Lisle and Lisle and Anor

FAMILY COURT OF AUSTRALIA

LISLE & LISLE AND ANOR

[2011] FamCA 318

FAMILY LAW – CHILDREN - Best interests - With whom a child lives - With whom a child spends time – Parental alienation - Separated siblings – child sexual abuse allegations

Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA s 60CC, s 60CC(2), s 60CC(3), s 61B, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 117(1), s 117(2), s 117(2A)

B and B (1993) FLC 92-357
Chappell and Chappell [2008] Fam CACF 143
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
M v M (1988) FLC 91-979
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Lisle

RESPONDENT:

Mr Lisle

INTERVENOR:

Director-General, Department of Human Services, Community Services

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2008

DATE DELIVERED:

17 May 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

29, 30 November & 1, 2 & 3 December 2010, 13 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kelly

SOLICITOR FOR THE APPLICANT:

Derham Houston Lawyers

FOR THE RESPONDENT:

Mr Lisle in person

COUNSEL FOR THE INTERVENOR:

Ms Lawson

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor's Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW (Gosford)

Orders

That all previous parenting orders are discharged.

Y

That the mother have sole parental responsibility for the child Y born … December 2004;
That Y live with her mother;
That for a period of 18 months Y spend time with her sister X as follows:
4.1.One weekend per month (from Friday after school until Sunday 6:00 pm);
4.2.One block period of seven days per mid-year school holidays (from after school on the last day of school term to 12:00 noon seven days thereafter);
4.3.Two block periods each Christmas school holidays from after school on the last day of school term to 12:00 noon on 24 December and from 12:00 noon on 3 January until 12:00 noon on 10 January;
4.4.At such other times by agreement;
Such time is to be supervised by the paternal grandparents at a venue to be determined by the paternal grandparents;
That for a period of 18 months Y spend time with her father as follows:
5.1.For a period of eight hours one day per month on either a Saturday or a Sunday;
5.2.One block period of four days per mid-year school holidays;
5.3.One block period of seven days per Christmas school holidays;
Such time is to be supervised by the paternal grandparents at a venue to be determined by the paternal grandparents. The times shall be determined by the paternal grandparents and shall coincide with the period of time that Y is already spending with her sister X pursuant to the above order.
That upon expiration of the 18 months during which Y is to spend time with X, Y shall spend time with her father as follows:
6.1.One weekend per month from Friday after school until the commencement of school Monday;
6.2.One block period of seven days per mid-year school holidays from after school on the last day of school term to 12:00 noon seven days thereafter;
6.3.Two block periods each Christmas school holidays from after school on the last day of school term to 12:00 noon 24 December and from 12:00 noon on 3 January until 12:00 noon on 10 January;
That for the purposes of the above orders, if the parents are unable to agree which weekend per month Y is to spend time in accordance with the orders such weekend shall be the first weekend of the month.

X

That the father have sole parental responsibility for the child X born … March 2000;
That X live with her father;
That X spend time with her sister Y in accordance with the above orders;
That X spend time with her mother in accordance with X’s wishes;

Changeover

Where changeover falls on a school day it shall take place at the child’s school. At school changeovers, only the parent / grandparent whose time with the child is due to commence is to be present;
If such changeover falls on a day that the children are not attending school it shall take place at B Town McDonalds.
The parents or grandparent present at changeovers are to ensure that such changeovers are conducted in a civil manner.
If the paternal grandparents are unavailable to attend contact changeovers they are to nominate another responsible family member (other than the father) to attend the changeover. The grandparents are to inform that family member that such changeovers are to be conducted in a civil manner.

Involvement of the Director-General, Department of Human Services, Community Services

That the parents are to do all things reasonably necessary to facilitate home visits by the New South Wales Department of Human Services (“the Department”) as requested by the Department for a period of twelve months. During such home visits the parents are to do all things reasonably necessary to enable the Department to sight the child and to speak with the child;
That each parent will abide by any reasonable direction of the Department for a period of twelve months. Such direction may include attendance at counselling, parenting courses or facilitating the child’s attendance at extra-curricular activities such as school holiday camps;
That the mother is to provide a written irrevocable authority to her treating psychologist to immediately notify the Department in the event that:
18.1.The mother fails to attend a scheduled appointment without reasonable excuse;
18.2.The mother fails to comply with treatment recommendations;
18.3.The mother’s mental or emotional state is such that she is not capable of caring for the child appropriately;
That upon receipt of the judgment in these proceedings the Department will arrange for a meeting with the paternal grandparents to discuss the judgment with them and any concerns raised therein. The purpose of this meeting is to ensure that the paternal grandparents are aware of such concerns in order to properly fulfil their role as supervisors.
The Director-General will prepare a report in relation to the children at eleven months from the date of final orders and will forward this to the Independent Children's Lawyer;

Communication

That for a period of 18 months both parents shall not communicate with the other parent unless in the case of an emergency. After such time the parents shall only communicate by way of text message and shall ensure that any communication is civil and is directly relevant to the children;
That both parents are restrained from communicating with either child when the child is spending time with the other parent and / or grandparents unless in the case of an emergency. This includes, but is not limited to, communication by way of telephone;
That both parents are restrained from using a third party to communicate with either child. This includes, but is not limited to, sending notes, cards or verbal messages;
That both parents are restrained from speaking about the other parent or their respective families in a negative fashion in the presence or hearing of the children and shall ensure as far as possible that no other person does so;
That both parents shall encourage the children to speak about the other parent in a positive manner and shall ensure as far as possible that other persons in their presence or hearing also do so;
That both parents are restrained from discussing these proceedings, or issues and allegations raised in the proceedings, with the children, within their presence or within their hearing and ensure as far as possible that no other person other than a medical professional discusses these proceedings with the children;

Additional orders

That the mother is to continue to attend upon her treating health care professionals in respect of her mental health and she is to comply with any recommendations concerning her treatment (including adherence to any mental health care plan, medication and / or counselling referrals);
That the mother is restrained from attending upon X’s school and from communicating with X’s school;
That both parents shall ensure that the child in their care attends school each day and in the event that the child is unable to attend school due to illness then that parent is to obtain a medical certificate for each day that the child is unable to attend school and is to provide a copy of such certificate to the school principal within 24 hours of the missed day at school;
That both parents are restrained from using any form of physical discipline whatsoever upon the children;
That both parents are restrained from attending upon the place that the other parent is spending time with the child;
That both parents are restrained from showing the children any documentation (including any affidavits, applications, reports or exhibits) in relation to these proceedings;
That both parents are restrained from recording the children using any medium (audio, visual or otherwise) unless for the sole purpose of a souvenir / momento (rather than to collate further evidence);
That the paternal grandparents be joined to these proceedings for the purpose of providing relevant undertakings; and
That the Independent Children's Lawyer is to forward a copy of these orders to both children’s schools within seven days;
That leave is granted to the Department to provide copies of Dr M’s reports to the parents’ or children’s treating therapists or counsellors.

Undertakings

The within 7 days each of the paternal grandparents is to provide written undertakings in the following terms to the father, the mother, the Department, the Independent Children’s Lawyer and to Ms Annette Hatton, Associate to Johnston J [[email protected]] for filing:
37.1.To remain in the general vicinity of the children at all times when they are spending time together in accordance with the above orders;
37.2.To remain in the general vicinity of Y and her father at all times when Y is spending time with her father in accordance with the above orders;
37.3.To use their best endeavours to ensure that the father does not make any derogatory or critical remarks about the mother in the presence or hearing of either child;
37.4.To encourage the children to speak about their parents in a positive manner and to ensure as far as possible that other persons do so in their presence or hearing;
37.5.To avoid discussing these proceedings with the children or the issues or allegations raised in these proceedings, within their presence or within their hearing and to ensure as far as possible that no other person does so;
37.6.To report any significant concerns arising out of such supervision to the Department of Human Services, Community Services; and
37.7.To accept any reasonable directions of the Department of Human Services, Community Services in relation to the children’s time with each other and / or the father’s time with Y.
37.8.To share information with the Department about the progress of the children spending time pursuant to the above orders if such information is requested by the Department.

Notations

The Department intends to refer the father for therapy / counselling in relation to his parenting of X and in particular the issues raised in the PANOC reports.
The Department intends to refer X for therapy / counselling to assist her in addressing her feelings towards her mother and the issues raised in the PANOC reports.
That for a period of 12 months the Department will assist with the reasonable costs associated with travel for the purpose of Order 4 above.

IT IS NOTED that publication of this judgment under the pseudonym LISLE & LISLE is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 31 of 2008

Ms Lisle

Applicant

And

Mr Lisle

Respondent

REASONS FOR JUDGMENT

Introduction and applications

The parties in these proceedings are Ms Lisle and Mr Lisle. For convenience I shall refer to them as “the mother” and “the father” respectively. The parties had final parenting orders made by the Federal Magistrates Court in November 2008. But there have been serious problems since that time. The Director-General, Department of Human Services, Community Services (“The Director-General”) has intervened in the proceedings. There are very serious child protection issues involved. The parties have been unable to agree on appropriate final parenting arrangements for their two children and have asked the Court to assist.
The children are X (“X”) who was born in March 2000 and Y (“Y”) who was born in December 2004. They are 11 years and 6 years of age respectively.
At the commencement of the hearing, the mother sought orders to the following effect:
·That all previous parenting orders be discharged;
·That she have sole parental responsibility for the children;
·That the children live with her with a timeframe and process as advised and recommended by Dr M or a psychologist recommended by him;
·That the children spend time with their father as advised or recommended by Dr M commencing at a time when X has re-established her relationship with her mother;
·That the father be restrained from communicating with the children by telephone or email;
·That a considerable number of other restraints and specific requirements in relation to both parents be put in place; and
·That orders be made to enable involvement with the family by the New South Wales Department of Human Services (“the Department”).
After the single expert, Dr M had been cross-examined, I informed learned counsel for the mother that the evidence did not support the making of orders in the terms as sought by the mother. This was because Dr M indicated that the arrangements involved in those orders would be “catastrophic” for X and certainly not in the best interests of Y. I invited the mother to consider amending her application to seek different orders. After a short adjournment counsel for the mother then indicated that the mother amended her application and now sought the following orders:
1.All previous parenting orders with respect to the children [X] (dob …/3/00) and [Y] (dob …/12/04) (“the children”) be discharged;
2.The mother have sole parental responsibility for the children;
3.The children live with the mother;
4.The children spend time with the father as follows:
4.1.From the date of these orders for a period of three months the children spend no time with the father;
4.2From a date three months after the date of these orders for a period of 18 months with such time to be supervised by the paternal grandmother or paternal grandfather as follows:
4.2.1The first Sunday of each calendar month from 9:00 am to 5:00 pm;
4.2.2On each of the children’s and the father’s birthdays from 4:00 pm to 7:00 pm if on a weekday and from 12:00 noon until 5:00 pm if on a weekend;
4.2.3Christmas Day from 2:00 pm to 6:00 pm;
4.2.4Father’s Day from 9:00 am to 5:00 pm
4.3 Thereafter:
4.3.1Each alternate weekend from 5:00 pm Friday to 6:00 pm Sunday;
4.3.2Half of all school holidays being the first half in odd numbered years and the second half in even numbered years;
4.3.3From 3:00 pm Christmas Eve until 3:00 pm Christmas Day in odd numbered years and from 3:00 pm Christmas Day until 3:00 pm Boxing Day in even numbered years;
4.3.4On each of the children’s birthdays and the father’s birthday from 4:00 pm to 7:00 pm if on a weekday or from 12:00 noon until 5:00 pm on a weekend.
5.All changeovers to occur at McDonalds BB Town.
6.Each party is restrained from communicating with the children by telephone while they are in the other party’s care.
7.Each party is to advise the other if either of the children require hospitalisation or specialist medical care as soon as is reasonably possible, such notice may be by way of SMS message to the other’s mobile phone.
8.The time the children spend with the father is suspended as follows:
8.1From 3:00 pm Christmas Day until 3:00 pm Boxing Day in odd numbered years and from 3:00 pm Christmas Eve until 3:00 pm Christmas Day in odd numbered years
And the children will spend such time with the mother.
NOTATION
It is the mother’s intention to engage the service of a therapist / counsellor / psychologist upon the child [X] commencing to live with her and the times the children are to not spend time with the father, or spend supervised time with the father may be shortened on advice from such therapist / counsellor / psychologist.
On the other hand the father joins with the Director-General and the Independent Children's Lawyer in seeking orders to the following effect:
·That all previous parenting orders are discharged.
Y
·That the mother have sole parental responsibility for the child Y born in December 2004;
·That Y live with her mother;
·That for a period of 18 months Y spend time with her sister X as follows:
-One weekend per month (from Friday after school until Sunday 6:00 pm);
-One block period of seven days per mid-year school holidays (from after school on the last day of school term to 12:00 noon seven days thereafter);
-Two block periods each Christmas school holidays from after school on the last day of school term to 12:00 noon on 24 December and from 12:00 noon on 3 January until 12:00 noon on 10 January;
-At such other times by agreement;
Such time is to be supervised by the paternal grandparents at a venue to be determined by the paternal grandparents;
·That for a period of 18 months Y spend time with her father as follows:
-For a period of eight hours one day per month on either a Saturday or a Sunday;
-One block period of four days per mid-year school holidays;
-One block period of seven days per Christmas school holidays;
Such time is to be supervised by the paternal grandparents at a venue to be determined by the paternal grandparents. The times shall be determined by the paternal grandparents and shall coincide with the period of time that Y is already spending with her sister X.
·That upon expiration of the 18 months during which Y is to spend time with X, Y shall spend time with her father as follows:
-One weekend per month from Friday after school until the commencement of school Monday;
-One block period of seven days per mid-year school holidays from after school on the last day of school term to 12:00 noon seven days thereafter;
-Two block periods each Christmas school holidays from after school on the last day of school term to 12:00 noon 24 December and from 12:00 noon on 3 January until 12:00 noon on 10 January;
X
·That the father have sole parental responsibility for the child X Lisle born 13 March 2000;
·That X live with her father;
·That X is to spend time with her sister Y in accordance with the above orders;
·That X spend time with her mother in accordance with X’s wishes;
Changeover
·Where possible, any changeovers shall take place at the child’s school. At school changeovers, only the parent / grandparent whose time with the child is due to commence is to be present;
·If such changeover falls on a day that the children are not attending school it shall take place at B Town McDonalds.
·The parents or grandparent present at changeover is to ensure that such changeovers are conducted in a civil manner.
·If the paternal grandparents are unavailable to attend contact changeovers they are to nominate another responsible family member to attend the changeover. The grandparents are to inform that family member that such changeovers are to be conducted in a civil manner.
Involvement of the Director-General, Department of Human Services, Community Services
·That the parents are to do all things reasonably necessary to facilitate home visits by the New South Wales Department of Human Services as requested by the Department for a period of twelve months. During such home visits the parents are to do all things reasonably necessary to enable the Department to sight the child and to speak with the child;
·That each parent will abide by any reasonable direction of the Department for a period of twelve months. Such direction may include attendance at counselling, parenting courses or facilitating the child’s attendance at extra-curricular activities such as school holiday camps;
·That the mother is to provide a written irrevocable authority to her treating psychologist to immediately notify the Department in the event that:
-The mother fails to attend a scheduled appointment without reasonable excuse;
-The mother fails to comply with treatment recommendations;
-The mother’s mental or emotional state is such that she is not capable of caring for the child appropriately;
·That upon receipt of the judgment in these proceedings the Department will arrange for a meeting with the paternal grandparents to discuss the judgment with them and any concerns raised therein. The purpose of this meeting is to ensure that the paternal grandparents are aware of such concerns in order to properly fulfil their role as supervisors.
·The Director-General will prepare a report in relation to the children at eleven months from the date of final orders and will forward this to the Independent Children's Lawyer;
Communication
·That for a period of 18 months both parents shall not communicate with the other parent unless in the case of an emergency after such time the parents shall only communicate by way of text message and shall ensure that any communication is civil and is directly relevant to the children;
·That both parents are restrained from communicating with either child when the child is spending time with the other parent and / or grandparents unless in the case of an emergency. This includes, but is not limited to, communication by way of telephone;
·That both parents are restrained from using a third party to communicate with either child. This includes, but is not limited to, sending notes, cards or verbal messages;
·That both parents are restrained from speaking about the other parent or their respective families in a negative fashion in the presence of the children and shall ensure as far as possible that no other person does so;
·That both parents shall encourage the children to speak about the other parent in a positive manner and shall ensure as far as possible that other persons in their presence also do so;
·That both parents are restrained from discussing these proceedings with the children, or issues and allegations raised in the proceedings within their presence or within their hearing and ensure as far as possible that no other person other than a medical professional discusses these proceedings with the children;
Additional orders
·That the mother is to continue to attend upon her treating health care professionals in respect of her mental health and is to comply with any recommendations concerning her treatment (including adherence to any mental health care plan, medication and / or counselling referrals);
·That the mother is restrained from attending upon X’s school and from communicating with X’s school;
·That both parents ensure that the child in their care attends school each day and in the event that the child is unable to attend school due to illness then that parent is to obtain a medical certificate for each day that the child is unable to attend school and is to provide a copy of such certificate to the school principal within 24 hours of the missed day at school;
·That both parents are restrained from using any form of physical discipline whatsoever upon the children;
·That both parents are restrained from attending upon the place that the other parent is spending time with the child;
·That both parents are restrained from showing the children any documentation (including any affidavits, applications, reports or exhibits) in relation to these proceedings;
·That both parents are restrained from recording the children using any medium (audio, visual or otherwise) unless for the sole purpose of a souvenir / momento (rather than to collate further evidence);
·That the paternal grandparents be joined to the proceedings for the purpose of providing relevant undertakings; and
·That the Independent Children's Lawyer is to forward a copy of these orders to both children’s schools within seven days;
Undertakings
·The form of the undertakings proposed to be given by the paternal grandparents is as follows:
-To remain in the general vicinity of the children at all times when they are spending time together in accordance with the above orders;
-To supervise the time spent between X and Y as set out in the above orders for a period of 18 months;
-To remain in the general vicinity of Y and her father at all times when Y is spending time with her father in accordance with the above orders;
-To use their best endeavours to ensure that the father does not make any derogatory or critical remarks about the mother in the presence or hearing of either child;
-To encourage the children to speak about their parents in a positive manner and to ensure as far as possible that other persons do so in their presence or hearing;
-To avoid discussing these proceedings with the children or the issues or allegations raised in these proceedings, within their presence or within their hearing and to ensure as far as possible that no other person does so;
-To report any significant concerns arising out of such supervision to the Department of Human Services, Community Services; and
-To accept any reasonable directions of the Department of Human Services, Community Services in relation to the children’s time with each other and / or the father’s time with Y.

Background

The background matters are as follows.
The father was born in 1966 and he is therefore 45 years of age. The mother was born in 1968 and she is therefore 42 years of age. The parties commenced cohabiting in 1999. They married in 1999. They separated on 10 December 2006 although under the same roof. The marriage had been deteriorating. The child X had been having serious behavioural problems. The mother had been struggling to manage ongoing problems with depression. The mother moved out of the home in April 2007 with both children to live at rented accommodation at D Town. For a time the children regularly spent time with their father generally on alternate weekends.
By late 2007 the mother was becoming very concerned about the father’s care of the children. Amongst many other matters the mother alleged that the father had locked X out of the home at night and she complained that he did not sufficiently supervise the children. The mother stopped the children spending time with their father for approximately two months.
On 7 January 2008 the father filed a substantive parenting application in the Federal Magistrates Court. That application sought orders that the father have sole parental responsibility for both children, that they live with him and spend time with their mother, in broad terms, alternate weekends from after school Friday until before school the following Monday, each alternate week from after school Wednesday until before school the following Friday and for half of school holidays as well as various special days.
Orders were made on 1 February 2008 to the effect that the children live with their mother and spend alternate weekends, alternate Wednesday evenings and half school holidays with their father. The proceedings were then adjourned to 25 March 2008.
After the parties separated X’s behaviour became even more difficult. This was particularly the case towards the end of 2007. X was rude and defiant towards her mother. It was common for her to swear at her mother. She would throw tantrums. She would even hit and kick her mother and hit Y.
On 14 March 2008 the parents agreed that X would live with her father for two weeks to give the mother some respite and because she was unable to control X. At the expiration of the two weeks the mother collected X from school. But the child was aggressive and violent. X stayed that evening at the home of a friend of the mother, Ms E.
The following day the father was to collect X to spend time with him for the weekend including her birthday. When the father arrived at the mother’s home things with X were somewhat out of control. The mother said she had said in the father’s presence to X “That behaviour is not welcome in my house.”. The father said he heard the mother say to X “Your behaviour’s not welcome here, your attitude’s not welcome here and you’re not welcome here.”. The father then said to the mother “You just told [X] she is not welcome in your house anymore.”
The child then left with her father and she has lived with her father since that time. Y continued to spend alternate weekends, the alternate Wednesdays and half school holidays with her father.
Orders had been made for Dr M, psychiatrist, to be appointed single expert. Dr M prepared a report dated 27 June 2008. Dr M found X to be oppositional and defiant towards her mother and to have been alienated from her. Her primary bond was with her father. She had expressed a clear and consistent wish to reside with her father and to have minimal, if any, contact with her mother. Dr M observed that X’s behavioural response was likely to be hard to manage if she did not perceive her views being respected. If she was returned to her mother’s care an escalation of her behavioural problems would be likely. Dr M thought that establishment of regular time between X and her mother would require the support of therapeutic intervention.
On 13 August 2008 the Federal Magistrates Court made orders to the effect that pending further order X was to live with her father and to spend time with her mother including the following:
For a period of 4 weeks each Monday from after school until 5.45pm with the mother to arrange for X to be collected from school at the commencement of the time and to be returned to the father’s residence at the conclusion of the time.
The first of such occasions was Monday 18 August 2008. The mother and her father collected Y from school. The time went reasonably well until the father arrived at the home at 5.30pm to collect X. He said he had understood this was the time for X’s time at her mother’s home to conclude. The mother took the view that the father had done this to sabotage her time with X. The father said that the parties had been operating on the basis of a 5:30 pm collection for months, that he did not have a copy of the Court orders and that he had received a letter from his solicitor informing him that collection was at 5:30 pm.
The next occasion was Monday 25 August 2008. The mother’s father collected X from school and took her to the park at Suburb F to meet her mother and Y. Then they went to the mother’s father’s home. Apart from some rudeness by X to her mother, things were proceeding reasonably well until 5:00 pm when there was a telephone call from the father initially to the mother’s father. This was disruptive for X. She became agitated and asked to speak with her father. The mother declined her request saying that she would be seeing him shortly. A short time later X told her mother that she had ruined the picture she was drawing and she was yelling at her mother. The mother directed her to her room for some time out. X refused and hit her mother. Without describing all the details, the second time the child called her mother “a fucking bitch” her grandfather slapped her on the face. The grandfather then drove the child home.
Unfortunately on the next occasion for time between X and her mother, things took an even worse turn. This was 1 September 2008. Because the mother’s father had slapped X the previous Monday, the mother asked her friend Ms G to accompany her to collect X from school instead of her father. X’s father had explained to X that if her maternal grandfather (Poppy) was there, she had to go. So X was expecting Poppy to be there. The mother informed a teacher that she was there to collect X. The teacher indicated that X had told her that she did not want to go with her and asked both X and the mother to attend the office which they did. X made it clear that she did not wish to go with her mother. A staff member then telephoned the father and he spoke to X. The mother’s account in her affidavit about the further developments that afternoon has been understated in my view. I prefer the account of Ms H a member of staff at the child’s school. Ms H said, in a statement to the New South Wales Police, that the mother grabbed X by the pony tail to pull her out of the office. Ms H said that X was distressed, crying and screaming that she was not going with her mother. A person in the office had telephoned the father and asked him to attend the school and X left with her father. The father took her to the police station that afternoon.
This incident was followed by the police making an application for the making of an apprehended violence order to protect X against her mother.
X had been attending the R School. On 14 October 2008 she commenced at C School.
On 24 November 2008 a final parenting hearing commenced before Federal Magistrate Altobelli. On 26 November 2008 final orders were made by consent providing for X to live with her father and for Y to live with her mother. Interim orders were made for Y to spend time with her father each alternate weekend from after school Friday to before school Monday, from 5:30 pm Wednesday to before pre-school Thursday plus half of each short school holidays, two non-consecutive weeks in the Christmas school holidays until 2010 and thereafter half of all school holidays. There was a notation to the effect that each parent would use their best endeavours to encourage and facilitate X spending time and communicating with her mother.
In late February 2009 the father commenced cohabitation with Ms I
At this time the mother was having difficulty with Y’s behaviour and she approached J Family Service for assistance.
In March 2009 there was a contested proceedings before Federal Magistrate Altobelli. This resulted in the mother obtaining an order permitting her to take Y to a Buddhist retreat for two weeks with the father being ordered compensatory time. The parents were restrained from discussing the proceedings with the children or showing them documents.
The following day the mother alleges that Y said certain things which the mother interpreted as being an allegation of sexual abuse of X by her father. The mother subsequently reported the matter to the then Department of Community Services and withheld Y from spending time with her father. A week later the mother made a second report to the Department and the matter was referred to the Joint Investigative Response Team (“JIRT”). The mother then filed an application to suspend time between Y and her father. On 28 March 2009 the mother recorded a conversation between herself and Y during which Y made further allegations of sexual behaviour involving the father. The mother made another report to the Department.
On 8 April 2009 Federal Magistrate Altobelli made orders providing, amongst other things, for the time between Y and her father to be suspended until 18 May 2009 on a without prejudice, and without admissions, basis. Orders were also made restraining the parents from recording the children using any medium.
On 9 April 2009 Y was interviewed by a representative of the JIRT and the allegations of sexual abuse by her father in relation to X were not substantiated.
Between May and October 2009 various orders were made, the effect of which was for the father and X to spend supervised time with Y. Supervision was initially undertaken by K Services. But after the mother complained to K Services about the supervision, K Sevices ceased supervising the father and Y but offered to continue supervision of Y and X. Then orders were made for the father and Y to spend supervised time at L Service at M Town, the parties were ordered to attend contact program and the matter was transferred to this Court.
The application for the making of an apprehended violence order against the mother to protect X was dismissed on the basis of undertakings given by the mother for three months.
On 16 September 2009 an order was made by this Court for Y and X to spend time together not less than once each week supervised by the N Service at the same time as spending time with their father and in the other week supervised by Ms I and or Ms O. This commenced in early October.
On 12 November 2009 Rose J made orders for the Department to intervene in the proceedings. His Honour also made orders for the preparation of an updated report by Dr M. Orders were also made for the father to have telephone communication with Y each Wednesday and alternate Sundays.
In early 2010 Ms I’s daughter P had come from Queensland to live with her, the father and X. X and P attended the same school, C School.
In February 2010 the Department filed a notice formally intervening in the proceedings.
On 25 March 2010 the Director-General referred the family to the Physical and Emotional Abuse and Neglect of Children Service (“PANOC”). The purpose of this referral was to undertake an assessment of the family with a view to further therapeutic intervention. Dr M’s second report was available and dated 14 May 2010.
In June 2010 orders were made for the matter to be set down for a five day hearing commencing 20 September 2010.
On 11 August 2010 assessment reports issued by PANOC in relation to each parent. This precipitated an application by the Director-General for orders that parental responsibility for Y be allocated to the Minister for Human Services.
On 7 September 2010 Rose J made orders ex parte including adjourning the Director-General’s application for hearing on 13 September 2010 on an ex parte basis, providing Dr M with copies of all affidavits and reports and other procedural orders.
On 10 September 2010 Dr M provided a supplementary report.

Allegations of Sexual Abuse

A major issue in this litigation has been a suspicion by the mother that there has been some form of sexual behaviour by the father towards the children.
The mother said that on Saturday, 14 March 2009 at about 5:30 pm she observed Y playing with her genitals as she watched a DVD. She was dressed in her pyjamas and was rubbing her vagina with her left hand over the pyjamas. She did this on and off whilst she watched the movie. The mother did not say anything to Y at the time but later as Y got into bed the mother had the following conversation with the child.
Me:“You were playing with yourself down there tonight when you watched the movie?”
[Y]:     “Yes”
Me:     “Did that feel nice did it?”
[Y]:     “Yes, it did feel nice.”
Me:     “Have you felt that before, has anyone else ever done that to you?”
[Y]:     “Yes, [X] has. I sucked her fanny.”
Me:     “Did [X] ask you to do it to her? Did you want to do it?”
[Y]:     “No I didn’t want to. It taste funny.”
Me:     “So you said no to her?”
[Y]:     “Yes.”
Me:     “So, you didn’t do it?”
[Y]:     “Yes I did and she did it to me, it tickled me.”
[Y] smiled
Me:     “Did it! Is it only once it happened?”
[Y]:     “Yes. [X] said that she did it to you when she was a baby.”
Me:     “What? No darling, of course not.”
[Y]:“She said she sucked your fanny when she was a baby, but babies don’t suck there they suck boobies.”
Me:“Yes, that’s right.”
[Y]:“Mummy, why are you nearly crying?”
Me:“Oh darling, mummy’s just really sad that [X] is saying such things, things that are so not true.”
Me:“You know, no-one can touch you there or here.” I pointed out her breast area and below. “Only you can touch your body.”
[Y]:“And you can.”
Me:I said “yes”. “And daddy can?”
Me:“Well yes, mummy and daddy can only if we are helping you clean yourself. So you’ve only done this once or a few times?”
[Y]:“A few times.”
Me:“Oh really. Where did it happen? In the bed?”
[Y]:“Yes, in [X]’s bed.”
Me:“So [X] asked you to come up into her bed?” The girls sleep in a bunk bed.
[Y]:“Yes”
Me:“Was it night time or day time mostly?”
[Y]:“Umm, night, umm, night time.”
Me:“Well darling, I want to tell you, that you must say no now. You said you didn’t like it?” She shook her head from side to side, “So that means your little heart did not want to do it, it felt yucky, so it is best that you do not do it any more, you can go out of the room. [X] doesn’t like it when you say no does she?”
[Y]:     “No she doesn’t.”
Me:“But you need to say no, because it’s good to listen to your beautiful heart, it wants you to say no, so you should. This is only for you to touch.”
[Y]:“Well my dad did suck his grandfather’s willy.”
Me:“Really? How do you know that?”
[Y]:“He told me that he did it.”
Me:“Did he say that was a good thing or a bad thing?”
[Y]:(After a pause) “It’s a good thing. He can because he’s an adult.”
Me:“No-one should touch anyone there at all.”
[Y]:“Yes, adults can, the court says they can take my sister away if she says bad words. She told daddy he was a ‘butt’.” [Y] laughed.
Me:“Oh really? But you know mummy wants to tell you that not [X] or daddy can’t touch you here, and you don’t touch them there.”
[Y]:“But adults can my daddy’s grandfather did so it’s allowed.”
Me:“No darling, adults aren’t allowed to touch children; the courts don’t allow that, that is breaking the law. Your body is for only you to touch and mummy and daddy can only help you clean, nothing else is O.K.”
[Y]:“[X] told me that [Ms I] sat on daddy’s fingers and it hurt them and [Ms I] screamed out loud.” Y laughed again.
Me:“Oh, she accidentally sat on daddy’s fingers? That’s no good.”
We cuddled and talked about other things before saying good night.
The mother said that she is aware that all young children masturbate but she was concerned that Y was masturbating excessively that evening.
The mother typed up the above conversation. She had a counselling appointment the following Monday afternoon (16 March 2009) and forwarded her notes to her solicitor and to her counsellor. She was advised to report the allegations to the Department of Community Services which she did that evening.
The mother then decided that she would not make Y available to spend time with her father without further investigation. The police became involved.
On 27 March 2009 the mother made a second notification to the Department of Community Services. This was that Y had informed her at bedtime that evening “I watched Daddy suck his grandfather’s willy on his laptop and then wee came out into his mouth.”.
The following day the mother recorded conversation between Y and herself at bedtime. Y said, amongst many other things, that her father was going to try and kill her, that he picked up a sharp knife and put a hole in her eye and then a hole in her lip. There followed a most inappropriate conversation between the mother and the child which I can only interpret as being encouragement by the mother of the child to speak in negative terms about the father presumably for the purpose of fishing to see whether there might emerge some information which could be used against him in this litigation.
Of particular concern is the fact that the mother moved the conversation away from discussion about knives and needles to the earlier conversation in which the child had said she had seen her daddy sucking his grandfather’s willy on the laptop computer. The mother sought further particulars from the child about this subject and then the mother made the further notification to the Department of Community Services on the basis of those particulars.
Unfortunately the mother in her questions sought more and more details from the child which, in my view, appears to have encouraged the child to then provide more and more details. So the more interest the child detected from mother the more the child provided information to the point where Y told her mother that she sucked her father’s willy every day hiding in her bedroom and X’s bedroom with the father’s spouse Ms I in the home. Not only did she suck her father’s willy but she did it to his bottom too. She stuck her tongue into the hole where the wee comes out from his willy and felt some milk. She saw the milk come out and it was pink milk because (her cousin) Q has pink milk. The mother was not prepared to leave it there and sought even further information. So the child obliged and again said she sucked her daddy’s willy and bottom every day. The mother then asked the child whether she thought it was OK to do what she was doing. Y replied “Yeh because the judge and the court says it’s OK because … every day [Q] sucks her dad’s bottom and willy … everybody does that to their dad because she’s seen everybody do that, they do it outside, everybody do it and we just do it inside.”.
Apparently this conversation went for more than 26 minutes.
After the mother notified the Department about Y’s alleged disclosures, the matter was referred to JIRT. The mother was asked not to continue to question Y about the alleged disclosures. On 3 April 2009 Ms R of JIRT had a telephone conversation with the director of Y’s pre-school. The director informed Ms R that the pre-school had no concerns in relation to Y and that she presented well.
On 8 April 2009 Ms R and a police officer Ms S interviewed Y in relation to the disclosures.

On 22 April 2009 Ms R interviewed the father.
There was considerable further activity including each of the parents providing JIRT with electronically recorded material.
On 19 May 2009 Ms R informed the father that JIRT would not be undertaking any further investigation of the matter. The JIRT investigation could not substantiate the allegations of sexual abuse.
The PANOC report indicates that officers had discussions with the father in relation to allegations of sexual abuse and that he emphatically denied the allegation that he had sexually abused Y, stating that he felt as though the child’s mother had led Y to disclose sexual abuse. He said that the disclosure was made immediately following a session in this Court between the parties and following his partner Ms I moving into his home. Mr Lisle said that he did not believe either child had ever witnessed any sexual activity between his partner and himself. He said that an allegation by the children that they witnessed him engaging in sexual activity with his partner on the lounge may have actually been when he was receiving a massage from a qualified massage therapist.
The reporter stated that the disclosures occurred within a highly conflictual parental relationship and that they were inconsistent and contradictory suggesting that they had been highly led and contaminated by the parents during a time of intense conflict with one another. It would appear likely that the girls have engaged in sexualised behaviours with one another. The reporter also said that given the highly abusive, emotional and neglectful home environment created by their parents, it would be more likely that this was the primary reason for the girls’ sexualised behaviours.
Dr M’s first report, namely 27 June 2008, did not really address the allegations of sexual abuse. The closest it approached this area was that Dr M asked X if there had been problems in the bathroom with her dad. She said once or twice but she could not remember. Then she explained that Y had been splashing water and that she had to lick it up because they had made a mess. She denied feeling scared.
On 25 June 2009 the mother said that she was having a conversation with Y and then Y began sucking her fingers and said that she did not want her father to know that she told her mother that she sucked his willy. The mother said that this was the first time Y had raised this subject for a few months.
Dr M in his report dated 14 May 2010 said that it was evident that the mother viewed Y’s disclosures about the father and X as warranting an investigation but did not regard her statements about Q as cause for concern.
Dr M said that Y told him that she liked seeing her father and X “heaps a lot”. She told Dr M that “anything” about this contact was good and that nothing was bad. Nothing had ever been bad. She denied having felt unsafe, hurt or sad at any time during contact. She said that she would love to have a sleep over.
Then Dr M asked X if she knew about private parts and said that she responded:
[Y]es, a long time ago. I think that was before my mummy and my daddy got married. When my daddy and my sissy were having a shower. I sneaked in the door. I got my knife and I twisted it in the door and my daddy didn’t see me. I saw my daddy’s private bits and my sissy. They were playing horsies in the shower at home, at my dad’s house.
Dr M asked X what she meant by playing horsies and she responded “anything that the ponies want to do. I can’t remember how they’ve done it”.
I note that the father said in response to the allegation that Y had said that X and Daddy play horsies in the bath that the horsies or ponies are small plastic toys amongst a collection of toys that the children use to play in the bath. He annexed a photo of these toys to his affidavit.
Dr M asked Y why her private parts were called private. She explained “you’re not supposed to see them”. She indicated that only her mum and dad had seen or touched them but then added “I think so. I don’t know”.
Dr M asked Y if she knew about good and bad secrets. She informed him that a good secret was “keeping fairy secrets” and a bad secret was “don’t let your nasty secrets stay in and I know that’s why I came here to get my nasty secrets out but not my good secrets. My good secrets can stay in”. Dr M asked her if there were any nasty secrets and that she replied “they are nightmares and scary dreams”. She was unable to remember them.
Dr M asked X whether there had been “rude stuff”. X denied that anything had happened to herself or Y.
Dr M said that when the father and the two girls met they greeted each other with great enthusiasm. Numerous enjoyable interactions were observed.
In the individual interviews the father denied absolutely the allegation of sexual abuse and highlighted that this had weighed upon him heavily. On the other hand the mother repeated her concerns regarding Y’s disclosure although she acknowledged that so far as those allegations concerned the father’s laptop computer that the family did not have the capacity to take home movies at the time and that she knew that it was not possible.
In providing his opinion, Dr M reported at paragraph 82 of his 14 May 2010 Report as follows:
It was evident from the documentation perused and my further assessment that the children had continued to be psychologically harmed by their family circumstances. The escalation of alienation between [X] and her mother was highly concerning. [Y’s] audiotaped disclosures to the mother, and videotaped disclosures to the father highlighted the degree of pressure which she had experienced over time. Under these circumstances she had made a series of disclosures, which were inconsistent and contradictory. Her disclosures were contaminated by numerous discussions and interviews, conducted by her parents and others. [Y] was seen to be confused in her communication. Nonetheless, there was no doubt that she was enthusiastic to re-establish regular contact with her father and [X].
Dr M said at paragraph 86 as follows:
Should it be held by the Court that the mother’s allegations with regard to the father’s behaviour are substantively correct, it may be necessary for limitations to be placed on [Y’s] contact with her father and sister. I would however strongly support an ongoing relationship between them.
At paragraph 88 Dr M said as follows:
Taken at face value, the disclosures of physical and sexual abuse by the girls are of great concern. [Y’s] description of walking in on her sister and father playing horsies in the shower was in addition to her many other statements. It should however be noted that there was a fantastical element to the description involving a knife. There are considerable problems in interpreting this data. Firstly there have been consistent denials from each parent. The mother in particular has alleged that [X] has repeatedly lied about her experience of the mother, whilst being strongly supported in her statements by the father. Secondly, there is a lack of supporting data. Thirdly, there have been numerous inconsistencies in the statements and behaviour of [Y]. There is significant research highlighting the suggestability of young children, which is relevant to [Y] in particular. [X] was noted to persistently refer to “we”, referring to herself and her father, in describing her experience. This extended to them both providing the same detailed description of an old incident involving the mother showering [X]. This was striking as it was a relatively innocuous experience graphically portrayed as abuse. There was also no particular context to explain why this particular experience should have been highlighted by them both. [X] was also seen to minimise her previous experience of her father’s punitive parenting practices. There was no doubt that both girls had been exposed to recurrent discussion regarding such issues, thus contaminating their evidence.
During his cross-examination Dr M said that there has been so much contamination that it is impossible to say what has or has not occurred. Dr M confirmed that he had informed the father during their last meeting that he did not believe that there had been any sexual molestation in the father’s household. Dr M said that he did not believe that there was enough data to support the allegations of abuse and therefore the material did not support a conclusion that it happened. He also said that he observed a very positive relationship between Y and her father from which I inferred that he considered this to be inconsistent with abuse having occurred. Dr M noted that there was no acting out by Y at pre-school and that there was no physical evidence despite some suggestion that for some years the child had suffered from thrush and from time to time a urinary tract infection. In any event Dr M said that such physical conditions are not necessarily indicators of sexual abuse.
Dr M considered it very important to the future management of these children that the Court arrive at a finding that there is not an unacceptable risk of abuse to the children in the care of their father. This is supported by the Department and by the Independent Children’s Lawyer. Dr M said that if the Court did not make a finding along these lines then the issue of unresolved allegations of child sexual abuse would continue to arise in both households which could only have a serious negative impact on the children.
In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court went on to say at page 77,081 as follows:-
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk. Then the High Court arrived at the relevant test saying as follows, still at page 77,081:
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “"achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
The evidentiary standard which the Court is to adopt was also set out in the High Court case of M & M (above) in which the High Court said as follows at pages 77,080 and 77,081:
In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362…
I accept that it is important to make the finding for the following reason. The mother has read the opinion Dr M has arrived at about the allegations. She has read all the other relevant material. She knows that it cannot have been the case that Y saw her father sucking her grandfather’s penis when she was looking at his computer and that there was no knife involved at any time in the behaviour between Y and her father. Yet the mother holds a lingering doubt that somehow there might have been some sort of sexual behaviour between the father towards Y.
Having read and heard all the relevant evidence about the allegations of sexual abuse, including Dr M’s carefully considered opinion, in my view it is highly unlikely that there has been any behaviour of a sexual nature between the father and the children.
Unfortunately the allegations of child sexual abuse have been damaging for the children. The allegations have further damaged the relationship between X and her mother. They have confused the children. They have resulted in the time spent between the children and their father to have been supervised which has caused resentment and frustration on the part of the children. They have provided a further serious element to the fuelling of the litigation between the parents.
As I have noted, the relevant standard is the civil standard, that is on the balance of probabilities. I am satisfied on the balance of probabilities that it is more probable than not that there has been no sexual abuse in the father’s household. Accordingly, I am satisfied that there is no unacceptable risk to either of the children in being cared for by their father on an unsupervised basis, based on risk of sexual abuse.
This finding is also consistent with the submissions about this matter by learned counsel for both the Director-General and the Independent Children’s Lawyer. It was conceded by learned counsel for the mother that the father does not present as an unacceptable risk of sexual abuse to the children.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
In Chappell and Chappell [2008] Fam CACF 143 the Full Court said as follows at paragraph 75:
In order to rebut the presumption it is necessary for the Court to make a finding that it would not be in the best interests of the child for the presumption to be applied. We accept that in determining what is in the child’s best interest the Court must take into account the prescribed matters in ss 60CC(2) and (3) …

Section 60CC Considerations

How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.
The additional considerations are set out in subsection 60CC(3) of the Act.

Additional Considerations

Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

X has a strong, entrenched view about which she has been consistent now for some years. This is that she wishes to continue to live with her father and, in more recent times, Ms I and her daughter P. She does not want to have any relationship with her mother. For the reasons expressed below, in my view, her views should be given considerable weight.
Y has not expressed a view about which parent she would prefer to live with. She has always lived with her mother. But it is clear that she wishes to spend time with her father and X. Dr M said that when he informed Y at the interview that she would be seeing her father and X (after a long absence of this) Y became visibly excited and said that she had missed X and her father and would love to sleep over. Some weight should be given to her view.

Section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

It is clear that both parents love the children and want to have a close relationship with them. It is a tragedy for both children that X has no relationship with her mother. This appears to have come about as a consequence of a number of factors. The mother had serious difficulties coping with the parenting demands of X particularly following the birth of Y. Y had special health needs and required particularly close parental attention as a baby. It is possible that X felt some sense of rejection by her mother and developed an identification with her father. But the father has also undermined the child’s relationship with her mother as shall be discussed further below. Dr M described X as now having “an entrenched position about the nature of the family relationships [in that she] strongly identifies with her father, is strongly oppositional to her mother consistent with the father’s view of her mother’s behaviour, spirituality and lifestyle.”.

The relevant circumstances pursuant to s 117(2A) of the Act include the father’s financial circumstances. He says that he has an income of approximately $68 000 per annum, that he is endeavouring to service a mortgage of approximately $350 000 and that he has an additional liability of approximately $50 000 in respect of credit card debts. [Ms I] had been working part time but her employment was discontinued by her employer …, and she is currently unemployed. She and the father have to support not only themselves but also [X] and [P]. The costs of Legal Aid NSW are substantial at $24 000 and, as indicated above, Legal Aid NSW and the Department have paid the entirety of [Dr M’s] costs. I note that the father has represented himself in the proceedings. He says that he cannot afford to pay for legal representation. I note also that the father has been most cooperative in the hearing and particularly by supporting the orders proposed by the Department and the Independent Children’s Lawyer.
In all the circumstances I do not regard it to be appropriate to make any order for costs against the father.

Other Orders

The father also sought some additional orders. These were to the effect that the mother be restrained from taking either of the children to the AA Retreat for any purpose until the Court is satisfied of the legitimacy of its activities and current DA approval for its permissible land use, that the mother be restrained from commencing further proceedings without first obtaining the Court’s leave and that the mother be bonded to the amount of $3000 per further breach of Court orders.
It is unfortunate that the mother’s spiritual beliefs and activities have been a matter of division and distress between the parties. But in my view there is no basis for orders along the lines of any of those sought by the father.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice W P Johnston delivered on 17 May 2011.

Associate:

Date: 17 May 2011

[2011] FamCA 318

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Procedural Fairness