the mother would find that extraordinarily difficult and that would be transmitted to [X].
Given that evidence, I am satisfied such an arrangement would not be in X’s best interests.
Spend time with orders
I have made orders which will progress time to a substantially shared care arrangement after Ms Franke has received 12 months of treatment with a clinical psychologist.
This period of time for treatment will mean that, even if Ms Franke maintains her false but fixed belief (as the single expert opines is likely) that X has been sexually abused, and even if X is exposed to this belief and its manifestations through her anxiety, he will have had his own personal experience of living with his father which, as the single expert opined, may “immunise” him against his mother’s statements and behaviours. I have taken account of the single expert’s evidence that: it is unlikely Ms Franke will change her view that X has been sexually abused; there are risks to X in seeking the establishment of parenting arrangements which involve both parents; and it is very unlikely Ms Franke could accept that Mr Lasker can play “any positive role in [X’s] future” (Exhibit ICL4, paragraph 112). I have decided, nonetheless, that it is in X’s best interests to give her the opportunity to get the treatment she needs and to make orders which will progress X’s time with her to a substantially shared care arrangement if she gets consistent treatment. This is because X has always been in her primary care, has a close relationship with her and, apart from her anxiety and her attitude towards Mr Lasker, she has good parenting capacity. Such an arrangement is what Mr Lasker proposed by way of his alternate minute in the event X was to live with Ms Franke and spend time with him.
I am satisfied that a combination of Ms Franke’s treatment, X being a little older when unsupervised time commences, and X having then had a break from living with Ms Franke and some significant time with and experience of his father will, in combination, ameliorate the likely harm X would experience if orders were made for him to spend unsupervised time with Ms Franke immediately.
The single expert recommended that, if I did order a change of residence, there should be a period for X of no time with his mother. She suggested that that time should be “several weeks” (Exhibit ICL3, paragraph 189). The ICL’s proposal for 12 weeks was accompanied by a statement by her counsel that there was “no magic” in that period. I have decided the time should be 12 weeks, as this is a sufficient period for X to reconnect with his father, and to have a break from living in an environment where his mother believes he has been sexually abused and experiences all anxiety associated with that. This time period will provide an opportunity for Ms Franke to commence the course of therapy as recommended by the single expert. The period of 12 weeks will also mean that X will have started school again when the time recommences and will have the benefit of that regular routine and stabilising environment. As Christmas falls within the moratorium period, I have provided for Ms Franke to speak with X on Christmas Eve, and to send him presents and a card. I have not made the orders sought by the ICL and by Mr Lasker for there to be electronic communication between X and Ms Franke, monitored by Mr Lasker and commencing immediately, because I am concerned about Ms Franke’s capacity to manage those calls in a way which is appropriate for X in the period during which X is not spending time with her, and about Mr Lasker’s ability to appropriately monitor the calls and X’s emotions afterwards.
After that 12-week period, X will spend supervised time with Ms Franke for 12 weeks each Saturday. That will enable them to reconnect in circumstances where Ms Franke will be supervised and, presumably, will not question X about circumstances in his father’s household or the sexual abuse allegations. If she complies with the orders, then Ms Franke will be receiving treatment from a clinical psychologist throughout this period. Ms Franke will be required to provide reports of the supervised time to Mr Lasker. If such reports raise any serious concerns, then Mr Lasker will have to give consideration as to what steps to take, and there is obviously some risk that the matter will end up back in court.
Following that period of supervised time, and conditional upon Ms Franke having complied with requirements in relation to that supervised time, her time with X will then progress to unsupervised daytime only, including time on special occasions. This will provide an opportunity for X to have a more “natural” experience of his mother, again while she continues to receive treatment. The fact that time is restricted to daytime to some extent ameliorates the risk of X being exposed to Ms Franke’s beliefs, as does the fact that she will have commenced treatment.
At the point when X will have spent six months of unsupervised daytime with his mother, she will, if she complies with my orders, have had 12 months of treatment. The single expert did not give evidence about how long it might take for treatment to have an impact. The ICL sought that treatment continue for 18 months before time progressed to overnight, but did not rely on any evidence which would support that as being the appropriate period. Again, I must do my best with the evidence that I have. Whilst 12 months is a significant period, it is not so long that X will lose sight of when he will spend overnight and holiday time again with his mother and that may help to reduce his likely distress.
I have made orders which require Ms Franke to provide some reporting to Mr Lasker and to provide a report at the conclusion of 12 months’ treatment. The order I have made for Ms Franke to obtain treatment from a clinical psychologist is not a “self-standing” order, but is a condition of time progressing. It is uncontroversial that the Court has the power to make such an order (In the Marriage of L & T (1999) 25 Fam LR 590).
If Ms Franke complies with the orders I have made by engaging a clinical psychologist, providing the clinical psychologist with the documents which assist them to form an objective view about what has occurred and the action that ought to be taken in the circumstances, and attends upon that clinical psychologist regularly and as recommended, there is reason to expect that she will receive appropriate treatment. I have not specified – as the ICL sought – that her treatment be for “anxiety disorder”, as there is no certainty that this will be the appropriate diagnosis for her now or in the future. Again, a clinical psychologist will be able to diagnose and treat appropriately – including by making any appropriate referrals. There are, of course, no guarantees that Ms Franke will engage in and respond to that treatment – but, as I set out above, there are positive indicators that she will.
Other orders
I have made an order that Mr Lasker have sole parental responsibility and sole authority to make major long-term decisions because he will be X’s sole carer for at least a period of 12 months, and because there is no trust between Mr Lasker and Ms Franke, and so no capacity for them to cooperate in making major long-term decisions for X in his best interests. Mr Lasker is required to keep Ms Franke informed and she is authorised to obtain information from X’s treaters and school. That is appropriate in circumstances where the orders provide for a progression to a substantially shared care arrangement.
Some specific aspects of parental responsibility are dealt with in the orders- including the obligation to maintain X’s enrolment at his current school. The stability that will provide to X is very important. Mr Lasker consented to that order.
X will himself need professional assistance to cope with these further very significant changes to his living arrangements, as well as to address his other needs. The single expert has expressed the opinion that the recent escalation in X’s behaviour indicates he “is at a crisis point” (Exhibit ICL4, paragraph 219) and that he needs a “risk, needs, responsivity approach” to his escalating behaviours (Exhibit ICL4, paragraph 235). The single expert opined at paragraph 230 of the third Family Report (Exhibit ICL4) that:
…the approaches to dealing with [X’s] distress and distressing behaviours have not been addressed. Time spent with the [f]ather, time spent with the [f]ather under supervision, time spent with the [f]ather at a supervision centre and no time spent with the [f]ather have not resulted in cessation of [X’s] difficulties.
She opined that “[w]hat emerged was a picture of a child who is emotionally dysregulated and acts out his strong emotions in destructive ways” (Exhibit ICL4, paragraph 240).
I have made the orders sought by the ICL in that respect, having been provided with details of psychology services for children based in Region Z, as well as information as to the potential need for continued engagement with a therapy program, both of which were contained in an email from the single expert that was forwarded to my Chambers by the ICL on 19 September 2024.
It can be expected that X will ask his father questions about the change in his living arrangements, and it is not in X’s best interests for me to constrain Mr Lasker from saying anything at all to X about the proceedings. I have made orders which request the Court Child Expert to provide Mr Lasker with some advice as to how to answer X’s questions and explain matters to him, and the injunctive orders I have made allow discussion with X in accordance with that advice or with the guidance of another appropriate professional.
The ICL sought orders that the parents share equally in the costs of the ICL, subject to any application they may make to NSW Legal Aid for the waiver of that obligation due to financial hardship. That order was opposed by Ms Franke but not Mr Lasker. In circumstances where Ms Franke will have spent over $500,000 in legal costs and Mr Lasker nearly $300,000 in legal costs in respect of these proceedings, and where neither party has been in receipt of a grant of legal aid, it is appropriate for me to make the modest costs order sought by the ICL. I do not have evidence before me which enables me to be satisfied that either parent will suffer financial hardship if they had to bear a proportion of the costs of the ICL. The order I make will enable that matter to be considered by NSW Legal Aid on application.
I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens. Associate:
Dated: 8 November 2024
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