Littlefield & Pemble (No 3) - [2024] FedCFamC1F 767

FEDERAL CIRCUIT AND FAMILY COU RT OF AUSTRALIA
(DIVISION 1)
Littlefield & Pemble (No 3) [2024] FedCFamC1F 767

File number: HBC 275 of 2017

Judgment of: MCGUIRE J

Date of judgment: 14 November 2024

Catchwords: FAMILY LAW – PARENTING – Application by father seeking orders that the child live with him and there be a moratorium whereby the mother spend no time with the child for a period of six weeks graduating to supervised time – Application opposed by the mother – Allegations of sexual abuse of the child by the father – Allegations that child at unacceptable risk of abuse in the care of the father – Assertions by father that mother has made false allegations against him – Court is not satisfied on the balance of probabilities that the father has sexually abused the child - Court unable to conclude that the father poses an unacceptable risk of sexually abusing the child – Mother genuine but mistaken in her allegations – Issue of mother’s mental health – Considerations of mother continuing to make false allegations against the father – Child’s best interests - Orders that child live with the mother – Orders that child initially spend supervised time with the father graduating to week about time with the father in 2026 – Orders that parents retain joint parental responsibility and joint decision-making in respect of all decisions concerning major long-term issues pertaining to the child

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 4 and 61DAA

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Isles & Nelson [2022] FedCFamC1A; (2022) FLC 94-092

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

M v M (1988) 166 CLR 69; [1988] HCA 68

Division: Division 1 First Instance

Number of paragraphs: 264

Date of hearing: 2, 3, 4, 5 and 6 September 2024

Place: Hobart

Counsel for the Applicant: Mr Edmondson

Solicitor for the Applicant: Butler McIntyre & Butler

Counsel for the Respondent: Mr Strong

Solicitor for the Respondent: pwb Lawyers

Counsel for the Independent Children’s Lawyer: Ms Ryan

Solicitor for the Independent Children’s Lawyer: Paggett & Associates
ORDERS

HBC 275 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LITTLEFIELD

Applicant

AND:
MS PEMBLE

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

14 NOVEMBER 2024

THE COURT ORDERS THAT:
1.All extant parenting orders in respect of the child X born in 2015 (“X”) be discharged.
2.Mr Littlefield (“the father”) and Ms Pemble (“the mother”) retain joint parental responsibility for X and joint decision-making authority in respect of all decisions concerning major long-term issues pertaining to X.
3.The child live with the mother except for the times the child lives with or spends time with the father as set out in these Orders.

Father’s time-with X
4.The Father spend supervised time with X at the City B Children’s Contact Service for three consecutive visits for a period of two hours with such dates and times to be advised by the City B Children’s Contact Service or on such frequency as can be offered by the City B Children’s Contact Service, commencing at the earliest available date offered by the City B Children’s Contact Service but preferably on three successive Saturdays.
5.For the purposes of the father spending time with X in Order 4 herein the parents shall within seven days from the date of these Orders do all acts and things and sign all documents necessary to complete enrolment with the City B Children’s Contact Service for supervised time between the father and X and that the parents then follow the directions of the Independent Children’s Lawyer (“ICL”) as to the commencement date for supervised time.
6.The parents shall equally share the costs associated with the father spending time with X at the City B Children’s Contact Service.
7.At the conclusion of the father’s supervised time with X as set out in Order 4 herein the father shall spend time with X for four consecutive Saturdays from 10.00am until 5.00pm.
8.At the conclusion of the father’s time with X as set out in Order 7 herein the father shall spend time with X each alternate weekend from 3.00pm on Friday until 5.00pm on Sunday with the first such time-with to occur on the Friday immediately after the final Saturday of the time in Order 7 herein such to continue for four fortnights.
9.At the conclusion of the father’s time with X as set out in Order 8 herein the father shall spend five nights with X each alternate fortnight from the completion of school or 3.00pm (if not a school day) on Friday until the commencement of school on Wednesday or 10.00am if a non school day such time-with regime to continue during school terms until the commencement of school in February 2026.
10.From the commencement of the school year in 2026 from Term 1 X will live between the parents on an equal shared care week about basis with changeover to occur every Friday after school.

Mid-Term school holidays
11.During all Term 1, Term 2, and Term 3 gazetted Tasmanian school holiday periods in 2025 and each year thereafter X shall live with each of the parents on an equal time basis commencing with the parent other than whom she is already living with pursuant to these Orders in the first half of such holiday, with changeover to occur at the conclusion of school (or 3.00pm) on the first Friday of holidays and then changeover to the other parent on the second Saturday of the holidays at 12 noon.

Summer holidays
12.As from the summer school holidays 2025/2026 from 23 December each year, and until the commencement of Term 1 the following year, X will live in a week about basis between the parents as follows
(a)In odd numbered years, with the father from 23 December for a period of seven nights (including Christmas), and with the mother from 30 December for a period of seven nights, and on an alternating seven night basis thereafter with changeovers to occur at 5.00pm every seven nights.
(b)In even numbered years, with the mother from the 23 December for a period of seven nights (including Christmas), and with the father from 30 December for a period of seven nights, and on an alternating seven night basis thereafter with changeovers to occur at 5.00pm every seven nights.

13.X spend time-with/live with each of the parents otherwise as agreed between the parents in writing or variations of the above otherwise agreed between the parents in writing.

Changeovers
14.Any changeovers that do not occur at school will take place at the City B Children’s Contact Service or as otherwise agreed between the parties in writing.

Mother’s therapy
15.The mother will immediately and consistently continue her appointments with Dr G on such frequency to be at the discretion of Dr G.
16.Dr G will provide regular oral or written reports, at her discretion, in respect of the mother’s therapy upon request from the ICL and is authorised accordingly by these Orders.
17.The mother will be solely responsible for any costs associated with her therapy, including the provision of any report provided to the ICL.
18.The ICL forthwith provide Dr G with a copy of these Orders and Reasons together with all reports prepared for these proceedings by Dr E and Dr F.

Appointment of ICL
19.The appointment of the ICL continue until the 28 of February 2026.

General
20.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
21.All extant applications, other than costs, otherwise be dismissed.

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 of Littlefield & Pemble has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McGUIRE:
APPLICATIONS

These are parenting proceedings in respect of the parties’ one child X born in 2015 (aged eight years).
Where there were previous substantive proceedings in these Courts culminating in final orders in 2018 and 2021, and where X currently spends no time with the father, the orders sought by the father are inter alia:
(i)that he have sole decision-making for the major long-term decisions affecting X;
(ii)that X live with him;
(iii)that there be a moratorium period of 12 months for time between X and the mother but where by the time of final submissions the father had reduced the proposed moratorium period to six weeks;
(iv)upon the expiration of the moratorium period X spend supervised time with the mother; and
(v)that in conjunction with her supervised time, the mother continue to receive further therapy from her psychiatrist.
The mother seeks orders whereby she have sole parental responsibility for long term decision-making in respect of X and that X continues to live with her. The mother argues that it is not in X’s best interests for her to spend any time-with the father.
The Court has had the benefit of an Independent Children’s Lawyer (“ICL”). At the commencement of the trial the ICL’s position was that the mother have sole parental responsibility for long term-decision making for X and that X continue to live with the mother. Oddly, given X’s age and the circumstances and background of this matter, the ICL then proposed that X spend time and communicate with the father “in accordance with her wishes”.
However, and by the time of final submissions, the ICL’s position had changed to one favouring time for X with the father albeit commencing with supervised time but to coincide with psychiatric therapy for the mother so as to allow her to adjust to the concept of X spending time with the father.
ISSUES
The primary issue here is one of unacceptable risk for X. The mother says the father presents an unacceptable risk to X of he perpetrating sexual abuse of the child based on previous assertions by the mother and revelations by X.
The father says that the mother presents as an unacceptable risk to X of reinforcing in the child either false or mistaken beliefs that he has perpetrated such abuse where the mother herself asserts this view based on either, the mother deliberately and maliciously fabricating false allegations that he has sexually abused X or, alternatively, opportunistically misinterpreting innocent statements made by X towards a view convenient to the mother that he had perpetrated sexual abuse or, thirdly, that the mother holds a genuine but mistaken belief that he perpetrated sexual abuse on X by reason of the mother’s own mental or emotional condition.
There are collateral issues including, where the father has had no direct contact with X since 2022, his capacity to attend to the physical, intellectual and emotional needs of a young child.
There are issues as to the emotional and psychological effect on X if orders are made in the terms of the father’s application which would see X being separated for a significant period from the mother who has been her primary caregiver since birth and similarly the impact on X by being placed into the sole care of the father with whom she has had no direct contact for some two years.
There is an issue as to what, if any weight, is to be given to X’s wishes where she has stated that her preference is to have no relationship with the father.
There are issues as to the mental health and emotional stability of both of the parties.
Consequently, broadly the Court is to determine whether:
(i)the Court can make a positive finding that the father has sexually abused X;
(ii)the Court can make a finding that the father has not sexually abused X;
(iii)the Court can make a finding that the mother has emotionally and psychologically abused X by fabricating false allegations of sexual abuse;
(iv)the Court can make a finding that the mother has not made a deliberate and malicious false allegation of child abuse;
(v)if there is no finding that the father has perpetrated sexual abuse on X then whether he presents as an unacceptable risk of harm to X by reason of sexual abuse; and
(vi)if the Court cannot find that the mother has deliberately fabricated false allegations of child abuse then whether the mother presents as an unacceptable risk of emotional damage to the child by continuing to make such assertions and influence the child’s beliefs.
BACKGROUND
The father is 42 years of age. He is a tradesman. He lives at Town H in Tasmania. There is no evidence that he has re-partnered in any committed, dependent, or supportive sense. He has no other children.
The mother is 39 years of age. She lives at Town J in Tasmania. She is an education professional. There is no evidence that she has currently re-partnered in a committed, supportive or dependent sense. She has no other children.
The parties commenced cohabitation in 2014 after meeting on-line in about mid-2014. The mother was then working in Town K. The father moved to Town K.
In 2015 the parties relocated from Town K to the greater Melbourne area.
In 2015 X was born.
On or about 28 November 2015 the parties separated with the mother unilaterally relocating with the infant X to Tasmania.
In early 2016 the parties attended mediation and in 2016 the father commenced supervised time with X, then three months old, at the City B Children’s Contact Service.
In March 2017 the father filed an application in the then Federal Circuit Court of Australia seeking spend time-with orders in respect of X.
On 5 June 2017 interim orders were made for the father’s time with X to be initially supervised for four visits by a private supervisor and thereafter unsupervised time for three hour periods increasing to four hour periods. Changeovers were to occur at the City B Children’s Contact Service.
In September 2017 further interim orders were made by consent increasing the frequency and duration of the father’s unsupervised time albeit remaining for daytimes only.
In 2017 the mother commenced seeing a Clinical Psychologist, Ms L.
In 2018 the first Family Report was released.
On 29 October 2018 final parenting orders were made by consent providing inter alia:
(i)equal shared parental responsibility;
(ii)X live with mother; and
(iii)X spend overnight with the father once per fortnight and one day time a fortnight gradually increasing to spending four nights per fortnight with the father from May 2020.
In late 2018 the mother unilaterally withdrew X from one daycare centre and enrolled X in another daycare centre without advising the father albeit continuing to facilitate changeovers at the previous day care centre.
In about January 2019 the mother alleges that X climbed on her lap, facing her, and jumped up and down with their groin areas touching. The mother asserted that X told her it was a “tummy rub” and the father had taught her how to do it. The mother reacted by suspending time for X with the father.
In May 2019 the father’s time with X returned to unsupervised and overnight time in accordance with the orders of October 2018.
In September 2019 the father asserted that X disclosed to him that the mother smacks her and tells her not to inform the father. He says that X later retracted the statements and pushed the father away when he attempted to give her a kiss and cuddle with the father asserting that X told him that the mother had told her to do so. The father alleges that X kicked him on the instructions of “[Ms M]” and the mother and that X informed him that the mother told her “not to eat at dadda’s”.
Later in September 2019 the mother alleges that X disclosed having a “sore wee wee” and that the father had applied cream to X’s vulva when X was of an age where she could have done so herself.
In mid-October 2019 the mother sought a referral for X to a psychologist (X was then four years old) and did so without consulting or informing the father until some six months later.
In late October 2019 the mother alleges that X said to her “Mum, Dad said you hit me…” “Mum, dad said you are danger”.
In mid-December 2019 the mother alleges that X said to her “Mum I want you to come to Dad’s house with me… He said we were going to the doctor then the Police because you do bad things”.
Two days later the father alleges that he notices X trying to touch her vulva and reports same to a child protection agency hotline.
In late December 2019 the mother reports to the child protection agency hotline that X pulled her pants down and asked her mother to kiss her bottom and said that her father kisses her bottom.
In early 2020 the father reported to the child protection agency hotline that X tried to kiss him with an open mouth. Also in early 2020 the father emailed the mother concerning “sexualised behaviour” in X and invited the mother to attend mediation. The mother declined the invitation.
On 23 January 2020 the mother sent an email to the father saying that “she does not consent to [the father] attending [X]’s first day of school”.
In February 2020 the father attended X’s school to collect X for his court ordered time. He says that the staff did not allow him to collect X and advised him to contact the mother.
On 18 February 2020 the mother filed an Initiating Application seeking orders to reduce the father’s time with X.
In mid- March 2020 the mother alleged X wet her pants on her return from time with the father.
Three days later the mother alleged that when X told her she was going to her father’s the next day, X “looked distressed” and was breathing rapidly. She says X went into her room and cried under the bed. The mother responded by informing X that she did not need to go to the father. The mother informed the father that X was distressed.
In late March 2020 the mother alleged that X told her “some grown ups choke children” and that X was “choked by her father with [an object]”.
In early April 2020 the mother asserts that X was “emotionally dysregulated”.
In mid-April 2020 the mother suspended communication and time for X with the father alleging extreme emotional dysregulation in the child.
In late April 2020 the mother alleges that during a “[…] discussion” with X that the child disclosed that “Dad pushed his finger into my vulva and it hurt”. The mother made a notification to Child Safety Services. The mother alleges that X further disclosed that the father kisses her bottom.
In May 2020 the mother does not take X to school on days that the father is due to take her into his care thereby effectively suspending the father’s time. In May 2020 Child Safety Services received a notification that X told her mother that she puts her tongue in the father’s mouth and touched herself in front of her father and asks to be “touched”.

In mid-June 2020 supervised time commenced for X and the father at the City B Children’s Contact Service. The mother says that X was hesitant and reluctant to go. The father said that X relaxed in his company.
In late June 2020 the mother telephoned City B Children’s Contact Service complaining as to the previous visit and that X was “tricked by staff” to go with the father.
Five days later the mother commenced seeing psychiatrist Dr G.
On 17 July 2020 Federal Circuit Court interim orders were made by consent providing for supervised time at City B Children’s Contact Service.
On 11 August 2020 Dr E was appointed as a Single Expert.
In September/October 2020 the parties attended interviews with Dr E.
In October 2020 the supervised visit at City B Children’s Contact Service was cancelled due to X’s inability to engage. It is reported that X smiled at staff and said “Daddy doesn’t listen to me and I don’t want to stay today”.
The mother raised the issue of the father tickling the child at the last visit despite being asked to stop.
In early November 2020 X had, according to the father, a successful contact visit at City B Children’s Contact Service despite X informing the staff that she did not wish to stay with the father.
In mid-November 2020 X had a contact visit with the father where on arrival the mother informed staff that X did not want to stay. X complained of being tickled on a previous visit.
On two further occasions in November and December 2020 X had contact visits with the father at City B Children’s Contact Service and complained on each occasion of being “tickled”. Staff reported X to be relaxed in the father’s company including being welcoming of physical contact.
In late December 2020 City B Children’s Contact Service advised that they cannot continue frequency of direct contact visits and can only offer “maintenance contact” about once per month.
In early January 2021 the mother alleges that X made a disclosure to her of a story about “a little girl who showed her vulva when people were around, and (sic) adult licked the vulva… and “someone smacked the girl’s vulva.”
In January 2021 the Police attended the mother’s home to speak with X for an interview. X did not wish to participate. The mother did not inform any of the father, the ICL or the Single Expert of the Police intervention.
A few days later the mother asserts that X volunteered to the mother asking then to speak to police “now”. The mother asserts that X then further disclosed that “[the father] smacked me in my bum hole” and “pushed his finger into her bum hole”.
Two days later the Police again attended the mother’s home to interview X. X refused to take part in an interview.
In mid-January 2021 the mother made a statutory declaration to the Police.
Again in mid-January 2021 two further attempts were made by the Police to interview X but without disclosures being made by the child.
In late January 2021 a supervised visit was arranged for X with the father with X telling the staff “I don’t want to see dad today… because he did mean things to me”. X is reported to have remained for the visit which went well.
On 19 May 2021 Dr F was appointed as a single expert psychiatrist.
In late May 2021 the father engaged N Contact Service for supervised time with X but that service was not utilised until some months later in 2021.
On 4 October 2021 further final orders were made by consent providing:
(i)equal shared parental responsibility;
(ii)move to unsupervised time;
(iii)changeovers at City B Children’s Contact Service or school (or another City B location if City B Children’s Contact Service closed);
(iv)time increasing to five nights per fortnight (over two blocks) by February 2022;
(v)X to live in a week about regime between her parents by February 2027; and
(vi)X to engage with the psychologist, Dr C.
During the summer holidays in 2021/2022 the mother failed to facilitate X’s time with the father.
In January 2022 the mother corresponded saying X did not want to increase time with the father. In February and March 2022 X had four appointments with Dr C.
In early February 2022 the father collected X from school in accordance with the orders and asserts that the changeover and time-with proceeded without issue.
On 23 February 2023 the mother emailed the father saying that X had mentioned the father had been observant during her toileting and advising the father that X was able to toilet herself without assistance.
In April 2022 the father travelled with X to Melbourne for one week.
In June/July 2022 the father travelled with X to Town O for school holiday time.
In mid-July 2022 X’s visit was cancelled by City B Children’s Contact Service with X saying on arrival “I don’t want to go to dad’s… I am happy to play with dada but I want to sleep at mummy’s”.
In late July 2022 X’s visit was cancelled by City B Children’s Contact Service with X saying “I don’t want to go with dad. I want to stay with mum… He doesn’t listen.”.
Between mid and late August 2022 X’s time with the father was not facilitated.
In late August 2022 the mother said she was unable to make X spend time with the father and changed the changeover to the following day thereby reducing X’s time with the father.
The following day changeover was to occur directly between the parties due to X being unwell and not attending school. Changeover at another City B location resulted in a tussle over X between the parents. X transitioned to the father on that date.
X was meant to be collected by the father from school approximately one week later to spend time until early September 2022. X was collected from school by the mother.
X spent time with the father in early September 2022 (four nights)
During that time X spent time with the father on Father’s Day.
On 7 September 2022 the father’s solicitor wrote to the mother concerning ongoing issues in relation to the facilitation of time and changeover.
Following this X went into the care of the father for two days.
In mid-September 2022 X reported to her teacher that her father had touched her on the vulva, nipples and bottom. The teacher reports that X was in tears. X repeated the allegation to a second teacher. The mother ceased facilitating time for X with the father.
Two days later X participated in an interview with Tasmania Police repeating the allegations with a high degree of particularisation.
On 27 September 2022 the father filed an Initiating Application in the Federal Circuit and Family Court of Australia seeking enforcement of the 2021 final orders.
Between October 2022 - July 2024 the father engaged with Dr P at Q Psychology.
In early October 2022 the father participated in an interview with Tasmania Police denying all allegations.
Approximately two weeks later the father was charged with four offences with allegations asserted to have occurred during 2022.
On 28 October 2022 the mother filed a Response with the Federal Circuit and Family Court of Australia seeking a suspension of the 2021 final orders.
On 1 November 2022 an ICL was appointed.
In late 2022 the father’s bail conditions were amended so as to allow supervised time between he and X.
In late November 2022 the mother took X to a GP without notice because of “tummy aches and headaches”. The mother asserted that X doesn’t “feel comfortable talking to her current psychologist [Dr C]”.
Again in late November 2022 the mother unilaterally cancelled X’s appointment for December 2022 with Dr C because X “did not want to attend”.
In early December 2022 mother alleged that X made a further disclosure “dad put his finger in my bum hole, and he did it lots of times”.
The following day the mother asserted that X made further disclosures including “my dad puts his finger in my vulva too”.
On 13 December 2022 the matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia.
In mid-December 2022 the mother says that X was interviewed by police.
On 5 April 2023 interim orders were made for the father to spend time with X at the City B Children’s Contact Service.
In April 2023 the ICL filed a Notice of Appeal in respect of the interim orders made by McGuire J.
In early May 2023 X refused to engage with the father at the City B Children’s Contact Service.
In May and June 2023 there were further unsuccessful attempts at supervised contact visits.
In 2023 the father’s charges were heard at the City B Magistrates Court. The trial was held.
On 25 July 2020 further interim orders were made for time to be facilitated between the father and X.
In 2023 a Magistrate found the father not guilty of all charges.
On 18 December 2023 an order was made listing the matter for trial in the Federal Circuit and Family Court of Australia (Division 1) to commence 26 August 2024.
In February 2024 the father’s solicitor sought agreement from the mother to orders for communication and spend time-with. The mother did not respond.
On 1 March 2024 the ICL notified the parties that she considered that no recommencement of time take place until receipt of Dr E’s Report.
Dr E’s report was released in June 2024.
Dr C provided an updated report to the ICL in August 2024.
RELEVANT LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) provides the power for courts to determine parenting and living arrangements for a child. Section 60CA mandates that the best interests of the child is to be the paramount consideration for the Court.
In determining the best interests of the child the Court is to reference the probative evidence and the parties’ proposals to the factors set out s 60CC of the Act which, after recent amendments, includes the following mandatory considerations:
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)if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
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.
Relevantly, s 60CG 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.
In broad terms, the focus of each party’s case is directed towards the safety of the child in the sense of actual harm having been perpetrated on the child by reason of sexual abuse or emotional abuse and of an unacceptable risk to X of sexual abuse from the father or emotional abuse from the mother. Other relevant issues are the child’s views and the capacity of each of the parents also attract relevance.
There is a significant issue between the parties as to parental responsibility which is defined at s 61B as: “… in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
Section 61C provides that each parent has parental responsibility for their child but subject to court orders.
Section 61DAA sets out that if a parenting order provides for joint decision-making by parents in relation to all or specified major long-term issues for their child then each of the parties is required to consult each other in relation to such decisions and is to make a genuine effort to come to a joint decision.
Section 61D provides for a parenting order that deals with the allocation of responsibility in a parent for making decisions about major long-term issues for the child and where the Court may make an order for joint or sole decision-making in relation to all or specify such long-term decisions (s 64B).
Section 65DAA deals with the circumstances where there is an existing final parenting order and provides that a court should then not reconsider the final parenting order unless:
(a)the court has considered whether there has been a significant change of circumstances since the final parenting order was made; and
(b)the court is satisfied that, in all the circumstances (and taking into account whether there has been a significant change of circumstances since the final parenting order was made), it is in the best interests of the child for the final parenting order to be reconsidered.
In the matter now before me there have been obvious changes of circumstances since the most recent final orders of October 2021. X has made serious revelations which could be interpreted as sexual abuse. The mother has stopped the father’s time with X pursuant to those orders. The father alleges that the mother has entered into a course of either fabrication of false allegations, opportunistic misuse of the child’s innocuous statements, or a genuine but mistaken belief as to the nature of the child’s innocuous statements. In all of these circumstances it is proper to reconsider the final parenting arrangements for X.
Whilst parenting proceedings in these Courts are not strictly adversarial in that the best interests of X are the paramount consideration for the Court, it remains nevertheless that the Court is required to make findings of fact where the standard of proof is one of “on the balance of probabilities” consistent with s 140 of the Evidence Act1995 (Cth) and derived from the well-known decision of the of the High Court of Briginshaw v Briginshaw[1] as follows:
SECTION 140
[1] (1938) 60 CLR 336; [1938] HCA 34.
Civil proceedings: standard of proof
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject - matter of the proceeding; and
(c)       the gravity of the matters alleged.
In the matter now before me the issues are of an extremely serious nature as are the ramifications for the parents and X. The Courts consideration therefore sits at the upper end of the provisions of s 140(2).
It is trite to observe that a party or a witness making any assertion of fact carries an onus to prove that fact on the balance of probabilities. It is not for the other party to “prove the negative”.
Section 60CG of the Act now gives statutory force to the Court ensuring that its parenting orders do not expose a person to an unacceptable risk of family violence and the Court may include in its orders any safeguards that it considers necessary for the safety of those affected by the orders.
Section 4AB provides a definition of family violence as:
(1)…family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)       an assault; or
(b)       a sexual assault or other sexually abusive behaviour; or
(c)       stalking; or
(d)       repeated derogatory taunts; or
(e)       intentionally damaging or destroying property; or
(f)       intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
The definition is extended to include the exposure of a child to family violence.
Abuse of a child is defined in s 4 of the Act and includes involving a child in a sexual activity in which the child is used directly or indirectly as a sexual object.
There has been recent jurisprudence considering the evidentiary requirements of the Court’s consideration of “unacceptable risk”.[2]
[2] Isles & Nelson [2022] FedCFamC1A; (2022) FLC 94-092.
In matters involving allegations of child sexual abuse or emotional abuse of a child then a positive finding should not be made unless the court is satisfied of the fact on the balance of probabilities. However, where a positive finding of fact cannot be made but it is nevertheless not possible to similarly make findings rejecting the allegations then the Court is required to assess and evaluate the risk of such asserted behaviour to the child and to determine whether such risk of harm is “unacceptable”.[3]
[3] M v M (1988) 166 CLR 69; [1988] HCA 68.
In assessing the notion of risk and whether it be unacceptable the Court is concerned with “possibilities” and not findings on the balance of probabilities.[4] That is the notion of risk is a prospective one based on possibility and where findings of past or current fact may be of assistance in determining whether there be such prospective risk and whether such risk is unacceptable. In such consideration it is open for the Court to consider any relevant factors leading to a determination of possibility of risk.
[4] Isles & Nelson [2022] FedCFamC1A; (2022) FLC 94-092 at [81].
If the Court determines that there is a risk per se to the child then it turns to consider what, if any, tools might be available to mitigate that unacceptable risk thereby effectively turning an unacceptable risk into an “acceptable risk” as the realities of life will inevitably present some risk to children but where the force of the consideration then is as to the adjective “unacceptable”.
THE EVIDENCE
THE FATHER
The father relied on his trial affidavit affirmed 12 August 2024. That document is a narrative of the marriage and the litigious history of the parties up to the orders made by consent on 4 October 2021. The affidavit from [150] continues the narrative. The father denies each of the mother’s allegations. He provides evidence contrary to the mother as to X’s positive and happy demeanour such as at [168] where he deposes:
[I]n September 2022 [X] gave me a card and [...] artwork, which [X] wrote “Dad, you are the best! Love, [X]” and drew a picture of us holding hands, framed in love hearts … On this day changeover was seamless and [X] was excited, giving me presents [...]

The father sets out correspondence received around this time from the mother either not facilitating his time with X or detailing X’s reluctance to go to the father.
At [177] the father specifically denies the allegations that he had inappropriately touched X’s vulva.
The issue of the father “tickling” X gained considerable prominence in this matter. Where the mother impliedly suggests that the father’s habit of tickling X is a “mask” for his sexual abuse of the child, the father says that his tickling of X was innocent albeit he admits that it was a frequent event and one where X would ask him to stop. The thrust of the father’s evidence is that he would on occasions continue the tickling despite X’s protestations with the implication being that the request to stop is a part of the game.
The father presented in the witness box under cross-examination as a nervous witness perhaps understandably given the allegations made against him. He was not always direct or responsive in his evidence. He showed a tendency to deflect blame. He was at times emotional when confronted with particulars of the allegations against him. Overall, I observed the father to be candid and genuine in his responses given the circumstances and context of the matters on which he was cross-examined.
The father’s evidence generally exposed him to be a person inclined to himself make notification to the authorities such as Child Safety or Police. His notifications to Child Safety have been frequent and not always in respect of matters normally within the job description of that authority. On occasions the father’s notifications have been shown to be exaggerated or embellished. Notably, however, he himself has clearly been the subject of frequent notification, most probably by the mother, to Child Safety and the Police and similarly for matters that might be relatively innocuous to those authorities.
I detected a certain single-mindedness in the father’s personality from his evidence in court. I note, however, that he is a first-time father and relatively unsophisticated. However, he seemed fixated on his primary position being that the mother maliciously and deliberately fabricates lies about his sexual abuse of X for her own self-interest. It was only with the utmost reluctance that he would consider other plausible explanations such as the mother being honest but mistaken in her interpretation of the X’s statements.
The father also presented as naïve and underprepared even in respect of his own application which would have X being placed immediately into his sole care, after some two years of no direct contact with her, and where the father sought initially a moratorium of 12 months for X’s time with the mother. His responses caused me to doubt whether the father had given any, or any sufficient, thought to the impact on X of being separated from the mother who has been her primary carer since birth and where X herself now expresses a consistent reluctance to spend any time with the father.
Overall, however, I found the father to be a keen parent and one with ambition to maximise his relationship with his daughter and understandably profoundly aggrieved by the allegations made against him on the basis that he says they are false and without foundation.
MS R
Ms R is the applicant father’s mother and the paternal grandmother of X. She provided an affidavit for her son sworn 13 August 2024. It eventuated that she was not cross-examined.
Ms R’ affidavit shows her to be a health professional of some experience. She has only met the mother briefly on one occasion.
She has travelled to Tasmania on five occasions prior to 2021 to spend time with the father and X. She says that X refers to her as “Nanny”. She has continued to provide gifts for X and has corresponded through cards and presents. She enjoyed block periods of time with X in late 2021 and mid-2022 when X travelled with her father to Victoria. This gave X the opportunity to meet extended family members including cousins.
Ms R was at court to support the father and I expect that she will continue to provide full and loving support to both the father and X if applicable.
THE MOTHER
The mother relied on her affidavit affirmed 14 August 2024. She was cross-examined extensively by both counsel for the father and the ICL.
I did not observe the mother to be a good witness but one perhaps consistent with her diagnoses of traits of Post-Traumatic Stress Disorder and/or another mental health condition. She presented as determined, vocal and single-minded in her assertions and beliefs that her daughter has been sexually abused and in particular on the occasions in September 2022.
To her credit and on occasions the mother conceded, albeit with the utmost reluctance, certain plausible alternative hypotheses in respect of the some of her historical assertions. In respect of the major allegations of September 2022, however, she remained committed, assertive and unwilling to look at circumstantial plausible alternative hypotheses.
Consistent with her demeanour and her personality described by the professionals giving evidence in this case, I detected in the mother a sense of entitlement, right, and possessory right in respect of X. In this sense she impressed as considering herself more entitled as a parent for X than was the father. Despite court orders, the evidence corroborates my observations that this mother has felt able to “permit” or “refuse” X’s time with the father.
The evidence exposes a long history in the mother of such unilateral decision-making commencing with her leaving Victoria unilaterally with X when the infant was just six days old. She has habitually taken X to medical professionals without consultation with the father. She felt entitled to be able to “not consent” to the father attending the milestone of X’s first day at school. There are numerous other examples.
The mother frequently became emotional during her evidence and I sensed that she felt aggrieved by being challenged as to her parenting of X and, in particular, to her committed belief that the father had sexually abused X.
There remained unexplained incongruences in the mother’s evidence such as why she would consent to final parenting orders providing for time for X and the father graduating up to equal time such orders being made by consent on 4 October 2021 when in mid-2021 in an interview with the Court Expert Psychiatrist, Dr F, the mother was reported as set and determined in her views that the father posed an unacceptable risk to X.[5]
[5] See Dr F’s report dated 2021 at [51], [52], [53] and [69].
Cross-examination exposed the mother’s view that the father sexually abuses X not for sexual gratification but as a means to cause harm to the mother consistent with her claims of historical coercive and controlling behaviour towards her by the father.
The mother’s affidavit material and her interviews with the experts mention potential corroborative witnesses in respect of X’s revelation. In particular, the mother references a notification to X’s teacher at [161] and references to the mother’s friend “[Ms M]” (previous affidavits). Neither were called to give evidence where such evidence may well have corroborated the mother’s own evidence. Whilst the principle in Jones v Dunkell[6] might not strictly allow me to draw the negative inference in this context, it remains that the failure to call potentially corroborative evidence by the mother and without adequate explanation (the mother says that Ms M suffers depression) leaves the mother’s own evidence without some probative corroboration.
[6] (1959) 101 CLR 298; [1959] HCA 8.
DR G
Dr G is the mother’s therapist psychiatrist. She provided an affidavit affirmed 6 August 2021 and a report dated February 2021. She had the benefit of Dr E’s Single Expert Report of 15 January 2021.
Dr G gave evidence that her professional relationship with the mother is continuing and has done so since 2020. Visits are four to six weeks in frequency. She offers a diagnosis of the mother of PTSD with occasional depression.
Dr G volunteered her opinion that the mother’s beliefs as to X’s revelations of sexual abuse are genuine.
Dr G advised that she has, as the mother’s therapist, not met with either X or the father and takes a therapeutic approach of accepting the mother’s version of history. She volunteered, however, that she could not “tell when people are lying”.
Dr G’s report details the mother’s personal history including her psychiatric history from 17 years of age when she was prescribed medication. The mother is reported as having had “occasional […] thoughts [of committing self-harm]”.
The mother is reported as complaining of the father’s “exerted sustained coercive control throughout their relationship”.
The mother reports to Dr G in respect of X at page 5:
[The mother] said that [X] has been saying concerning things about her father. According to [X], he says that [the mother] does not care for her or love her, and that [the father] will be taken away by the police. [X] has also described some physical abuse, saying her father… [assaulted her] and pushed his fingers into her vulva which hurt and distressed her.
At that time Dr G diagnosed the mother with:
post-traumatic stress disorder secondary to coercive control by her former partner, and depression related to her PTSD. She also had some symptoms of depression. Her past psychiatric history suggestive that she may have some traits of [another mental health condition].
In respect of Dr E's diagnosis for the mother with a specific mental health condition, Dr G opined at page 10:
For a diagnosis of […] DSM-5 criteria require [certain symptoms to be exhibited]. […] I do not think that [the mother] fulfils any of these criteria.
Relevantly in her evidence in court Dr G stated that she was of the view that the mother would come to cope with any regime of time for X with the father. She noted that the mother had coped previously with orders for time-with. Importantly, Dr G agreed that the mothers “coping” would require direct and empathic therapy and that Dr G herself was confident that she could provide that therapy to the mother. She suggested a cautious approach to reintroduction of contact in respect of the mother’s mental health but was not adverse to therapy occurring collateral to that reintroduction of time.
I observed Dr G to be a professional, informed, considered and thoughtful witness.
DR F
Dr F is a psychiatrist and court appointed expert. He provided an affidavit of 23 September 2021 annexing his assessment of events in September 2021. It seemed that Dr F was given up to date facts from 2021 only whilst in the witness box.
Dr F’s report and assessment is comprehensive covering some 52 pages. He interviewed both the father and the mother and took extensive histories from both.
Significantly, at [53] Dr F reports in respect of the mother, and this being just some five weeks prior to the consent orders of 4 October 2021, that:
The Mother said that she had now attended more than 30 sessions with her psychologist and that there had been focus on how best to support the child. She was concerned that the Father’s behaviour centred around power and control and that he enjoyed causing distress to others, even if it meant harming his own daughter. The Mother said that she had been asked to think about the possibility that unsupervised contact would resume but she said that it was not going to happen and that it was too upsetting.
Dr F had the benefit of Dr G’s report and noted the latter “doubted that even very severe anxiety would compromise the child’s care, noting the Mother’s focus on the child”.
At [264] and obviously where not armed with the notifications of the alleged sexual abuse from September 2022, Dr F says:
… There was a sense that the Father became more vigilant and felt less secure in his care provision after the claims that he had molested the child were investigated. I am mindful that the fact that a notification cannot be proven does not indicate that a behaviour did not occur and also that child protection investigations are based on balance of probabilities rather than beyond reasonable doubt. Nevertheless, the conclusions that Child Safety came to were compatible with my formulation of the case. (Emphasis added)
In cross-examination, Dr F opined that the father did not possess the anti-social psychiatric personality required to perpetrate sexual abuse on a child, not for sexual gratification, but with an agenda to hurt the mother.
At [272] – [274] in respect of the mother’s mental health with reference to the allegations, Dr F opines:
[272]In my opinion, the Mother’s history of difficulties in adolescence is suggestive of emotional regulation difficulties and possibly a degree of interpersonal sensitivity, but the available history is not compatible with her having a diagnosis of [a certain mental health condition]. Particularly, issues with emotional regulation and interpersonal sensitivity are more common during adolescence and do not necessarily translate into lifelong personality difficulties. In my opinion, it is likely that the Mother’s early experiences in a relationship that became abusive affected her future relationship style and the fact that she was not involved in long-term live-in relationships during her 20s is not necessarily reflective of relationship instability but also reflects her priorities and lifestyle choices. It is however plausible that her early relationship experiences caused her to experience some behaviours of the Father to be threatening and malicious when this was not the Father’s intention and that the more frightening she found some of the Father’s behaviours, the more sensitive she became to potential threats and this occurred during a period where she was feeling vulnerable due to her pregnancy, loss of income and distance from supports. It is understandable that she decompensated under these circumstances and sought psychiatric intervention and also that she made a decision to leave a relationship that she found threatening and unsupportive subsequently.
[273]The Mother continued to view the Father as threatening and dangerous and this plausibly contributed to her subsequent development of post-traumatic symptoms in the context of the child’s alleged disclosures and the Mother’s exposure to indecent and sexual assault. I am not in a position to be able to comment on whether the alleged abuse perpetrated by the Father has occurred but can say that the way the Mother responded and the observations of her treating team are consistent with her believing that the abuse did occur and her subsequent development or worsening of post-traumatic symptoms.
[274]To summarise, in my opinion, the Mother has some personality vulnerabilities relating to emotional regulation and possibly interpersonal sensitivity, but does not qualify for a [certain mental health condition]. Her current presentation is consistent with post-traumatic stress disorder that has occurred in response to her belief that the child was abused and that she was subjected to coercive control, physical and sexual violence within the relationship, along with her experience of having been sexually assaulted. In the absence of clear evidence that the abuse alleged has taken place, I cannot rule out that cognitive distortions, partly related to the Mother’s past experiences, have shaped the conclusions that the Mother has come to and hence contributed to her experience of trauma within the relationship and during the post-separation period. (Emphasis added)
In relation to the father, Dr F summarises at [284]:
Based on clinical interview and review of the provided materials, the Father does not appear to qualify for a diagnosis of personality disorder or a psychiatric condition. Based on my experience, and the available history, the Father does not appear to have the sort of personality pathology that might be associated with the behaviours that he is alleged to have engaged in. …
In court, Dr F described the symptom of PTSD in the mother as a characteristic of rigidity of thought. He said that he had derived a sense that she was determined to do everything in her power such that unsupervised contact would not occur.
DR E
Dr E is a psychologist. She is a Court Child Expert well experienced in these Courts. She has prepared two reports dated 22 December 2020 and 19 June 2024. She gave evidence and was cross-examined.
In cross-examination Dr E expressed concern that “[X] already has vulnerabilities that I am concerned about” and “as a psychologist I cannot support the father’s proposal (that there be a moratorium of 12 months for X’s time with the mother)”.
Consistent with Dr F, Dr E found no indication of the father possessing the personality type consistent with the mother’s claim that he sexually abuses X not for self-gratification but to hurt the mother.
Dr E preferred that the mother suffered a diagnosis of a specific mental health condition and differs in this respect from Dr F and Dr G. She expressed her belief, however, that the mother was genuine in her beliefs in respect of the father’s alleged sexual assault of X but that such beliefs are accompanied by a rigidity and obsession of thinking in the mother where she does not believe that the mother has the capacity to “entertain other possibilities”.
Dr E took an extensive history from the mother and obviously prior to X’s revelations of September in 2022.
Dr E opines:
33.It was evident from consideration of all the materials that [the mother] has significant mental health issues that have emerged from early trauma. The diagnostic features of [the mother’s] long standing difficulties, which are evident from her health documentation and presentation, include:
-         Obsessive-compulsive tendencies; rigid perfectionism
-         Posttraumatic stress documented from adolescence
-         Depressives symptoms
-History of deliberate self-harm […]
-Attachment difficulties (e.g., “go away, come closer” tendencies; not wanting to be alone and fearing abandonment, but wanting space when a significant other is present and feeling threatened by their presence; intimacy avoidance)
-         Occupational and relationship instability
…
35.The attachment difficulties that are inherent in this condition commonly result in a heightened perception of threat posed by the co-parent, and can manifest in various ways (e.g. needing to end the relationship, fleeing to another place with the child, belief that the other parent is actively harming the child, belief that the child must be protected by not having any contact with the other parent). It is difficult for an individual with this condition to calmly co-parent in a trusting manner, due to their intense underlying fears that originate from their past, and not necessarily their experiences with the co-parent. Hence, the fears of the individual are firmly held and genuinely felt, but the foundation of those views is distorted by past interpersonal trauma.
Dr E also took a detailed history from the father. That history included at [48]:
I spoke with [the father] about the sexual abuse allegations, and he advised that each time his contact time was due to increase with [X], increasingly serious allegations were made against him by [the mother]. This is consistent with the timing of affidavit material. [The father] confirmed that he had gone to the Police due to his concerns for [X] in the midst of these allegations, and he expressed his belief that [X] is being coached in the signs of abuse by [the mother] and possibly [Ms M]. As [Ms M] is not a party included in the Terms of Reference, I have been unable to explore these concerns. [The father] advised that [the mother] is [familiar with] the signs of abuse and suffering of children, and he is concerned that [X] is being coached and this is harmful to her.

Further, at [50] Dr E reaches a relevant conclusion as follows:
[The father] provided extensive evidence of email communication between him and [the mother], and it is very evident from the communication that [the mother] rejects his involvement in [X]’s life, and is not encouraging of their bond.
At [51] and in respect of the father’s mental health, Dr E states:
[The father’s] psychometric assessment results were valid. No evidence of major mental illness or personality disorder was found. [The father’s] responses reflected the common stressors associated with family law proceedings. [The father’s] ratings of his observations of [X] during the previous six months reflect concerns for her emotional withdrawal (e.g., becoming less communicative about her world with him).
More generally Dr E concludes at [52]:
[The father] presented as a father who has shown commitment to his daughter and relocated his life to be present for her, after she was unilaterally relocated by her mother soon after birth. [The father] did not present with major mental illness, intellectual disability, personality disorder, or a criminal offending profile. He does not present with any cognitive distortions associated with sexually violent or abusive behaviour towards adults or children, nor is there any record of concerns of that nature being raised against him outside of these proceedings.
Dr E had the advantage of interviewing X then aged five years. X separated from her mother and presented to Dr E as settled in mood and behaviour and not presenting with overt signs of anxiety or distress.
X mentioned her mother’s friendship with Ms M.
Dr E did not to undertake a forensic interview of X as to her previous disclosures.
At [58] Dr E reports:
It is noted that [the father] showed me a range of photos of his time with [X], and she appeared happy and relaxed in his company.
Significantly, at [61] Dr E says:
[The mother] presented as extremely concerned about [the father] having any contact with [X]. She has made numerous allegations against [the father], increasing in seriousness over time. These allegations have been discussed in the body of the report. Based on the evidence available to me, it is my clinical opinion that [the mother] experiences symptoms consistent with features of [a mental health condition], and that she has been experiencing mental health symptoms since early adolescence. It is my impression that [the mother] withheld details of her mental health and trauma history during the assessment process, and that this was revealed by an examination of [previous health] records. It is my opinion that [the mother’s] own history and mental health symptoms impact on her co-parenting relationship with [the father] and she genuinely perceives him as a threat to her and [X].
Again, and similarly at [63]:
I agree with the assessment of Child Safety Services, in that the primary identified risk to [X] is cumulative psychological harm in the context of these family law proceedings. It is evident that [the mother] perceives [X]’s relationship with her father as a threat, and that she has not wanted him to be part of their lives from before [X] was born. She has made significant efforts to keep [X] away from the father, including their unilateral interstate relocation in the days after [X]’s birth. Since that time, [the mother] has tried to block [the father’s] involvement in their daughter’s life through family violence intervention, child safety intervention, and raising serious concerns about violent and sexually violent behaviour. Despite these concerns, [the mother] has not raised her concerns with the Police, nor taken [X] for interview about allegedly serious events […]. Hence, I have concerns regarding [the mother’s] co-parenting capacity. She does not hold any goodwill for [the father], and she wants him away from her and [X]. [The father] is a dedicated father and does not want to walk away from his daughter.
And at [65] in relation to the mother:
[The mother] genuinely believes [the father] is a threat. It is my conclusion from the information available to me that this perception of threat comes from [the mother’s] own anxieties and attachment difficulties originating from her childhood experiences. It is apparent that she experienced deep trauma as a young adolescent when her parents separated, as evidenced in the health notes. It is likely that co-parenting in separation triggers difficult thoughts and emotions for [the mother] to navigate. It is my view that those symptoms are negatively impacting on her perceptions of threat and judgement when co-parenting. [X] is at risk of the transmission of intergenerational trauma, as her mother is hampered in her ability to promote a positive and meaningful relationship with the father.
Dr E provided an updated independent forensic psychological assessment by written report in June 2024. She had received updated material including in respect of the allegations from September 2022, the police interviews of the father and X, and the experience as a witness in the father’s criminal trial.
Dr E reports at [8] that her extensive analyses of the father’s mental health and risk profile has not changed since her initial assessment three years previous. She does report, however, at [9] that the father’s attitude towards the mother has deteriorated since he was charged with offences against X. He no longer expresses empathy for the mother having some psychological barriers to co-parenting. He now believes that the mother has coerced X into believing that she was sexually abused by him. He believes that this is itself abusive behaviour and hence seeking X to be placed into his full time care.
Yet again, the father expresses to Dr E in respect of the mother’s friend:
[Ms M] has been a consistent presence in [X]’s life since she was born, and he believes that she also has a “negative part to play” in ongoing barriers being put in place to a healthy relationship with his daughter. It is noted that [Ms M] walked [X] school on the day she arrived distressed and made disclosures in September 2022.
It is noted that yet again that the mother did not adduce evidence from Ms M. In interview with Dr E the father firmly denied he had sexually abused X but agreed that he had tickled her over her clothes on numerous occasions.
Dr E again interviewed the mother and repeats her opinion that the mother’s actions before and after X was born showed that she did not want the father to have a role in X’s life albeit noting that the orders were made towards a co-parenting 50/50 regime for the parents in October 2021.
The mother communicated to Dr E that she firmly believes that the father sexually assaulted X in September 2022 and presents as an unacceptable risk of doing so again. She informed Dr E that X did not want any contact with her father and expressed the view that X’s wishes should be respected.
As with the assessment from 2020, Dr E reports that the mother presented with an invalid response style (positive impression management regarding her own mental health, and extreme over-reporting in relation to X’s trauma symptoms).
At [24] Dr E reports:
With respect to [X]’s engagement with [Dr C] (treating psychologist), [the mother] advised “So when the Orders were made in October 2021, there was an Order made then for her to be engaged with [Dr C] to support the adjustment to time with her Dad …I took her on a semi-regular basis…which ceased a while after [X] made the disclosures because he said if it’s not helpful, you don’t have to attend appointments…and [X] wasn’t wanting to go and was asking for a woman instead…we asked the Court about that…I was happy for her to continue seeing [Dr C]…we’ve had semi-regular appointments, and sometimes a break for a few months…she has become a lot more comfortable with him over the time…there are a couple of appointments booked for next year (2024)”. …
At [25] Dr E notes that since her initial assessment, the mother has sought other diagnostic opinions regarding her own mental health. However, Dr E maintains her original conclusions and diagnostic opinions.
At [28] Dr E advises that she discussed with the mother in late 2023 her thoughts regarding a resumption of contact between X and the father and presumably after the father’s acquittal on the criminal charges. The mother advised that X continues to be frightened of the father and distressed at the idea of seeing him. The mother asserted her continuing view that X’s disclosures of abuse by her father were true and that he posed an unacceptable risk to her safety she did not think possible a resumption of the time-with between X and the father,
Dr E again interviewed X some three years after their initial interview. X is reported as saying at [33]:
When asked about whether she is spending time with her father, [X] expressed “I haven’t been there…because I didn’t want to be there…I want to be forever with Mum…I don’t want to see him.” Further exploratory questions were asked of [X] to ascertain her wishes regarding contact with her father. She expressed that she did not want to visit her father, did not want to talk to him on the phone, or communicate with him via letters or any other means. She confirmed that she did not want any contact at all. She confirmed that was a forever thing, and not just for now. [X] was asked if there was anything she would like communicated to her father on her behalf and she said no.
At [37] Dr E reports X being asked if she had three wishes for anything in the world what would they be? X replied “to never see my Dad again, to be able to see my Mum every day, and to be able to eat as many sweets as I like”.
Dr E concludes thus:
42.It is evident that [X] is aligned with her mother, and is estranged from her father and extended paternal family. She has been through a demanding process of Police interview, prosecution briefings, witness intermediary meetings and cross-examination in Court from September 2022 to August 2023, and this has been a traumatic process for her. This compounds the cumulative harm that this adversarial family law dispute between her parents has caused her throughout her life. She has experienced social problems, her academic engagement has been affected, and her identity exploration suggests darkness and conflict […]. The full psychological impact of these experiences may not become evident until adolescence or adulthood, and this trauma will certainly be present in [X]’s future intimate relationships.
43.In my opinion, an Order is required regarding an agreed mental health professional for [X] to consult when she wishes to speak with someone. This treatment provider should not be working on co-parenting issues of facilitating contact, but should just be a safe space for [X]. She is going to need this support going forward into puberty, when her emotions and associated behaviours will heighten.
X was not observed with the father for this report given X’s refusal to see him.
In cross-examination Dr E confirmed that she had observed the police interviews of both X and the father. She described X’s interview in respect of the particular disclosures as “rehearsed”.
There was a deal of consensus between the Experts and in particular between the forensic experts Dr F and Dr E despite some differences to diagnosis. Relevantly, each of the three experts, including Dr G, describe the mother’s beliefs as genuine. The tenor of the reports of Dr E and Dr F is that the mother is mistaken in her beliefs. There is general agreement that the mother is rigid and obsessive in her viewpoints and that she suffers a form of cognitive distortion. The forensic experts agree that the mother does not have the psychological or emotional capacity to entertain other plausible possibilities in respect of statements made to her by X. Each is concerned as to the contextual nature of X’s statements to the mother and including the mother’s concession in her evidence that she at the relevant time would speak to X fortnightly or monthly directly about matters of self-protection from abuse.
OTHER EVIDENCE
The recorded police interviews of X and the father were played in open court. The father made denials of the allegations during his interview. I observed the interview of X to be professional and empathetic and obviously by trained female police officers. X was made comfortable in the process. Nevertheless, my own observation was of X appearing somewhat detached when giving evidence of the particulars of the abuse, albeit that I am not qualified in the sense of Dr E to reach conclusions as to whether or not X was “rehearsed” in the process.
Each of the parties tendered documents including correspondence that tends to support their case. That evidence disclosed a plethora of notifications by each of the parents to Child Safety and Police with notable lack of positive action the by those authorities until the charges from 2022. It is clear that the father was put on notice as to the mother and X not being desirable to be subject to “tickling”. The correspondence confirms a high level of mutual suspicion and mistrust between the parents.
The correspondence from Dr C was tendered to the Court suggesting that he had developed a comfortable relationship with X with the indication that the mother had initiated the cessation of the relationship between Dr C and X or, at the very least, interrupted the consistency of that relationship prior to Dr C’s retirement.
WHETHER THE COURT IS ABLE TO MAKE A POSITIVE FINDING THAT THE FATHER SEXUALLY ABUSED X?
There are a number of evidentiary factors that might lead to a positive finding on the balance of probabilities that the father sexually abused X in September 2022. First, X spent time with the father at his home for four nights in September 2022 and again for two nights the same month in 2022. There is no evidence of any other person being resident or present at the father’s home during those relevant periods.
The father concedes that he engaged in tickling games with X during those periods and consistent with the complaints of the mother and X.
X made contemporaneous statements in September 2022 to two teachers. The hearsay evidence of one teacher is that X was in tears when making the revelation and stating that she did not want it to happen again.
Again in September 2022 X made further contemporaneous revelations with some particularity including:
·Dad touched my private parts more than once.
·Touching my vulva, my bottom and my nipples, while tickling me.
·I said stop but he didn’t listen.
·I was running away. He was chasing me. He tried to get my bottom and touch my vulva.
·Scratched my bottom.
·It hurt I didn’t like it.
·He was scratching really hard on my vulva and bottom.
·When I was asleep he tickled my vulva and bottom.
·I felt it and woke up and he kept doing it, scratching again… Right inside the line of my bottom and I didn’t like it.
·I told my teacher on the day I was supposed to go to his place, but she didn’t listen and I told another teacher.
·Always happens with my clothes on.
·Also happened last year - I was five.
·Happened when I was four, five and six.
·Different day, I got in the shower and then he was tickling my vulva and bottom.
·Trying to put his hands down there. I was trying to get dressed. I was trying to get undressed. Close the door and bolted it. He tried to open it but couldn’t. I dried myself and got dressed. Went to the lounge and he was touching my private parts, doing this to my vulva. Pushing his hand in and out. My vulva went bright red. I grabbed his hand off.
·Then in the car on our way to school he was trying to reach my vulva. I was in the back. I was pushing his hand away with my feet.
The child was interviewed professionally by trained female police officers. The father was charged.
The child has made previous notifications:
(i)January 2019 - the mother alleges that X climbed on her lap facing her with their groin areas touching. X told the mother that this was a game that this was a “tummy rub” taught to her by the father;
(ii)in December 2019 the mother says that X told her that the father had applied moisturiser to her vulva;
(iii)a few days later the mother reports that X pulled her pants down and asked the mother to kiss her bottom saying that her father does the same;
(iv)in March 2020 the mother says that X said to her “some grown - ups choke children” and indicated that her father had assaulted her;
(v)in April 2020 the mother alleges that X said to her “Dad pushed his finger into my vulva and it hurt;
(vi)in May 2020 X said to her mother that to she put her tongue in her father’s mouth and touched herself in front of her father and that she asks to be touched;
(vii)in early January 2021 the mother alleged that X made a disclosure of a story about “the little girl who showed her vulva when people were around and an adult licked her vulva… Smacked the girls vulva”;
(viii)six days later the mother alleges that X told her that the father smacked X on her bum hole and pushed his finger into her bum hole;
(ix)in late January 2021 X told staff at the supervised contact centre that “I don’t want to see dad today… because he did mean things to me”.
The mother asserts, and there is corroborative evidence from the Contact Centre, that X is hesitant or reluctant to transit to the father.
Where the mother says that the father’s motive is not one of personal sexual gratification but as a continuation of coercive/controlling behaviour towards her and a desire to harm her, she gives the following evidence:
(i)the father used forceful tickling and other force on the mother (at [35.a] – of the mother’s trial affidavit);
(ii)exhibited controlling behaviour towards the mother (at [35.b] of the mother’s trial affidavit);
(iii)the father perpetrated unwanted touching on the mother (at [35.d] of the mother’s trial affidavit);
(iv)the father exhibited inappropriate and unwanted sexual behaviour to the mother (at [35.e] of the mother’s trial affidavit);
(v)the father exhibited violent behaviour towards the mother’s pet (at [43] of the mother’s trial affidavit);
(vi)the father was physically violent to the mother (at [45] of the mother’s trial affidavit);
(vii)the father exhibited violent tendencies and controlling coercive behaviour (at [58] – [59] of the mother’s trial affidavit); and
(viii)the father made the numerous notifications to Child Safety Services in respect of the mother and in the main unsubstantiated.
There are however a number of factors that argue against a positive finding on the balance of probabilities that the father has sexually abused X.
The tenor of the evidence of the independent forensic court experts, Dr E and Dr F, is contrary to the father perpetrating the alleged physical abuse. Their rationale is set out above.
There is no evidence of contemporaneous medical examination of X to corroborate the allegations of physical sexual abuse.
The forensic court experts agree that the father does not fit a psychological profile of a sexual abuser.
Both Dr E and Dr F reject the mother’s assertion that the father has the psychological sophistication to sexually abuse his daughter, not for sexual gratification but with a single motive of causing emotional distress to the mother.
There are a number of plausible alternative explanations for the child’s disclosure including the father’s propensity to “tickle” the child during play and his admission of applying medicinal cream to the child’s genitals to address a thrush rash and coupled with the mother’s apparent suspicious and hypervigilant personality.
Dr E, Dr F, and Dr G all reference the mother’s own psychological profile including her history and diagnoses which compound her suspicious, rigid, and hypervigilant personality.

Having viewed the Police interview of X, although conducted professionally and empathetically, I reach the same conclusion as Dr E and in accordance with the submission of Ms Ryan, counsel for the ICL, that X’s demeanour and responses were suggestive of “rehearsal”.
The father has consistently denied all allegations including during a comprehensive police interview. Whilst not being bound by the findings of the learned magistrate, it is a relevant observation that the allegations against the father were tested in a court, albeit on the standard of proof of beyond reasonable doubt, and that the father was acquitted.
The mother’s own close interest in matters of “child safety” make it highly likely that X is imbued to a degree in the mother’s own suspicious of and vigilant traits leaving open the possibility or probability of innocent or innocuous and/or ambiguous statements by X being interpreted by the mother only in their most sinister of connotations.
The mother has a history of entitled possession of X stemming from her unilateral removal of X from Victoria to Tasmania when X was just a few days old and then a continuing history of possessive empowerment with frequent denials of time for X with the father.
There is an irreconcilable contradictive history in the mother apparently holding vehement views and making allegations against the father only to then consent to orders for substantial and significant time for X with the father up to an anticipated equal time arrangement. The most obvious and concerning example is the mother entering into consent orders in October 2021 incongruently with the serious allegations the mother was contemporaneously or very recently making to Dr F of sexual abuse of X by the father.
The evidence suggests to me that the mother has a propensity to discourage relationships with professionals who might not fully support her agenda notably with her unsatisfactory explanation as to the sporadic appointments for X with Dr C, psychologist, and her eventual cessation of X’s relationship with Dr C.
Notably X has also made allegations of physical abuse by the mother as reported by the father to Child Safety but where the mother stringently denies such allegations suggesting, therefore, that X has the capacity to be untruthful in statements made to each of her parents with the available inference being that X will make a statement to a parent out of a misplaced loyalty or similar.
Taking into consideration and weighing and balancing all of the above evidence and noting the protective emphasis of Part VII of the Act, I cannot be satisfied on the balance of probabilities that the father has sexually abused X as alleged.
IS THERE AN UNACCEPTABLE RISK OF THE FATHER SEXUALLY ABUSING X?
For the reasons above, but considering possibilities rather than probabilities, I am also unable to conclude that the father poses an unacceptable risk of sexually abusing X into the future. In reaching this conclusion I place weight on the following evidence:
(i)the opinions of Dr E and the submission of counsel for the ICL that X's police interview is suggestive of “rehearsing of her notifications” and in accordance also with my own observations of that interview;
(ii)the incongruency of the mother's apparent vehement beliefs as to the perpetrating of sexual abuse on X and her then entering into unconditional court orders for time for X with the father;
(iii)the mother’s own complex personality and psychological history with manifestations of rigidity of thought, suspicion, and vigilance coupled with her interest in matters of child safety where Dr E identifies traits of a mental health condition.
(iv)the acquittal of the father from offences against X albeit on a higher standard of proof whilst again noting that I am not bound by the findings of the learned magistrate;
(v)the mother’s general negative and accusative attitude towards the father together with her propensity to act in an entitled and possessive nature in respect of X contrary to any notion of or understanding by her of co-parenting;
(vi)the mother’s own personal history and diagnoses noted by the experts; and
(vii)the mother’s refusal to consider any plausible alternative rationale for the child's statements to her.
HAS THE MOTER DELIBERATELY OR OPPORTUNISTICALLY FABRICATED FALSE ALLEGATIONS OF SEXUAL ABUSE OR DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF CONTINUING TO MAKE FALSE ALLEGATIONS AGAINST THE FATHER?
Given my findings as to the above relevant questions, this becomes a fundamental issue in respect of X’s future relationship with the father and her mother. Indeed, the father’s argument for X to live with him and for a moratorium of time for X with the mother is squarely based on his counsel’s submission that the mother has made false, malicious and deliberate allegations against him without factual basis.
On the evidence of the mother’s history, the evidence of the experts in this matter including the mother’s own psychological therapist, Dr G, of her rigidity of thought and her evidence in this Court, is all suggestive of the mother having firm and genuinely held beliefs such that it is open for me to conclude that the mother will continue to make allegations of sexual abuse by the father of X. The mother’s evidence in cross-examination remains consistent as to her beliefs that X was abused by the father with an inability in her to even consider alternative innocent but plausible explanations. Her reluctance to make concessions for such considerations in the witness box was notable and all lend support to the submissions made on behalf of the father supportive of his case for X to move to live with him.
The thrust of the evidence of the experts, however, is that the mother is genuine in her beliefs albeit mistaken as opposed to having maliciously fabricated what she knew to be false allegations.
Irresistibly, any continuing allegations by the mother of sexual abuse of X will be detrimental to the child and to child’s mental and emotional health given my findings that no such abuse has occurred and that the father does not pose an unacceptable risk of abuse. The evidence notes X’s clear attachment and dependency on her mother. The child’s current reluctance to have any relationship with the father is easily explained by X being imbued with her mother’s views albeit they be genuinely held but mistaken. The mother’s continued refusal to consider her beliefs to be mistaken, even in the light of evidence, both empirical and professional, does not give the Court confidence that these allegations might not continue.
There is, however, some optimism to be gleaned from the evidence of Dr G who is the mother’s psychological therapist. I am satisfied that there is a close and trusting professional relationship between the doctor and patient. Dr G’s experience impressed in court in her evidence as being professional, objective and experienced in the sense that she did not come to this Court simply as an advocate for her client. Importantly, Dr G opined that the mother would be able to cope with a regime of time for X with the father and that she was confident that she could provide the necessary direct, empathetic but challenging and objective therapy to the mother so as to attend to her rigidity of thought. As Dr E opined, and put simply, the mother’s own mental health symptoms impact on her co-parenting abilities and therefore the addressing of the mother’s own mental health diagnoses and their manifestations might attend to the mother coping with a relationship between X and the father.
I find, therefore, that the risk of the mother continuing to make genuine but mistaken and false allegations against the father can be mitigated by experienced and informed therapy such as is available from Dr G who is willing and able to undertake that therapy. It is, however, trite to observe that following my findings above and together with the mother’s exposure to the evidence given and adduced in this Court and with the benefit of these Reasons, should the mother continue to make such allegations then there is a strong likelihood that the inevitable negative impact on X’s emotional and psychological health might lead a later court to different conclusions as to unacceptable risk.
CONSIDERATION – PARENTING ORDERS
In summary, therefore, and on the balance of probabilities I do not find that the father has sexually abused X. Secondly, I have determined that the father does not pose an unacceptable risk of sexual abuse of X into the future. Thirdly, I do not find that the mother has maliciously fabricated false allegations of sexual abuse or opportunistically grasped innocent or innocuous statements by her daughter so as to knowingly bring false allegations against the father. I do find, however, that the mother is genuine but mistaken in her conclusions as to X being abused. Finally, I find that there is a risk of the mother continuing to make such false allegations against the father but that this risk can be properly mitigated by appropriate and informed psychological counselling and therapy and preferably from Dr G.
On the basis of the above findings it follows that X should have the benefit of a relationship with each of her parents.
X at just eight years of age professes a wish to have no relationship with her father. I give no weight to her preferences given her age and the obvious imbuement in her mother’s mistaken beliefs.
The mother is on the evidence a capable and attentive parent of X with the only caveats being her rigidity of thought in respect of X being abused and her sense of entitlement and possession of X contrary to the ideal of co-parenting with the father.
The father has shown himself to be a capable and dedicated parent. He moved to Tasmania solely for reasons of pursuing a relationship with X following the mother unilaterally removing X as an infant from Victoria. He has steadfastly pursued a relationship with X even in the face of continuing unsubstantiated serious allegations of child abuse including the enduring of a criminal trial. The evidence of his time spent with X previously is of him being a child focused, attentive and caring parent.
Despite her hesitations and reluctance, there is evidence from the Contact Centre and from the father himself of X enjoying her relationship with the father previously and thereby, in my view, demonstrating the conflicts of loyalty and misunderstanding confronting this young child in respect of her parents.
I am easily persuaded that X has a strong primary attachment to her mother who, of course, has been her primary and effectively sole parent since birth. I am satisfied that X also has an attachment to her father given that she has previously been able to comfortably spend block periods of time with him including travel interstate.
Dr E, the Court Expert, was unambiguous in her opinion in that she could not adopt the father’s position of X moving to live with him together with a moratorium of X’s time with the mother (albeit now for a reduced period) as being in X’s best interest. I accept Dr E’s opinion and supported by my own observations of the father’s evidence in cross-examination suggesting that he is naïve as to the likely impact on X of being removed from her primary attachment being the mother and being quarantined from any contact with her.
I conclude, therefore, that X should remain living in the primary care of her mother albeit conditional upon the mother immediately continuing therapy with Dr G and where the therapist is fully informed with the evidence of Dr E and Dr F together with a copy of these Reasons and Orders. Should the mother continue, however, to make unsubstantiated allegations against the father of sexual abuse then this might inevitably permit a reconsideration by these Courts on the mother’s capacity as primary parent of X.
The father is obviously and understandably keen and ambitious to maximise his time with X. The test, however, is X’s best interests. It is also important to structure the child/father relationship with a view to it being ultimately successful noting X’s current reluctance and her inevitable imbuement with her mother’s views that the father poses some “danger” to X.
As such, I agree with Dr G that the assimilation back for X to a relationship with the father should be slow and empathetic to the mother gaining the necessary confidence and trust that X will be safe when with the father. Such slow but considered steps will ultimately benefit the father in his relationship with X.
Ultimately, I am of the view that X’s time with the father should return to the regime set out in the orders made by consent in October 2021 being eventually a shared care arrangement. First, however, I accept the submission of counsel for the ICL that X’s immediate introduction to the father should be by supervised time. I do, however, take a less cautious approach than the ICL and believe that reintroduction by three consecutive Saturdays of supervised time will be sufficient. Notably this is not a new introduction of a child to an adult but a re-introduction where X is likely to have clear memories and understanding of her father. My understanding is that the availability of professional Contact Centre supervision is limited to two hours on each occasion. This will serve a purpose, however, in comforting X with the father.
I am of the view that X should then spend periods of daytime only with the father and I prefer that this happen again on four consecutive Saturdays between the hours of 10.00am and 5.00pm. Such periods are limited but of such length to allow X to gain confidence in the care of the father and to address the concerns imbued in her by the mother.
After these periods, totalling seven weeks, I am of the view that X should spend a period of fortnightly weekends with the father noting that this is likely to occur during the forthcoming school holiday period. I propose that X would spend four fortnightly weekends with the father from Friday at 3.00pm until Sunday at 5.00pm.
Thereafter, I will order (consistent with the consent orders of 4 October 2021) that X moves to spending five nights per fortnight with the father but differ from the orders of 2021 in that I think it be in X’s best interests that there be block periods of five nights. In this respect I note that X, when much younger, comfortably spent periods of up to a week with the father including travelling to Victoria with him.
By the commencement of the school year 2026 X will be 10 years of age. Where the parties contemplated X moving to a week about arrangement between her parents by February 2027, I prefer that to this occur at the start of the school year in 2026. The change from five nights per fortnight to seven nights per fortnight is a small and discrete one. The change should be of little impact for X. The understanding in X of some form of equality of time between her parents and a similar understanding in the mother will be important to both of them. As such, I will order X to be living in a week about arrangement in school terms between her parents from the commencement of February 2026.
Given the above regime, I also propose that X spend equal school holiday time between her parents from the first term holidays in 2025 where, in any event, X would then be familiar and should be comfortable in spending up five nights with her father during school term.
There will be an order that the mother immediately and consistently continue her appointments with Dr G preferably on a frequent basis but with such frequency being at the discretion of Dr G and that Dr G be provided with a copy of these Orders and Reasons together with the reports of Dr E and Dr F.
The mother will be responsible for any costs associated with her therapy. I will order that the parties share equally in the costs of the limited visits to the Contact Centre contemplated by these Reasons and Orders.
In the circumstances, any changeovers that will not occur at school will take place at the City B Contact Centre. I will order that the parties both forthwith make appointments to attend any interviews and preliminary requirements necessary for the operation of these Orders.
Given the history of this matter and the delicate reintroduction for X to a relationship with her father, I will order that the appointment of the ICL continue until 28 February 2026 by which time, the week about arrangement during both term and holiday time will be established.
By these Orders I will authorise Dr G to convey to the ICL regular oral or written reports at her discretion in respect of the mother’s therapy but at the request of the ICL.
There remains only for my determination the issue of parental responsibility for X in respect of the long-term and important decision-making for her. Prima facie the history of the parties’ relationship and the evidence of serious allegations against the father by the mother might be counter-intuitive to an order for joint decision-making contemplated by s 61DAA of the Act where consultation and genuine effort are required pre-requisites.
Nevertheless, given my findings above I am of the view that X should have the benefit of understanding that her parents be equal adults and of equal importance in her life including the taking of responsibility for making important decisions for her. Prima facie there is a benefit to X in an order for joint decision-making responsibility in the parents. I am mindful of course of the consistent evidence of experts in these courts being that a high level of communication and cooperation are prerequisites for parents in discharging joint or equal responsibilities for long-term decision-making for their children. However, it is not so simple as a parent coming to this Court and claiming a sole parental responsibility order on the basis that there is poor communication or a lack of cooperation. To take this stance, in my view, misunderstands the notion of “responsibility”. The obligation understood by a court order of such importance does not bring to a parent some form of “prize or right”. To the contrary, an order giving a parent such responsibility, whether it be joint or sole, comes with an onerous obligation in respect of decision-making for the child. There remains, in my view, a requirement to cooperatively parent. The order does not require or even contemplate a close or friendly personal relationship between parents. It does expect, however, a responsible parent to compartmentalise any personal residual disputes, dislikes or conflicts but to be able to objectively and maturely make responsible decisions for their child. Put simply, a friendly relationship with a former spouse is not the pre-requisite for a joint decision-making order. Rather, it is the ability to be objective and child focused with a view to the best interests of the child. The parents here are both capable and dedicated to X. These are, in my view, the necessary prerequisites towards such an order contemplated by the Act and for these reasons I intend to make an order for joint decision-making responsibility. I do so as I find such an order would ultimately be in X’s best interests with an expectation that these parents discharge this responsibility absent any personal animosities.

I certify that the preceding two hundred and sixty-four (264) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire.
Associate:
Dated: 14 November 2024

File number:	HBC 275 of 2017
Judgment of:	MCGUIRE J
Date of judgment:	14 November 2024
Catchwords:	FAMILY LAW – PARENTING – Application by father seeking orders that the child live with him and there be a moratorium whereby the mother spend no time with the child for a period of six weeks graduating to supervised time – Application opposed by the mother – Allegations of sexual abuse of the child by the father – Allegations that child at unacceptable risk of abuse in the care of the father – Assertions by father that mother has made false allegations against him – Court is not satisfied on the balance of probabilities that the father has sexually abused the child - Court unable to conclude that the father poses an unacceptable risk of sexually abusing the child – Mother genuine but mistaken in her allegations – Issue of mother’s mental health – Considerations of mother continuing to make false allegations against the father – Child’s best interests - Orders that child live with the mother – Orders that child initially spend supervised time with the father graduating to week about time with the father in 2026 – Orders that parents retain joint parental responsibility and joint decision-making in respect of all decisions concerning major long-term issues pertaining to the child
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 4 and 61DAA
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Isles & Nelson [2022] FedCFamC1A; (2022) FLC 94-092 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 M v M (1988) 166 CLR 69; [1988] HCA 68
Division:	Division 1 First Instance
Number of paragraphs:	264
Date of hearing:	2, 3, 4, 5 and 6 September 2024
Place:	Hobart
Counsel for the Applicant:	Mr Edmondson
Solicitor for the Applicant:	Butler McIntyre & Butler
Counsel for the Respondent:	Mr Strong
Solicitor for the Respondent:	pwb Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Ryan
Solicitor for the Independent Children’s Lawyer:	Paggett & Associates

HBC 275 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR LITTLEFIELD Applicant
AND:	MS PEMBLE Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	14 NOVEMBER 2024