Luga & Hayes
[2025] FedCFamC2F 6
•8 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Luga & Hayes [2025] FedCFamC2F 6
File number(s): ADC 697 of 2023 Judgment of: JUDGE PARKER Date of judgment: 8 January 2025 Catchwords: FAMILY LAW – PARENTING – allegations of sexualised behaviour on part of child – competing allegations of risk to child including concerns relating to parental mental health and substance abuse – Father presents as unduly suspicious and critical of Mother and her parenting - longstanding equal time arrangement no longer suitable Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60CA, 60CC, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 8.15(3)(e), 12.13(3)(b)
Cases cited: A & A [1998] FamCA 25; (1998) FLC ¶92-800
B & B [1993] FamCA 143; (1993) FLC ¶92-357
Bennett & Bennett [2001] FamCA 462; (2001) FLC ¶93-088
Blinko & Blinko [2015] FamCAFC 146
Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC ¶94-129
Denton & Denton (No 3) [2024] FedCFamC1F 476
Flanagan & Handcock (2002) FLC ¶93-102
Harridge & Harridge [2010] FamCA 445
Illgen & Yike [2018] FamCA 17 at [125]
Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
KN & SD & Secretary, Dept of Immigration & Multicultural Affairs [2003] FamCA 610; (2003) FLC ¶93-148
M & M [1988] HCA 68; (1988) 166 CLR 69
Melounis & Melounis (No 4) [2024] FedCFamC1F 778
N & S & The Separate Representative [1995] FamCA 139; (1996) FLC ¶92-655
Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303
Oyama & Oyama [2024] FedCFamC1F 738
Pickford & Pickford [2024] FedCFamC1A 249
Ramzi & Moussa [2022] FedCFamC2F 1473
Vasser & Taylor-Black [2007] FamCA 547; (2007) FLC ¶93-329
Division: Division 2 Family Law Number of paragraphs: 215 Date of hearing: 3-6 December 2024 Place: Adelaide Counsel for the Applicant: Ms Cocks Solicitor for the Applicant: Adelta Legal Solicitor Advocate for the Respondent: Mr Wabnitz Solicitor for the Respondent: Daniel John Lawyers Solicitor Advocate for the Independent Children's Lawyer: Ms Olsson Solicitor for the Independent Children's Lawyer: Silkwoods ORDERS
ADC 697 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS LUGA
Applicant
AND: MR HAYES
Respondent
AND: INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE PARKER
DATE OF ORDER:
8 JANUARY 2025
UPON NOTING THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, 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 an comply with an order are set out in Annexure A and the Fact Sheet from the Federal Circuit and Family Court attached hereto and these particulars are included in and form part of these orders.
THE COURT ORDERS THAT:
1.All previous parenting orders with respect to the child X born in 2019 (‘X’), save for order 1 of the orders made on 6 December 2024, be discharged.
2.The Mother have sole parental responsibility and decision-making responsibility for all major long-term issues relating to X.
3.In relation to making such decisions, the Mother:
(a)advise the Father in writing of any such decisions she intends to make;
(b)provide the Father with an opportunity of no less than 14 days’ duration to provide his views before making her decision; and
(c)advise him forthwith upon the decision being made.
4.X live with the Mother.
5.X spend time with the Father as follows:
(a)Each alternate weekend from the conclusion of Childcare/Kindergarten/School (or 3:00pm if there is no Childcare/Kindergarten/School) on Friday until the commencement of Childcare/Kindergarten/School (or 9:00am if there is no Childcare/Kindergarten/School) on the following Monday;
(b)In the intervening week from the conclusion of Childcare/Kindergarten/School (or 3:00pm if there is no Childcare/Kindergarten/School) on Thursday until the commencement of Childcare/Kindergarten/School (or 9:00am if there is no Childcare/Kindergarten/School) on Friday.
(c)Such further and other times as may be agreed between the parties in writing.
6.During school holidays, paragraphs 5(a) and 5(b) shall be suspended and X shall spend equal time with each of the parties, with such time to take place on a week about basis unless otherwise agreed between the parties in writing.
7.Notwithstanding any other order, X shall spend time with each of his parents during special occasions as follows:
BY CONSENT:
(a)With the Father from 10:00am until 5:00pm on Father’s Day;
(b)With the Mother from 10:00am until 5:00pm on Mother’s Day;
BY THE COURT:
(c)With the Mother from 4:00pm Christmas Eve until 4:00pm on 25 December and with the Father from 4:00pm on Christmas Day until 4:00pm on 26 December in even numbered years; and
(d)With the Father from 4:00pm on Christmas Eve until 10:00am on Christmas Day and from 4:00pm on Christmas Day until 10:00am on Boxing Day; and with the Mother from 10:00am until 4:00pm on Christmas Day, in odd numbered years.
(e)Such further and other times as may be agreed between the parties in writing.
8.The parties shall communicate via AppClose or a similar parenting app if AppClose is no longer available.
THE COURT FURTHER ORDERS BY CONSENT:
9.All handovers which do not take place at X’s school shall take place at the respective residences of the parents, with the parent who is to collect X collecting him from the other parent’s home, or at such other location as the parties shall agree in writing.
10.The parties shall each keep the other informed of any major medical issues involving X, particularly of any attendances upon a medical professional, treatment prescribed, any medication requirements or medical appointments and notification of any medical emergency as soon as possible.
11.The parties shall each be restrained and an injunction is hereby granted restraining each of them from:
(a)Denigrating the other in the presence or hearing of X or allowing any other person to do so;
(b)Exposing X to family violence;
(c)Discussing these proceedings with X or in his presence or allowing any other person to do so; and
(d)Posting any information relation to these proceedings on any social media platform.
BY THE COURT:
12.The appointment of the Independent Children’s Lawyer is discharged.
13.All extant applications are otherwise 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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE PARKER:
INTRODUCTION
Before the Court are the parties’ competing applications for parenting orders with respect to the child X born in 2019, who turned 5 shortly prior to the commencement of the trial. X is due to commence primary school in 2025, shortly after the conclusion of the trial.
The Applicant Mother, MS LUGA (‘the Mother’), was born in 1978. The Respondent Father, MR HAYES (‘the Father’), was born in 1978. At the time of trial, both parties were aged 46. The Mother has a daughter, B, from a previous marriage, who, at the time of the trial, was aged 17.
The parties commenced a relationship in 2018 but had known each other to some extent from many years earlier. They commenced cohabitation in 2019, shortly before X was born. They did not marry. The parties separated under the one roof in June 2021 and physically separated in November 2021, at which time the Mother moved out of the former family home.
Upon their physical separation, the parties implemented an equal time arrangement. The Mother’s evidence was that she had not genuinely wanted to implement such an arrangement but had felt that she had little alternative as the Father refused to agree to anything else and failed to respond to an attempt made by her to arrange mediation. The equal time arrangement was subsequently formalised by way of interim court orders on 23 February 2023 and again on 16 August 2023. At the time of the trial, X remained living in an equal time regime, in the form of a week about arrangement save that each Thursday night was spent with the parent in whose care he would not otherwise have been.
THE PARTIES’ APPLICATIONS
The Mother sought, in summary, that she have sole parental responsibility for major long-term decisions with respect to X, that X live primarily with her, and that he spend four nights per fortnight in the care of the Father, to take place from Friday to Monday each alternate weekend and overnight on the Thursday night in the intervening week.[1]
[1] Exhibit M9.
The Father sought, in summary, that he have sole parental responsibility for major long-term decisions with respect to X, that X live primarily with him and that X spend three nights per fortnight in the care of the Mother, with such time to take place each alternate weekend from Saturday to Monday, with overnight time on Thursday in the intervening week. At the conclusion of the trial, over the objection of the Mother and the Independent Children’s Lawyer (‘ICL’), the Father was permitted to amend his proposal to include an alternative position, being that the existing equal time arrangement continue.
The ICL largely supported the orders sought by the Mother.
MATERIAL RELIED ON
The Mother relied on the following documents:
(a)Amended Initiating Application filed 12 November 2024;
(b)Trial affidavit filed 11 November 2024;
(c)Affidavit in Reply filed 26 November 2024;
(d)Affidavit of Ms C (the Maternal Grandmother) filed 22 November 2024; and
(e)Case Outline filed 29 November 2024.
The Father relied on the following documents:
(a)Amended Response to Initiating Application filed on 7 November 2024;
(b)Trial affidavit filed on 7 November 2024; and
(c)Case Outline filed 29 November 2024.
The ICL relied on a Case Outline filed on 29 November 2024.
The operation of rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’) was dispensed with and the annexures to the affidavits filed by each of the parties were accepted into evidence. Each of the parties and the ICL also tendered documents throughout the course of the trial. Although each and every aspect of the evidence relied upon by the parties has not been referred to in these reasons, I have had regard to the totality of the evidence before the Court and the submissions of each of the parties.
THE PARTIES AND THEIR EVIDENCE
The Mother gave her evidence in a calm and straightforward manner. She was responsive to the questions asked of her and impressed as a truthful witness.
The Father was calm and was generally responsive to the questions asked of him. He presented as a generally honest witness. However, at times he exhibited a tendency to reframe questions in the process of answering them, thus creating an opportunity to give evidence that was more favourable to his case than the answer to the question actually asked of him. He was on some occasions reluctant to make reasonable concessions and he presented at times as unable to bring himself to accept propositions which he perceived as damaging to his case. The narrative presented by the Father had features which appeared overly suspicious at times, and he gave the impression of being prone to exaggerate and catastrophise, such that minor events assumed great significance to him and became issues of great concern to him. He also presented as rigid and inflexible in his thinking.
The Maternal Grandmother was cross-examined by the representatives for the Father and the ICL. She was a forthright and responsive witness.
In accordance with section 140 of the Evidence Act 1995 (Cth), all findings of fact in this judgment are made on the balance of probabilities. This standard, however, is ‘not the measure by which an unacceptable risk of harm is to be assessed,’[2] and it has not been applied to my consideration of issues of unacceptable risk. Some of the findings in these reasons relate to matters of a very serious nature, particularly risk of sexual harm to a child. I have had regard to the matters outlined in section 140(2) of the Evidence Act, particularly the gravity of the matters alleged, when making such findings.
EXPERT REPORTS
[2] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
Family report
The Court was assisted by a Family Report prepared by Ms D dated 13 December 2023. Her report recommended, in summary, that the Mother have sole parental responsibility for X, that X live with the Mother, and that X spend three nights per fortnight with the Father, from Friday to Sunday in one week and one overnight in the intervening week, with that time to increase to a block of four nights during school holidays. Ms D further recommended that if the psychiatric assessments of the parties, which at the time of her report were pending, expressed confidence about both parents’ psychological functioning and ability to prioritise X’s wellbeing, the alternate weekend time conclude on Mondays and the school holiday time build up to week about.
Ms D gave evidence and was cross-examined by the representatives for each of the parties and the ICL. She impressed as calm, considered and balanced. The Father alleged that Ms D’s report was tainted by bias. When this allegation was put to her, she acknowledged the potential for unconscious bias and described a careful process of peer review undertaken within her practice to guard against the risk of such bias. I accept the submission of Counsel for the Mother that this was evidence of a ‘robust and reassuring process.’ I do not accept that Ms D exhibited any bias. The Father also alleged that Ms D was an unreliable witness. He did not establish that allegation and its asserted foundation was unclear.
It was submitted on behalf of the Father that the report of Ms D should be given limited weight in part because it had been prepared without the benefit of documents from the Department for Child Protection (‘DCP’) and South Australia Police. I do not accept that submission. The Father’s solicitor cross-examined Ms D and had the opportunity to put to her any materials and propositions which supported his case. The opinions and recommendations expressed in her report were not undermined. Ms D’s report was properly based on her observations of and interactions with the parties.
It was also submitted on behalf of the Father that the weight that could be given to the Family Report was limited because concerns raised therein were contrary to the psychiatric assessment of the Father. As submitted by Counsel for the Mother, Ms D was at all times open to the possibility that the psychiatric assessment of the Father might not give rise to concerns about his mental health. Significantly, Ms D confirmed in her oral evidence that she maintained her professional opinion that X should live primarily with the Mother and spend time with the Father as outlined in her report, notwithstanding the limited concerns raised in the psychiatric assessment of the Father, as discussed below.
Ms D was not challenged with respect to the accuracy of her recounting of the things said to her or those she observed. I accept her evidence as to her observations in its entirety. There was no challenge to her qualifications. I give considerable weight to her recommendations.
Psychiatric assessments
Each of the parties undertook psychiatric assessments with Dr E, psychiatrist. The reports with respect to the Father (dated 6 April 2024), and the Mother (dated 21 April 2024), were both before the Court. Dr E gave evidence and was cross-examined by the representatives for each of the parties and the ICL. I accept the submission of the ICL that Dr E’s evidence was clear and balanced.
THE RELEVANT LEGAL PRINCIPLES
The legislation
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) guides the process of decision-making in relation to the making of parenting orders. Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, the Court must consider the best interests of the child as the paramount consideration. Section 60CC of the Act sets out how those best interests are to be determined, and includes a list of considerations to be taken into account.
What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of the child and each person who has care of the child
The word ‘safety’ is not defined in the Act. It is defined in the Oxford English Dictionary as ‘the state of being protected from or guarded against hurt or injury; freedom from danger.’
In Oyama & Oyama,[3] Gill J held that ‘safety’ in this context is a term that is wide in nature, and bounded only by its object, being to keep children, and those who care for them, from harm, and that it should not be taken to have a fixed content or standard. The paragraph requires the Court to consider the risk of harm that accompanies the relationship, in whatever form it may take and does not contemplate consideration of the benefits of a relationship where such is not safe.
[3] [2024] FedCFamC1F 738.
In Denton & Denton (No 3),[4] Altobelli J expressed the view that ‘safety’ is a state in which hazards or conditions leading to physical, psychological, or material harm are controlled in order to preserve the health and wellbeing of an individual. It is not the complete elimination of risk of harm, but rather making such order as affords the child the most optimal protection from harm.
[4] [2024] FedCFamC1F 476.
In Melounis & Melounis (No 4),[5] Altobelli J held that to promote safety, for the purposes of s 60CC(2)(a), means ‘to advance the interests of, and move to a stronger or more prominent position, the safety (ie to be free from hurt, damage, harm or danger) of children and those who care for them’ and that the statutory requirement to promote safety involves advancing a positive outcome, which would necessarily include protection from harm but would not be limited to this.
[5] [2024] FedCFamC1F 778.
I respectfully adopt these definitions in determining the arrangements that would promote X’s safety.
In considering this factor, it is necessary for the Court to consider 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).[6]
[6] Family Law Act 1975 (Cth), s 60CC(2A)(a).
There are a number of issues pertaining to X’s safety which feature in the evidence of each of the parties. The Father asserted that the Mother posed an unacceptable risk of harm to X. Each of the issued raised by the parties with respect to X’s safety is discussed below.
It is well established that a court will not make an order for a child to live with, or spend time with, a parent if it would expose the child to an unacceptable risk.[7] Although the test initially related to allegations of risk of harm from sexual abuse, it has subsequently been extended to cases involving allegations of children being at risk of physical or emotional harm for other reasons.[8] In Vasser & Taylor-Black,[9] the Full Court of the Family Court of Australia (as that court was then known) referred to the decision of the High Court of Australia in M & M,[10] in which the test was laid out, as ‘having become the “touchstone” setting out the relevant principles to be applied in cases of asserted unacceptable risk of any kind.’ In addition to assessing past events, the Court must separately assess future risk. This is a predictive or prospective exercise.[11]
[7] M & M [1988] HCA 68; (1988) 166 CLR 69.
[8] A & A [1998] FamCA 25; (1998) FLC ¶92-800; B & B [1993] FamCA 143; (1993) FLC ¶92-357.
[9] [2007] FamCA 547; (2007) FLC ¶93-329 at [51].
[10] [1988] HCA 68; (1988) 166 CLR 69.
[11] Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC ¶94-092.
In N & S & The Separate Representative,[12] Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
[12] [1995] FamCA 139; (1996) FLC ¶92-655 at [138].
The assessment of whether there is an unacceptable risk requires determination on the evidence whether there is a risk, the magnitude of that risk and the potential consequences of the harm that might befall the child or children concerned.[13] This involves giving consideration to the extent to which any risk found to exist may be ameliorated by protective measures such as supervision.[14] If an unacceptable risk is found, the Court must take steps which are proportionate to the degree of the risk.[15]
[13] Napier & Hepburn [2006] FamCA 1316; (2006) FLC ¶93-303. See also Harridge & Harridge [2010] FamCA 445.
[14] Blinko & Blinko [2015] FamCAFC 146.
[15] A & A [1998] FamCA 25; (1998) FLC ¶92-800.
In Harridge & Harridge,[16] Murphy J referred to N & S & The Separate Representative (supra), and adopted the following list of inquiries with respect to risk assessment and analysis:
(1)What harmful outcome is potentially present in this situation?
(2)What is the probability of this outcome coming about?
(3)What risks are probable in this situation in the short, medium and long term?
(4)What are the factors that could increase or decrease the risk that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
[16] [2010] FamCA 445 at [73].
Exposure to sexual material
The Father alleged that he had observed X engaging in sexualised behaviour and making sexualised comments which were concerning in nature. The first such occasion occurred in 2022, shortly prior to X’s third birthday. The Father’s evidence was that X had referred to a volcano emitting smoke as a ‘dick and cum.’ The second occasion was said by the Father to have occurred in late 2022. On that occasion, the Father’s evidence was that X had imitated fellatio using the handle of a clothesline and had used the words ‘how to deep throat.’ He further deposed that the action had been repeated by X in early 2023. In the witness box, the Father asserted that he had taken photographs. No such photographs were produced. I infer from this that photographs depicting this incident either did not exist or did not support the Father’s case.
To the Father’s credit, he promptly brought these concerning incidents to the attention of the Mother. The Mother’s evidence was that upon being advised of the sexualised comments and behaviour by the Father, she had been alarmed, had taken the issue seriously and had felt sick. The Mother’s evidence was that she had spoken to staff at X’s childcare centre to ascertain whether he could have been exposed to inappropriate conduct or material there, and had discussed it with X’s other carers, being his grandparents on both sides. The Father somewhat begrudgingly accepted that the Mother had ‘possibly’ taken the reported concerns seriously and had ‘possibly’ engaged with him in an attempt to identify their cause. She had plainly done so, as was conceded in the closing submissions made on behalf of the Father. The Father also reported the incidents to the Maternal Grandmother, whose evidence was that she had likewise taken them seriously.
The parties both initially considered the possibility that X had been exposed to sexual matters by other children, such as the children of friends or family members. At the time of these incidents, X was attending childcare three days per week, and the parties also considered that these behaviours may have arisen from something to which X had been exposed at childcare. The Father withheld X from childcare and had discussed his concerns with the childcare provider, who indicated that no such behaviours had been observed by them. The Father was ultimately satisfied that X had not been exposed to sexual matters at childcare.
By the time of the trial, the Father had formed a firm belief that his sexualised comments and behaviours had been caused by X having been exposed to pornography in the Mother’s household. The Father proffered no basis for this conclusion other than an inference he had drawn from the sexualised conduct itself. The Mother credibly denied that X had access to any device from which he could have accessed pornography in her home.
The Father refused to entertain the possibility that the incidents may have been caused by behaviour which had been heard or witnessed by X at childcare but had not come to the attention of staff, saying ‘I don’t subscribe to that theory.’ He also presented as having abandoned any willingness to accept any of the other theories which had initially been considered by the parties, such as exposure by children within the parties’ wider social networks. Aside from deep distrust towards the Mother, it was not clear why the Father had accepted the assurances of the childcare staff and had been satisfied that he had excluded all other potential sources of exposure but had remained certain that the Mother was responsible despite her denials. He presented as unwilling or unable to accept the possibility that he could be mistaken in this regard and maintained his position that X was at risk of harm of a sexual nature in the Mother’s care. As submitted by the ICL, the Father presented as simply unable to see that his opinion that X had been exposed to pornography in the Mother’s care might not have a basis.
The Father appeared to consider that his own stated inability to identify any opportunity for X to be exposed to anything of a sexual nature while in his care was conclusive evidence that this had not occurred, but the Mother’s similar assurance was not.
The Mother and Maternal Grandmother each denied having observed or heard any inappropriate sexualised behaviour or comments from X. There was no evidence to suggest that any other person had observed or had reported observing any concerning sexualised conduct or comments on the part of X. To Ms D, the Father provided a range of theories to explain the failure of each of X’s other caregivers to report having witnessed sexualised behaviour from him.
It was submitted on behalf of the Father that following her initial response of taking the concerns seriously, there had been a shift in the Mother’s approach, which had been unexplained. I do not accept that submission. The Father’s accusatory attitude towards the Mother and firm belief that she is a risk to X well explains her waning willingness to engage in discussions with him with respect to this issue.
Following the Father’s reports, the Mother and Maternal Grandmother consulted with Mr F, a therapist who had previously been consulted by the Mother on a number of occasions and who had also been consulted by the maternal grandparents over 20 years earlier. The Father deposed to an ‘understanding’ that Mr F was the ‘long-term therapist’ of the Maternal Grandmother and that the Mother had consulted with him ‘at the insistence’ of the Maternal Grandmother. He gave no evidence of any basis for these apparent assumptions. They were denied by the Mother. I reject the Father’s unfounded speculation in this regard.
Mr F convened a Family Conference which took place on 1 February 2023 and at which the parties, the Maternal Grandmother and the paternal grandparents were present. The Mother’s evidence was that the purpose of the Family Conference was to get to the bottom of the allegations and assist X. It is clear from the Father’s evidence that he agreed to attend the Family Conference and encouraged his parents to do so knowing of the previous connection between the maternal family members and Mr F, and indeed, believing it to be a stronger connection than was in fact the case.
Although this was, on its face, and appropriate and child-focused course taken by all adults involved, with the potential to assist them to work together on developing a plan for dealing with the concerning developments and helping X, it devolved into a flashpoint for conflict between the parties which ultimately occupied a considerable amount of time during the trial.
The Father alleged that Mr F had given the false impression that he had convened the Family Conference on behalf of or with the authority of DCP, including by referring to the applicable child protection legislation, and had insinuated that he was authorised to speak on behalf of DCP. The Mother denied that Mr F had made any such representation or that she had formed any such impression. The Maternal Grandmother was less certain and gave evidence that she had believed that Mr F had some authority to convene the Conference. This allegation could not be put to Mr F, who was not called to give evidence. Nor was there any evidence of the impression formed by the remaining participants, being the paternal grandparents. In any event, in my view, little turns on the extent to which any of the attendees were under the impression that the Conference was being held with the imprimatur of DCP. All were united in attempting to address the issues that had arisen and ensure X’s safety.
The Father alleged that Mr F had been uninterested in hearing what he had to say. The Mother and Maternal Grandmother denied having formed the same impression. The Father alleged that the Family Conference had had a pre-determined outcome, that he had effectively been ‘set up’ by one or more of the Mother, the Maternal Grandmother and Mr F, and that an effort had been made to ‘discredit [him] in the eyes of the authorities.’ The Father went so far as to allege that Mr F’s conduct ‘may constitute a criminal offence.’[17] He also alleged that there had been an ‘effort to conceal’ mistreatment of X, of which Mr F had been a part,[18] and that the Mother and likely the Maternal Grandmother had withheld knowledge about X being harmed.
[17] Father’s trial affidavit, annexure MRH-4.
[18] Father’s trial affidavit, annexure MRH-4.
In the witness box, the Father expressly confirmed that in his view, it was ‘possible’ that the Mother would deliberately undermine an investigation into X’s safety. These views held by the Father were not supported by any objective evidence and demonstrated deep mistrust and suspicion of the Mother.
The Father complained of Mr F ‘pressuring’ him to divulge information and likened Mr F’s conduct to tactics used by ‘scam artists and high-pressure sales people.’ The Father admitted that at the time of the Family Conference, he had been withholding information about X’s sexualised behaviour. In those circumstances it is hardly surprising that he was encouraged to explain what that information was.
On 31 January 2023, the day prior to the Family Conference, a report was made to DCP which was critical of the Father and his presentation and expressed concern about X’s safety in his care.[19] Although the identity of the reporter is protected by law, it is understood by both parties that the report was made by Mr F, who is a mandatory reporter. Neither party called Mr F to give evidence. The Mother did not deny that she had raised concerns about the Father with Mr F prior to the Family Conference. It was put to the Mother that the report was part of a pre-emptive move on her part to discredit the Father in the eyes of DCP. She credibly denied this. It was submitted on behalf of the Father that the Mother had attempted to undermine the investigation. I do not accept this submission. The Father’s presentation was a matter that was highly relevant to the investigation.
[19] Exhibit F1.
A further report was made to DCP on 2 February 2023, the day after the Family Conference. The report expressed concerns about, inter alia, odd, unusual and paranoid behaviour on the part of the Father and indicated a belief on the part of the notifier that this was a greater concern than the alleged sexualised behaviours. It was clear that the notifier had spoken with the Mother.
The Mother agreed that the contents of the report aligned with her own view and with her discussions with Mr F. She credibly denied having elicited the assistance of Mr F to discourage the Father from undertaking further investigation into his asserted concerns or instructing Mr F to attempt to convince the authorities that X was unsafe in the Father’s care. The manner in which this aspect of the Father’s case was presented suggested that because DCP had been told that the Father was odd and potential delusional, the reporter must have deliberately provided false and misleading information. I do not accept that premise. It is quite possible, particularly having regard to the manner in which the Father presented to Ms D, that the report to DCP was an entirely truthful and accurate account of the reporter’s (and the Mother’s) perception of the Father’s presentation at that time.
The Father’s case that the Family Conference had been a ‘set up’ was somewhat contradicted by a submission made on his behalf that the Mother had initially considered the reports of sexualised conduct to be sufficiently serious for a Family Conference to be convened. I note that at the time of the alleged undermining of the Father to the relevant authorities, the Father had not even taken the step of notifying those authorities of his concerns, such that there was no investigation to be undermined. The reason he gave for not having made a report was self-focused, and related to concerns surrounding his job.
I am not satisfied that the Family Conference was a set up or that the Father was deliberately misled about its purpose or Mr F’s role or authority. It is logical that the Mother and Maternal Grandmother would turn to a therapist with whom they had some familiarity when they learned of the concerning matters raised by the Father. The evidence does not support an inference that there was anything sinister in them so doing or that they were hiding anything from the Father. Indeed, it was the evidence of both parties and the Maternal Grandmother that it was in fact that Father who was deliberately withholding information at the time of the Family Conference and refusing to provide full disclosure, rather than the maternal family members hiding anything from the Father.
If the Father sought to establish that actions undertaken by Mr F were undertaken at the behest of or in concert with the Mother, it would be expected that he would have called Mr F to give evidence. He did not do so. I draw an inference, in accordance with the rule in Jones v Dunkel,[20] that any evidence given by Mr F in relation to these issues would not have assisted the Father’s case. I am satisfied that the Father’s allegations in this regard are an example of the Father being overly suspicious and distrustful of the Mother.
[20] [1959] HCA 8; (1959) 101 CLR 298.
In an email to DCP on 15 August 2023,[21] the Father claimed to have photographs and videos supporting his allegations with respect to ‘sexualization [sic] and mistreatment’ of X. No such photographs or videos were produced to the Court, to Ms D, to the Mother or to the ICL. Plainly, if such evidence existed and supported the Father’s allegations that X was at risk, he would have put it before the Court. The Father’s refusal to accept this proposition undermined his evidence with respect to this issue.
[21] Exhibit M7.
The Father also represented to DCP that he had contemporaneous notes with respect to the incidents in question. Inexplicably, these notes were not produced to the Court. The Father asserted that these notes were in the same notebook as ‘legally privileged stuff’ and that he would need to ‘go through quite a process.’ He did not explain why he had not done so. This was a woefully insufficient explanation for his failure to comply with his binding disclosure obligations with respect to plainly relevant material.
It was submitted that the Mother had failed to act protectively and that the Court could not have confidence that she would bring any concerns to the attention of the relevant authorities in future. I do not accept this submission. On the contrary, it is the Father’s own case that the Mother was proactive in facilitating a report being made to the relevant authorities, albeit that the contents of the report were not to his liking. I accept the submission of Counsel for the Mother that the evidence suggests that the Mother behaved entirely appropriately and in a child-focused manner in wake of the revelations made by the Father. I also reject the Father’s allegation that the Mother ‘has still made no effort to engage in any meaningful discussion’ about the issue of X’s sexualised behaviour. To the contrary, the Mother has engaged in significant efforts to do so, under difficult circumstances.
Following the Family Conference, on 6 February 2023, the Mother withheld X from the Father by collecting him from childcare prior to the Father’s arrival to collect him. Her evidence was that this had occurred on Mr F’s advice. The Mother advised the Father that she intended to take X to a counsellor, from which the Father formed a concern that X was going to be ‘brain washed.’ This is an example of suspicious and distrustful thinking on behalf of the Father.
On 9 February 2023, the Father attended at the Maternal Grandmother’s house without her consent or prior knowledge for the purpose of retrieving X. He pulled in behind the Maternal Grandmother’s car as she arrived home with X and B in the car. He attended in the company of a security officer whom he had professionally engaged to accompany him, and who was wearing clothing which identified him as such. The Father unconvincingly denied that the reason he had brought a security guard was that he was expecting a confrontation. Foreseeably, a verbal altercation ensued, which culminated in the Police being called. Indeed, the Father’s evidence was that his intention had been either to have X handed to him or have the Police attend.
The Maternal Grandmother’s evidence was that the Father had approached her car, yelling in an angry manner that she was being filmed. The Father admitted that he had approached the car and that he had opened the driver’s door without the Maternal Grandmother’s consent. He also admitted that had told the Maternal Grandmother that she was being filmed, but gave evidence that that had been a lie, which he sought to justify as a ‘de-escalation tactic.’ He unconvincingly denied that he had yelled. The Maternal Grandmother’s evidence was that the Father had accused her of being responsible for the idea that the Mother withhold X. That is consistent with the allegations levelled by the Father at the Maternal Grandmother throughout the proceedings. I find that the Father was angry and yelling as alleged by the Maternal Grandmother.
The Maternal Grandmother’s evidence was that she and both children had been frightened and that she had locked the car doors, but the Father had put his arm in through an open window and tried to open the car door, causing damage to a part of the car’s interior in the process. Although the Father denied this, Counsel for the Mother tendered an invoice for repairs to the vehicle.[22] I accept the evidence of the Maternal Grandmother. The Maternal Grandmother and the two children remained in the car until the Police arrived after approximately 10 to 15 minutes. The Police subsequently facilitated X being returned to the Father, who then withheld him from the Mother and from childcare.
[22] Exhibit M6.
The Maternal Grandmother’s evidence was that X had been distressed and frightened during the altercation. The Father denied this, insisting that X had been ‘relieved’ and ‘happy’ to see him and that his presence had been ‘reassuring’ for X. The Father’s evidence that a child of the age X then was would not have been distressed by the events that unfolded on that day was highly implausible. On the interpretation most favourable to the Father, it is indicative of a lack of insight into the impact of his actions on X. I accept the evidence of the Maternal Grandmother.
The Father’s evidence in relation to this issue also betrayed a significant lack of insight into the inappropriateness of his actions that day more broadly. For example, he suggested that his attendance unannounced and without consent ‘shouldn’t have been a surprise.’ Despite being given several opportunities to do so, he demonstrated no insight into the confrontational nature of his actions, which included, even on his own version of events, arriving unannounced with a security guard, lying to the Maternal Grandmother about her being filmed, opening the driver’s door of her car without her consent, and then standing close to the car while she and the children waited inside it for the Police to arrive, being an action which, as submitted by the ICL, certainly would not have assisted to diffuse the situation.
The Father insisted that the main cause of the events of that day had been the Maternal Grandmother’s choices and actions. This assertion was based on an unconfirmed suspicion that she had been involved in the Mother’s decision to withhold X. When invited to reflect on the confusion his actions had caused, he could only accept that B looked confused when the Maternal Grandmother had ‘refused to give [his] own son to [him].’ The Father demonstrated no insight into the fact that the appropriate and child-focused course of action would have been to bring a Court application (as the Mother ultimately did) rather than to attend the Maternal Grandmother’s house without her consent and physically retrieve X, exposing him to an altercation in the process.
On 11 February 2023, the Mother attended at the Father’s residence to see X. The Father deposed that he was ‘immediately concerned,’ and that he subsequently asked for notice of future visits ‘to avoid unnecessary alarm or conflict.’ He demonstrated no insight into the hypocrisy of this position in light of his own inappropriate actions only two days earlier. The Father also deposed to having made it clear to the Mother that X would not be leaving with her, and to subsequently having withheld X from childcare to avoid the risk of him being ‘taken again.’ The Father appeared to have formed, and to have maintained, the view that the Mother’s conduct in withholding X was unreasonable or harmful, but his own conduct, which had been the same save that he had additionally caused X to be exposed to an altercation, was not.
On 13 February 2023, the Mother requested that X be returned to her care. The Father refused, instead saying, inter alia, ‘[u]ntil these matters are resolved, or an order of the FCFCOA (Family Court) is in place, [X] will remain in my care.’ He also indicated that ‘visits need to be by agreement in advance and there needs to be an agreed third party present.’[23] It was submitted on behalf of the Father that this communication was child-focused. I do not accept that submission. The Father’s actions in this regard were high handed and dictatorial.
[23] Father’s trial affidavit, annexure MRH-4.
Despite his reference to requiring an order of the Court, the Father did not make an application for such an order. In the witness box, he refused to accept that he had left the Mother with no option for resuming her relationship with X other than commencing proceedings, though this was plainly the case.
The Mother commenced the present proceedings on 16 February 2023. On 17 February 2023, the Mother attended at the Father’s home and was not permitted by him to see X. The Mother contacted Police, who attended at the Father’s residence and reported that they did not hold concerns for X’s welfare or the Father’s presentation.[24] The submissions made on behalf of the Father placed significant weight on the fact that the Police were unconcerned by the Father’s presentation as evidence that the contents of the reports that had been made to DCP before and after the Family Conference had been false. I am not satisfied that any conclusions about the Father’s mental state or his presentation across the relevant period or the veracity of the contrary reports to DCP can be drawn from the manner in which he presented to Police during one brief visit.
[24] Exhibit F4.
On 23 February 2023, the Court ordered that X be delivered up to the Mother and that the equal time regime which had been in place be reinstated. X was delivered up on that day in compliance with the Court’s orders. Aside from one brief visit on 11 February 2023, X had not seen the Mother for a period of two weeks.
Concerningly, notwithstanding the orders of 23 February 2023, the Father again withheld X from the Mother on 6 April 2023, leaving the Mother with no alternative but to bring a further application seeking that he be delivered up, and an order to that effect was made. The Father admitted that he had had a person from the security industry present at his home when the Mother attended to attempt collect X. He asserted that this was ‘in case of trouble’ despite the fact that it was who was acting in breach of binding court orders. The Father asserted that he had not acted in wilful disregard of the court orders. It was not clear how his conduct could be explained in any other way.
DCP did not proceed with an investigation into the sexualised conduct beyond the initial stages and closed the file without harm being substantiated. The Father was clear that he was not reassured by this fact.
The Father was adamant that he could not have been mistaken in what he had heard X say, could not have misheard and could not have over-interpreted it. I accept the submissions of Counsel for the Mother that the Father presented as ‘blinkered’ and closed off to any hypothesis or possibility that did not align with the view he had formed, and that his presentation in the witness box made it clear that his view will not change.
The Father deposed that X ‘now occasionally displays sexualized [sic] behaviour.’ He gave no detail of any recent sexualised behaviour exhibited by X. He is reported to have told Ms D in late 2023 that the behaviour had settled in the middle of that year.
Ms D gave evidence, and I accept, that not all sexualised behaviour exhibited by children of X’s age is concerning and that young children often explore their bodies as part of normal childhood development. It is inconceivable that the Father would have observed recent sexualised behaviour that was concerning in nature and withheld particulars of it from the Mother, the ICL and the Court. I do not accept that X continues to engage in concerning sexualised behaviour.
The Mother alleged that during the parties’ relationship, the Father had frequently made obsessive and controlling comments of a sexual nature to her. Her evidence was that he appeared obsessed with her sexual history, that he impliedly accused her of being promiscuous and predatory, that he accused her of displaying ‘overly sexualised’ behaviour and giving off ‘sexual vibes,’ that he told her of discussions at a pub he frequented about her ‘sexual reputation,’ and that he criticised her for the way she behaved around other men and accused her of flirting with his friends.
Although the Father denied the Mother’s characterisation of his behaviour towards her, he admitted that he had held concerns about conduct of a sexual nature engaged in by the Mother during their relationship and admitted to having characterised her behaviour as ‘overly sexual’ on occasion, describing this as a ‘topic that came up.’ The Father claimed that he had raised this on one occasion only, had raised it ‘as thoughtfully as possible’ and had done so because he thought it was ‘potentially a safety issue.’ He admitted that he had said that the Mother’s conduct was ‘embarrassing.’ It was not clear whether the Father considered this statement to have been ‘thoughtful.’ He did not provide a satisfactory explanation for having concluded, as he deposed to having done, that the Mother had been ‘groomed’ to behave in an overly sexual way, particularly if the issue had been of such limited significance to him that he had only raised it once.
The Father denied that he had accused the Mother of flirting with his friends but directly contradicted that denial by admitting that he had raised the topic on ‘one specific occasion.’ He then sought to draw a distinction between ‘sexualised behaviour’ and ‘flirting’ before admitting that he had perceived the Mother to be flirting, though not consciously so. In response to the Mother’s allegation that he had told her of discussions about her ‘sexual reputation,’ he said ‘not exactly’ and made a vague allegation of the Mother having been the victim of a sexual assault in the 1990s. The Father acknowledged having told the Mother that there were people who drank at the pub at which he regularly attended who did not respect her. Again, it was unclear whether he considered having done so could be characterised as ‘thoughtful.’
The Father claimed in the witness box that there had been occasions upon which it had been the Mother who had raised the issue of her allegedly overly sexual conduct, which is inherently unlikely and which allegation was not put to the Mother. The Father gave evidence that at times he had perceived the Mother to be engaging in such conduct and had responded by holding her hand or putting his arm around her. He denied that this had been to control her behaviour. The Father maintained that the Mother’s allegedly overly sexual conduct represented a danger to X, though it was unclear how this was said to be so.
The Father’s evidence in relation to this issue was confused and unsatisfactory and in some respects it added credence to the Mother’s allegations. The Mother’s evidence in relation to the Father’s conduct towards her in this regard was clear and coherent. I accept the Mother’s evidence.
The Mother attributed the Father’s attitude towards this issue to a tendency on his behalf to see sexual behaviour in people when it was not there, with the clear implication that this tendency had clouded the Father’s perspective with respect to X’s sexualised comments and behaviour. Although the Father refused to accept that this could be the case, the possibility that he unwittingly contaminated X’s comments and actions through the manner in which he responded to and interacted with him cannot be ruled out.
The Mother’s evidence was that after the Family Conference, she had come to believe that the Father’s reports of sexualised conduct and behaviour represented an exaggeration or overreaction on his part and were emblematic of his tendency towards suspicion of her. She did not seek a finding that the incidents had not occurred at all or that the Father had been untruthful. To the contrary, she accepted that the Father was likely being genuine, as did Ms D. Rather, the Mother urged the Court to conclude that the incidents in question had been misinterpreted by the Father and were indicative of a tendency on his part towards suspicious thinking and his deep and unshakeable mistrust towards her.
The Father’s primary and alternative positions, both of which involved X spending extended unsupervised overnight time with the Mother, were wholly inconsistent with any genuine belief on his part that X was at risk of exposure to pornography or other sexual harm in her care. When asked how the orders sought by him would protect X from sexual harm, the Father conceded that they would not, but then asserted that ‘reduction in time would lead to reduction in risk.’ I do not accept this assertion. In his closing submissions, the Father’s solicitor confirmed that the Father sought a finding that the Mother posed an unacceptable risk of sexual harm to X. When confronted with the proposition that the orders sought by the Father would be inadequate to protect against an unacceptable risk if one were found to exist, it was submitted that the proposed limitations on the Mother’s time would result in minimisation of the risk. I do not accept that submission and do not consider that it grappled sufficiently with what was a significant flaw in the Father’s case.
As submitted by the ICL, if the Mother genuinely posed a risk of sexual harm to X, the only two viable proposals would be supervised time and no time at all. I accept the submission made on behalf of the Mother that the logical inconsistency between the Father’s allegations and the case run by him was reflective of an absence of genuine concern held by him as to X’s safety in the care of the Mother.
The Father’s solicitor was unable to provide a satisfactory answer to the question of the basis upon which any risk that might be found to exist could be determined to have arisen in the care of the Mother, and not in the household of the Father or another place such as childcare. I am not satisfied that there is anything other than suspicion held by the Father linking X’s sexualised conduct and comments to the Mother’s care.
I accept the submissions of Counsel for the Mother that if the Father seriously asserted a risk to X in the Mother’s care, he would have provided all materials in his possession which would have assisted in proving it; that his choice not to do so represented a significant deficit in his case; and that this impacted the reliability of his evidence.
There is a significant lack of clarity surrounding the details of the concerning incidents, the extent to which the evidence in relation to them has been contaminated, the extent to which the available evidence has been fulsomely provided to the Court, the reliability of the Father’s assessment of the events, and the source of any exposure X may have had to any sexual information or material. It is possible that the Father interpreted benign conduct in a sexualised manner. It is also possible that X was inadvertently exposed to sexualised content at childcare or with one of his carers. It is not possible to make a finding with any certainty on the evidence before the Court.
The evidence does not, however, support a finding that there is any risk, much less an unacceptable risk, of sexual harm to X, in the form of exposure to pornography or otherwise, in the care of the Mother. Indeed, in my view, the evidence with respect to this issue is more indicative of emotional risk posed by the Father in the form of an unduly suspicious and critical approach taken by him towards the Mother.
Alleged sex offenders in Mother’s family
The Father alleged that there had been ‘a history of abuse’ within the Mother’s family and that two males from her extended family were ‘known child sex offenders.’ The Mother denied having any history of abuse or known sex offenders in her family.
The Father alleged that the Mother had a maternal uncle by the name of Mr H, who was facing charges in New South Wales with respect to sexual offences against children. This allegation was particularised for the first time in a document filed by the Father on 6 June 2024 in preparation for a Compliance and Readiness Hearing. No supporting documentary evidence was adduced.
The Maternal Grandmother’s original family name was H. The Mother and Maternal Grandmother denied that the Mother had a maternal uncle by the name of Mr H or that there was any known sex offender or history of sexual abuse in their family. The Father admitted that he had not asked the Mother or the Maternal Grandmother whether they had a family member by that name and refused to accept that this would have been the proper course if he had legitimately held a concern about the existence of such a person. He asserted for the first time in the witness box that the Mother had ‘previously mentioned it’ but later conceded that the Mother had ‘never nominated’ Mr H as a sex offender within her family. It is inconceivable that the Father would have failed to mention any such assertion by the Mother in his trial affidavit if she had made any mention of the existence of such a person. The Father’s evidence that the Mother had previously mentioned such a person was further undermined by later evidence given by the Father that he did not know the names of either of the alleged sex offenders at the time of interactions he had with DCP in 2023. I do not accept that the Mother made any such representation.
Counsel for the Mother tendered a copy of the Maternal Grandmother’s father’s death certificate, which listed his children. The list did not include a child by the name of Mr H. Although the Father initially said that following production of this certificate he was ‘open minded’ about the question of whether the Mother had an uncle named Mr H, by the following day, he had become ‘less open minded’ and asserted that the death certificate should not be relied upon as conclusive evidence. I accept the submission of the ICL that the death certificate, being an official public record, should be accepted as accurate in the absence of any evidence of irregularity. I also accept the submission of Counsel for the Mother that the Father’s persistence with his allegation in this regard in the face of the evidence presented by the maternal family members is indicative of a fixed and immovable view held by him. This was one of a number of instances in which the Father presented as unwilling to give genuine contemplation to any possibility or perspective other than his own.
The Father’s evidence was that he had found Mr H’s name via an online ‘court registry search.’ Later in his evidence, he claimed he had also used a genealogy website. He did not adduce any evidence of the results obtained from any such search or website and nor was any such evidence put to the Mother or the Maternal Grandmother. He refused to accept the plainly correct proposition that other than his own bare assertion, he had not produced any evidence at all that would link Mr H to the maternal family.
The Father alleged that the Maternal Grandmother had allowed her ‘paedophile brother’ to have access to one or more of her own children when they were young. This allegation was denied by the Maternal Grandmother. It was also entirely without foundation and was offensive and scandalous. It reflects poorly on the Father, as does an apparently baseless statement made by him to Ms D that there was ‘systemic, historical abuse’ in the Mother’s family.
It appeared that the Father had latched onto the existence of a sex offender with the surname H and had extrapolated from the existence of such a person that there was a sexual abuser within the Mother’s family. He was unable to be moved from that view even when confronted with the reality of the absence of any evidence other than a shared surname to link that offender to the Mother or her family and even in the face of evidence suggesting the absence of the existence of such an uncle. The Father’s lack of perspective in relation to this issue undermined his reliability as a witness and gave rise to concerns about his own presentation, which are discussed below.
The Father also alleged that there was a further known child sex offender in the Mother’s family, being an uncle of the wife of the Mother’s brother Mr G. He asserted that this unnamed person had ‘recently been tried and imprisoned for multiple offences against multiple children’ and alleged that this person had had contact with the children of the Mother’s brother. The source of this information was allegedly the Mother’s brother. The Father claimed to be unable to access the text messages he said he had shared with Mr G without having them ‘extracted’ from his previous telephone, but for reasons which were not explained, he had not attended to having them extracted. The Father did not call the Mother’s brother to give evidence despite having given notice of an intention to do so and did not explain his failure to do so. I infer, in accordance with the rule in Jones v Dunkel,[25] that the evidence of the Mother’s brother would not have assisted the Father’s case.
[25] [1959] HCA 8; (1959) 101 CLR 298.
Notwithstanding his claim to have received information directly from the Mother’s brother, the Father was not able to supply the name of the alleged offender and asserted that he was ‘not sure’ whether he had asked that question of the Mother’s brother. He admitted that he had not asked the Mother to supply such information, a fact which is irreconcilable with the existence of any genuine concern.
Despite seeking an injunction restraining unsupervised contact between X and the Maternal Grandmother and therefore plainly being well aware of his ability to seek such an injunction, the Father did not seek any injunction restraining the Mother from brining X into contact with Mr H or any other person known to be a sex offender. It is inconceivable that he would have failed to do so had he had any genuine concern about X’s safety in this regard.
The Father was clear that he did not seek to link the alleged existence of two sex offenders in the Mother’s extended family to a risk of sexual abuse of X occurring whilst in the Mother’s care. Rather, he asserted that the associated risk was that the Mother was being ‘unreasonable and unprotective’ in refusing to talk about these two people and that rather than engage in ‘normal, protective parenting,’ the Mother had displayed an ‘irrational response.’ He complained that the existence of the offenders within the Mother’s family was ‘not acknowledged and therefore not dealt with.’ These allegations were extremely difficult to understand in light of the Father’s admission that he had not so much as asked the Mother about the alleged sex offenders.
I accept the submissions of the ICL and Counsel for the Mother that if the Father’s allegations with respect to the alleged sex offenders were accurate, it was in fact the Father who could be criticised for failing to act protectively, in his failure to alert the Mother to the risk posed by these individuals immediately upon becoming aware of it. I also accept the submission of Counsel for the Mother that if the Father genuinely held concerns about sex offenders in the Mother’s family, it is inconceivable that he would not have asked her about them, and the Father’s conduct was inconsistent with a genuine belief in the existence of risk.
Ultimately, as submitted by the ICL, there is nothing before the Court other than the Father’s uncorroborated and apparently speculative assertions to suggest that there is even one sex offender in the Mother’s family. I am not satisfied on the evidence that there is any person in the Mother’s extended family who has committed sexual offences, against children or otherwise, nor that the Mother poses any risk to X in this regard.
Family violence
Each of the parties made allegations of family violence against the other. Family violence’ is defined in section 4AB of the Act to mean ‘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.’
The Mother alleged that the Father had been emotionally abusive and controlling towards her during the parties’ relationship, including that he had routinely made decisions for both of them and had often been dismissive of her views. She further alleged that he had acted in a manner which failed to respect her personal boundaries, had been aggressive and belittling towards her, had persistently criticised and undermined her, had told her that her friends did not respect her, and had given her the ‘silent treatment.’ The Father denied these allegations, but at times during his evidence revealed an attitude towards the Mother that was consistent with their accuracy. The nature of the Father’s communications with the Mother at times following their separation (as discussed elsewhere in these reasons) was also consistent with her allegations, as was his conduct with respect to her allegedly sexualised conduct, as discussed above. The Mother’s evidence was that the Father’s conduct towards her in this latter regard undermined her sense of self-worth and caused her to doubt herself.
The concept of coercive and controlling violence has been described as ‘a course of conduct aimed at dominating and controlling another person,’[26] and as ‘the exercise of power, to restrain another or to cause another to act, by force, domination or command.’[27]
[26] Ramzi & Moussa [2022] FedCFamC2F 1473 at [145].
[27] Illgen & Yike [2018] FamCA 17 at [125]. See also Carter & Wilson [2023] FedCFamC1A 9; (2023) FLC ¶94-129.
The concept of coercive control essentially captures one person’s domination over another. A person may subject another to coercive control without subjectively intending to do so. Intention is not a necessary element of coercive or controlling behaviour. A person who engages in such behaviour may be completely oblivious to the impact of their behaviour, but the behaviour may nevertheless coerce or control the other family member and fall within the definition of family violence. The focus is on the behaviour and its impact. A finding that there is coercive or controlling behaviour is an evaluative one, having regard to all of the circumstances and all of the evidence before the Court.[28]
[28] Pickford & Pickford [2024] FedCFamC1A 249.
One example of the controlling conduct to which the Mother alleged she was subjected concerned the Father’s persistence in trying to persuade her to remain living together with him following their separation. She alleged that she had remained in the Father’s home following separation at his insistence. To Ms D, the Father said that he convinced the Mother to remain living in his home following the parties’ separation for reasons including that he could see she was not coping.
In November 2021, shortly before the parties’ physical separation, the Maternal Grandmother received a letter from the Father in which he was highly critical of her.[29] The letter accused her of ‘poisoning’ X’s home environment, ‘sabotaging’ his relationships and ‘ongoing emotional and psychological abuse members of our household.’ The letter continued in dictatorial fashion before including a reference to ‘manipulative and deceitful behaviour.’ The Father admitted having delivered the letter and admitted that the critical comments contained within it had been directed at the Maternal Grandmother. He admitted that part of his reason for doing so had been his perception that the Maternal Grandmother had been encouraging the Mother to move out of his home rather than to continue to live there, and that he considered supporting the Mother to leave his home to be an inappropriate influence on her.
[29] Affidavit of Maternal Grandmother filed 22 November 2024.
Despite being given several opportunities to do so, the Father refused to acknowledge that the clear and obvious inference to be drawn from the letter was that he wanted the Mother to continue to live with him even though she had formed an intention to move out. It is apparent from the Father’s own evidence that he had opposed her moving out and attempted to dissuade her from doing so.
The Father suggested for the first time in the witness box that his proposal had been that he would spend significant periods of time sleeping elsewhere so that the Mother could have her own space. He said that his concern had not been controlling the Mother but saving the parties the cost of maintaining two households. This evidence was not convincing but even if genuine, demonstrated a concerning lack of insight into the extent to which his behaviour in failing to respect the Mother’s desire to move out had been controlling and would unquestionably have been experienced as such by a person subjected to such conduct.
The Mother also alleged that during their relationship, from around the time of her pregnancy, the Father verbally abused her, attacked her character and questioned her virtue. She also alleged that he criticised her care of X during their relationship. I accept the Mother’s evidence with respect to these issues, which is consistent with the approach the Father has taken towards her throughout these proceedings.
The Mother also alleged that the Father repeatedly questioned her mental health during their relationship. The Father admitted that ‘there were discussions’ about the Mother’s mental health and that he ‘may have insinuated’ that her mental health was poor, but characterised this as genuine enquiries as to her wellbeing for the purpose of providing support. Irrespective of the Father’s intention, I accept that this conduct was experienced by the Mother as critical and belittling. The Mother’s evidence with respect to this issue was consistent with the manner in which the Father approached the question of her mental health in the context of these proceedings, which is discussed below.
I accept that during the parties’ relationship, the Father subjected the Mother to conduct that fell within the definition of family violence within the meaning of section 4AB of the Act.
The Father alleged that the Mother had physically assaulted him on three occasions. The first such occasion allegedly occurred in approximately late 2020 and involved the Mother kicking the Father in the back of the head while he was on the floor playing with X. The Mother denied that this event had occurred.
The second occasion was alleged to have occurred several months later. Again, the Father alleged that he had been lying on the floor playing with X and had been kicked in the head by the Mother. The Mother again denied that this event had occurred.
The third occasion was an incident which the Father alleged occurred in mid-2021, involving the Mother punching the Father in the side of the head while he sat in the study paying bills. The Mother’s evidence was that on the occasion in question she had jokingly tapped the Father on the back of his head but had not punched him. She otherwise denied the allegations. The Father alleged that he was or had been fearful of the Mother. This did not sit well with the strength of his desire that they remain living together following separation shortly after the third alleged incident, as discussed above.
The Mother’s evidence in relation to these allegations was credible. For this reason, together with my perception that the Father is prone to exaggeration and catastrophising, I accept the Mother’s evidence. I do not accept that the Father was subjected to family violence by the Mother. I accept the submission of the ICL that there is no evidence to indicate a risk to X arising from violent conduct on the part of the Mother.
Father’s mental health
The Mother’s evidence was that the Father exhibited signs of anxiety, depression and paranoia, had a history of suicidal ideation and had told her on a number of occasions that he was mentally unwell but refused to seek professional assistance. She also alleged that he was often unable to respect or accept any viewpoint which differed from his own, which was consistent with my own observation of his presentation as a witness.
Ms D expressed concern about the possibility of traits of paranoia in the Father, noting that if the Court accepted the Mother's account, such traits had possibly been present for some years, resulting in controlling behaviours towards the Mother and impacting upon X's care, including his emotional and social development.
In her psychiatric assessment of the Father, Dr E reported that when observed by her, the Father exhibited no evidence of psychosis and in particular, he voiced no paranoid thoughts. She reported that unlike his reported presentation for the Child Impact Report, which had been prepared in July 2023, he did not present to her as highly distrustful or with an obsessive and negative narrative. Dr E noted that during her consultation with the Father there was no evidence for the presence of a psychotic disorder with delusions or for traits of paranoia. She considered that he may have an underlying Anxiety Disorder with sleep disturbance which would impact upon his capacity to be connected and at his mental best when caring for X.
Despite the absence of strong evidence for a paranoid or delusional state, Dr E recommended that the Father have this concern monitored by a mental health professional. She also recommended that he engage in regular psychological or psychiatric management and support, both with respect to the diagnosed Anxiety Disorder and in light of the concerns that had been raised with respect to potential distorted thinking.
Under cross-examination, Dr E accepted that the fact that the Father had not exhibited signs of paranoia when observed by her did not mean that he had not exhibited such signs at other times. She also accepted that her ability to assess the parties had been limited by the extent to which they were accurate in what they reported, and that people undertaking medicolegal assessments such as those undertaken for these proceedings were likely to present at their best.
Dr E agreed that if the Father had not followed her recommendation for ongoing monitoring and support, that would be worrying. The Father admitted that he had not done so during the period of eight months which had elapsed since he had received Dr E’s report, despite acknowledging that reducing his anxiety would assist him to care for X. He gave evidence of an intention to ‘follow up after Court’ by engaging with Ms K, who is the Mother’s counsellor. When questioned about the delay in following Dr E’s recommendations, he somewhat dismissively said that it was ‘just a course of action [he] chose’ and that he had not given it much thought. The Father’s failure to act upon Dr E’s recommendations or even to give them much thought was consistent with evidence given by the Mother to the effect that the Father had needed but refused to access assistance with his mental health during their relationship. I accept the Mother’s evidence in this regard.
It was submitted on behalf of the Father that Dr E’s assessment ‘negates any suggestion’ that the Father’s allegations with respect to sexualised behaviour had arisen from any mental health problem. I do not accept this submission. Dr E’s assessment means that it is not open to the Court to attribute those allegations to any diagnosed mental health problem on the part of the Father. However, Dr E acknowledged that her assessment was based solely on the Father’s presentation when she met with him. Furthermore, she specifically recommended ongoing monitoring and support with respect to the possibility of paranoid or delusional thoughts affecting the Father’s judgment, and he failed to take up this recommendation for reasons that were not adequately explained. As a result, the possibility of the existence of such issues has not been excluded.
It was submitted on behalf of the Father that Dr E’s observation that the Father was not exhibiting paranoid behaviour precluded a finding that he had ever exhibited such behaviour. I do not agree. While there is no formal diagnosis with respect to the Father’s alleged paranoia, Dr E’s observation goes no further than to confirm that the Father did not exhibit paranoid behaviour at the specific point in time when he was interviewed by her. This does not negate or detract from the experiences of the Mother or the observations of Ms D as to the Father’s presentation at other times.
I accept the submission of Counsel for the Mother that the absence of a clinical diagnosis of paranoia does not preclude the possibility of a person exhibiting paranoid behaviours at times and note again that Dr E specifically recommended monitoring and support in this regard, being a recommendation that was ignored by the Father. As a consequence, the evidence with respect to the Father’s mental health and its role in the approach taken by him to the Mother and to his views with respect to risks to X remains inconclusive.
Ms D gave evidence that irrespective of any formal diagnosis, she maintained concerns about the Father holding fixed views. The Father denied that his views with respect to X’s alleged exposure to pornography and the alleged sex offenders in the Mother’s family were fixed, yet he maintained those views notwithstanding that they were unsupported by the majority of the available evidence, and he presented as unwilling to entertain alternative hypotheses irrespective of the evidence that was presented to him. This was only one of a number of examples of the Father exhibiting an unwillingness to reconsider rigid views he had formed notwithstanding the absence of any credible basis for them or evidence to support them.
Notwithstanding the absence of a psychiatric diagnosis, the Father presented as unduly suspicious, particularly of the Mother, and as rigid and fixed in his views. Examples of this are discussed throughout these reasons. The allegations made by the Father against the Mother must all be considered in light of this tendency on his behalf.
Mother’s mental health
The Father alleged that the Mother suffered from a mental illness that impeded her ability to care safely for X. His evidence was to the effect that the Mother ‘becomes unwell,’ resulting in volatile and unpredictable behaviour which poses a risk to X. He described her having seemed at times to ‘struggle greatly’ with her mental health, seeming at times not to have any control over her emotions and to be ‘very vulnerable.’ In the witness box, he said that when the Mother is unwell, she ‘lacks self-awareness and self-control.’
The Father also alleged that during the relationship, the Mother took medication relating to her mental health. He recalled having seen a pack of prescribed medication and asserted that the Mother had taken another medication. The Mother’s evidence was that she had taken one medication on occasion to calm herself for travel and that she was prescribed at certain times and continues to be prescribed the other medication for anxiety. There is no evidence to suggest that the Mother’s use of either mediation has impacted on her parenting or is indicative of any risk to X. Indeed, Dr E’s evidence was that taking medication could be expected to improve, rather than impede, the Mother’s day-to-day functioning. The evidence of both Ms D and Dr E was to the effect that the Mother accessing treatment and taking medication as prescribed was indicative of the Mother appropriately accessing mental health support. Rather than providing a basis for concern about the Mother, the Father’s decision to raise this issue with the Court simply reflected poorly on his attitude towards her.
With respect to the Mother’s current mental health, the Father alleged that although she ‘sometimes she goes well,’ at other times her mental health was poor, before acknowledging that he had had very limited opportunity to observe the Mother in recent years. He raised no recent incidents giving rise to any concerns about the Mother’s mental health or its impact on her ability to care appropriately for X but refused to accept that this was because there had been none. It is inconceivable that the Father would have failed to bring any such incidents to the attention of the Court had they occurred.
Ms D observed that the Father exhibited a tendency to express confident opinions on a wide range of topics. I observed the same tendency when he gave his evidence. In the witness box, Ms D expressed a particular concern about a tendency she had observed on the part of the Father to position himself as the authority on all things relating to the Mother and her history, including her mental health history, her alleged history of having been ‘groomed,’ her family relationships, her capacity to cope, and her treatment of X. Ms D also held concern about the fixed nature of the Father’s views in this regard and described his presentation as ‘highly unusual.’
Ms D was clear that she maintained these concerns irrespective of the outcome of the psychiatric assessment of the Father and that her concerns related to the formation of X’s personality and his development over time. In the absence of a psychiatric assessment indicating paranoia, which Ms D described as ‘greatly reassuring,’ Ms D remained concerned about the fixed views with which the Father presented, particularly his fixed views with respect to the Mother, and the impact of that on the parties’ coparenting relationship and X’s wellbeing.
The Father insisted that he did not purport to present as an authority on the Mother and her history. However, his evidence was replete with examples of him doing precisely that, including but not limited to the following:
(a)His evidence of her ‘long-standing mental health challenges’ despite having shared only a brief relationship with the Mother;
(b)His evidence of the Mother having suffered childhood trauma, and a ‘childhood she shouldn’t have had to endure’ which had ‘a significantly adverse impact on her wellbeing and her ability to parent and maintain healthy relationships.’ This was a matter entirely outside his knowledge. He did not articulate the basis for his belief in this regard, other than to say ‘it is complex.’ To Ms D, he alleged that the Mother had ‘grown up in an abusive household.’ His evidence in this regard was accompanied by a refusal in the witness box to accept the Mother’s denial;
(c)His evidence that he had formed the (unqualified) view that the Mother had been ‘groomed’ to behave in a certain way;
(d)His (again, unqualified) speculation that the Mother may be suffering post-traumatic stress disorder;
(e)His speculation that the issues relating to X’s sexualised comments and behaviour might be ‘triggering a response to previous trauma’ in the Mother;
(f)His evidence that when the Mother advised him that she wished to move out of his home following the parties’ separation, he did not consider that this was genuinely what she wanted to do;
(g)His opinion that the Mother was ‘not coping’ following separation and the conclusion he had reached that she therefore should not move out of his home;
(h)His allegation that the Mother was ‘negatively influenced by the maternal grandmother,’ being an allegation of which he admitted he had no evidence but which he described as ‘a deduction,’ steadfastly refusing to admit that it was an assumption;
(i)When asked whether he considered that at the time of the parties’ physical separation, he had known better than the Mother herself about her needs, he responded ‘not necessarily;’
(j)His allegations both as to the Mother force feeding X and underfeeding him, despite having no knowledge of X’s eating arrangements in the Mother’s household; and
(k)His opinion that the Mother was ‘quite stressed’ after a few weeks of caring for X on her own when the Father had surgery in mid-2022.
I note that in addition to those matters listed above, the Father is reported to have told Ms D:
(a)That he considered it appropriate that he continue to attend a camping trip with the Mother’s friends following separation because she was not capable of caring for a child herself in the bush and he considered that his attendance was mutually beneficial;
(b)That he thought that outside the Court context, the Mother would be begging him to take X after a week or two because she cannot last more than three days caring for him herself;
(c)That he considers the Maternal Grandmother to be ‘coercive and controlling’ towards the Mother. In this regard, the Mother’s unchallenged evidence was that he had also accused the Maternal Grandmother of ‘emotional abuse’ of her. The evidence of the Mother, being the party with the relevant knowledge, was that her mother is in fact supportive and does not interfere with her decisions;
(d)That the Mother’s family do not realise that what they do is wrong;
(e)That the Maternal Grandmother had convinced the Mother to commence legal proceedings; and
(f)That he had written to the Mother out of concern she did not realise the family assessment was not the last part of the legal process, indicating she needed to reach agreement and withdraw her application, or they will go to trial, and she needed to discuss this with her solicitor as he felt she was poorly advised (perhaps by her mother).
He is also reported to have told Dr E that after X was born, he concluded that the Mother found it difficult to cope and was not enjoying being a mother.
Ahead of the parties’ appointments with Dr E, without the Mother’s knowledge or consent and in breach of the single expert rules,[34] the Father sent to Dr E, amongst other things, a document containing some detail of his understanding of the Mother’s medical history including professionals upon whom he asserted she had attended, and a summary of information he had obtained from subpoenaed medical records (which information he had not obtained leave to divulge).[35] In breach of his disclosure obligations and despite a specific request made by the Mother’s solicitor, the Father did not disclose this document, and it was not made available to the Mother, her representatives or the ICL until Dr E produced it when she attended Court for the purpose of giving her evidence. The Father described his intention in providing this document as having been ‘to demonstrate that [his] concerns were genuine.’ I accept the submission of the ICL that what the Father was really doing was attempting to paint the Mother in the worst possible light ahead of her assessment by Dr E.
[34] Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Division 7.1.2.
[35] Exhibit ICL4.
The Father sought to explain his evidence of the things he purported to know about the Mother by saying that he knew a lot that ‘hasn’t been raised in court.’ It is inconceivable that the Father would have had information relevant to risks posed to X by the Mother but withheld it from the Court.
The Father’s tendency towards fixed views was perhaps best exemplified by his unwillingness to accept that there was no basis for his assertion that the Mother had an uncle named Mr H who was a sexual offender despite all of the available evidence indicating that he was incorrect in this regard.
Father’s insight
The evidence before the Court, including the Father’s own evidence given in the witness box, suggested that there are significant limitations to the extent of his insight into the impact on the Mother, and less directly on X, of his behaviour towards the Mother. One example of this is his failure to recognise the belittling and controlling nature of some of the things he said to the Mother during the relationship, as discussed above. The Father’s insistence that X had not been distressed by being exposed to the altercation between the Father and the Maternal Grandmother on 9 February 2023 is another example indicative of a lack of insight into the impact on X of the behaviour of the adults in his life, particularly the Father.
The Father’s ongoing blaming of the Mother for the court proceedings also demonstrated a significant lack of insight into the fact that he had effectively forced her hand by insisting that X remain in his care until court orders were in place; and that fact that the responsible and child-focused thing for him to have done himself would have been to commence proceedings rather than exposing X to the scene that unfolded at the Maternal Grandmother’s house on 9 February 2023, as he ultimately conceded under cross-examination. When asked about the period of time during which X had not seen his mother as a result of being overheld by him, the Father responded in terms of his own experience.
The fact that that Father’s response to Ms D’s thoughtful and considered report was to accuse her of bias rather than to engage in reflection, and particularly self-reflection, with respect to its contents, is also indicative of limitations to the Father’s insight.
The Father did not accept that the AppClose messages before the Court[36] demonstrated disrespectful communications by him towards the Mother. This showed a considerable lack of insight into the manner in which he speaks to her. The seriousness of the lack of insight demonstrated by the Father with respect to his treatment of the Mother, including his communications towards her and the serious but baseless allegations made against her in the context of the proceedings, is compounded when considered in light of the Father’s opinion that the Mother struggles with her mental health and is ‘very vulnerable.’ He demonstrated no appreciation of the potential for a deeply damaging impact on the Mother, her parenting, and indirectly on X, of his persistently negative, disrespectful and accusatory behaviour towards her if his suppositions about the fragility of her mental health were correct.
[36] Exhibits M1-M3.
The Father also demonstrated a lack of insight into the inappropriate and intrusive nature of his proposal to engage with the Mother’s counsellor, Ms K.
LIVING ARRANGEMENTS
Although it was put as his alternative proposal and not his primary position, it is convenient to commence consideration of X’s living arrangements with the Father’s proposal that X continue to live in an equal time arrangement, because this is the longstanding arrangement in which he has lived since the parties’ separation and any other arrangement would involve significant change for him. The Father relied on the fact that by the time of the trial, X had lived in such an arrangement for approximately three years, which was more than half his life, and submitted that a change would likely be disruptive and confusing for him.
The Mother’s evidence was that the equal time arrangement had not been serving X well. She deposed that he was often unsettled, reactive and emotionally dysregulated, that he exhibited reluctance to separate from her, that transitions between the parties were difficult and that the lack of consistency across the two households had led to difficulties such as problems with toilet training. The Father disputed this evidence, but when completing the Child Behaviour Checklist as part of Ms D’s assessment, he indicated, inter alia, that X sometimes avoids eye contact, does not answer questions, shows little affection, is disturbed by change, sulks and can be moody. I note, however, that although the parents were observed to have different styles in their approach to X, to Ms D, both parents described him and his development in positive terms, as did his childcare centre.
It is notable that the Father, like the Mother, sought as his primary position, to depart from the longstanding equal time arrangement, and that he acknowledged under cross-examination that the existing parenting arrangements were not serving X’s needs. In any event, as a result of my findings as to the Father’s level of insight, I prefer the evidence of the Mother with respect to this issue.
Ms D also expressed concerns about the Father’s fixed beliefs about the Mother and their impact on the parties’ ability to coparent. Unsurprisingly, the Mother’s evidence was that the Father’s ongoing allegations against her, some of which were very serious, and his ongoing criticisms of her and her parenting capacity had caused her distress. This too, is a contraindicator to a successful shared care arrangement.
The Mother accepted under cross-examination that X might experience a change to his longstanding living arrangements as confusing and that that he required stability and consistency, as did Ms D. I accept that X experiencing confusion arising from a change to his living arrangements is a risk, though I note that it is a risk urged upon the Court by the primary positions of both parties and is therefore a risk considered by both to be necessary for the promotion of X’s best interests. The Mother’s acceptance of this risk demonstrated insight on the Mother’s behalf and is indicative of a likelihood that she would provide appropriate support to X in managing the transition. Ms D was clear in her view that the issue of potential confusion arising from a change in living arrangements was less important than X’s emotional safety. This accords with my own view.
The Mother also pointed to the high levels of conflict and mistrust between the parties and the poor state of their coparenting relationship (as discussed above) as contraindicators to a successful continuation of the equal time regime. Ms D agreed under cross-examination that for an equal time arrangement to work in a child’s best interests, it is necessary for the parties to have a cooperative relationship, to communicate readily, to trust each other in parenting decisions, to respect each other personally and as parents and to have a level of flexibility. She confirmed that her interactions with X’s parents indicated that this was not the state of their coparenting relationship. This accords with my own findings, as outlined above. Ms D also confirmed, and I accept, that the parties’ opposing views as to whether X was at risk in the Mother’s care added to their lack of suitability for a shared care arrangement.
In her report, Ms D observed that the coparenting relationship had broken down amid the allegations of abusive parenting made by the Father against the Mother, a circumstance which she opined did not support a continuation of shared care. Instead, she recommended a period of consolidated, steady, primary care.
For these reasons, in conjunction with the balance of the findings outlined in these reasons, I am not satisfied that a continuation of the equal time arrangement would be in X’s best interests.
Turning then to the question of which parent should perform the role of X’s primary carer, I have regard to my findings with respect to the absence of risk in the Mother’s care, combined with the emotional risks I have found to exist in the Father’s care, particularly those arising from his deeply suspicious attitude towards the Mother; his willingness to make, and unwillingness to shift from, extremely serious allegations against and criticisms of the Mother, many of which are without apparent foundation; and his lack of insight into the impact of this conduct on the Mother and X. I accept the evidence of Ms D that there is no reason to expect that X would not have the resilience to transition effectively from an equal time arrangement into the Mother’s primary care. As a result of these considerations, I am satisfied that it is in X’s best interests to reside in the primary care of the Mother.
TIME WITH FATHER
The position of both the Mother and the ICL was that X should spend time with the Father for four nights each fortnight, comprising a block of three nights each alternate weekend and a single overnight in the intervening week. This reflected the recommendations of Ms D. I am satisfied that this proposal appropriately balances the emotional risks to X identified in these reasons with the need to continue the benefit X indisputably derives from the close and loving relationship he has with his father and his need for the opportunity to spend significant and meaningful time in his care. I accept the submission of the ICL that the regime for during school terms as recommended by Ms D will allow X to continue to enjoy quality time in the care of each of his parents. As a consequence of these considerations, I am satisfied that this is the arrangement that will best promote X’s best interests.
The Mother and the ICL both sought that school holidays be shared equally between the parties, notwithstanding the recommendation in the Family Report that X initially spend less time with the Father than with the Mother during the school holidays and gradually build up to week about. The Father’s proposal with respect to school holidays, which was that X spend more time with him than with the Mother, was predicated upon the Father’s overall position that X should live predominantly with him and was therefore not suited to the arrangement that will be provided for by the orders of the Court. Noting that X is well used to spending equal time between his parents, having lived in an equal time arrangement since the parties’ separation, I agree with the position taken by the Mother and the ICL that it is not necessary for X’s best interests that there be a gradual build up of school holiday time.
The ICL suggested that it may suit X’s best interests for there to be a move from week about to a configuration involving X spending longer blocks of time with each of the parents during the long summer school holidays once X is older, particularly as this will facilitate holiday travel. It was submitted on behalf of the Mother that it is not possible to predict the age at which X’s best interests will be served by transitioning to longer blocks. I accept that submission. The orders to be made will provide for a week about arrangement but will provide for the parties to be able to agree to a different configuration for equal time should they both consider it appropriate to do so.
PARENTAL RESPONSIBILITY AND DECISION-MAKING
Each of the parties sought that they have sole parental responsibility with respect to major long-term issues for X.
The Mother pointed to the significant level of conflict between the parties, the Father’s suspicious and distrustful attitude towards her and the hostility demonstrated in his communications with her as evidence that the parties were not sufficiently able to cooperate to enable them to make decisions jointly. Her evidence was that the parties were only able to coparent to the extent that she agreed to the Father’s demands and that there was no scope for genuine negotiation.
The Father relied on the fact that the parties had been able to agree on the primary school to be attended by X. He also pointed to a concession made by the Mother that notwithstanding her complaint that she had effectively relented and agreed to the Father’s preferred school, which was more convenient to his residence than to hers, she had not in fact proposed an alternative school. This, it was submitted, was evidence that the parties could in fact coparent effectively and cooperate with respect to making decisions about major long-term issues. This argument did not sit at all well with the fact that the Father’s own application was for sole decision-making with respect to long-term issues.
The Father’s position with respect to the parties’ ability to cooperate appeared to shift depending on whether it was he or the Mother who might otherwise be granted sole decision-making responsibility and therefore appeared somewhat disingenuous. If the Father genuinely believed that the parties could cooperate in such a manner that they could make decisions jointly in X’s best interests, it is difficult to understand his decision not to seek shared parental responsibility as his primary position. In any event, evidence of one decision having been made did not overcome the significant evidence of conflict and distrust between the parties and overt hostility from the Father towards the Mother (as demonstrated, for example, in the context of her proposal to take X on the holiday).
The Father’s actions in deliberately withholding important information from the Mother, including the details of his allegations with respect to X’s sexualised conduct, the photos and videos he claimed to have made of X, and the information he had provided to Dr E, also militate against the parties’ suitability for sharing parental responsibility and making joint decisions in relation to major long-term issues.
The ICL submitted, and I accept, that this is not a situation where X’s best interests will be served by a sharing of parental responsibility moving forward as there is simply too much mistrust and too much conflict for it to work effectively.
The ICL supported the Mother’s proposal that she have sole decision-making authority, with an attendant obligation to provide the Father with the opportunity to express his views with respect to any proposed decision in relation to major long-term issues. The ICL proposed the inclusion of a specified timeframe of seven or 14 days for the response to be provided. I agree that this is an appropriate inclusion, to ensure that it is clear to the parties how the proposed order is to operate and whether its terms have been complied with in any given circumstance.
I am satisfied that it is in X’s best interests for the Mother to have sole parental responsibility and sole responsibility for making major long-term decisions, noting that it would be impractical and nonsensical for parental responsibility to be exercised solely by a parent other than the parent with whom X will spend the majority of his time, and noting also that a number of the contraindicators to the sharing of decision-making arise from the Father’s attitude and conduct towards the Mother, as discussed throughout these reasons.
OTHER MATTERS
Injunction with respect to Maternal Grandmother
The Father sought an injunction restraining the Mother from leaving X unsupervised in the care of the Maternal Grandmother.
The power to grant such an injunction is found in subsection 68B(2) of the Act, which provides, in summary, that the Court may grant an injunction in relation to a child in any case in which it appears to the Court to be just or convenient to do so. Although the paramountcy principle in section 60CA does not apply to the granting of an injunction, X’s best interests are a relevant consideration in the determination of whether such an injunction should be granted.[37]
[37] Bennett & Bennett [2001] FamCA 462; (2001) FLC ¶93-088; Flanagan & Handcock (2002) FLC ¶93-102; KN & SD & Secretary, Dept of Immigration & Multicultural Affairs [2003] FamCA 610; (2003) FLC ¶93-148.
The asserted basis for the injunction was difficult to ascertain. Under cross-examination, the Father agreed that his trial affidavit did not particularise the relevant harm he asserted was posed to X by the Maternal Grandmother and agreed that if he had any evidence to provide about that, it would have been in his trial affidavit. He also acknowledged that grandparents have a special role to play in the lives of their grandchildren and ultimately conceded that the injunction might not be necessary. Yet he did not abandon that aspect of his application.
I have already rejected the Father’s allegations with respect to the Maternal Grandmother having exposed her own children to a child sexual offender.
The Father otherwise alleged that in early 2023, X, who was then three years old, said to him words to the effect of ‘I got hit in the face with the ball at Grandma [Ms C]’s. Grandma [Ms C] threw the ball at me.’ When asked whether he genuinely believed that the Maternal Grandmother had deliberately thrown a ball at X’s face, the Father responded ‘I definitely think it’s possible.’ The Father admitted that he had not asked the Maternal Grandmother whether X had been hit by a ball in her care. When the obvious possibility that X had been referring to an accident was put to the Father, he indicated that he considered it unlikely because X and the Maternal Grandmother ‘don’t play ball,’ despite the fact that he admittedly knows very little of what the Maternal Grandmother and X do together.
The Father acknowledged that the Maternal Grandmother loves X but somewhat bizarrely refused to admit that it was inherently incredible to suggest that a loving grandparent would deliberately throw a ball at her grandson’s face. The Maternal Grandmother credibly denied having done so. The Father’s willingness not only to jump to the most sinister conclusion without any reasonable basis, but to persist in making the allegation even after being confronted with a reasonable alternative hypothesis and the sheer implausibility of his theory reflected poorly on the Father and supported the Mother’s case with respect to his tendency towards suspicious and rigid thinking. I do not accept that the Maternal Grandmother deliberately threw a ball at X.
The Father also alleged that in early 2023, X said ‘Grandma [Ms C] put me in the bin.’ The Maternal Grandmother denied having put X in a rubbish bin. The Mother, who was alleged to have been present, denied having seen the Maternal Grandmother put X into a bin. The Maternal Grandmother recounted an occasion upon which X had suddenly started vomiting and she had briefly placed in him a handbasin to contain his vomit. Again, the Father refused to accept the inherent unlikelihood of the suggestion that a loving grandparent would deliberately have acted in a harmful manner towards her grandchild.
In relation to each of these incidents, the Father took a description of an event given by a very young child and not only assumed that it had been recounted correctly and took it literally, which is not a safe assumption with a child so young; but interpreted it in a manner consistent with abuse when other, more realistic interpretations were available. This reflects the Father’s deep and entrenched mistrust of the maternal family and his tendency towards suspicious thinking and rigid and immovable views with respect to issues associated with their care of X. Even if the Father’s evidence with respect to what X said on each of these occasions was accepted as wholly accurate, it does not establish abuse of X by the Maternal Grandmother.
It is apparent that the Father’s attitude towards the Maternal Grandmother is one of animosity. This is reflected in the allegations referred to above and in the letter he delivered to her in November 2021, as discussed earlier in these reasons. The Father gave evidence that at the time he delivered the letter, he ‘disapproved of the way she was conducting herself’ and that he blamed her for what he saw as the breakdown of a functioning parenting relationship between himself and the Mother. The Father admitted to an ongoing lack of respect for the Maternal Grandmother. I accept the submission of Counsel for the Mother that the real issue underlying this aspect of the Father’s application is not any risk posed by the Maternal Grandmother but the Father’s antipathy towards the Maternal Grandmother.
I am not satisfied that there is any basis for an injunction limiting or imposing conditions upon any time spent by X with the Maternal Grandmother.
Communication between parents
The Mother sought that the parties continue to communicate using AppClose or a similar parenting app. This proposal enjoyed the support of the ICL. The Father opposed this. Although he acknowledged having found AppClose useful, he expressed concern about the app not being based in Australia, with the consequence that the parties’ personal information was sent overseas. He sought that the parties communicate with each other via text message with respect to matters regarding X’s care, health and welfare.
As submitted by the ICL, Appclose is an appropriate means of communication between separated parents because it maintains a record of the conversations between the parties and is designed to ensure that they remain measured. This is particularly important in this case because the Father has demonstrated an inability at times to control the tone and content of his communications such that he is at times rude and disrespectful in his communications with the Mother notwithstanding the protective factor of the purpose-designed parenting app. In light of this fact and the significant levels of conflict between the parties, I am not satisfied that it is in X’s best interests for communication between the parties to take place outside a parenting app and in the absence of those protections.
Christmas
The orders sought by the Father provided for X to spend time with the Mother from 11:00am until 4:00pm on Christmas Day each year, and then with the Father from 4:00pm until 9:00pm. When combined with the Father’s proposal that X live with him, this would have had the effect that X would wake up in the care of the Father on Christmas Day every year. The Father’s evidence was that his primary concern was ensuring that existing rituals involving X spending lunchtime with the Mother’s family and dinner time with his were maintained and that he was otherwise ‘open minded.’
The Mother sought orders providing for X to spend time with the Mother from 4:00pm Christmas Eve until 4:00pm on 25 December and with the Father from 4:00pm on Christmas Day until 4:00pm on 26 December in even numbered years; and with the Father from 4:00pm on Christmas Eve until 10:00am on Christmas Day and from 4:00pm until 9:00pm on Christmas Day and with the Mother from 10:00am until 4:00pm on Christmas Day in odd numbered years.
The Mother’s proposal catered for the issue that was of concern to the Father, being the need to ensure that the existing routine pursuant to which X is with the Mother at lunchtime and with the Father at dinnertime on Christmas Day is maintained. Her proposal also had the benefit of having been designed to ensure that X alternates between the two parents in terms of the home in which he awakes on Christmas Day. In this sense, I consider the Mother’s proposal better meets X’s best interests. However, the Mother’s proposal also provided for a handover at 9:00pm on Christmas Day in odd numbered years. This is a very late handover for a young child on what will already have been a big day involving two earlier handovers. As such, I consider it will better meet X’s interests to remain in the Father’s care overnight on 25 December in odd numbered years and return to the Mother’s care at 10:00am the following morning.
Overseas travel
The Father proposed that he be permitted to travel overseas with X for a period of 42 days every two years, upon certain conditions. The paternal grandmother resides in Australia but is from Country L. The Father’s evidence was that he sought permission to travel to Country L with X in order to enable X to spend time with his extended paternal family and experience his Country L culture and heritage. The Father did not seek a mutual order with respect to overseas travel.
The Mother opposed the making of an order permitting the Father to travel overseas with X. It was submitted on her behalf that there was limited evidence before the Court to support this aspect of the Father’s application and that any proposal should be dealt with on its merits if and when it arose. I accept this submission. There is very limited evidence before the Court as to details of the Father’s family members in Country L or the benefit likely to be derived by X from engaging in such travel. More significantly, a period of 42 days or any extended period of time spent by X in the care of the Father and away from the Mother is not presently supported by the evidence that is before the Court as to his best interests, as considered throughout these reasons.
Agreed orders
The terms of some relatively minor aspects of the final orders to be made with respect to X’s care were agreed between the parties and the ICL.[38] Those orders were made as interim consent orders and it was agreed that they would be remade as part of the final orders. Those agreed orders are child-focused and appropriate and I am satisfied that they are in X’s best interests.
[38] Exhibit J1.
Costs
Each of the parties sought an order that the other pay their costs. Those applications were not particularised. As I indicated to the parties during the trial, in my view, it would not be appropriate to consider any application for costs prior to the parties having had the opportunity to have regard to these reasons and to adduce evidence of any offers which may have passed between them. Each of the parties will retain their rights to make an application for costs pursuant to rule 12.13(3)(b) of the Rules should they consider it appropriate to do so notwithstanding the dismissal of all extant applications.
CONCLUSION
Having regard to all of the considerations as outlined above, I make orders as set out at the commencement of these reasons, which I am satisfied are in X’s best interests.
I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker. Associate:
Dated: 8 January 2025
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