Lovett and McGregor

[2019] FamCA 49

FAMILY COURT OF AUSTRALIA

LOVETT & MCGREGOR [2019] FamCA 49

FAMILY LAW – CHILDREN – With whom a child lives – best interests of the child – where the children are ordered to live with the father – where the children are ordered to spend substantial time with the mother - where the orders made involve a change of residence for the children – where it is still important that the children have a meaningful relationship with both parents - where the parties have been engaged in tumultuous litigation for the past four years – where the mother in the past has ceased time and withheld the children from the father - where the mother has consistently repeated allegations that the father sexually abused the children - where there were multiple sets of interim orders made that balanced the need for the children to spend time with the father and any potential risk – where the mother had adult conversations about the allegations of sexual abuse in front of the children – where the mother has taken the course of attempting to diminish the children’s relationship with the father –where the mother pursued the possibility of abuse through Child Abuse Services in Victoria and NSW - where there is no evidence to support the father being at risk of sexual harm to the children – where investigations were undertaken and neither child made any disclosures of abuse - where there was no evidence of sexual abuse or other abuse of the children arising from interviews and the case was closed - where the mother produced harrowing recorded evidence produced by herself during cross-examination – where the mother engaged the children in conversation using a particular questioning technique – where the mother while she is a loving and devoted parent developed a parenting technique that was intrusive and ultimately abusive - where the mother would use this questioning technique with the children until the Court told her to cease – where there is a risk of the mother using this questioning method if she again became concerned.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where there is a great deal of hostility between the parties – where the mother reveals a contemptuous attitude towards the father and sees herself as the superior parent – where the  evidence does not support the mother’s attitude – where the father is attuned to the needs of the children – where the mother in the past has made decisions without consulting the father – where the father is ordered to have sole parental responsibility – where the father possesses the ability to communicate with the mother about the long term decisions he makes regarding the children.

FAMILY LAW – CHILDREN – PROCEDURAL – where proceedings were commenced in the Federal Circuit Court – where proceedings were transferred to the Family Court of Australia - where the basis of the transfer was due to the unresolved allegations of sexual abuse - where the parties agreed on the commission of a single expert report – where the single expert report provided a report and an updating report at a later date.

Family Law Act 1975 (Cth) s 60CC

APPLICANT: Mr Lovett

RESPONDENT: Ms McGregor

INDEPENDENT CHILDREN’S LAWYER: Joliman Lawyers

FILE NUMBER: AYC 209 of 2015

DATE DELIVERED: 8 February 2019

PLACE DELIVERED: J Town

PLACE HEARD: Melbourne

JUDGMENT OF: Cleary J

HEARING DATE: 20-23 November 2017;  13-16 March 2018;
19 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dart

SOLICITOR FOR THE APPLICANT: Rama Myers Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Blank

SOLICITOR FOR THE RESPONDENT: Tarella Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Southey

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Joliman Lawyers

Orders

1. That all prior orders made in the Federal Circuit Court and in this Court in relation to X born … 2008 and Y born … 2011 together referred to as “the children” are discharged.

Parental Responsibility

1. That the father have sole parental responsibility for all long term decisions involving the children subject only to Order 3 below.

2. Except in the event of an emergency involving the children, the father shall consult the mother about long term decisions to be made in the exercise of his sole parental responsibility as follows:

   (a)The father shall inform the mother in writing of the issue about which a decision needs to be made and the decision he is considering in respect of such issue;

   (b)The father shall give the mother a defined period of time, relative to the urgency of the issue, to respond in writing;

   (c)The father shall consider any timely written response of the mother when coming to his decision;

   (d)The father will inform the mother in writing of the final decision he has made with respect to that issue as soon as practicable thereafter.

3. That the father shall nominate the doctor or medical practice to which the children are to be taken and shall advise the mother in writing of the name and contact details of that practice within 28 days of the date of these orders.

Residence

1. That the children live with the father commencing forthwith.

Time and Communication

1. That the children shall spend time with the mother as follows:

   6.1Each alternate weekend from after school Thursday to before school Wednesday commencing 21 February 2019;

   6.2For half of each term school holiday period from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday in odd numbered years and from 5.00 pm on the middle Saturday until before school or 9.00 am on the first day of the school term in even numbered years;

   6.3For alternate weeks in each Christmas school holiday period for the next two (2) years and thereafter for half of each school holiday period commencing in December 2021/January 2022;

   6.4On Mother’s Day, if the children are not spending time with the mother, from 6.00 pm on the Saturday prior to 6.00 pm on Sunday;

   6.5At such other or additional periods of time as may be agreed between the parties in writing.

2. In the event that the children are spending time with the mother on the weekend of Father’s Day time shall be suspended for Father’s Day from 6.00 pm on the Saturday prior to 6.00 pm on the Sunday.

3. That the children communicate with each party as follows:

   8.1      During school terms:

   8.1.1With the mother each alternate Wednesday, the mother to initiate the call between 7.00 pm to 7.30 pm commencing 20 February 2019;

   8.1.2With the father each alternate Tuesday, the father to initiate the call between 7.00 pm and 7.30 pm commencing 26 February 2019;

   8.2During school holidays on one occasion per week and failing agreement otherwise on Wednesday:

   8.2.1With the parent with whom the children are not staying or living, that parent to initiate the call between 7.00 pm and 7.30 pm;

   8.2.2At such other or additional times as may be reasonably requested by the children or either of them.

Restraints

1. That subject to agreement in writing otherwise, each parent is restrained from changing the enrolment of the children from B School for the primary education of each child.

2. Other than in a genuine medical emergency the mother is restrained from taking the children to a doctor other than the doctor/medical practice nominated by the father pursuant to Order 4 herein.

3. The mother is restrained from taking the children for counselling and therapeutic assistance of any kind without the prior written consent of the father.

4. That the mother is restrained from questioning the children about events taking place whilst they were spending time with the father prior to the date of these orders and shall ensure that third parties are similarly restrained.

Specific Issues

1. Each parent shall keep the other advised of current residential address and contact details.

2. Each party shall immediately notify the other of any medical emergency or injury requiring medical treatment for the children when in the care of that parent.

3. The father shall authorise the school to release to the mother all documents relating to the welfare and progress of the children at school which parents usually receive.

4. The mother has leave to provide to her psychologist the following documents:

   (a)Orders and Reasons dated 8 February 2019;

   (b)Single Expert Report of Ms C dated 6 May 2016;

   (c)Single Expert Report of Ms C dated 14 February 2018.

The Independent Children’s Lawyer (“ICL”)

1. The ICL shall provide:

   (a)A copy of these orders to the principal of the school which the children attend;

   (b)A copy of these orders and reasons for judgment to The Department of Family and Community Services (NSW) AND to the Department of Health and Human Services (Victoria).

2. The father shall arrange for the children to be brought, at a mutually convenient time, for a meeting with the ICL for these orders to be explained and to answer any relevant question that the children or either of them may have.

3. The ICL is thereafter discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lovett & McGregor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: AYC209 of 2015

Mr Lovett

Applicant

And

Ms McGregor

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are competing applications for parenting orders for two children, girls aged ten and almost eight years by the conclusion in December 2018 of a trifurcated trial.

2. The parties began living together in 2001 and married early in 2004. The two children were born in 2008 and 2011.

3. Final separation took place in October 2012 at which time the children were aged four and almost two years. They have remained living with the mother since separation.

4. At first, they spent time with their father by agreement between the parties. In January 2015 events led to the children no longer being made available by the mother for time with the father. Subsequently there have been a number of Court orders regulating time and communication.

5. The parties were divorced in November 2015. Both have re-partnered.

The Parties

The Mother

1. The mother, Ms McGregor, although formally the respondent, was procedurally treated as the applicant when giving evidence.[1] That position represented continuity with earlier proceedings in the Federal Circuit Court.

   [1] Order Judge Harman in the Federal Circuit Court on 15 June 2016

2. The mother is 37 years old living in D Town NSW, a tradesperson by training and occupation. She has instructed her trade for the past 10 years.

3. The mother’s household consists of the two subject children, herself and the mother’s fiancé Mr E, aged 52. He too is an instructor. The parties planned to marry in mid-2018 but have not yet done so.

The Father

1. The father, Mr Lovett, although formally the applicant was procedurally treated as the respondent in the proceedings.

2. The father is 40 years old, living in F Town Victoria, a tradesman by occupation and a director of his family company.

3. The father’s household consists of himself and his partner of almost four years, Ms G, aged 34. Ms G is also the business partner of the father. She conducts the administration and accounting of their company.

Travel

1. Although the parties live on each side of the border between Victoria and NSW their respective households are about 15 kms apart, twenty minutes by car.

The Proceedings

First Application to the Federal Circuit Court

1. On 21 May 2015 after four months of not seeing the children at all the father filed in the Federal Circuit Court an application for time with the children.

2. In June 2015 the mother filed a response proposing telephone contact only. Her Notice of Risk identified:

   ·sexual abuse of Y by the father by digital penetration;

   ·verbal abuse by the father of the mother in front of the children and in their absence;

   ·the father drank alcohol to excess in the past which will place the children at risk if he is the carer;

   ·The father abused illicit drugs in the past which will place the children at risk if he is the carer.

Interim Orders by Consent - 17 June 2015

1. On 17 June 2015 interim orders were made by consent providing for seven hours of time each alternate Sunday, supervised by members of the paternal family.

Interim Orders - 23 July 2015

1. On 23 July 2015 the June orders were vacated, the matter was listed for trial in October 2015 and directions made.

2. On that day fresh interim orders were made summarised as follows:

   ·Children to live with mother;

   ·Time with the father each alternate weekend (Friday to Sunday) and each alternate Thursday overnight;

   ·Children to sleep at the home of the paternal grandparents, (in a room separate to the father), and be bathed by them;

   ·Each party to be able to communicate with the children each day when not in that party’s care.

3. On the next morning the mother rang her mother to tell her the outcome of the Court event. The evidence at trial of the maternal grandmother about that, set out below, was confirmed during cross-examination. It is concerning for several reasons.

   [The mother] said to me ‘What can I do. The decision the Judge made that the children have to go back to Dad has made [Y] very upset.’ I found it hard to understand [Ms McGregor] (the mother) on the phone because I could hear [Y] screaming in the background ‘I’m not going back to Daddy’s house. He’ll hurt me Mummy. No Mummy don’t send me back’. It was a terrible phone call listening to my granddaughter sobbing her heart out. I was beside myself with worry and fear for my granddaughters.”[2]

   [2] Affidavit of Ms H McGregor, the maternal grandmother filed 28/07/2017, par 22

4. Firstly, the mother had previously consented to supervised time for the father in June. Next, and more importantly the mother had the child present with her for this conversation, instead of waiting until the child was asleep or elsewhere. Next, it could only have been the mother who told the child information which frightened and upset her in this way.

5. The maternal grandmother agreed that the mother had been crying on the telephone as she spoke. That fact alone would have contributed to the distress of four year old Y. The maternal grandmother commented that the mother and Y had stayed at home that day, presumably from work and preschool. She was not sure whether X had also stayed home.

6. By doing what she did the mother created a dramatic and traumatic experience for Y.

Orders - 30 September 2015

1. On 30 September 2015 a new hearing date in December 2015 was allocated and further trial directions made.

2. On 13 November 2015 the children were again interviewed by Victorian police. There was no new information.

3. On 25 November 2015 the father filed an Application for Contravention in respect of two occasions when the children were not made available.

Orders - 1 December 2015

1. On 1 December 2015 the forthcoming trial was vacated. The parties were seeking to lead further evidence.

2. Orders were made re-instating the provision for supervisors for the father.

3. On 10 December 2015 the mother filed an Application in a Case seeking to suspend the newly made orders and for time to take place in a contact centre.

Orders - 14 December 2015

1. On 14 December the father withdrew his Contravention Application. The parties agreed to commission a single expert report. A raft of orders was consented to which restored the position created by the orders of 23 July 2015.

2. In my view this Court event represented a bleak turning point which has led to three years of intermittent misery and uncertainty for the children.

3. In retrospect there was no evidence of sexual misconduct by the father after the January 2015 interviews. There was a story of the children probably finding an adult DVD in a drawer and innocently playing it. Just as innocently the children, led by Y, re-enacted what they, or Y alone, had seen.

4. The reaction of the mother was to conflate what the children were doing with each other in the bath, with a subsequent statement by Y, probably made to distract the mother and perhaps to get herself out of immediate trouble.

5. It seems the most likely explanation given that the child had not mentioned anything about being hurt until after they were challenged by the mother for misbehaviour. In the blinding light of her mother’s interest in the topic Y later suggested that two male friends of her father and also another child had put a finger in her vagina.

6. There can be no criticism of a four year old child for saying and doing what she did. If she did view R-rated material it would have been confronting and hard to understand. As children do, she probably acted out what she had seen. When that led to trouble she told a story about her father.

7. The parties chose the path of more evidence to support their positions. A close examination of the records would likely have revealed a slip up of supervision in one of the households or in a holiday venue such that a little girl expecting to be entertained by a video was exposed to adult sexuality on film.

First Report of Single Expert - May 2016

1. A Report had been prepared by a Single Expert after interviews in February and May 2016. That report included alternate recommendations for time with the father depending on whether or not the Court found that there had been sexual abuse of a child.[3]

   [3] Single Expert Report dated 6/05/2016, par 202

2. Overall the Single Expert took the view that the children had positive relationships with both parents and extended families, and were at no physical risk in either household. An enquiry by trial as to whether the father or any other person had exposed the children to harm was anticipated.[4]

   [4] Single Expert Report dated 6/05/2016, par 201

3. The possibility was raised of the Court determining that the mother’s allegations had been vexatious and designed to diminish the children’s relationship with their father. If that were to be found the opinion was expressed that “the children would be considered at appreciable risk of psychological harm in [the mother’s] care”.[5]

   [5] Single Expert Report dated 6/05/2016, par 199

4. In such a case the opinion was that “the children should spend more than 3 nights per week with [the father] to reduce the risk of the children’s relationship with the father being white-anted and them (sic) potentially reject him.”[6]

   [6] Ibid

5. A change of residence for the children was nonetheless described as likely to be   experienced as highly distressing and therefore not in their best interests.

6. This analysis by the Single Expert was prescient.

7. I have concluded that the mother has taken a course of attempting to diminish the children’s relationship with the father. She did so in 2017 by gathering, and in fact, generating evidence of abuse of the children by interrogating the children through questioning, and, warmly receiving and encouraging from the children complaints about the father and members of his family.

8. I do not consider that the mother understood her own actions as harmful. She filmed herself questioning the children and brought the evidence to this trial in the confident expectation that it would assist her case by proving that the father was an abusive parent.

9. The expert evidence given by the Single Expert in November 2017 was a very clear analysis of how and why the mother’s actions had been harmful.

10. I have finally concluded that the mother by December 2018 had still not fully accepted that expert opinion.

1. The mother is of course entitled to her own opinions. The difficulty is that her adherence to the belief that the father is abusive and that it is her role as the children’s mother to protect the children from the father by proving what she believes to be true has indeed harmed the children. Y came to doubt her father’s love for her. She accepted that her father had hurt her because her mother told her so.

2. X yearned for time with her father and was confounded by her mother’s belief that X too had been hurt. X was unable to give the mother the evidence she wanted.

Transfer from the Federal Circuit Court to the Family Court of Australia

1. On 15 June 2016, after thirteen months of activity in the Federal Circuit Court in D Town, the matter was transferred to the Melbourne Registry of this Court.

2. The basis for the transfer was unresolved allegations of sexual abuse and for consideration of inclusion of this matter in the Magellan Protocol.

3. On 12 April 2017 the Court directed that the mother continue to be treated as the applicant. The matter was set down for hearing on 18 September 2017 for three days.

4. Subsequently each party amended their documents. The common ground then was that the children would live with the mother. The father proposed equal shared parental responsibility; the mother sought sole parental responsibility.

5. The most contentious issue was time to be spent by the children with the father.

6. The mother proposed seven hours of time each alternate Sunday and on special occasions, with the father to be supervised by named paternal relatives.

7. The father sought orders which equated to substantial and significant time, alternate weekends, half school holidays and regular telephone contact. No supervision.

8. On 18 September 2017 the trial did not proceed. Fresh dates, being the four days commencing 20 November 2017 were allocated.

Trial commences: 20 – 23 November 2017 [Part 1]

1. The trial was conducted over four days but was not concluded.

2. Harrowing recorded evidence,[7] introduced by the mother herself during cross-examination, gave rise to concern about the welfare of the children in the household of the mother due to the method and intensity of the questioning of the children by the mother and her partner. In a variety of incidents the films revealed bewildered tearful children trying to understand what the mother wanted from them.

   [7] Exhibit 17

3. On 22 November 2017 an order was made restraining the mother from questioning the children about past issues of perceived misconduct.

4. Enquiries were made about the availability of the Single Expert to prepare an updating report. Fortunately for the parties and children the Single Expert was able to view the recorded material, attend Court to give evidence about the material, and to arrange to see the parties urgently.

5. On 23 November 2017 orders were made (subsequently varied 13 March 2018):

   ·For the children to spend time with the father, pending further order, for two blocks of days, and week about through the forthcoming Christmas school holiday period. Thereafter five days per fortnight. Time was to be supervised by paternal family members.

   ·For the parties and children to attend on the Single Expert on 12 December 2017 for an updated report.

   ·Allocating a further four days of trial commencing 13 March 2018 with direction for filing of updating affidavits.

6. Also on that day an Undertaking was given by the mother’s partner not to “follow, stalk, undertake surveillance of film” the father and members of his family including the children.[8]

   [8] Undertaking of Mr E filed 23/11/2017

Updating Report by Single Expert

1. On 16 February 2018 the updating report of the Single Expert was released to the parties. Among many recommendations, one was for intensive therapy for the mother, another was a change of residence for the children to the father.

Trial resumes - 13 March 2018 [Part 2]

1. On 13 March 2018 the trial resumed.

2. The position of both parties had changed.

3. The father now proposed that the children live with him.

4. The mother proposed equal shared parental responsibility and for the children to spend alternate weekends with the father, unsupervised. There was no formal proposal.

5. Both the mother and her partner were again cross-examined.

6. The mother presented in the witness box as fearful, panicky and angry. She stated in evidence that she had come to her new position in the week prior to trial.

7. The mother readily conceded that she was anxious about the implications of her own proposal, “I believe [Y] was sexually abused. Whether it was [Mr Lovett] [the father] or someone else, something happened in his care.” The mother agreed she thought the father was a liar.

8. She also said, and I accept that she did believe them, that the children told her that the father’s partner Ms G had directed them to call her “Mum” and that Ms G had also told the children that she wished their mother was dead.

9. On 14 March 2018 the father was in the witness box for the first time. He was from the outset cross-examined in great detail about his work commitments and the accuracy of his work diaries.

10. What emerged factually was that the father, his partner Ms G and the paternal grandfather are hard workers and often work long days on particular jobs.

11. What emerged as the purpose of the cross-examination was an attempt to establish that the father gave priority to work over the children and was insufficiently available to them.

12. I do not accept that to any extent as the father’s attitude. He was with the children for all of their holiday time with him in the summer holiday 2017/2018. At other times he said his father “helps me out with the girls”.

13. He readily agreed that he worked at times when the children were with him. It is hard to see the problem perceived by the mother. The children must know that both of their parents work, as do both of their partners. It is a benefit for children to learn about their parents work and to understand that it generates the money which supports a household.

14. One explanation for this prolonged attack on the father’s work practices is that the mother felt critical of everything about the father and was hopeful that her counsel would unearth matters that might assist her case.

15. This second part of the trial concluded within the additional four days allocated.

Variation of Orders - (dispensing with supervision) - 16 March 2018

1. On 16 March 2018 orders were made varying various prior orders so as to discharge all requirement for supervision of time between the father and the children.

2. Judgment was reserved with provision for relisting on short notice in relation to compliance with operative orders.

Orders (updating affidavits) - 20 September 2018

1. On 20 September 2018, after six months, the parties were granted leave to file and serve an updating affidavit about relevant events which had occurred since judgment was reserved. There had been no prior notice that such an order would be made.

2. Each party and the father’s partner provided an affidavit.

3. The parties were given the option to cross-examine on the issues arising. Both parties chose to take that up.

Addendum to Trial - 19 December 2018 [Part 3]

1. On 19 December 2018 the parties attended by videolink; the mother with her counsel in D Town, the father in D Town with his counsel in J Town and, Counsel for the Independent Children’s Lawyer (“ICL”) in Melbourne.

2. Both parties were cross-examined, submissions were made.

3. Judgment was again reserved.

History of Events post separation

1. For about two years after separation the parties themselves arranged for the children to spend time with the father. They went to Family Dispute Resolution and came to an agreement. The father was content enough with the arrangement. The mother had confidence in the paternal family to assist the father with the care of the children.

2. That is not to say that there was a trusting and communicative relationship between the parties. There was not. Some of the material contained in the first affidavit of the mother[9]suggests that she was anticipating wrongdoing by the father.

   [9] Affidavit of the mother filed 2/08/2017, pars 102-131

3. Incidents alleged relate to the children not being fed enough or the wrong food; going unsupervised in the pool; being taken to the pub; coming home exhausted and producing dark smelly urine. Early in January 2015 Y used the words “arsehole” and “arse”. On 6 January 2015 the mother reports that Y had said about her toys “look Teddy is licking Jemima’s vagina”. She was sternly reproved by her mother on both occasions.

4. There is an obsessive, edgy character to the mother’s disapproval of the father and her documenting of his perceived shortcomings.

Time with father ceases – mid Jan 2015

1. In January 2015 the informal arrangements ceased. Four years of bitter conflict have followed.

2. From 15 January 2015 the mother withheld the children from spending any time with the father. She did so on the basis that the younger child, Y, then aged almost four years had disclosed information to her on that day which the mother considered constituted sexual abuse of the younger child by the father and neglectful supervision of both.

Events of Thursday 15 January 2015 and following

1. On this day the children, the mother, her partner and the maternal grandmother were staying in a holiday apartment in Melbourne.

2. The children had just returned from time with their father.

3. The mother ran a bath for the children and put them in it. The maternal grandmother was sitting in the lounge room with a line of sight into the bathroom.

4. The mother’s partner says that he went downstairs to the car park to get luggage whilst the mother ran the bath for the children[10] He returned after the children had been in the bath. He observed Y wrapped in a towel and the mother and maternal grandmother appearing shocked.

   [10] Affidavit of Mr E filed 28/07/2017, par 10

5. The mother then asked the child to repeat [in the presence of Mr E] what she had just said to the mother whilst the child was in the bath. Mr E then heard the child say to him “Daddy put his finger inside my vagina and squeezed it hard”.

6. The evidence of the maternal grandmother was that she was in the apartment and sitting on a dining room chair adjacent to the bathroom, the doors of which were open. She could hear the children in the bath. She saw the mother enter the bathroom and heard her say “What did you just say?”  She heard Y respond:

   Let’s lick each other’s vaginas.

   Mother:Where did you learn this?

   [Y]:At Daddy’s house.

   Mother:What else have you learnt at Daddy’s house? This is not right. This is not right.

   [Y]:Daddy also put his finger into my vagina and he squeezed hard.

   [X]:That isn’t true.

   Mother:How do you know it isn’t true?

   [X]:Sometime Daddy bathed Y before I woke up, it could have happened.

7. The maternal grandmother then saw X run naked from the bathroom into her mother’s bedroom. She described her appearance as “her eyes really wide open and she had her hands tucked up together under her chin and she looked frightened”. The maternal grandmother dressed, reassured and distracted X with a game.

8. When Mr E came into the apartment the maternal grandmother heard the mother ask Y:

   When did Daddy do this to you?

   [Y]:When he gave me a bath.

   Mother:What did it feel like?

   [Y]:It really stung and then Daddy squeezed me hard.

9. The maternal grandmother reports that the mother exclaimed out loud “Oh my God mum, the girls have been sexually abused”.

10. The statements made by Y would have been upsetting for the mother to hear.

11. It is hardly surprising that she had the emotional reaction she did nor that she was unable to contain her feelings. She concluded the worst, that sexual abuse had been perpetrated. The mother agreed in response to a question by me that she had never considered any other explanation, an innocent one, for what the child had said.

12. One consequence is that both children must have known that their mother was genuinely shocked and upset and also that “Daddy” was in a lot of trouble.

13. On that same evening the mother asked her sister, a school counsellor, for advice, then reported her concerns to “Ms K” at the Centre Against Sexual Assault (CASA-NSW). She was advised that a meeting would be arranged in D Town on her return home.

14. Thereafter, equivalent organisations from both states became involved. That fact became an unhelpful complication.

15. On or around Saturday 17 January 2015 the mother went to D Town Hospital. A worker (“Ms L”) from the Centre Against Violence ‘CAV’[11] had contacted SOCIT.[12]

    [11] Acronym for Centre Against Violence – Domestic Violence Resource Centre Victoria

    [12] Acronym for Sexual Offences and Child Abuse Investigation Team – F Town, VIC

16. The police officer from SOCIT (“Ms M”) met with the CAV worker, the mother her partner and the maternal grandmother. The mother reported what is described by that officer as follows “her concerns about sexualised behaviours displayed by her 3 year old daughter and about her other daughter 6 year old X attempting to ‘cover it up’”.[13]  The mother was reported to be “concerned that the sexualised behaviours originated from access with their father.”

    [13] Exhibit 4, page 1

17. The SOCIT officer met with the mother and the two children on the following day.[14]  The meeting probably took place on Sunday 18 or perhaps Monday 19 January 2015).

    [14] Exhibit 4 is inconsistent as to dates and therefore inaccurate

18. Both children were spoken to, separately.[15]  Neither child made any disclosure of abuse. “Both girls had told Ms M that they found a DVD hidden in a drawer and watched it where people were licking vaginas and a man was hurting a vagina. Y watched and X had turned it on for her.” There is no reference in the contact record as to where the children were staying when they found this DVD.

    [15] Exhibit 35 page 4 of 5

19. The SOCIT officer “Ms M” reported to the mother that no offence was disclosed, there was no crime to investigate. The SOCIT officer advised the mother to report parenting concerns to Child Protection.[16]

    [16] Exhibit 4, page 2

20. The SOCIT officer also says that she raised as a possibility with the mother, in response to the mother’s report that the children had exhibited sexualised behaviour, that the children could have been exposed to pornography. The SOCIT officer was clear to say that “it was unable to be confirmed either way whether or not exposure to pornography had actually occurred”.[17]

    [17] Affidavit of Ms O filed 7/11/2017, par 9

21. Unfortunately the mother interpreted that statement as an official view that the children were, or probably were, exposed to pornography.[18]  It contributed to her view that experts had advised her to suspend time between the children and the father.

    [18] Affidavit of the mother filed 2/08/2017, par 25

22. On 19 January 2015 the mother spoke to Ms L from CAV Victoria. She recommended, the mother says, that the mother contact Child Protection NSW.

23. The mother did ring Child Protection NSW on that day.

24. Doing the best I can with the evidence the mother appears to have told the whole story of her concerns afresh, but probably did not include the fact that the children had already been interviewed by SOCIT and had disclosed nothing.

25. I am confirmed in this view by the report of the child protection officer saying to the mother, “Don’t let the girls see [the father] until you have been contacted by someone from JIRT.”[19]

    [19] Acronym for Joint Investigation Response Team - NSW

26. It is improbable that JIRT would have become engaged when the Victorian equivalent [SOCIT] had undertaken an investigation and reached a conclusion.

27. Further, the mother then immediately rang the father and told him that she had been advised by Child Protection “not to let the girls spend time with you until I have spoken to the JIRT people”. That was truthful, but in the circumstance outlined above, disingenuous.

28. The two parents had a conversation which was prickly and accusatory about whether anything had happened to Y. It is unclear whether the mother told the father about a DVD mentioned by the children.[20]  The Department of Family and Community Service’s record[21] reports the mother saying she did and that the father was shocked. The father made no reference to that conversation in his affidavit.

    [20] Affidavit of the mother filed 2/08/2017, par 29

    [21] Exhibit 35 FACS page 4 of 5

29. I conclude that the mother felt confirmed in all her negative views of the father as a parent and was desperate to avoid providing the children for time with their father.

30. On Tuesday 20 January 2015 the father attended F Town Police Station. The SOCIT officer “Ms M” explained to him that she had spoken to his daughters “because of concerns of them displaying sexualised behaviours, however no offences were disclosed for the police to investigate”.[22]

    [22] Exhibit 4, par 2

31. The father probably believed after that conversation that there was now no impediment to him spending time with the children. He sent the mother a text asking to see Y the younger child for her birthday on the following day.

32. The mother then made telephone calls to Community Services NSW and to Ms K at CASA who told her there was an open case with JIRT because of the mother’s report.

33. The mother offered the father lunch at a restaurant or park with the girls and herself present. The father did not press for time.

34. In 2015, on the day of Y’s fourth birthday, the children were in the mother’s home in D Town, [six days after the bath incident]. The maternal grandmother put on a DVD for the children and went to make a cup of tea. When she returned to the lounge room Y was lying on top of X “kissing her and moving up and down in a sexual manner”. The maternal great-grandmother was also present. The maternal grandmother lifted Y off X and said:

    Why are you doing this?

    Y:This is what I’ve seen at Daddy’s house on the TV.

35. That evening the maternal grandmother told the mother what she had observed. The mother quite sensibly, in my view, said to her mother “Mum we’ll just have to keep an eye on things”.

36. On 22 January 2015 in the bath Y was seen by the maternal grandmother to kneel up “opening her vagina with her fingers and showing her vagina to her sister.”  The maternal grandmother said:

    Sit down and put your legs out straight. We don’t do this to our vagina.

    [Y]:Well I’ve seen this at Daddy’s house on the TV.

37. During the three weeks following, the maternal grandmother remained in the mother’s home. She observed two more incidents.

38. One was Y standing up with her underpants pulled down “brushing her vagina with a hairbrush”. The maternal grandmother took the hairbrush and pulled her underpants up:

    You will hurt yourself if you do that and we don’t do that to our vagina.

    [Y]:I saw it on the TV at Daddy’s house.

39. Another was Y announcing to X “you can lick my vagina”.

40. X is reported to have said, “Daddy said ‘it was [Mr N] that hurt Y’ and if we said that it was Daddy that hurt Y, Daddy would go to jail”.[23]

    [23] Affidavit of Ms H McGregor, the maternal grandmother, filed 28/07/2017, par 21

41. Over the following months the maternal grandmother talked to the mother most days and there were often reports of Y using sexualised language, for example, “lick my vagina, I’ll lick yours” and behaviour, for example, Y lying on X in the bath.

42. In November 2015 another allegation arising from a child’s behaviour in the bath. Police became involved. The case was again closed.

43. By 29 January 2017, two years after the initial disclosure, the maternal grandmother observed Y, after a visit with the father, sobbing, gasping for air and dry retching in response to having had to leave her mother.

44. I conclude that Y came to understand that she was the interesting focus of a family drama. She received attention and cosseting when she made complaints about her father and disclosures of a sexualised nature. Unfortunately that situation continued and intensified over more than two years. In her most recent affidavit[24] the mother reports that the principal met with her in June 2018, and told her that Y had told other children she had seen “a man and a woman” engaged in sexual conduct in a shower. Y is now eight years old and probably has come to understand the “forbidden” character of things she says.

    [24] Affidavit of the mother filed 4/10/2018, par 12

Evidence

1. The documents relied on in respect of the application were as follows: 

   The Applicant Father - Mr Lovett

   (a)Amended Initiating Application filed 29/08/2017 [superseded by a shift of position to residence with the father];

   (b)Affidavits of Mr Lovett filed:

   31/08/2018;

   27/02/2018;

   5/10/2018;

   (c)Affidavits of Ms G (father’s partner) filed:

   29/08/2017;

   5/10/2018;

   (d)Affidavit of Ms K Lovett (paternal Grandmother) filed 6/09/2017;

   (e)Affidavit of Ms O (Solicitor for Father) filed 17/11/2017;

   The Respondent Mother - Ms McGregor

   (f)Amended Response filed 2/08/2017 [superseded by a shift of position to equal shared parental responsibility and alternate weekends, supervised];

   (g)Affidavits of Ms McGregor filed:

   2/08/2017;

   7/09/2017;

   27/02/2018;

   4/10/2018;

   (h)Affidavit of Mr E (mother’s partner) filed 28/07/2017;

   (i)Affidavit of Ms H McGregor (Maternal grandmother) filed 28/07/2017;

   Reports

   (j)Single Expert Reports (2) of Ms C dated:

   6/05/2016;

   14/02/2018.

Parties and Witnesses

For the Mother:

The Mother

1. The mother presented as a loving, caring parent, vigilant about the safety and wellbeing of the children.

2. She also presented as blinkered. She was willing to believe that the father, his partner, the paternal grandparents and other friends and family would be cruel and neglectful of the children and would lie to the mother to protect each other from the scrutiny of the mother. One example is this:

   Q Y alleges that the maternal grandmother has locked her in the cupboard.

   AYes.

   QYou propose supervision by these people?

   AYes.

   Q Would [the MGM] do that?

   AI think she would. She’s slapped the legs of her other grandchildren.

3. Simultaneously with concerns about risk the mother was critical of the father for not being with the children often enough. For instance, she commented adversely on telephone calls, he has big gaps – a week gap, two or three days. She was quite scornfully critical of the length of calls, “How can you have a conversation for 20-30 seconds.”

4. The mother was critical of the father for not staying at his parents’ home for the nights the children were there, “To me I just don’t understand why he doesn’t stay. You’re there when the children wake up.”

5. When it was suggested to the mother that the father was fearful of further allegations being made she was insightlessly dismissive, “Yes, I don’t know why.”

6. There was a similar scattergun character to the mother’s criticism of the father throughout the trial, “he’s a risk to them, he’s abusive and he doesn’t care enough to spend sufficient time with them.”

7. I concluded that the mother genuinely did not see attunement by the father in not ringing the children often and keeping telephone calls brief when he did ring.

8. The evidence of the mother at trial in response to the proposition that she questioned the children about everything when the children returned from time with the father was, “I ask them question after question after question. That’s how you have a conversation with children.”

9. The parents could not be more different. The children could manage that, especially now that the mother has stepped back from that approach, at least to some extent. The difficulty for them is that the mother judges the father as inadequate and incompetent because of the differences. She sees herself as the bench mark from which the father falls short.

10. I am supported in that view by the comment the mother made when agreeing she had complained about the paternal grandmother making school lunches for the children the night before, “Yes. Just trying to be a good mother.”

The Mother’s Partner - Mr E

1. Mr E was doggedly supportive of the mother. It was probably that characteristic which lead him to follow and observe the father. He gave an undertaking to cease that behaviour.

2. Mr E was cross-examined in the second part of the trial. By that time he had reflected on his conduct and that of the mother in questioning the children, “Now I can see there is a correlation between how they were then and our reaction.”

3. Mr E does not have his own children and has had no cause to develop an understanding of child development. He seems to have had an expectation that children would have adult logic and memory. Seventeen months after Y’s JIRT interview Mr E was asking the child why she had made inconsistent statements, “If you are now saying this, why did you say different things before?”

4. Of course the child perceived that she was in trouble. Mr E, I accept, did not know that children will sometimes say what it takes to avoid being in trouble or to please a parent and that in a very young child that is neither bad behaviour nor dishonesty.

5. I accept that Mr E had seriously analysed what he had done and understood that contra to intentions he put pressure on both children and put forceful questions which suggested answers.

6. His main motivation was to be supportive of the mother.

The Maternal Grandmother

1. The maternal grandmother is a solid support to her daughter and grandchildren.

2. She had been on civil terms with the father until January 2015.

3. The maternal grandmother was naturally concerned by Y’s behaviour in the bath in January 2015.

4. Thereafter she was worried about the children and committed to supporting the mother in every way she could.

5. There is no doubt that the children love their maternal grandmother and are happy and comfortable in her care.

For the Father:

The Father

1. The father presented as a man of few words, a hard worker, a reluctant record keeper.

2. The father has shown great commitment to the children during periods of not seeing them at all and through three years of supervised time. I am confident the two children are his first priority.

3. In November 2015 when police were again involved in investigating allegations of possible abuse the father opposed counselling for X. The mother supported it.

4. The evidence of the father about that reveals his understanding of how differently he and the mother see things and also his empathetic understanding of the elder child:

   We had two totally different opinions. The mother definitely wanted counselling. I thought [X] had seen enough people and been questioned. I was hoping [X] would be left alone and not questioned any more.

5. The Single Expert in her updating report had recommended an interim change of residence with supervised time with the mother for a period of months.

6. The father unreservedly accepted that the children would experience loss if they moved to live with him. He also considered that they would be upset by supervision of time with their mother. He was clear to say that if that was the right thing to do for their safety he would do it, for them “Hard now-future benefit.”

7. I detected no note of triumph or personal satisfaction in the father’s response.

8. I am confident that the father understands the personalities, strengths and weaknesses of his two children and is keen to allow them to talk freely “so they aren’t stuck, for fear of saying things that will upset.”

The Father’s Partner - Ms G

1. The father’s partner was open, candid and straightforward.

2. I formed the impression that she loves the children and is attentive to their needs. When the mother asked her to fill in X’s reading log she was pleased to do so.

3. She spoke affectionately and insightfully about both girls.

4. Ms G has experienced the mother’s anger and has resisted reacting to it.

5. In June 2018 the principal asked to see the parents. Ms G went with the father. The mother protested. Through her counsel the mother put that she had not “made a scene” (as the father and Ms G alleged) rather “she had just asked [Ms G] to leave”. In any event Ms G, responsibly in my view, walked back to the car.

6. On the 31 August 2018 the mother is alleged to have gestured rudely and shouted abuse at Ms G after the school book week parade.[25]

   [25] Affidavit of Ms G filed 5/10/2018, [4]

7. Ms G was not cross-examined.

8. My overall conclusion is that Ms G is a safe confidante and reassuring presence in the lives of the children.

The Paternal Grandmother

1. The paternal grandmother felt offended by the allegation that she had locked the younger child in a cupboard.

2. She gave an entirely credible explanation of what might have caused Y to tell that story. She said X liked to go and get morning tea for the family. On one occasion the pantry door slammed on her. The family heard her crying “we tore out, we thought she’d jammed her finger”

3. X herself apparently said nothing to the mother about it, and it seems quite possible that Y appropriated the story. A little bit of attention seeking.

4. The significance of it is that the mother did not ring or ask any family member what had happened. Instead she included the incident as an example of wrong doing by the grandmother who had faithfully cared for and supervised the children for years and facilitated daily telephone calls with their mother.

5. The children enjoy being part of their extended paternal family.

Detective P - SOCIT Officer

1. The SOCIT officer was a calm and collected professional witness. She was cross-examined thoroughly.

2. From her perspective this was a case where the outcome of interview of children was no offence disclosed, no case continuing.

3. The officer said she “did talk about the possibility of exposure to pornography but there was no disclosure by the child”. From that I conclude that the officer considered that the child or both children could have been exposed to adult material but that view came from her professional experience not from what a child said.

4. The officer had been “unable to get anything meaningful from [Y].” She said the mother had reported “children licking vaginas”. Her response was “I did everything I could to get information without putting words in her mouth”.

5. The officer had let both parents know that, the mother in person and the father when he rang to enquire.

6. The mother then rang the officer in a state of distress. She complained that the father “had been giving her a hard time. She stated that the father had said that the officer had told him “it was all a bunch of lies”.

7. The officer reassured the mother that she had not said that and may have referred to the mother obtaining Family Law advice.

8. I conclude that there was no evidence of sexual or other abuse of the children arising from this interview.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B (2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The past four years have been emotionally tumultuous for the children and the parties.

2. Interim orders which provide for substantial and significant time for the children with the father have been in place since November 2017. The orders have been complied with. However there is still a high level of hostility between the parties.

3. In the third phase of hearing the mother continued to reveal a contemptuous attitude towards the parenting capacity of the father. The mother appears to constantly expect the father to fail in his duties to the children and to let them down.

4. I conclude that the mother sees herself as a superior parent to the father, more knowledgeable about the needs of the children and better attuned to their feelings. The evidence does not support such a finding. The father is more relaxed in his attitude to small day to day matters but is in my view sensitive to and well aware of the children’s feelings especially their fears. He knows how much they dread confrontation between the parents and does his best to avoid situations which might give rise to that.

5. This has led to a continuation of the mother making decisions about the children without prior reference or consultation with the father. The father tolerates that but probably resents it. The mother concludes that if she was not actively making decisions for the children nothing would get done.

6. Such behaviour is of course inconsistent with the obligations of the mother created by the order for equal shared responsibility.

7. The course, which I have considered best is to order sole parental responsibility to the father. The father has generally approved of what the mother does and decides for the children, although not always. The core problem is lack of communication. The father does have the capacity to consult with the mother. He would likely do so at least at first by text

8. There is risk associated with this course. The mother may experience levels of distress and resentment if the father has sole parental responsibility which would adversely impact on the children. In particularly in the form of close questioning of them, given her recent past history of doing so, and overt criticism of the father in their presence.

9. Accordingly, I have taken the course of imposing a restraint on change of current arrangements in the area of education without prior written consent of both parties. The parents presently agree that the school is suitable.

10. There is also provision for the children to attend only the doctor or medical practice nominated by the father other than in an emergency.

11. There is a restraint on the mother taking the children to counsellors or for therapy without prior written consent of the father.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. There is a clear benefit to the children maintaining their relationships with both parents. These are children who are well loved by both parents.

2. The Single Expert concluded that the children were at risk of psychological harm in the care of the mother because she was “perceiving benign behaviour in a malevolent way.”[26] She assessed the beliefs of the mother as having “a delusional intensity because they are impervious to contrary information”. I accept that evidence. The mother’s intense, repetitive questioning of the children was abusive in effect though not by intention.

   [26] Single Expert Report dated 14/02/2018, par 141

3. I also note that in the same report the Single Expert advised that the children wanted to stay with their mother and would experience a change of residence as highly distressing and so not in their best interest. I also accept that evidence.

4. Since November 2017 the children have been having regular substantial time with their father. They have both responded well to the new arrangements and with enthusiasm to being able to stay with their father at home and away camping without restrictions.

5. To substantially deprive the children of their relationship with either parent would in my view aggravate the damage done by immersion in litigation for four years.

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

1. There has been psychological harm. If, as it seems at least possible, the children, but in particular Y, viewed R-rated material in a DVD the harm done by exposure to adult sexual behaviour is less than the harm that has followed.

2. In an attempt to “get to the truth” the mother pursued the possibility of abuse through Child Abuse Services in Victoria and NSW. She also focused in on what she apparently believed was concealed information and withheld memories in the children. She allowed her partner to become equally over involved.

3. Something as innocent as a child in the bath touching her own genitals, or a child hungry and tired after a period with the father, became a source of anxiety for the mother. She did not hold back in trying to link such matters to the past.

4. The father to his great credit has been compliant with orders for supervised time and never gave up on his children. He has had the support of his parents who managed the children disappointment that they needed to stay overnight with their grandparents when they wanted to be at their father’s home. The father has also had the support of his partner who has not attempted to usurp the role of their mother. She managed being a supervisor for her own partner by taking that role seriously.

5. Accordingly there is a balance of risk.

6. I have concluded that there is no evidence to support the father being a risk of sexual harm to the children. He has been enjoying unsupervised time for almost a year without incident.

7. There is a risk that the mother could again become triggered by some innocent remark or piece of behaviour by a child into seeking interventions for the children and questioning them herself.

8. The course which appears to most promote and protect the welfare and interest of the children is to increase their time with the father but in a way that allows substantial time with their mother. Eight days with their father and six days with their mother in each fortnight.

9. I am satisfied that at ages 10 and eight, and given their views which I will refer to next in these reasons, the children will manage that arrangement quite well.

10. Changeovers at school will minimise conflict and obviate the need on the majority of changeovers for the parents to come in contact with each other. The mother has commented that “school to school handovers have taken all the tension and worry out of handovers and the girls seem much happier and relaxed”.[27]

    [27] Affidavit of mother filed 04/10/2018, par 6

11. A telephone call from the parent to whom they will be moving made the night before the changeover has the potential to lead to positive conversation with the children about what lies ahead.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. X was seven when she was interviewed almost two years ago [29 February 2016] for the Family Report. She was assessed to be quite confident. Her social and verbal skills were excellent. She concentrated well and could articulate her thoughts and feelings.[28]

   [28] Single Expert Report dated 06/05/2016, par 154

2. X was positive about her mother and her mother’s partner and described an enjoyable predictable life in the household.

3. Likewise, X was positive about her father. She drew a distinction between staying in her grandparents’ home which she liked “a bit” and in her father’s home which she recalled as being fun. X was also positive about her father’s partner.

4. X was clear to say that she would feel happy and okay if no-one was present when she spent time with her father. She would feel safe if her father was not supervised.

5. She expressed a wish that overnight time during school term with the father was fine and that she would like to spend half school holidays with each parent; but said that she likes going on holidays with her mother and so she does not want her time with the father to interfere with that.[29]

   [29] Single Expert Report dated 06/05/2016, par 165

1. What was quite clear to the Single Expert was that X wanted to continue spending time with her father and denied any concerns about being alone with him.

2. The observations of X with her father are consistent with her expressed view.[30]

   [30] Single Expert Report dated 06/05/2016, pars 182 & 183

3. In the interview for the second report X was nine years. She reported that it had been good spending more time with her father and good having Ms G as a supervisor. She had found it annoying having to sleep at the home of the paternal grandparents because they had to arrive there before her younger sister’s bedtime.

4. Likewise, she said it had been good living primarily with her mother and denied anything negative. She found it annoying having to do “reports” about her time with her father to her mother. She described this as the “mother asking questions about the father and the children then having to “explain the weekend.”

5. X expressed herself as happy to continue with the new arrangement (five nights per fortnight). She initially did not know how she would feel about week about or living primarily with her father. Ultimately she denied having any preference for one arrangement over the other.

6. X at nine appears to be a thoughtful and balanced child. She loves both sides of her family and wants to see all of them. She is comfortable in both households.

7. X longed for more time with her father during periods when she was not permitted to see him. There has been no allegation of sexual abuse of X. She has shown maturity and patience in her situation.

8. I take X’s views and wishes into account to a reasonable extent. X has not complained about her father to anyone. Her school teacher reported that she was pleased to see her father when he collected her.

9. The mother agrees that X enjoys time with her father and would like to see him more often.

10. I give considerable weight to X’s strong wish to maintain family relationships by spending regular periods of time in both households.

The Child Y

1. Y was just five years for the first report.

2. She was assessed to be talkative, able to articulate her thoughts and feelings well. Her verbal skills and cognitive resources were assessed as adequate. There were no observable problems with concentration, emotions or behaviour.[31]

   [31] Single Expert Report dated 06/05/2016 par 167

3. Y spoke of her mother positively claiming that her mother did not shout or smack her and that she did not get into trouble at her mother’s house at all.

4. This last statement does appear somewhat idealised.

5. Y was likewise positive about her mother’s partner.

6. Y was positive about her father that he did not shout at her or smack her. She reflected that he did not spend time with them really.

7. In response to a question as to whether her father had ever hurt her she said “yes” but could not remember the details. When asked again later she said she thought he had hurt her vagina, could not remember but her mother had told her that he had hurt her.

8. Y was against any time with her father, “no time at all.”  Her reason was an unusual one: because he did not spend any time with her anyway. Such apparent resentful rejection, hurt feelings about perceived neglect, seems odd in such a young child.

9. She explained to the Single Expert that she was not allowed to be alone with her father because “he might hurt me again.”[32]  This was not an expression of her wishes but evidently something she had been told as an explanation for supervision.

   [32] Single Expert report dated 06/05/2016 par 174

10. The above views of Y are inconsistent with her behaviour observed by the Single Expert. She was excited and asked her father, as did her sister, to join in their game.

11. She made eye contact with her father and sought affection and attention from him. No signs of tension or nervousness were observed at all.

12. In relation to Y, I do not place any weight on these expressed views. She was an infant when her parents separated. She has spent inconsistent time with her father. She knows, at least because she has been told, that her father hurt her. It is obvious that her lived experience of the father does not match what she has been told.

13. Importantly, her spontaneous emotional response to him was contrary to her expressed opposition to spending time with him.

14. For the second report Y was six, almost seven years. She too enjoyed the new arrangement for time with her father. She was looking forward to staying in her father’s home and sleeping in the room set up for her there.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. Both children greatly love each of their parents, the respective partners of those parents and the paternal and maternal grandparents and extended family.

2. Y has spoken in a disparaging way about her father to the Single Expert, relating that her father had hurt her although she did not know how or when.[33]

   [33] Single Expert Report dated 06/05/2016 par 171

3. She has complained that her paternal grandmother locked her in a cupboard. Without reservation I accept the evidence of the paternal grandmother that no such event took place.

4. Y has also spoken in a positive way, referring to feeling safer with them, about her paternal grandparents. She appreciated her grandparents and Ms G setting up a bedroom for her in the father’s home.

5. Both children are reported by their mother to have complained to her about their treatment by the father, his partner, the paternal grandparents and by family friends. In the particular circumstances of this case I consider that if complaints were made it was likely in response to persistent questions by the mother searching for confirmation of her own fears and negative views.

6. It is equally likely that an innocent comment by a child has been amplified by the mother into an incident of wrong doing.

The extent to which each of the child’s parents has taken or failed to take the opportunity to participate in making decisions, to spend time with the child and to communicate with the child

1. The mother has made decisions for the children, most of which the father has not been unhappy with.

2. The mother however is unable or unwilling to consult with the father in advance. She tells him what has happened after the event.

3. One recent example from mid-2018 is this.[34]  The mother told the father that Y would have her tonsils out, after the hospital date was booked. Two days before the advised date the father asked for any information. The mother told the father that the child would stay in hospital overnight and miss two weeks school. She also told him that the child would be staying with her on the weekend following surgery despite the orders for the children to be with the father.

   [34] Affidavit of the father filed 5/10/2018, pars 6 & 8

4. The father visited the child on the night of her tonsillectomy. The father asked the mother to text him with the time that the doctor was coming in the morning so he could be there. The mother did not do so. When the father arrived at the hospital the child had been discharged. The mother simply took the child home and ignored requests. She allowed a brief visit at the end of the fortnight.

5. In her affidavit[35] the mother refers to the matter in this way:

   In terms of communication I continue to send [Mr Lovett] text messages about things for the girls, like an operation for [Y] for the removal of her tonsils and adenoids and things like extra curricular activities which might happen in his time (my emphasis). [Mr Lovett] rarely responds.

   [35] Affidavit of the mother filed 4/10/2018, par 13

6. There is an implied criticism of the father for not responding, but when he is told what is happening, not asked what suits, he can either accept the mother’s edict or complain about the lack of consultation.

7. The mother appears to have no insight into how excluded the father is by the way she organises the lives of the children and tells him what she perceives he needs to know.

8. The mother took the girls to a concert in Melbourne on 2 August 2018. It was a school night and a night when the children would have been with their father. Two weeks prior the mother sent the father a note to say she would have the girls that night. She did not say why. She nominated a make-up date.

9. The father responded by saying he preferred to stay with the orders. The mother ignored the response.

10. Later the children told the father about the concert, that they had arrived back in D Town at 3.00 am and had gone to school on Friday morning.

11. This incident epitomises the impracticality of shared parental responsibility. The mother wanted to provide an enjoyable experience for the children but thought the father might not agree to missing time with them or approve.

12. She went ahead, disregarded the orders, and drove home through the night to avoid trouble over the children missing school.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. Child support is a contentious issue. The mother alone pays the fees at the school which the children attend. The father paid the fees once.

2. There has been a child support assessment. Substantial arrears, about $15,000 are said to be outstanding.

3. The father had an employed position with a company. When that work required working away for months at a time he left and started contracting work.

4. He left on a salary of $85,000. His assertion is that a Child Support Assessment was done using his last pay slip which included his accumulated Long Service Leave. Thereafter he earned less.

5. The father stopped paying Child Support. His statement in the witness box was “I was just waiting to see what would happen here”. I infer that he was protesting the assessment and what had happened to his time with the children.

6. The father generally contributes to specific expenses if asked.

7. Even if the assessment does prove to have been distorted, it does the father no credit to have taken this stance which probably heightened hostility.

8. The mother has had a disproportionate share of expenses.

9. There should be a fresh child support assessment with the conclusion of these proceedings.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. More time with the father will provide a benefit for the children. Although it will mean less time with the mother which she will probably find difficult, to the children it will be substantial time with both parents.

2. The change to the father having sole parental responsibility will have a greater impact. The father will have authority to make decisions and to talk to and consult doctors and others involved in the children’s lives.

3. I am confident that the father will comply with the order to tell the mother of issues as they come up and invite her views. The decision taken by the father will be promptly communicated to her.

4. The children will come to understand that there is involvement by both parents in their lives.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

The Mother

1. The mother is a loving and devoted mother. She supervises the children carefully herself or has her mother or partner do so. She provides a high level of daily care. She considers herself a good parent, a much better parent than the father.

2. After the events of 15 January 2015 the mother was encouraged by a worker at CAV[36] to engage the children in conversation using a particular technique. This is to ask the children question after question, picking up information from the first answer to use in the next question.

   [36] CAV (n 11)

3. The mother developed a style of parenting, using this method, which was intrusive and ultimately became abusive.

4. The mother thereafter used the questioning method from the time it was explained to her until she was directed by the Court to cease. She used it both when the children were with her, for instance after school each day, and also by telephone when they were with their father, every night.

5. From the children’s perspective it probably felt like an interrogation. X, having come off the telephone to her mother passed the remark to her paternal grandmother “Six thousand questions Nanna.”[37] Half joking, half exasperated, X was apparently revealing her feelings about the questioning process.

   [37] Affidavit of Ms K Lovett, the paternal grandmother filed 06/09/2017, par 17

6. The intentions of the mother were to both show to the children her interest in their lives and also to reassure herself that she was not missing any significant event. The mother is probably still attuned to the possibility of disclosure by the children of wrong doing by the father or a member of his family and friendship circle.

7. This practice, in my view, was most unhelpful to the children, especially X who at nine should have been accorded some respect for the privacy of her thoughts and reactions.

8. The incident of X becoming upset in the car with her grandfather is a clear example.[38]

   [38] Affidavit of Ms McGregor, filed 02/08/2017, pars 199-202

9. The Court considered after hearing the relevant evidence that the mother was unlikely to voluntarily cease using this questioning method in the short-term future.

10. However the mother has consulted a psychologist. She did so after the release of the second report of the single expert recommending intensive therapy for the mother. The evidence of the mother in December 2018 was that her psychologist has assisted her to accept that she should not manage what happens with the children in the father’s care. She feels more relaxed as a result.

11. For that reason, daily telephone calls were reduced. That has reduced pressure on the children.

The Father

1. The father has two important strengths. He has a laid back and watchful method of parenting.

2. His approach is revealed by oral evidence in response to a question by the ICL about which child had been more affected by past events:

   [Y] is a little girl who takes things on the chin. She moves on. [X] will hold things closer for longer. Can’t get things out. After such a time she’ll come out with something - months or longer.

3. I conclude that the father allows conversation on topics that matter to be led by the children. He just watches, protects and waits, listens and acts if necessary.

4. For children who have been hammered by questioning it is a particularly reassuring style.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The parties participated in Family Dispute Resolution and reached agreement on 18 July 2013 about the children spending three nights per fortnight with the father and a one week block of holiday time. The children were then aged four and two years.

2. This was three months after the resolution of an Application for an Intervention Order by Undertakings.

3. The agreement included the father paying child care costs when the children were with him and an intention of both parties to return and discuss all financial matters involving the children.

4. The agreement came soon after the mother had begun to live with her current partner Mr E in June 2013.

5. It appeared to represent progress and a focus on the children by both parties and the mother’s partner.

6. The parents both feel the responsibility of parenthood.

Any family violence involving the child or a member of the child’s family, and if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order

1. On 20 December 2012 the parties and children travelled to Thailand for a 14 day holiday they had pre-paid prior to separation. Given the short period of two months since their separation the parties had an awful experience away together. This probably contributed to the hostility, anger and abusive language which gave rise to the mother’s application for a Protective Order three months later.

2. On 18 January 2013 the mother was released from taking action to receive child support from the father.

3. On 23 April 2013, about six months after separation, the mother applied for an Intervention Order for protection from the father.

4. On the first return date the application was resolved by Undertakings given without admissions by the father, not to commit family violence and associated matters of staying away.

5. On 29 April 2013, as an addendum, the father signed a 12 month Undertaking to make all arrangements for spending time and communicating with the children using email or text message only.

6. Since those early events the children have not been exposed to family violence although they have certainly felt the effects of hostility through these protracted proceedings.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

1. There is some risk that this arrangement will fail because the mother does not comply with it. Not by failing to take up the time with the children but by refusing to acknowledge the change in parental responsibility which will involve her taking a step back from long term decision making. That role will become the father’s although I believe he will readily consider the mother’s input if she chooses to engage.

2. One course would have been to provide limited time only with the mother, for example two night alternate weekends. That would have afforded greater protection for the children from questioning, the mother’s sniping criticism of the father and her established tendency to take matters into her own hands, and out of the hands of relevant authority, when she believes the children are at risk. She may again question the children to prove what she fears or believes has happened to them.

3. I have not taken that course, in order to avoid suffering for the children as a result of having their time with their mother radically reduced or even supervised. The words of the father ring true “these children have had enough.”

Conclusion  

1. The mother of course does not have to agree that the orders are in the best interest of the children. For the sake of stability for the children however it is critical that she contain herself emotionally and strictly comply with the orders.

2. If the mother is unable or unwilling to do so the matter would be back before the Court to the detriment of the children. In such a circumstance, time would most probably be sharply reduced.

3. Leave has been granted for the mother to provide to her psychologist both of the reports by the Single Expert and these orders and reasons. The Court was asked to grant leave for the ICL to deliver those documents directly. However I believe that the psychologist would not, for reasons of professional ethics, be willing to read them without the consent of the mother. It should be the choice of the mother to provide them. There would in my view be real benefit to her and consequentially the children if she takes that step.

4. Orders are made accordingly.

I certify that the preceding three hundred and eleven (311) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 8 February 2019.

Associate: 

Date: 8 February 2019