Lundin & Almstedt - [2024] FedCFamC1F 186

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Lundin & Almstedt [2024] FedCFamC1F 186

File number(s): MLC 8679 of 2014

Judgment of: WILLIAMS J

Date of judgment: 21 March 2024

Catchwords: FAMILY LAW – PARENTING – Entrenched and protracted parental conflict – Where the mother alleges the father sexually abused the children – Where the father alleges the mother has engaged in alienation and orchestrated a false narrative of sexual abuse – No evidence to support the mothers’ allegations – Where the single expert considers the mother has promoted a false narrative – Interim orders for change of residence made – Consideration of the best interests of the children – Finding that the father did not sexually abuse the children and the mother engaged in alienation which has irreparably damaged the children’s relationship with their father – Where the court finds there is a greater risk of harm in the children remaining in the fathers care than being returned to their mother – Orders for the children to live with the mother and spend no time with the father

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA

Cases cited:
Banks & Banks [2015] FamCAFC 36

Blann & Kenny [2021] FamCA 322

Eastley & Eastley [2022] FedCFamC1A 101

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69

Mazorski v Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 280

Date of hearing: 11–15 July 2022; 5–7 September 2022; 12, 13, 15 December 2022; 27-28 April 2023; 3-5, 10-11, 14, 26-27 July 2023; 12, 13 and 23 February 2024

Place: Melbourne

Counsel for the Applicant: Ms Stoikovska SC

Solicitor for the Applicant: Susan Snyder

Counsel for the Respondent: Mr Burns

Solicitor for the Respondent: RRR Lawyers

Counsel for the Respondent: Ms Fisken

Solicitor for the Respondent: Stuart Family Lawyers

Counsel for the Independent Children's Lawyer: Mr Myles

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 8679 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ALMSTEDT

Applicant

AND:
MR LUNDIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

WILLIAMS J

DATE OF ORDER:

21 MARCH 2024

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother have sole parental responsibility for the children, X born 2010 and Y born 2012 (“the children”).
3.The children live with the mother.
4.The father be at liberty to forward letters and cards addressed to the children to an address nominated by the mother, with the mother to facilitate handing same to children.
5.The mother forthwith and no later than within seven (7) days of these orders, advise the father of her nominated address and of any change of address within seven (7) days of any change.
6.The father advise the mother of his current email address within seven (7) days of these orders, and of any change of email address within seven (7) days of any change and the mother forthwith advise the children.
7.In the event the children express a desire to spend time or communicate with their father, the mother do all acts and things necessary to facilitate the children’s time or communication with the father.

THE COURT ORDERS BY CONSENT THAT:
8.The mother do all such things necessary to engage Dr B of C Psychology or such other therapeutic counsellor as recommended by Dr B (“the children’s psychologist(s)”) to provide the children, X born 2010 and Y born 2012, with therapeutic counselling on a regular basis as directed by C Psychology.
9.The mother be solely responsible for all costs associated with the children’s attendance upon their individual therapeutic counsellor.
10.The Independent Children’s Lawyer provide Dr B or such other psychologist(s) recommended by Dr B, with copies of the following documents:
(a)The Family Reports prepared by Dr D dated 18 October 2021, 11 April 2023 and 27 October 2023; and
(b)The Final Parenting Orders made by Justice Williams and the accompanying Reasons for Judgment.

11.In the event that the children’s psychologist(s) recommends that the children participate in family therapy with the mother and/or the father, each parent be responsible for the costs involved in their attendance with the family therapist and follow all reasonable directions of the family therapist as to attendance.
12.Both parents (if invited to participate in family therapy) be at liberty to provide the family therapist with copies of the documents referred to at paragraphs 3(a) and 3(b) herein.

THE COURT FURTHER ORDERS THAT:
13.All extant applications are dismissed.
14.The Independent Children’s Lawyer be discharged after compliance with Order 10 herein.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lundin & Almstedt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
INTRODUCTION

The applicant is the mother, and the respondent is the father of X born 2010 and Y born 2012 (“the children”). Since the parental separation in late 2014, the parents have been engaged in bitter and protracted litigation about the parenting arrangements for their two children.
The current application before the court is the third round of parenting proceedings. Final parenting orders were made in August 2016, almost two years after separation and following a contravention application to the court, further final orders were made in September 2020.
The current proceedings were commenced by way of Initiating Application filed by the mother on 18 March 2021. She sought discharge of all previous parenting orders, for the children to spend time with their father, to have sole parental responsibility of the children, and for the children to live with her.
On 13 May 2021, the father filed a Response to Final Orders which did not particularise the relief sought. Eventually on 20 June 2022, the father filed an Amended Response seeking sole parental responsibility and for the children to live with him.
The mother has consistently alleged the father has engaged in sexual grooming and abuse of the children. The father has alleged the mother has actively engaged and succeeded in parental alienation.
All the mother’s allegations, historical and current, have been investigated by child protection authorities and none have been substantiated.
The trial commenced on 11 July 2022 and finally concluded on 23 February 2024. During the trial there were multiple Interim Applications, culminating in a successful oral application by counsel for the Independent Children’s Lawyer, seeking a change of the children’s residence from the mother’s care to the father’s care. The application was made following cross‑examination of Dr D, clinical child psychologist and Family Report writer, in September 2022. I refer below in greater detail to Dr D’s evidence.
Prior to the children’s change of residence on 7 September 2022, they had not spent unsupervised time with their father in accordance with the orders made on 26 May 2021 since January 2021, when the latest disclosures allegedly occurred. After the alleged disclosures, the children spent limited supervised time with their father.
Subsequent to the children commencing to live with their father, in September 2022, he moved the family to Sydney, where a tumultuous series of events transpired. This resulted in multiple interim applications, the involvement of interstate child protection and the children ultimately being placed in the care of relatives and friends.
Delays in the resumption and conclusion of the trial were also due to unavailability of counsel, my health issues which prevented me from sitting in late 2023, and the father’s change of lawyers.
Self-evidently, the issues before the court and orders sought by the father changed overtime. At the conclusion of the trial, the father conceded X should live with her mother and proposed Y should live with him. The mother sought orders for her to have sole parental responsibility of the children in accordance with her application filed 18 March 2021, for the children to live with her and spend no time with their father.
Counsel for both the father and the Independent Children’s Lawyer sought findings about the sexual abuse and alienation allegations. Senior counsel for the mother did not seek findings, but submitted if the court was inclined to make findings about alienation/estrangement, the father’s conduct and contribution to the dynamic between the children and himself should be taken into consideration.
For the reasons that follow, I have determined the “least-worst” option for the children is for both children to live with their mother. The mother should have sole parental responsibility and the children should not spend any time with the father, unless they wish to do so. I will also make positive findings that the children were not sexually abused by their father and that the mother has engaged in parental alienation of the children.
BACKGROUND
The mother is aged 49 and the father is aged 56. The parties married in 2010, separated in late 2014, and divorced in 2015. There are two children of the marriage, X aged 13 years, and Y aged almost 12 years.
The mother has two children from a previous marriage, Ms E and Mr F, both of whom are aged over 18. Until X and Y were removed from their mother’s care, all four children lived together with the mother.
In late 2014, the parties separated and the mother obtained an Intervention Order against the father, naming the children as affected family members.
On 26 September 2014, the father filed an Application for Final Orders seeking both final and interim parenting orders. The mother filed a response on 13 October 2014, which also sought final and interim parenting orders. The applications were resolved when final parenting orders were made by consent on 2 August 2016 (“the August 2016 orders”).
Despite the mother’s allegations of the father’s sexual impropriety, the August 2016 orders provide for the parents to have equal shared parental responsibility, the children to live with the mother and to spend time with their father five nights per fortnight during school terms, one half of all school holidays and on special occasions.
Time between the father and the children occurred substantially in accordance with the August 2016 orders until the father filed a Contravention Application on 1 May 2020, alleging the mother had failed to comply with holiday and special occasion time between the children and him. The Contravention Application was resolved by final consent orders made on 1 September 2020, which provided for the children to spend an additional 15 nights of “makeup time” with the father.
Following the mother’s Initiating Application filed 18 March 2021 wherein she sought all time between the children and the father be suspended because of alleged sexual abuse of the children by the father, the application was referred to the Magellan List.
On 26 May 2021, a Senior Registrar ordered the children’s time with the father occur each Saturday from 4.00pm to 7.00pm supervised by the Family Contact Service, which was particularly unsuccessful.
Various procedural orders were made, numerous subpoenas were issued, and Interim Applications were filed prior to the trial commencing before me on 11 July 2022. This cycle continued throughout the hearing.
In September 2022, counsel for the Independent Children’s Lawyer made an urgent application to change the children’s residence from the mother to the father, because of Dr D’s evidence during cross-examination. On 7 September 2022, orders were made by me acceding to the application.
On the evening of 7 September 2022, the children moved into their father’s care, with the mother’s relatives delivering the children to the court for changeover.
Thereafter the children remained in the father’s care in Melbourne, until he decided to travel to Sydney with them for a “circuit breaker”. Once in Sydney, the father decided to remain there permanently with the children, without advising anyone involved in the proceedings.
On 16 December 2022, interim orders were made permitting the father to enrol X at G School and Y at H School, to commence the 2023 academic year.
In early 2023, X attended her school counsellor and made disclosures of alleged historical sexual abuse perpetrated by the father. According to the Application for an Apprehended Domestic Violence Order (ADVO)[1], the police attended X’s school around 2.10pm on that day, in response to disclosures made to the school counsellor, Ms J. According to Ms J, X told her she had been “sexually abused by her father when she was 9-10 years old”.[2] The police then spoke to X with Ms J present.
[1] Fathers’ affidavit filed 17 March 2023, page 17.
[2] Fathers’ affidavit filed 17 March 2023, page 17.
X stated to police when she was 9-10 years old, she was “sexually assaulted” by her father which “involved touching”.[3] When asked for further detail, X became visibly on the verge of tears and advised she had already provided a more in-depth description to Victoria Police about the touching. X also said Y was “touched” by their father whilst at his former home in Melbourne.[4]
[3] Fathers’ affidavit filed 17 March 2023, page 17.
[4] Fathers’ affidavit filed 17 March 2023, page 17.
X told police that since moving to Sydney with her father, she had not seen her mother and her father was becoming “more touchy” and holding her for uncomfortably long periods while hugging.[5] This behaviour made X fearful that her father would commit further sexual offences and she told police she was scared to go home to her father that afternoon and had been “fearful of him the entire time they had lived in [Sydney]”.[6]
[5] Fathers’ affidavit filed 17 March 2023, page 17.
[6] Fathers’ affidavit filed 17 March 2023, page 17.
According to the ADVO application, a decision was made by police to detain the father for the purposes of applying for and serving a provisional ADVO. He was detained by police at H School, before being taken to the Police Station. During that time, Y and X were taken to the Police Station with a support person employed by X’s school.
Y was also interviewed by the police and disclosed “about two years ago she was tickled and scratched” by her father.[7] When asked where she was touched, Y replied, “my private parts”.[8] Y advised she had disclosed these offences to Victoria Police and said she was “anxious about going back to dad’s home” and “scared”.[9]
[7] Fathers’ affidavit filed 17 March 2023, page 18.
[8] Fathers’ affidavit filed 17 March 2023, page 18.
[9] Fathers’ affidavit filed 17 March 2023, page 18.
The following day, both children were interviewed by New South Wales Police who conducted VARE interviews, which were consistent with the statements provided to police. X and Y were then placed in the care of the Ms K, the mother of one of X’s friends where they stayed for three days. Prior to that, Y had not met Ms K.
On 8 March 2023, orders were made by this Court for the children to be immediately returned to the father and to the extent that the FCFCOA orders were inconsistent with the ADVO, the ADVO was invalid.
In his affidavit filed 17 March 2023, the father deposed to the children settling well into the new schools in Sydney and happily attending school each day. He had received positive feedback from both children’s schools about their participation and engagement where they had made several new friends. They were also attending play dates and sleepovers, and the father had arranged private tutoring to provide extra learning support because of the disruption to their schooling in 2022. He further deposed to the children receiving awards at school, including for “resilience and enthusiasm” and awards at swimming carnivals.
In his affidavit, the father also refers to the events which transpired on 6 March 2023. According to him, on that morning X told him she was not feeling well and did not want to go to school, so he took Y to school while X remained at home. Later that morning, X told her father she was feeling better, so he dropped her at school around 12.30pm. At the conclusion of the school day, he went to H School to collect Y, but she was not at the regular collection spot. The father was told by a friend of Y’s that Y had left class during library. The father was told Y was in the principal’s office and both the Department of Communities and Justice (NSW) and police had been called. He then attempted to call X to tell her he would be late collecting her from school, but X did not answer. The father attempted to call X’s friend, and then her mother. He was taken by New South Wales Police to the Police Station and was served with a provisional ADVO listing both children as protected persons.
The subsequent events and court hearings are set out in a document prepared by the Independent Children’s Lawyer, titled Joint Statement of Agreed Facts, which was signed by the parties on 20 October 2023 and tendered as Exhibit ICL-8. The relevant parts of the document states as follows:
JOINT STATEMENT OF AGREED FACTS PREPARED BY THE INDEPENDENT CHILDREN'S LAWYER
•[In early] 2023, [Ms K] (the mother of [X’s] former friend […]) filed an Affidavit in the proceedings on behalf of the Respondent Father. [Ms K] deposed to having the children [X] and [Y] in her care [in early] 2023. She further set out her concerns that [X] had self-harmed in her home [in early] 2023 by cutting at the instigation or encouragement of a friend […]. A copy of this Affidavit was provided to [Dr D] on 3 July 2023.
•Following the release of [Dr D's] Addendum Report dated 11 April 2023, the proceedings were listed for the continuation of the Final Hearing on 27 and 28 April 2023.
•On 27 April 2023, the Applicant Mother, [Ms Almstedt] ("[Ms Almstedt]"), was cross-examined as to whether or not she had communicated with [X] and/or [Y] since the 7 September 2022 orders. She was also cross-examined about her relationship with [Ms L] and her knowledge of [Ms K]. A number of telephone records subpoenaed from various carrier services were put to [Ms Almstedt]. (The transcript of proceedings was provided to [Dr D] on 17 August 2023). Subsequently, on 28 April 2023). Subsequently, on 28 April 2023, the proceedings were adjourned to allow [Ms Almstedt] the opportunity to make further enquiries as to the subpoenaed records and to clarify the mobile phone records produced. Expert evidence was called on behalf of [Ms Almstedt] to explain the references in the telephone records which had been provided and this evidence was not challenged by Counsel for [Mr Lundin] or Counsel for the Independent Children's Lawyer. The evidence was that the phone call detail records included times when the user was not actively interacting with the phone, examples being an app or phone update.
•On 8 June 2023, [Ms L], [Ms Almstedt’s] childhood friend filed an Affidavit on behalf of [Ms Almstedt] annexing her communications with both [Ms Almstedt] and [Ms K] on What'sApp and Facebook Messenger. A copy of [Ms L’s] Affidavit was provided to [Dr D] on 3 July 2023.
•On 3 July 2023, [Ms Almstedt] was cross-examined as to her communications with [Ms L] in the lead up to early […] 2023 when [X] made a disclosure to the school counsellor about historical sexual abuse allegedly perpetrated by the Father, triggering the involvement of the NSW Department of Communities and Justice and both children being interviewed by the NSW Police. [Ms Almstedt] maintained that she was not aware of what [Ms L] and [Ms K] had orchestrated with respect to the children, however, knew that [Ms K] had reached out to both her and [Ms L] on Facebook.
•On 4 and 5 July 2023, [Ms L] was cross-examined as to her involvement in [X’s] disclosure to the school counsellor and the events which ensued. Through the cross-examination, [Ms L] accepted that she thought she was helping the children return to their mother’s care by enlisting [Ms K’s] assistance to arrange a meeting between [X] and the school counsellor and encouraging her to inform [G School] of the disclosures [X] made whilst in [Ms K’s] presence. [Ms L] gave evidence that she did not tell [Ms Almstedt] about her communications with [Ms K].
•On 10 July 2023, [Ms K] was cross-examined by all three parties’ Counsel as to her communications with [Ms L] and her involvement in the events of [early] 2023. [Ms K] essentially relayed to the Court that she did not see anything wrong in her conduct as she was simply responding to the disclosures made by [X] that her father had sexually abused her in the past. [Ms K] gave evidence that she attempted to contact [Ms Almstedt], but that [Ms Almstedt] did not respond to her attempted communications. [Ms K] gave further evidence that she then contacted [Ms L] as a result of disclosures made to her by [X].
•The Respondent Father, [Mr Lundin] (“[Mr Lundin]”) was cross-examined on 11 and 14 July 2023 as to the events which took place in [early] 2023. The cross examination of [Mr Lundin] has not yet been completed and is still continuing.
•[In mid] 2023, [X] absconded from school in the company of a friend […] in response to an attempt by [Mr Lundin] to discipline her by taking away her phone and [X’s] reports of him yelling at her and throwing things around the home. The NSW Police become involved and located [X] at another friend's home ([P]) at approximately 11.30 pm. [Ms Almstedt] deposes to [X] calling her from [P’s] home and expressing how much she missed her mother.
•Notwithstanding the Police attendance, [X] and [her friend] fled from [P’s] home through the backdoor and spent the night on the street. [Ms Almstedt] spoke to the Police whilst they were present at [P’s] home and requested a Welfare Check to be conducted on [Y]. [Ms Almstedt] deposes to subsequently receiving a second call from [X] from a ‘No Caller’ identification. [X] is distressed on the call requiring [Ms Almstedt] to calm her down.
•[Ms Almstedt] further deposes to receiving text messages from [X’s] friend’s mothers over the course of the following days updating her as to [X’s] whereabouts.
•On [the following day], [X] is delivered to school late by [P’s] mother and refused to return to [Mr Lundin’s] care at the end of the school day. [X] spent most of the day with the school counsellor and NSW Police attended the school at [Mr Lundin’s] request to perform a Welfare Check. The NSW Police considered that there were no immediate risks to [X] in [Mr Lundin’s] care.
•Given [X’s] refusal to remain in [Mr Lundin’s] care, the NSW Department of Communities and Justice (“NSW DCJ”) became involved and discussed alternative care arrangements with [Mr Lundin]. [Mr Lundin] proposed his cousin [Ms M] as an alternative for the weekend and [X] reluctantly agreed to this arrangement. [Mr Lundin] took [X] home from school to pack a bag with belongings for the weekend. Once at home, [X] reportedly changed her mind about the weekend care arrangements and chose to stay in [Mr Lundin’s] care. Whilst [Mr Lundin] and [Y] attended a pre-arranged dinner event, [X] absconded from [Mr Lundin’s] home. [X] left the family home by escaping through her bedroom window and jumping from the balcony. [Mr Lundin] reported [X] as a missing person to the NSW Police and was informed later that evening that [X] was transported by Police to the [hospital] due to suicidal ideation. The NSW Police report that [X] stated, “I think about ending my life every day, I think about killing myself because I don't want to be here anymore.”
•The subpoena material produced from the [hospital] reflect that [X] was admitted for suicidal ideation and disclosed a history of child sexual abuse perpetrated by the father. [X] is reported to have refused to be discharged into [Mr Lundin’s] care due to feeling ‘unsafe’ and only wanted to be discharged to a friend’s home. The Emergency Department make a notification to the NSW DCJ.
•[X] is discharged into [Mr Lundin’s] cousin [Ms M’s] care with his consent. [X] was reluctant to agree to staying with [Ms M], as she was concerned that [Mr Lundin] might come to [Ms M’s] home. [X] stays with [Ms M] [for a period of three days].
•On [the final day of that period], [X] runs away from an aunt’s home in […] Sydney triggering a widespread Missing Persons investigation […]. [X] was at the aunt’s home undertaking an Art Class whilst [Ms M] went to work.
•[The following day], the Family Law proceedings are listed urgently to consider appropriate care arrangements for [X] once she is located. [Ms Almstedt] proposes that [X] reside in the care of her cousin [Mr N] in […] Sydney if orders are not made for the children to return to her care.
•[Y] reaches out to [X] by way of text messages telling her to come home.
•The NSW DCJ inform the ICL that the teenagers [X] is associating with are known to Child Protection and to the Police. One of the teenagers has recently been remanded in custody for [assaulting] another teenager. The NSW DCJ have concerns about [X] potentially engaging in high risk behaviours with these associates.
•Mr Myles, Counsel for the ICL speaks to [P’s] mother over the course of [two days] and relays to the Court his suspicion that she knows [X’s] whereabouts and is not co-operating with the investigation.
•On [the second day], during Court proceedings, Mr Myles receives a telephone call from [X] directly stating that she wanted to be informed of what was happening in Court and she would only make her whereabouts known to Police if she was not going back to the Father's care. Mr Myles relays to [X] that the idea of staying with the maternal cousin, [Mr N] was being considered by the Court together with supervised time between her and the mother. Shortly thereafter, [X] is located by the NSW Police […] and is deemed ‘safe’.
•Since [that day], [X] has resided in either [Mr N] or his in-laws’ […] care pursuant to an Undertaking signed by [Mr N] on 7 August 2023. The Undertaking included clauses that [Mr N] ensure that [X] not communicate with [Ms Almstedt] or her half-siblings [Ms E] and [Mr F] whilst in his care.
•On 7 August 2023, Interim Orders were made by consent of the parties formalising [X’s] living arrangements and providing for her to spend professionally supervised time with the Mother once a month and with [Y] once a fortnight.
•The parties also agreed for [X] to be enrolled at [Q School] and discontinue her enrolment at [G School].
•On 25 August 2023, [X] spent supervised time with [Ms Almstedt] with [Ms E] and [Mr F] also present for a portion of the visit. The visit is reported to have been very emotional with a lot of verbal and physical affection from both [X] and [Ms Almstedt]. The end of the visit is reported by the supervisory service to have been most distressing for [X] who was crying for some time after [Ms Almstedt’s] departure.
•On 26 August 2023, [Y] absconds from [Mr Lundin’s] care in the afternoon. [Mr Lundin] reports her as missing to the […] Police who understand that she is at a [friend’s] home. The NSW Police speak with [Y] who discloses the historical sexual abuse allegations against [Mr Lundin] and states that she does not feel safe in [Mr Lundin’s] care due to a number of arguments in the days leading up to her first supervised visit with the mother (scheduled for 27 August 2023). The subpoena material produced by the NSW Police reflects reports by [Y] that she feels isolated living with [Mr Lundin] and that she is constantly having arguments with him.
•[Mr Lundin] denies [Y’s] version of events and deposes in an Affidavit dated 30 August 2023 that all was well with [Y] the morning of 26 August 2023 and he maintains that [X] influenced [Y] to run away from his care.
•[Mr Lundin] agrees for [Y] to stay in [Mr N’s] care for a short period of time as a ‘break’.
•On 27 August 2023, [Y] spends professionally supervised time with [Mr Almstedt], with [Ms E] and [Mr F] also present for a portion of the time. [Y’s] visit is equally as emotional as [X’s] visit and [Y] is also left distressed at the end of the visit.
•On 30 August 2023, [Mr Lundin] files an Application in a Proceeding seeking orders that [Y] be returned to either his or [Ms M’s] care, that time between the children and [Ms Almstedt] be suspended and that supervised time between [X] and [Y] also be suspended.
•On 14 September 2023, [Mr Lundin’s] Application in a Proceeding is listed before the Federal Circuit and Family Court of Australia. Interim Orders are made providing for [Y] to remain in [Mr N’s] care until the Final Hearing date of 14 November 2023 on the same terms as [X’s] arrangements and for the professionally supervised time between the children and the mother to continue, with the ICL to have liberty to apply as to the supervised time.
•The children were scheduled to attend upon psychologists at [R Psychology] in Sydney, NSW for non-reportable therapeutic counselling. An initial consultation occurred between the ICL and the clinic on 12 October 2023. It was suggested by the clinic that any therapy at this point in time for the children would be unlikely to be successful as the children remain in flight or fight’ mode with respect to their long-term living arrangements and safety. Once there is finality as to their living arrangements, an appropriate therapeutic approach would involve the children each having their own individual psychologists and a third psychologist being involved to work collaboratively with the children’s psychologists to provide family therapy between the children and the resident parent (regardless of which parent this may be). It was further recommended that risk and safety monitoring was the preferred approach pending the finalisation of the Family Law matter.
•X has been living in the care of [Mr N] and/or his in-laws since [mid] 2023 and [Y] has lived in the same arrangements since 26 August 2023. Given that the children have not expressed any safety concerns whilst living with [Mr N] and/or his family members, the NSW Department of Communities and Justice indicated that they would be moving to cease involvement with the family.
(As per the original)

On 7 August 2023, orders were made by consent providing for X to live with Mr N, a relative of the mother, and his parents in law in Sydney (as she had done since mid-2023), to spend time with the father and the paternal family as agreed in writing, and for both children to spend supervised time with the mother, Ms E and Mr F.
On 22 September 2022, orders were made by consent providing for Y to live with Mr N and his parents in law, as she had done since 26 August 2023, and for supervised time with the mother.
When the matter returned to court on 14 December 2023, Mr N was no longer able to care for the children and orders were made for both children to return to Melbourne and to live with maternal relatives. Orders were also made providing for the children to spend supervised time with their mother and father if they sought to do so, and included a notation that it was anticipated Y would be enrolled at S School and X would be enrolled at T School.
The matter was adjourned to resume on 12 February 2024 and concluded on 23 February 2024.
THE PROPOSALS OF THE PARTIES
The applicant mother’s proposal
Prior to the commencement of trial, the mother filed an Initiating Application which sets out with precision her proposed Minute of final orders. At the end of the trial, she continued to seek orders for sole parental responsibility, for the children to live with her and spend no time with the father.
Documents relied upon by the applicant mother
The mother relied upon the following documents:
(a)Initiating Application filed 18 March 2021.
(b)Affidavits of Ms Almstedt filed:
(i)3 June 2022.
(ii)4 July 2022.
(iii)14 September 2022.
(iv)11 December 2022.
(v)21 March 2023.
(vi)24 July 2023.
(vii)3 August 2023.
(viii)12 September 2023.
(c)Affidavit of Ms L filed 7 June 2023.
(d)Affidavit of Mr U filed 27 June 2023.
(e)Affidavits of Mr N filed:
(i)13 September 2023.
(ii)21 November 2023.
(a)Outline of Case document filed 8 July 2022.
(b)Documents tendered by counsel, including documents produced pursuant to subpoena.
The respondent father’s proposal
Prior to the commencement of trial, on 20 June 2022 the father filed an Amended Response to Initiating Application which sets out with precision his proposed final orders. In summary, he sought sole parental responsibility, for the children live with him, and following a three‑month moratorium period for the children to commence spending supervised time with the mother. Further, following the conclusion of supervised time, for the family to attend upon Dr D for a further report to assess the children’s readiness for reintroduction of unsupervised time with their mother.
During his final address, counsel for the father agreed X should live with her mother and submitted Y should live with her father. If the court were not inclined to make such orders, his alternative proposal was that both children should live with the mother but should be given the option to contact their father and spend time with him, should they so desire.
Documents relied upon by the respondent father
The father relied upon the following documents:
(a)Amended Response to Initiating Application filed 20 June 2022.
(b)Affidavits of Mr Lundin filed:
(i)14 May 2021.
(ii)21 June 2022.
(iii)7 December 2022.
(iv)17 March 2023.
(v)30 March 2023.
(vi)26 July 2023.
(vii)30 August 2023.
(c)Affidavit of Ms M filed 26 July 2023
(d)Affidavits of Dr V filed:
(i)7 December 2022.
(ii)26 April 2023.
(e)Affidavit of Ms K filed 31 March 2023.
(f)Affidavit of Dr W filed 20 June 2022.
(g)Affidavit of Ms Z filed 20 June 2022.
(h)Affidavit of Ms AA filed 20 June 2022.
(i)Affidavit of Ms BB filed 20 June 2022.
(j)Outline of Case document filed 7 July 2022.
(k)Documents tendered by counsel, including documents produced pursuant to subpoena.
The Independent Children’s Lawyers proposal
During the course of proceedings, the Independent Children’s Lawyer most helpfully provided Minutes of proposed orders during the many Interim Applications. Most significantly, after the oral evidence of Dr D on 7 September 2022, counsel for the Independent Children’s Lawyer made an urgent oral application for a change of the children’s residence, which was granted. I refer to Dr D’s evidence and the application below.
During his final submissions, counsel for the Independent Children’s Lawyer sought orders for the mother to have sole parental responsibility, for both children live with her, no time between the children and their father unless initiated by the children, therapeutic counselling for the children, and for the children to be provided with the father’s email address to enable one or both children to contact him should they wish to do so in the future. He also sought the court make findings that the children had not been sexually abused and the mother had alienated the children from the father.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
(a)Affidavit of Dr CC filed 5 July 2022.
(b)Affidavit of Ms DD filed 24 June 2022.
(c)Affidavits of Dr D filed:
(i)10 March 2022.
(ii)26 April 2023.
(iii)9 November 2023.
(d)Affidavit of Ms EE filed 16 September 2021.
(e)Department of Families, Fairness and Housing Magellan Report dated 21 May 2021.
(f)Affidavit of Ms FF filed 9 February 2024.
(g)Outline of Case document filed 8 July 2022.
(h)Documents tendered by counsel, including documents produced pursuant to subpoena.
The mother’s witnesses
The mother gave evidence and was cross-examined by counsel for both the father and Independent Children’s Lawyer. She was not an impressive witness. She repeatedly failed to answer questions and was mostly non-responsive. She provided answers which she thought would enhance her case and raise serious questions about the conduct of the father. She portrayed herself as not wanting to directly impugn the father, but rather expressed concerns about his conduct via her own observations, or the observations and actions of others.
An example of this was her reference to comments of the child, Y, in April 2020 that the father had acted towards her in an inappropriate manner and had “tickled me in my privates” which she described as a “passing comment”. During cross-examination, it transpired that sometime later the mother happened to mention it to her domestic violence worker, who of course then made a notification to child protection. She professed not to be involved in nor have any knowledge of the notification, when clearly her comments to a third party initiated the notification.
During the first week of the trial, she was vigorously cross-examined by counsel for the father and Independent Children’s Lawyer over four and a half days and demonstrated no emotion until just before mid-morning on the fifth day. She attempted to portray herself almost as an observer of events, rather than the active participant she was, and did not want to draw adverse inferences against the father, preferring others did so.
An example of this was her persistent mentioning of the child pornography notification she allegedly saw on the father’s computer or iPad. She repeatedly stated she did not know what to make of that alleged event, when the consequences of such would have been blindingly obvious. She demonstrated little insight into the emotional impact of her conduct on the children. Many of her answers were partial truths, which became apparent after further cross‑examination.
An example was her professed confidence in Mr GG, a religious leader, whom the mother initially portrayed as an almost trusted confidant, which was in stark contrast to her later evidence that the first time she had any one-on-one contact with him was in December 2020, less than one month before the children allegedly disclosed sexual abuse by their father.
Similarly, she was forced to retreat from her attempts to initially portray Ms HH as a trusted personal confidant when faced with Ms HH’s statement to the police that she did not know the mother until she received a phone call from her in December 2020. The telephone records of the mother produced pursuant to subpoena, demonstrate the call was made in December 2020, less than one month prior to the alleged disclosures of the children.[10]
[10] Exhibit F-14, tendered by counsel.
Because of events which transpired during the course of the trial, with the consent of all parties, the mother was cross-examined again on 27 April 2023 and 3-4 July 2023. During the cross-examination in July, the mother’s evidence was not impressive. She was frequently unable to recall or remember events which occurred in early 2023, despite them being of the utmost significance and only occurring a few months prior. She also demonstrated a remarkable lack of curiosity about why her friends, Ms L and Ms JJ were contacting her about her daughter’s situation, and why Ms L suggested using WhatsApp for further messages. She was unable to recall why, or indeed whether, she had deleted certain Facebook or WhatsApp messages with Ms L yet was able to recall why she had deleted messages around a similar time, pertaining to her older two children. Exhibit F-37 shows Facebook messages between the mother and Ms L whereby it is clear that the mother deleted messages from the various chains of correspondence disclosed. She eventually conceded, as is apparent from the documents, that she had deleted messages, although there was a half‑hearted attempt to blame the father for possibly accessing her accounts, including WhatsApp. I do not consider the mother to be a truthful, forthright nor responsive witness. Although I am unable to positively find, to the requisite standard, I consider it is likely the mother was involved in the conversations with Ms L about returning the children to her care.
Ms L, a childhood friend of the mother, filed an affidavit on behalf of the mother on 8 June 2023. Her affidavit annexed her communications on WhatsApp and Facebook Messenger with both Ms K and the mother. On 4 and 5 July 2023, she was cross-examined by counsel for the father and Independent Children’s Lawyer about her involvement in X’s disclosure to the school in early 2023 and the events which ensued. She accepted that she thought she was helping the children to be returned to the mother’s care by enlisting Ms K’s assistance to arrange a meeting between X and the school counsellor and encouraging Ms K to inform G School of the disclosures X made whilst in Ms K’s presence. Ms L gave evidence that she did not tell Ms Almstedt about her communications with Ms K. Ms L was a defensive witness who was obviously attempting to assist her friend, the mother, to have the children returned to her care. Because of subsequent events, primarily both children running away from their father’s care, Ms L’s evidence is of less significance. However, I do not consider her an impartial witness and her evidence was clearly focused on assisting the mother’s case.
The mother also relied on an affidavit of Mr U, Liaison Officer for KK Company, filed 28 June 2023. His evidence was obtained to explain the mother’s electronic records for her phone and emails to ascertain whether the mother had communicated with the children or Ms L. He was not required for cross-examination, and I accept his evidence as unchallenged.
The mother’s other witnesses were not required for cross-examination.
The father’s witnesses
The father gave evidence and was cross-examined by senior counsel for the mother and counsel for the Independent Children’s Lawyer. He was initially cross-examined during the first tranche of the trial, and again on 11 and 14 July 2023 as to the events which took place in March 2023. His cross-examination was completed in February 2024.
The father initially presented as a responsive and reasonable witness who possessed some insight into the issues before the court. As cross-examination progressed, he became more defensive and engaged in impression management. This was somewhat understandable given the allegations levelled against him. Apart from embellishing his relationship with the children, I accept him generally as a witness of truth.
Ms K is the mother of X’s school friend. She swore an affidavit on 31 March 2023 in which she deposed to caring for the children for three days in early 2023 and outlined her concerns about X self-harming in her home in early 2023, by harming herself at the instigation or encouragement of another friend.
On 10 July 2023, Ms K was cross-examined by all counsel about her communications with Ms L and her involvement in the events of early 2023. Ms K essentially relayed to the court that she did not see anything wrong with her conduct, as she was simply responding to the disclosures made by X that her father had sexually abused her in the past. Ms K gave evidence that she attempted to contact the mother, but the mother did not respond to her attempted communications. She gave further evidence that she then contacted Ms L as a result of disclosures made to her by X.
Ms K was not an impressive witness and she clearly had become enmeshed in the drama swirling around X’s alleged disclosures. She did not present with any sense of objectivity nor candour. As was the case with the evidence of Ms L, because of subsequent events, at the end of the trial her evidence was not particularly relevant or helpful.
Dr V filed affidavits on 7 December 2022 and 26 April 2023. He is a highly regarded psychologist whom the father engaged to assist with parenting techniques. His evidence was not particularly relevant to the determination of the ultimate dispute, and he was not required for cross-examination.
The father’s other witnesses were not required for cross-examination.
The Independent Children’s Lawyers witnesses
Ms HH attended court on 7 September 2022 to give oral evidence about her knowledge of the children’s alleged disclosures of sexual abuse by the father. She is the founder of a charitable organisation in the religious community and is well respected and upstanding in that community. I refer to her evidence below. She was cross-examined by all three counsel and attempted to answer directly but was somewhat reserved until she was appraised of the chronology of the mother contacting her and the alleged disclosures. Thereafter, she seemed almost shattered and was a far more candid witness. I accept her evidence and consider her a witness of truth.
Dr CC is a psychologist who provided therapy to the children between July 2021 and July 2022. She swore an affidavit on 5 July 2022 which annexed her report about the children’s therapy.
Dr CC was cross-examined by all three counsel. She was responsive and gave evidence in a professional manner. It was evident from her report and initial answers, she had conducted her therapy assuming the veracity of the sexual abuse allegations against the father. To her credit, once she was appraised of the chronology regarding the mother contacting Ms HH prior to the children making any disclosure, in addition to the involvement of Mr GG, she was prepared to reconsider her view and was open to the possibility that the alleged abuse had not actually occurred.
At the end of the trial, given the events in Sydney between early 2023 and August 2023 and thereafter in Melbourne, her evidence was of less relevance to the eventual outcome, than had previously been the case, other than as to the children’s negative and entrenched attitude towards their father.
Dr D, psychologist, prepared three Family Reports during the course of the proceeding. She was cross-examined by all three counsel on 7 September 2023 and I refer in detail to her evidence below.
She was also cross-examined at the conclusion of the trial after both children ran away from the father’s care and she was appraised of the events which had transpired in Sydney. Dr D presented as an insightful, compassionate, and professional witness and I accept her evidence.
Dr LL, consultant psychiatrist, prepared a report of his psychiatric assessment of the mother. The report was sought by counsel for the Independent Children’s Lawyer after orders were made in September 2022 changing the children’s residence to their father’s home. The report was necessary because of Dr D’s evidence during cross-examination about possible theories pertaining to the mother’s mental health.
His report dated 29 November 2022 is Exhibit ICL-4. Dr LL was cross-examined by all three counsel on 13 December 2022. He gave his evidence in a direct, professional manner and demonstrated significant insight into the issues before the court. I accept his evidence as a skilled professional witness.
The Independent Children’s Lawyers’ other witnesses were not required for cross‑examination.
The following documents were tendered during the course of the trial:

Exhibit Number Description

M-1 Documents provided to police by the mother, including her statement and email dated 31 July 2015.

M-2 Various emails. Pages 23–30 of the mother’s tender bundle.

M-3 Email dated 28 January 2017 from a police officer to the mother.

M-4 Email dated 27 July 2021 from the mother’s solicitors to the Independent Children’s Lawyer and carbon copied to father’s solicitors.

M-5 Email dated 11 March 2021 from Ms MM.

M-6 Photograph of text messages between the parties, dated 28 April 2013.

M-7 Email chain commencing 19 February 2023 from the mother to NN School and response, dated 20 February 2023.

M-8 Video of an event, email from the applicant mother of 4 July 2023.

M-9 School records of 2 March 2023 written by Ms PP.

M-10 Handwritten diary notes from X’s school dated 7-12 March 2023.

M-11 Notes of NSW Government Communities and Justice.

M-12 Page 4 of 19 of mother’s tender bundle dated 11 July 2023.

M-13 Notes from X’s interview with Ms QQ and Ms PP at school dated 16 March 2023.

M-14 Emails dated 29 March 2023 and 4 April 2023 between teachers and counsellors at the school.

M-15 Email from Ms PP to Ms RR dated 24 May 2023 regarding X’s detention.

M-16 Report from the hospital, page 15 of 27 dated 22 July 2023 recorded by an RN.

F-1 Page 506 of the father’s court book extract from Dr SS’s Family Report.

F-2 Pages 494-496 of the father’s court book from Dr SS’s Family Report.

F-3 Letter from Ms TT to Dr SS dated 17 November 2014 and the report of Ms TT to Dr SS dated 17 September 2014.

F-4 Letter from Ms TT to Dr UU dated 1 December 2014.

F-5 Letter from Ms TT to Mr VV dated 19 November 2014.

F-6 Document titled ‘[…] SOCIT Investigation Coversheet’ dated November 2014.

F-7 Letters from Gastroenterologist, dated 18 March 2014 and 19 May 2014.

F-8 Police Statement dated 9 October 2014.

F-9 Diary notes of police officer dated 5 February 2015 regarding interview with Ms E and Mr F.

F-10 Pages 501 and 502 of the father’s court book (page 15 and 16 of Dr SS’s Family Report being quotes relevant to the father).

F-11 Statement of Ms HH to Victoria Police, dated 10 March 202.

F-12 Mother’s handwritten notes of Y and X.

F-13 Mother’s typed notes of Y and X.

F-14 Phone records.

F-15 Record of Interview of children dated 3 April 2020 by Victoria Police.

F-16 Record of Y’s interview with Victoria Police, dated 1 March 2021.

F-17 Photographs of Y holding the father’s phone.

F-18 Photographs taken by the mother of Y’s photographs of the father’s phone.

F-19 Photographs of Y’s phone taken by the mother showing a photo taken by Y of text message between the father and paternal grandfather dated March 2020.

F-20 Photograph taken by the mother of Y’s phone of a conversation on father’s phone between the father and Ms WW.

F-21 Photograph taken by the mother of Y’s phone showing text message between father and Ms XX from July to September 2020.

F-22 Emails from the mother to father on 21 December 2020 and 24 December 2020 seeking return of Y’s phone.

F-23 Medical reports/referrals for X.

F-24 Document prepared by X’s teacher.

F-25 Attachment prepared by the mother to Family Contact Service Application.

F-26 File note of vice principal of S School after call from Child Protection Agency.

F-27 Diary notes of a conversation between the mother and Ms YY dated 16 May 2019.

F-28 GP notes as of 3 August 2015.

F-29 Report of Professor ZZ.

F-30 Not-authorised Victoria Police letter, together with memorandum, by Informant police officer and table summarising family violence incidents.

F-31 Exhibit A to the affidavit of Dr AB, filed on 31 August 2020.

F-32 School record of conversation between Ms PP and Ms KK, dated 2 March 2023.

F-33 Email from the mother to school, dated 3 March 2023.

F-34 Conversation with Ms KK and school dated early 2023.

F-35 Social media message, dated early 2023 on X’s phone.

F-36 Letter from father’s solicitor to mother’s solicitor, dated 8 June 2023.

F-37 Reply from the mother’s solicitor to father’s solicitor, dated 14 June 2023.

F-38 Letter from father’s solicitor to mother’s solicitor, dated 15 June 2023.

F-39 Response from mother’s solicitor to father’s solicitor dated 20 June 2023 together with enclosures.

F-40 Text messages between mother and Ms JJ dated early 2023.

F-41 Photograph/screenshot of social media video of the mother and Ms L from X’s phone in early 2023.

F-42 Messages between X and the Respondent.

F-43 Video played in court on 10 July 2023, dated early 2023 recorded on X’s phone.

F-44 Messages between Y and the father.

F-45 Email from Y’s school to the father advising of Y’s award, dated 28 April 2023.

ICL-1 X’s statement to Police on 23 January 2021.

ICL-2 Magellan Report dated 21 May 2021.

ICL-3 Y’s statement to Police on 23 January 2021.

ICL-4 Report of Dr LL dated 29 November 2022.

ICL-5 Voice message from Ms L to Ms K on 7 March 2023 at 8.53am. Refer to page 51 of Ms L’s affidavit.

ICL-6 Copy of email from NSW Child Protection to ICL dated 12 September 2023.

ICL-7 Supervisors’ notes for AC Contact Service.

ICL-8 Joint statement of agreed facts.

ICL-9 Observational reports of AE Family Services.
THE APPLICABLE LAW
Evidence

The standard of proof in this case, as to the relevant historical facts, but not the predictive exercise, is the balance of probabilities (s 140 of the Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject- matter of the proceeding; and
(c)       the gravity of the matters alleged.
The mother and father relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
It is not necessary in reaching a decision for a trial Judge to refer to every piece of evidence or argument that is presented during a trial nor make findings of fact on every factual dispute between the parties. That principle is well established in a number of authorities.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, to ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I may not have specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
As far as parental responsibility is concerned, s 61DA provides, when making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility. Where the presumption applies, s 65DAA requires the court to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practical.
An order for shared parental responsibility requires decisions about major long-term issues to be made jointly in consultation with the other person. In this case, the mother seeks an order for sole parental responsibility. To the best of my understanding, the father agrees for the mother to have sole parental responsibility of the children.
How the Court approaches allegations of sexual abuse
One of the primary issues of this dispute was the mother’s allegations the father has sexually abused the children and traumatised them to such an extent that he poses an unacceptable risk of harm to the children, if he spent time with them. Notwithstanding the allegations of sexual abuse, the Court’s obligation is to determine what orders are in the children’s best interest.
The High Court in M v M (1988) 166 CLR 69 (“M v M”), at 76 said:
…the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interest of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abuse by the parent whom seeks custody or access does not alter the paramount and ultimate issue which the court has to determine, though the court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive impact, on the resolution of that issue.
In M v M, at 76, the High Court also said it is not necessary to resolve in a definite way the disputed allegations of abuse, although in appropriate cases the court can, and should, make such findings.
…But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds; McKee v. McKee. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke.
Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
(Citations omitted)
As to how the Court should assess allegations of sexual abuse, the High Court said at 76–78:
…In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw. There Dixon J. said:
“The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”
His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assess the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A. v. A.), “an element of risk” or “an appreciable risk” (Marriage of M.), “a real possibility” (B. v. B. (Access)), a “real risk” (Leveque v. Leveque), and an “unacceptable risk”: In re G. (A minor). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
Recently, in Isles & Nelissen [2022] FedCFamC1A 97, the Full Court of this Court (Alstergren CJ, McClelland DCJ, Aldridge, Austin and Tree JJ) at [50], agreed with and adopted the commentary of Austin J in Fitzwater v Fitzwater (2019) 60 Fam LR 212 (“Fitzwater”). At [132]–[142] of Fitzwater, his Honour said:
132.Having eschewed the need for any positive factual finding that the father had sexually abused the eldest child, the mother’s case was instead that the evidence was still sufficiently persuasive to establish the risk of sexual abuse posed by the father to the children, and furthermore, that the magnitude of the risk was unacceptably high, such that it could only be attenuated by the imposition of the children’s permanent supervision when spending time with the father. The trial judge properly understood that to be the nature of the mother’s case, as is evident from the reasons for judgment (at [1], [31], [60], [497], [501]). Consequently, the mother and the trial judge were entirely focussed on what the evidence implied was the risk of harm to the children in the future; not what probably did or did not happen in the past.
133.In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136.In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
140.It cannot be correct that the unacceptable risk of a child’s sufferance of harm through future sexual abuse can only ever be established if it is proven as a fact, on the balance of probabilities, that the child (or another) has already been sexually abused in the past. Depending upon the strength of the evidence placed before the court, the possibility of past sexual abuse may of itself be sufficient to establish the chance of future sexual abuse. That has long been accepted as true (Nikolakis & Nikolakis [2010] FamCAFC 52 at [41], [44], [49]-[53], [96]; Partington & Cade (No.2) (2009) FLC 93-422 at [56]-[61]; Johnson and Page at [68], [71], [76], [77]).
141.Indeed, that was exactly the factual scenario in M v M. There, the trial judge concluded it was possible the father had sexually abused the subject child, but could not make a positive finding it had occurred on the balance of probabilities, and therefore discharged the “access” order (as it was then described) to eliminate the future risk of the child being sexually abused by the father. The father’s appeal was dismissed because the possibility of the child’s past sexual abuse was sufficient, on the evidence adduced in that case, to establish the unacceptably high risk of the child’s future sexual abuse.
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.

Macmillan J observed in Blann & Kenny [2021] FamCA 322 at [24]:
The consequences of the Court’s decision in a case such as this one are momentous and will likely have a long lasting impact on the lives of both of these young children. However the risk is not limited to the risk that one or both of them might be sexually or physically abused by their father or other members of his family. There is also the risk to these children of not having any relationship with the father and his extended family and the impact upon B in particular of identifying himself as a victim of sexual abuse, whether or not there is any substance to the allegations.
The Full Court in Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 said:
18.…Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19.The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
DOES EITHER PARENT POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN
Both parents asserted the other parent poses an unacceptable risk of harm to the children, but for different reasons.
At the commencement of the trial, the mother asserted the father should spend no time with the children, until it is determined by their treating psychologist that he should, because he poses an unacceptable risk of harm to the children. She asserted he posed an unacceptable risk to the children because he had sexually abused both children and by doing so, has subjected the children to sexual, psychological, and emotional harm. At the conclusion of the trial, she still maintained the father had sexually abused the children and sought orders the children spend no time with their father.
The father asserted the mother poses an unacceptable risk of harm to the children because she has deliberately alienated the children from him by encouraging and orchestrating the children to make false sexual abuse allegations against their father. He submits her contact is emotionally and psychologically abusive to the children.
Despite those assertions, the mother initially proposed on order for a meaningful relationship between the children and the father to be re-established, the parents to follow recommendations of the children’s treating psychologist and the children to continue having therapeutic/psychological assistance. The mother also proposed the parties attend a counsellor to attempt to reach a collaborative approach to parenting the children, and that such counselling occur and be conducted by a qualified person recommended by the children’s treating psychologist. The mother justified her proposal for the children to resume a relationship with the father, even if he had sexually abused them, because she had spoken to unknown and unidentified survivors of sexual abuse, and many still wanted to continue a relationship with the perpetrator.
The father denies the allegations of sexual abuse of the children and asserts the mother has coached the children and orchestrated the allegations against him as part of an alienation process. He asserts she embarked on a similar course of conduct with her two older children, during litigation with their father, except those allegations were of family violence rather than sexual abuse.
The father initially asserted the mother posed an unacceptable risk of emotional and psychological harm to the children, so that the children should be removed from her care and should live primarily with him. At the conclusion of the trial, because of the events between early 2023 and August 2023, the father conceded X should live with the mother, and submitted his primary position was Y should live with him, although did not adduce any evidence about specifics for this to occur.
Does the father pose an unacceptable risk of harm to the children?
As sought by counsel for the father and the Independent Children’s Lawyer, I now turn to make findings about whether the father has sexually abused the children. In doing so, I will consider the mother’s allegations about the father’s sexualised conduct prior to January 2021, and the alleged disclosures made by the children in January 2021.
Fathers alleged sexual conduct prior to January 2021
Almost two years after separation in September 2014, final parenting orders were made by consent on 2 August 2016, which provided for the children to live with the mother and to spend five nights a fortnight with the father together with special occasions and time during school holidays. These orders were made by consent, despite the mother’s supposed beliefs and concerns about the father’s sexual conduct and interests.
In her trial affidavit filed 3 June 2022, the mother deposes to expressing concerns at the time of the parenting orders, about the father’s sexual interests and behaviour, which included:
·Watching pornography, including times the children were present.
·Becoming increasingly aggressive, violent, controlling, and threatening to the mother during the marriage.
·Engaging in sexual encounters outside the marriage.
·Witnessing the father masturbating in front of the younger child on two occasions in 2014.
·The father doing nothing to prevent the children accessing pornography which he had downloaded on the family iPad.
·Enabling his online pornography collection to automatically and repetitively pop-up on his laptop.
·Having audio recordings of himself having sex with girls on his laptop; and
·The father’s pornography collection on his laptop appeared to have young looking girls involved in the pornography.
During the 2014 litigation, the parties attended upon Dr SS for a Family Report. Various portions of the report were tendered (Exhibits F-1, F-2, F-3 and F-10). According to Dr SS, the parties attended upon him on multiple occasions in late 2014. Around that time, the mother and her two older children attended on a psychologist, Ms TT. The report of Dr SS in the 2014 proceedings annexed a report about the father, authored by Ms TT. This report diagnosed the father with a sex addiction, despite the author never having met the father.
During cross-examination by counsel for the father in these proceedings, the mother agreed the information provided to Ms TT must have come from her, although she vehemently denied she had requested Ms TT to send a report to Dr SS. According to her, Ms TT voluntarily took it upon herself, in the absence of consent from her patients (Ms E and Mr F) or their guardian (the mother), to write about her patients and forward a report to a psychologist conducting a Family Report in proceedings, which did not involve her two patients. The mother admitted she had told Ms TT about the Family Report with Dr SS, and that she had not pursued a complaint against Ms TT for her potentially unethical behaviour.
I do not accept the mother’s evidence about Ms TT unilaterally deciding to write to Dr SS and advising him of her diagnosis, which was highly prejudicial to the father. It is inconceivable the mother did not orchestrate Ms TT’s involvement in the production of her report about the father and the subsequent forwarding of that to Dr SS. It is also inconceivable that had Ms TT breached patient confidentiality to such a blatant extent, the mother would not have pursued a professional complaint against her. It is obvious the mother orchestrated the production of a report adverse to the father and the forwarding of that report to Dr SS, the Family Report writer.
The mother was unable to recall whether she had told Ms TT the father had masturbated in front of the children, although admitted she may have, and denied she told the police in 2014 that the father had accessed child pornography. Counsel for the father put to her that she told the police the father was receiving online notifications of paedophile alerts and that she was concerned about what the father was doing. She would not directly accuse the father of accessing child pornography, but rather sought to couch her answers in terms of her concern. The mother agreed she gave information to the police about the father accessing pornography, possibly child pornography, and because of her statement to the police the father was arrested and interviewed.
The mother agreed she wanted to raise her concerns with Dr SS but denied directly accusing the father of being a paedophile. She did agree that she told Dr SS the father had received paedophile alerts on his computer or iPad.
The subpoenaed police records, Exhibit F-30, demonstrate in late 2014 the mother “attended […] Police Station on this day highly distressed talking about multiple issues and making allegations regarding [the father] breaching an interim intervention order, making threats by phone, having child porn, raping her and doing sex acts in front of the children.” The mother again attended the police the following month and provided a statement to a police officer of SOCIT. She again alleged “a [sexual assault] in the family home [in early] 2014 and other indecent assaults by fear and threats both prior to and after the [sexual assault]”. She alleged the father threatened that if she did not comply with his sexual demands, he would harm her, not assist in another pending family law court hearing she had with her first husband, nor assist with the care of the children while she was in hospital.
A report was also made to child protection in late 2014 alleging the father would look at pornography in the children’s presence and masturbated in front of the children. An IVO was obtained, and the father was excluded from the home.
A further child protection investigation was commenced in late 2014 and concluded in early 2015. It was reported that in 2014, whilst he was supposed to be looking after the children, the father was found to be masturbating in his office and allegations were raised in relation to the father sexually assaulting the mother resulting in a pregnancy. There were no charges laid against the father and upon completion of the child protection investigation, additional concerns were raised in relation to the mother’s parenting capacity and abuse of prescribed medication (Exhibit ICL-2). The reported concerns of sexual abuse relating to the father were not substantiated.
The mother deposes in her affidavit filed 3 June 2022 to disclosures which were allegedly made in June 2022 by the children’s adult cousin, Ms AD, that the father had sexually abused her when she was six years old. During cross-examination, it was established those allegations were made by Ms AD’s mother in the context of a marital dispute between her and the father’s brother, and not by Ms AD. The Magellan Report (Exhibit ICL-2) refers to the notification which was made in mid-2017 and investigation which was completed the following month.
The Magellan Report dated 21 May 2021 also refers to a notification that the father attempted to strangle the children’s male adult cousin when he was aged approximately eight years, however no further mention of that incident was made. Around the same time, a further report was subsequently received by child protection alleging the father had been sighted “stroking the children’s vaginas and bottoms after bath time on a number of occasions and as recently as the past 12 months”. No specific details of the allegations were provided. SOCIT conducted a disclosure interview of the children where no disclosures were made. SOCIT further advised that Ms Almstedt was “not believing of the disclosures made by the 18yo cousin in relation to [Mr Lundin] despite [Ms Almstedt] previously informing child protection that she had seen [Mr Lundin] masturbating in the home study on two previous occasions whilst [Y] was in the room”.
The Magellan Report refers to a report and investigation in late 2018 in relation to observations of the fathers’ interactions with Y and her school friends. It was reported he carried X around on his hip and allowed her female friends to touch and be “really close” to him. There were concerns raised about a pattern of inappropriate behaviours displayed by the father, and a referral was made for the children to engage with a sexual assault counselling service. The matter was closed at intake.
In late 2018, without any prior notification the mother asserts a counsellor from the sexual assault counselling service contacted her to arrange to see the children regarding a report, which she alleges the school made to child protection. The substance of the allegations was that the father had behaved inappropriately to the older child in the school grounds and concern about the father’s possible grooming of young girls during lunch breaks.
The mother was vigorously cross-examined about her involvement in the notification referred to in the previous paragraph. She was adamant the school had made the investigation and it was not her, nor someone on her behalf. She held that view because the principal of the children’s school had allegedly told her the notification had been made by a staff member.
In her trial affidavit, the mother deposes that Y, then aged nearly 8, made a comment to her in early 2020 that her father had “tickled me in my privates”.[11] She was completely shocked by the comment but did not have any concerns because the children were self-isolating with her. She further states that Y did not appear concerned and did not repeat the remark to her.
[11] Mothers’ affidavit filed 3 June 2022, paragraph 15.
The police records show in early 2020, the mother disclosed to her support worker, who subsequently made a notification to DHHS, that the father tickled Y all over her body including her vagina and allowed Y to sleep in his bed when she is with her father.
The Magellan Report refers to a notification and investigation in early 2020 concerning allegations of sexual abuse perpetrated by the father against Y. SOCIT investigated and both Y and X were interviewed at their home, with SOCIT advising that neither child had disclosed abuse or any inappropriate behaviour. The matter was closed at intake.
In addition to her concerns about the father’s sexualised behaviour, the mother deposes that from the beginning of 2022 the children reported to her events at the father’s home which raised serious concerns such as threats the children had heard their father and his family make about the mother and the two older siblings.
Notwithstanding those very serious allegations made to police and child protection, the mother deposes in her trial affidavit that subsequent to the making of orders in 2016, the children spent unsupervised time with their father in accordance with those orders until January 2021. Time was generally unremarkable, and she attributed any unusual behaviours or reactions in the children to be developmental or resulting from the children’s separation from her and their siblings.
I do not intend to make findings about the events and allegations which predate the current proceedings. The events demonstrate the mother’s continual allegations of sexual impropriety against the father and the investigations by various child protection authorities, none of which were ever substantiated, and provide context to the mother’s subsequent allegations of sexual abuse of the children. Despite all these allegations and concerns, the mother consented to final parenting orders in 2016, and further orders in September 2020 providing the father with 25 days of makeup time following the contravention proceedings.
I now turn to the current allegations of the father’s sexual abuse of the children.
Alleged sexual abuse disclosures by both children in January 2021
According to the mother, when the children returned to her care after spending holiday time with their father on 25 December 2020, 9 January 2021, and 22 January 2021 they “both independently made shocking disclosures” to her.[12]
[12] Mothers’ affidavit filed 3 June 2022, paragraph 20.
In her Notice of Child Abuse, Family Violence or Risk filed 18 March 2021, the mother stated at Part H:
The respondent father admitted to watching pornography during the time we were married.
The children have reported watching pornography whilst they are with the respondent father and have reported that he has tickled and touched and penetrated their vaginas at times that they were with him. I have concerns that the respondent father is grooming the children and perpetrating sexual abuse against them, exposing them, and engaging them in adult behaviour.
Since the making of the final orders on 2 August 2016, there have been reports from staff at the school attended by the children alleging inappropriate behaviour of the respondent father towards the child [X] on the school grounds and grooming of other children when parents are not allowed on the school premises.
There has been a disclosure from the respondent father’s now adult niece in 2017, that the respondent father perpetrated sexual assault against her as a child.
(As per original)
On 25 December 2020 when the children returned to their mother, they allegedly both independently made shocking disclosures to her that the father had “done bad things to them” and told them he was going to kill their mother and harm their half siblings. The children did not provide details, and according to the mother she did not ask, as she was totally shocked and overwhelmed by the disclosures. She attempted to calm the children down and reassure them they would be all right. Because she was keen to comply with court orders, she sent the children back to their father’s home for the second period of holiday time with him.
On 9 January 2021 when they returned to their mother, the children both independently made allegations to their mother about their father tickling and touching their vaginas. The mother deposed to being in shock and trembling and as she did not want to know what to do, she contacted a religious leader she knew as she needed the support of another person. She and the religious leader telephoned child protection and were kept on hold for a long time. The mother needed to attend to the children, so she left the religious leader to eventually make contact with the Department of Families, Fairness and Housing (DFFH). The DFFH told the religious leader the mother should contact her support worker from the Department. According to the mother, she made various attempts to contact the support worker, but she was unable to do so. During cross-examination, the mother said she did not know why she did not contact the police and she was focused on child protection. She did not contact a lawyer because of cost concerns, even though she had used the same lawyer since 2014 apart from Victoria Legal Aid assisting her with a few letters.
The police records demonstrate that on 13 January 2021, religious leader Mr GG contacted the DFFH about concerns the mother had disclosed to him. Allegedly, X and Y had made disclosures to their mother about the father’s inappropriate movies and tickling of them. Mr GG was told that child protection could not take any action without speaking directly to the mother as there was no context of the allegations and similar allegations had already been investigated. Several calls were made by child protection to the mother; however, they were unable to speak to her.

I now turn to the father’s assertion that the mother has engaged in alienation of the children and has exposed them to psychological and emotional harm.
I will consider the additional matters the father submits warrant a finding the mother has engaged in parental alienation. They are the mother’s past pattern of behaviour when she attempted to alienate Ms E and Mr F, her condoning Y’s surveillance of the father and watching the USB stick which X stole from her father’s home.
Father’s allegations about the mother’s conduct with Ms E and Mr F
Central to the father’s case that the mother has manufactured the allegations of sexual abuse against him and has deliberately involved and enmeshed the children, the father relied on the mother’s conduct towards, and litigation with the father (“Mr AG”) of her two older children, Ms E and Mr F (“the older children”).
The father’s evidence in his affidavit is that during the mother’s family court proceedings with her former husband, he observed the mother engage in extreme behaviour to damage her to older children’s relationship with Mr AG. The allegations levelled at Mr AG included choking the older children, punching, and pushing Ms E down the stairs, starving them, being verbally abusive towards them, having anger issues and alcohol and substance abuse. During the litigation, Ms E went from wanting to spend more time with Mr AG to within six months not wanting to see him and being unable to explain why.
The father deposes to observe the mother engage in behaviour to exclude Mr AG from their lives including actively discouraging the older children from spending time with Mr AG, speaking to him on the phone, and making negative comments to the older children about Mr AG and anyone associated with him. He also observed the mother passing on birthday presents from Mr AG to the older children, without telling them who had given them the presents. The mother attempted to make the children feel unsafe in Mr AG’s care, so much so that when he booked a five-star holiday overseas, the older children refused to go and stayed home with their mother.
According to the father, the mother regularly discussed the proceedings with the children and coached them on what to say and how they should behave towards Mr AG. In particular, during a two-week period leading up to Family Report interviews with Dr W, psychologist, he observed the mother coaching the older children on what to say and how to behave during the interviews, including posing questions to the older children, and reframing their answers to questions.
As an example, the father contended he observed the mother say to Mr F words to the effect of “why you don’t want to see your father”, and when Mr F responded, “because I get bored”, the mother yelled at Mr F “do you think they are going to allow you to stop seeing your father on the basis you are bored? Try again”. The mother then told Mr F to say words to the effect “you say things like you are scared, he screams a lot, you’re frightened of what he will do next”. The father also observed the mother instructing the children not to sit next to Mr AG during interviews, to say they were frightened and did not want to be near him, to refuse to play with Mr AG during observation sessions and for Ms E to cry during her session with Dr W. Following the instruction to Ms E to cry, the father observed Ms E sitting in the kitchen on several occasions practising crying by scrunching up her face and concentrating hard to force out tears. In the car on the way home from the interview with Dr W, according to the father Ms E was worried she had not been able to make herself cry, although she had tried very hard to do so.
Sometime during 2013, when the children returned home after spending time with Mr AG, Mr F told the mother and the father that Ms E told Mr AG not to be upset with her because it was her mother who made her say she did not want to spend time with him. Upon hearing that, the mother stormed up into Ms E’s room and screamed at her while Ms E lay on her bed crying. The mother subsequently thanked Mr F for telling her what Ms E had said.
During the first set of proceedings between the mother and the father, the father’s lawyers were permitted to search the file of the previous family law proceedings between the mother and her first husband which commenced in 2005. As a result, the father obtained access to a Family Report prepared by Dr W on 27 May 2013. In the report, Dr W stated:
the presentation of the children and parents would suggest an alienation process… Subsequently the children appeared to be acting in accord with the main parental caregivers’ attitudes towards the father. This evaluation strongly indicates there is an ongoing alienation process with the father being progressively excluded.
Dr W also opined the children’s answers during interviews appeared rehearsed and the only way to address the alienation was to increase the time between the older children and Mr AG.
Orders were made providing for the older children to spend additional time with Mr AG which then resulted in the older children making further serious allegations that Mr AG had starved them, choked Mr F, and smashed Mr F’s head against a glass coffee table. Mr AG’s time was immediately suspended. The alleged assault on Mr F was investigated by the police who ultimately concluded it did not occur, after obtaining statements from both the father and his new wife and inspecting the layout of furniture in the father’s home.
During cross-examination by senior counsel for the mother, the father’s evidence was that during the marriage, he had initially accepted the mother’s accounts as he was married to the mother in a functioning relationship. He began to develop serious concerns about the mother’s conduct towards her first husband in the weeks leading up to the appointment with Dr W when he personally observed her conduct. The father’s evidence in this regard was direct and convincing and I accept the veracity of his allegations about the mother and the manner in which she conducted parenting litigation with Mr AG, although it now seems both Ms E and Mr F have some sort of relationship with him.
Y’s photographs of the father’s phone and surveillance of him
Between 1 September 2020 and 25 December 2020, Y then aged 8, embarked on an amateur reconnaissance mission each time she spent time with her father. On at least nine occasions, Y took a telephone to her father’s home and took hundreds of photos of his phone, went home, showed the photographs to her mother who then took screenshots of some of the photos. The mother then deleted the rest of the photographs and told Y not to do it again. She did not confiscate the phone, and Y continued to take hundreds of photos of messages and photographs on her father’s phone whilst she was spending time with him, some of which are Exhibits F-17, F-18, and F-19. On the second or third occasion, Y took photographs of herself with her father’s phone to effectively provide “proof of custody”. Some of the photographs demonstrate that Y accessed her father’s phone at 3.30am and refer to witnesses in the proceedings. The father was unaware of Y’s conduct until the photographs retained by the mother were discovered in the material produced by the police pursuant to subpoena.
During cross-examination by counsel for the father about Y’s activities, the mother said “I can’t regulate what goes on in his time” prior to agreeing she took advantage of the child.
As referred to above, during cross-examination, Dr D was informed of Y’s actions and the mother’s involvement and said that in all her years as a family consultant she had never seen any other child behave in such a manner. It is axiomatic that the mother’s encouragement and condoning Y’s outrageous behaviour can only be regarded as emotional and psychological abuse of the child.
X taking the father’s USB stick from his home
According to the father, he had been advised to commence recording his time with the children as a pre-emptive measure to contradict allegations the mother may make against him in the future. The father purchased a USB device which he used to record the children’s time with him. Apparently, the children became suspicious they were being recorded because the father would say the date and time for the benefit of the recording. X stole the first device during time she was spending with her father and the second device that was purchased as a replacement sometime later. According to the father, when he thought he had misplaced the device he asked the children if they knew where they might be located, and X’s response was “I’ll help you look for them”. Exhibit F-16 is a transcription of X’s interview with the police where she said:
[Police] : Then what happened
[X]: I told my mum and we watched it
[Police]: How did you watch it?
[X]: Plugged it into mums computer
[Police]: How did you know how to do that ?
[X]: I didn’t mummy helped me
[Police]: Then what?
[X]: We watched it there was a lot of things on there so I didn’t watch it all so mum watched it all
The mother watching the USB stick stolen from the father, together with the children, is another example of the mother directly involving the children in the parental conflict, which I consider emotionally and psychologically damaging for the children.
Psychiatric assessment of the mother
Dr LL, Consultant Psychiatrist, prepared a report dated 29 November 2022 of his psychiatric assessment of the mother (Exhibit ICL 4). Dr LL gave evidence on 13 December 2022. The assessment was obtained because of Dr D’s concerns about the mother’s mental health.
Dr LL confirmed his opinion as outlined in paragraph 41 of the report that the mother did not seem to have any insight into the impact of her behaviour on the children, despite having qualifications in healthcare. Dr LL agreed with counsel for the Independent Children’s Lawyer that the mother’s conduct with Y and encouraging her to photograph the father’s home and phone, “would lead him to the conclusion that the mother might have possibly instructed [Y] to specifically take them”. That information was helpful to his view of whether the mother was engaging in an alienation process, although he did not say categorically that is what she was doing. He was also of the opinion that the length of his interview with the mother was sufficient time to enable him to assess whether the mother was psychotic, or at least delusional, or not.
In his report Dr LL raised three possible explanations for the mother’s allegations of abusive behaviour by the father to the children. First the allegations of sexually appropriate behaviour by the father are true, secondly the mother is mentally unwell and suffering from a psychotic disorder which has involved the children in a shared delusion, and thirdly that the mother is consciously attempting to alienate the children from the father.
Because of my findings that the father did not sexually abuse the children, I do not accept the first possibility. Dr LL does not accept the second possibility and states at the conclusion of his report:
However, it is highly unlikely that [Ms Almstedt] is suffering from a psychotic delusional state presently.
At paragraph 59 of his report, Dr LL commented:
If the court were to come to such a conclusion, after carefully weighing up of the evidence, that they supported this third possibility, then it would suggest a significant degree of personality pathology, possibly of a narcissistic type. It would appear then that the mother has been waging a bitter war against the father, for unresolved issues during the relationship as well is the alleged threats to harm her. This would then suggest that she used the children as weapons against him, with scant regard for their feelings or the consequences for their own emotional development. This ignores the contribution by the father to such a situation, which is not the brief of this report.
As to the third possibility, I consider his comments about the mother “waging a bitter war” against the father and using the children as weapons against him, with scant regard for their feelings or consequences for their own emotional development, is an accurate and succinct description of the mother’s conduct. Her conduct can only be regarded as malevolent.
I consider the mother has actively created a false narrative of sexual abuse to the children and has engaged in emotionally and psychologically abusive conduct towards the children. I accept Dr D’s characterisation of the mother as presenting with significant risk factors for alienation behaviour and if her case is not accepted by the court, which it is not, she is a parent who is identified as emotionally abusive and who has inculcated false beliefs of sexual abuse and has destroyed a healthy relationship with the other parent. [17]
[17] Family Report dated 18 October 2021, paragraph 117.
When asked during cross-examination on 13 February 2024, whether the mother would prevent the children contacting their father, Dr D said:
…. I think the children – as we said before, it’s a – they have – her job is – if we think about her needs and her wanting that relationship severed, that job is done. So, I don’t think there’s, you know, a great deal of – she wouldn’t need to do much. I think the children are already very unlikely to be wanting to, you know, spontaneously contact their father.
Transcript 13 February 2024, p.34 lines 18 to 22.
Senior counsel for the mother urged me to consider the father’s own conduct in reaching any conclusion or finding about parental alienation. She submitted there was a myriad of examples of the father’s lack of rapport with the children and his simplistic view of the father/child dynamic was unrealistic and demonstrated a profound lack of insight about the children’s needs and their own perception of the relationship.
She submitted the father went out of his way to paint a rosy picture of the children’s relationship with him and their adjustment to life in Sydney, which was not based in reality and inconsistent with the children’s accounts to third parties including school counsellors, police, friend’s parents, and Dr D. I accept the submission that the father has attempted to cast the children’s time with him in the most favourable fashion and that the reality is significantly different. I also accept he must bear some responsibility for the dynamic between himself and the children, which has been adversely affected by his propensity to anger, electronic surveillance of the children and his at times, draconian parenting methods.
However, as pointed out by Dr D, throughout these proceedings the father has been portrayed to the children as having sexually abused them and of latter times, as the parent responsible for keeping them away from their mother and half siblings. It would be almost impossible for the father to present as anything other than fixed and negative about the mother when he has been wrongly accused of the most heinous of crimes. In turn, I have no doubt his attitude towards the mother has impacted his parenting capacity and ability to demonstrate insight into the children’s inner emotions. It is entirely understandable he has been fixated on attempting to exonerate himself from the mother’s narrative of sexual abuse of the children.
After considering all the evidence, including that of Dr LL and Dr D, submissions, and in particular taking into account my finding of the mother’s culpability about orchestrating the sexual abuse narrative, the only possible conclusion is that the mother has engaged in parental alienation of both children and has irreparably damaged the children’s relationship with their father, and I so find.
I will now turn to what parenting arrangements are in the best interests of the children, noting that the father has conceded X should live with the mother.
PRIMARY CONSIDERATIONS
The benefit to the child of having a meaningful relationship with both of the child’s parents
Ordinarily, it is in a child’s best interests to have a meaningful relationship with both parents.
In Mazorski v Albright [2007] FamCA 520, Brown J at [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
In McCall & Clark [2009] FamCAFC 92 the Full Court considered the meaning of s 60CC(2)(a) and said:
[119] … the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is "the prospective approach" although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents ...
[122] In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child's best interests.
Sadly, this is a family where the children are unlikely to have a relationship with their father in the future.
During her second cross-examination, Dr D acknowledged it was highly unlikely that the children would have a relationship with their father in the future. Her opinion about the mother’s capacity to encourage a relationship between the father and their children was “limited to none”.[18]
[18] Transcript 13 February 2024, p.33 line 27.
Whilst accepting the inevitability of the children’s lost relationship with their father, she said it was difficult to give evidence that situation was, “in any way in the children’s best interests”.[19] She described herself as looking at the family from “a harm minimisation prospective”,[20] and that she was “not feeling comfortable” with the idea of a severed relationship with a parent.[21]
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
[19] Transcript 13 February 2024, p.7 lines 41-42.
[20] Transcript 13 February 2024, p.7 lines 42-43.
[21] Transcript 13 February 2024, p.8 lines 1-2.
I have above discussed at length the mother’s allegations towards the father and the father’s allegations against the mother and have made relevant findings.
The last remaining risk issue was flagged by Dr D. Because of the children’s conduct in running away from the father’s home and in particular X being missing for several days on the streets in Sydney with children known to child protection, I must consider the real risk that both children will abscond from the father’s care, if orders were made for them to live with him or indeed spend any time with their father. This situation is entirely regrettable, but a fact of life that children with access to current technology, who have been empowered to take matters into their own hands, will again do so in the future if orders are made contrary to their wishes.
The balancing act I am required to undertake is whether placing the children with their mother, whom I have found has actively alienated the children from their father, is a better option than forcing the children to live or spend time with their father, in the face of their vehement opposition.
Dr D agreed with a summary by counsel for the Independent Children’s Lawyer, that being with the mother and the associated risks, however desirable that may be, are better than any of the other options. I accept this evidence.
Additional Considerations
The additional considerations are set out in s 60CC(3) of the Act which I will now consider.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

Unsurprisingly, throughout the whole of the proceedings the children have told various professionals involved with them that they do not want to live with their father and want to live with their mother and half siblings in Melbourne. Those views were initially expressed to Dr D in her first report and the children have been steadfast in subsequent engagement with Dr D. They have also expressed their views to Ms CC, school counsellors, and in so far as X is concerned, to New South Wales police and child protection.
When the children were placed in the father’s care in September 2022, the changeover was protracted, highly emotionally charged, and no doubt distressing for the children.
The fathers submits that the children’s views, as expressed to independent third parties, are completely different to their conduct in his household and what they are saying to him. He attributes the children’s views as expressed to third parties as having been caused by the mother’s alienation of the children and their inability to demonstrate ambivalence towards him.
I accept the father’s evidence that the children’s time with him is not as grim and difficult as articulated by the children, however, I do not accept the rosy picture painted by the father of the children’s time with him. An example of the father’s engagement in self-impression management is his conduct at the interviews with Dr D, when Dr D witnessed a totally different scenario of the children’s conduct in the car, to the father’s recounted version of events.
At the commencement of these proceedings the children were significantly younger, and it now must be accepted that despite the mother’s influence on the children, X at aged nearly 14, should have her views taken into account. Because of the close sibling relationship between X and Y, and the obvious pressure exerted by X on Y to run away from her father’s household in mid-2023, it is unrealistic to expect Y will have an independent view from X about her future living arrangements.
The nature of the relationship of the child with:
(i) each of the child's parents;
(ii) other persons (including any grandparent or other relative of the child)
According to the children, they have a close and loving relationship with their mother. The latest supervision reports attest to the children’s relationship with their mother, they were generally emotionally engaged and excited to see their mother, enjoyed their time with her and the mother was attentive and appropriate. However, notwithstanding the children’s perception of the relationship, and the supervision reports, I have significant and obvious concerns about the mother’s enmeshment of the children in her campaign to oust the father from the children’s lives.
The children’s relationship with their father is far more complex. According to Dr D’s second report, during the assessment on 27 March 2023, both children maintained a high level of anxiety towards the father and on the day of the assessment, were highly uncomfortable in his presence and maintained their beliefs that he was a perpetrator of sexual violence towards them.
I accept the mother has alienated the children from the father and that the possibility of a future relationship is next to none, although there are some elements of contribution by the father, as identified by Dr D. That is a highly regrettable state of affairs because of the obvious emotional and psychological damage which will be inflicted on the children, which was articulated by Dr D during her last cross-examination.
As to the children’s relationship with the maternal family, this was not a focus of the trial other than the children were placed in the care of maternal family members subsequent to both running away from their father’s home. There was no evidence to indicate that the children have anything other than a good relationship with their extended maternal relatives.
The children’s relationship with their paternal family is probably more vexed than with their maternal relatives. After X absconded from the father’s home and was on the streets for several days, she refused to live with the maternal aunt, Ms M, despite the father’s submissions that Ms M would be an appropriate person to care for the child, notwithstanding X had spent a few days in her aunt’s care.
Dr D during cross-examination referred to the children demonstrating some ambivalence towards paternal relatives, although she identified a relationship with them may be problematic for the children.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)        to participate in making decisions about major long-term issues in relation to the child;
(ii)       to spend time with the child; and
(iii)      to communicate with the child
Subsequent to the suspension of the father’s time with the children in March 2021, orders were made on 26 May 2021 for the children to spend supervised time with the father. That time continued until around July 2022. At all times the father has sought to spend time and communicate with the children, however that has not occurred because of the children’s attitude towards him following suspension of his time, in accordance with the orders of August 2016. The father has taken every opportunity to be involved in the lives of the children and to spend time and communicate with them. He cannot be criticised about his commitment and attitude to spending time with the children.
He was the sole carer of the children between September 2022 and early 2023 when X ran away from his care. Y remained in his care until mid-2023.
The children remained in the care of their mother until they were removed by court order in September 2022, following evidence of Dr D about the risk the mother posed to the children. Thereafter the mother has been constrained by court orders limiting her contact and time with the children. Orders were made in August 2023 providing for the mother to commence supervised time with both children, which has occurred. She has also consistently sought to spend time with the children, when permitted by orders.
Parental obligation to maintain the child
Financial considerations were not a significant factor in the proceedings and each parent contributed to the financial care of the children whilst they were in their respective care.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents
If orders are made for the children to resume living with their mother, the children will be reunited with her and their half siblings, Ms E and Mr F, but will have no relationship with their father. Dr D identified the impact of the children being returned to her mother and being confirmed in the false belief that they are victims of sexual abuse as a risk factor that is likely to trigger poor mental health, suicidal ideation, and self-harm. However, she was of the opinion that the prior unstable care arrangements, hopelessness about seeing the mother again, and the grief and loss around those relationships with the mother, Ms E and Mr F, is a riskier picture for the children than living with the mother and believing that they were victims of sexual abuse. Dr D agreed with a summary by counsel for the Independent Children’s Lawyer, that being with the mother and the associated risks, are better than any of the other options. In my view, Dr D was describing the least worst option.
During cross-examination in February 2024, Dr D was asked to comment about the father’s proposal that X should reside with her mother and Y should reside with him because “[Y] is a last ray of hope and that he could not turn his back on a child that still has hope”.[22] Dr D’s evidence was that she understood the proposal and could see that the father was trying to salvage his relationship with his children, and that was the only workable option that he could come up with, or which was available to him.
[22] Transcript 13 February 2024, p.14 lines 32-33.
The father also proposed that if Y were to live with him, he would engage a psychologist to provide intensive therapy with his hope that she would see the light and be content to live with him. When asked if the father’s proposal was realistic, Dr D said:
I think that’s quite unrealistic in terms of the efficacy of treatment in these cases for a child whose beliefs and views are so entrenched and fixed and reinforced by her sister and by the shared…. It’s a shared belief system that they… Both have this shared experience. And so I can’t see how [Y] would ever be free of the alternative view on those beliefs to forge a new path.
Transcript 13 February 2024, p.8 lines 13-18.
Dr D identified her concerns about the children’s psychological dynamic:
So what concerns me here is there is still this same attitude, it would appear – both the children are vocalising and demonstrating by running away – that existed at the time they are in their mother’s care. Nothing has really progressed in terms of the entrenched view of the world.
Transcript 13 February 2024, p.8 lines 29-33.
Dr D also agreed that the children were splitting (their world) between right and wrong, despite what Mr Lundin had to say about the children’s behaviour in his presence including that they would routinely sit around and discuss things, show affection, be open with him and engage in activities. It was of concern to her that despite the children’s presentation to their father, the children appear to have been plotting to return to their mother’s care either at their own instigation, or as the father says, the instigation of the mother and her friends.
Dr D expressed pessimism about the children ever reconciling the views about their parents and expressing more ambivalence towards their father. That was because it has been going on so long and there was no evidence to show the effectiveness of treatment and therapy in these types of cases, because they are so few and far between. She said there is a real resistance in the psychological community to work with these sorts of families, and it would be unlikely a psychologist would continue to see a child who presents in the way Y does, when she is very clearly expressing a view. There is no kind of reprogramming therapy.
Dr D said she was loath to support separation of the children given their history, very close relationship, emotional co-dependence, and the fact that for each other, they have been the only stable relationship in their life for the last three years. She opined:
…it would be a very significant loss for both girls, and I think they would fight very hard to have reunification – putting themselves at risk, to be fair. I think that would potentially become very risky.
Transcript 13 February 2024, p.9 lines 1-3.
When asked to clarify the risk, she referred to absconding, truanting, and putting themselves into high-risk scenarios with other vulnerable young people.
As to the effect on the children of separation from their father, which was inevitable, Dr D identified the poor mental health trajectory and associated risks.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There were no identified practical difficulties for the children to spend time or contact the father on a regular basis. Rather, the issue is the children’s refusal to spend time with the father.
The capacity of each of the child’s parents to provide for the child’s needs, including his emotional and intellectual needs
The mother has demonstrated capacity to provide for the children’s physical needs, as has the father.
The mother’s conduct and lack of insight about the effects of her behaviour on the children is self-evident. I have serious concerns about her capacity to properly provide for the children’s emotional and intellectual needs, although it will probably superficially seem that she has the capacity to do so.
Dr D acknowledged the father’s efforts to provide for the children when they transitioned into his care. However, it is apparent the children would not, or could not, accept his primary care of them and the loss of their relationship with their mother. Despite their behaviour in the father’s presence, the children were actively plotting to return to their mother’s household.
The maturity, sex lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks is relevant
Both parents and the children are of the same religious heritage. There are no additional relevant factors.
If the child is an Aboriginal child or a Torres Strait Islander Child: the child’s right to enjoy his Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
This is not a relevant consideration.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Superficially, the mother presents as a responsible parent. However, her inclusion and enmeshment of the children in the false sexual allegations against the father, demonstrates her profound lack of insight about the adverse effect on her children and their present and future emotional and psychological wellbeing. Her involvement of Y in spying on her father can only be characterised as emotionally and psychologically abusive. As referred to above, the mother is reluctant to accept responsibility for her actions and has attempted to almost distance or disassociate herself from her own culpability. Unfortunately for these children, there does not seem to be any hope of reconciliation with the father.
The father also presents as a responsible parent who wishes to continue to have a relationship with his daughters. Subsequent to the move to Sydney, he enrolled the children in school and appropriately encouraged extracurricular activities and the children’s friendships. From the children’s reports to third parties, they are critical of his parenting techniques, capability, disciplinary methods, and his apparent inability to understand their emotional needs. The father is clearly bewildered by the contradiction between their interactions with him and the children’s comments to third parties, including to Dr D on multiple occasions.
Any family violence involving the child or a member of the child’s family and relevant inferences that can be drawn
This been extensively considered above.
Whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings
It is obviously desirable for this family to have an end to parenting litigation, which has been on and off since 2014. There would be no further purpose served by protracting the dispute.
Any other fact or circumstance that the Court thinks is relevant
All relevant facts and circumstances have been addressed.
CONCLUSION
The inevitable and regrettable conclusion to this protracted litigation is both children should be returned to the care of their mother and there should not be any orders mandating the children to spend time with their father.
As stated by Dr D during her final cross-examination, she still considers the risk to the children in the mother’s care to be less immediate and significant than the risk in the father’s care.
I also propose to make orders providing for family therapy for the children in accordance with the Minute proposed by the Independent Children’s Lawyer, which includes provision of a copy of these reasons to the children’s counsellor. I will make the order as sought because Dr D identified that X’s high-risk behaviour would not necessarily abate in the care of her mother, although that would possibly mitigate against future high-risk behaviour and some form of counselling could possibly assist.
I will also make an order that the children are provided with the father’s email and contact details to at least leave the door open, should they wish to contact him in the future and that he be permitted to forward letters and cards to the children, as recommended by Dr D.
I propose to make orders accordingly.
Parental Responsibility
Because of the circumstances of this case, regrettably the only viable option for parental responsibility is for the mother, who will be the children’s sole carer, to have sole parental responsibility. Given the history of the allegations, the mother’s conduct, and the estrangement between the children and father, it is inconceivable the parents would ever be able to reach consensus about future decision making for the children.
As I have determined there should be an order for sole parental responsibility, I am not required to address the statutory pathway set out in s 65DAA.

I certify that the preceding two hundred and eighty (280) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Williams.
Associate:
Dated: 21 March 2024

File number(s):	MLC 8679 of 2014
Judgment of:	WILLIAMS J
Date of judgment:	21 March 2024
Catchwords:	FAMILY LAW – PARENTING – Entrenched and protracted parental conflict – Where the mother alleges the father sexually abused the children – Where the father alleges the mother has engaged in alienation and orchestrated a false narrative of sexual abuse – No evidence to support the mothers’ allegations – Where the single expert considers the mother has promoted a false narrative – Interim orders for change of residence made – Consideration of the best interests of the children – Finding that the father did not sexually abuse the children and the mother engaged in alienation which has irreparably damaged the children’s relationship with their father – Where the court finds there is a greater risk of harm in the children remaining in the fathers care than being returned to their mother – Orders for the children to live with the mother and spend no time with the father
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAA
Cases cited:	Banks & Banks [2015] FamCAFC 36 Blann & Kenny [2021] FamCA 322 Eastley & Eastley [2022] FedCFamC1A 101 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Isles & Nelissen [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69 Mazorski v Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	280
Date of hearing:	11–15 July 2022; 5–7 September 2022; 12, 13, 15 December 2022; 27-28 April 2023; 3-5, 10-11, 14, 26-27 July 2023; 12, 13 and 23 February 2024
Place:	Melbourne
Counsel for the Applicant:	Ms Stoikovska SC
Solicitor for the Applicant:	Susan Snyder
Counsel for the Respondent:	Mr Burns
Solicitor for the Respondent:	RRR Lawyers
Counsel for the Respondent:	Ms Fisken
Solicitor for the Respondent:	Stuart Family Lawyers
Counsel for the Independent Children's Lawyer:	Mr Myles
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 8679 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ALMSTEDT Applicant
AND:	MR LUNDIN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	WILLIAMS J
DATE OF ORDER:	21 MARCH 2024

Exhibit Number	Description
M-1	Documents provided to police by the mother, including her statement and email dated 31 July 2015.
M-2	Various emails. Pages 23–30 of the mother’s tender bundle.
M-3	Email dated 28 January 2017 from a police officer to the mother.
M-4	Email dated 27 July 2021 from the mother’s solicitors to the Independent Children’s Lawyer and carbon copied to father’s solicitors.
M-5	Email dated 11 March 2021 from Ms MM.
M-6	Photograph of text messages between the parties, dated 28 April 2013.
M-7	Email chain commencing 19 February 2023 from the mother to NN School and response, dated 20 February 2023.
M-8	Video of an event, email from the applicant mother of 4 July 2023.
M-9	School records of 2 March 2023 written by Ms PP.
M-10	Handwritten diary notes from X’s school dated 7-12 March 2023.
M-11	Notes of NSW Government Communities and Justice.
M-12	Page 4 of 19 of mother’s tender bundle dated 11 July 2023.
M-13	Notes from X’s interview with Ms QQ and Ms PP at school dated 16 March 2023.
M-14	Emails dated 29 March 2023 and 4 April 2023 between teachers and counsellors at the school.
M-15	Email from Ms PP to Ms RR dated 24 May 2023 regarding X’s detention.
M-16	Report from the hospital, page 15 of 27 dated 22 July 2023 recorded by an RN.

F-1	Page 506 of the father’s court book extract from Dr SS’s Family Report.
F-2	Pages 494-496 of the father’s court book from Dr SS’s Family Report.
F-3	Letter from Ms TT to Dr SS dated 17 November 2014 and the report of Ms TT to Dr SS dated 17 September 2014.
F-4	Letter from Ms TT to Dr UU dated 1 December 2014.
F-5	Letter from Ms TT to Mr VV dated 19 November 2014.
F-6	Document titled ‘[…] SOCIT Investigation Coversheet’ dated November 2014.
F-7	Letters from Gastroenterologist, dated 18 March 2014 and 19 May 2014.
F-8	Police Statement dated 9 October 2014.
F-9	Diary notes of police officer dated 5 February 2015 regarding interview with Ms E and Mr F.
F-10	Pages 501 and 502 of the father’s court book (page 15 and 16 of Dr SS’s Family Report being quotes relevant to the father).
F-11	Statement of Ms HH to Victoria Police, dated 10 March 202.
F-12	Mother’s handwritten notes of Y and X.
F-13	Mother’s typed notes of Y and X.
F-14	Phone records.
F-15	Record of Interview of children dated 3 April 2020 by Victoria Police.
F-16	Record of Y’s interview with Victoria Police, dated 1 March 2021.
F-17	Photographs of Y holding the father’s phone.
F-18	Photographs taken by the mother of Y’s photographs of the father’s phone.
F-19	Photographs of Y’s phone taken by the mother showing a photo taken by Y of text message between the father and paternal grandfather dated March 2020.
F-20	Photograph taken by the mother of Y’s phone of a conversation on father’s phone between the father and Ms WW.
F-21	Photograph taken by the mother of Y’s phone showing text message between father and Ms XX from July to September 2020.
F-22	Emails from the mother to father on 21 December 2020 and 24 December 2020 seeking return of Y’s phone.
F-23	Medical reports/referrals for X.
F-24	Document prepared by X’s teacher.
F-25	Attachment prepared by the mother to Family Contact Service Application.
F-26	File note of vice principal of S School after call from Child Protection Agency.
F-27	Diary notes of a conversation between the mother and Ms YY dated 16 May 2019.
F-28	GP notes as of 3 August 2015.
F-29	Report of Professor ZZ.
F-30	Not-authorised Victoria Police letter, together with memorandum, by Informant police officer and table summarising family violence incidents.
F-31	Exhibit A to the affidavit of Dr AB, filed on 31 August 2020.
F-32	School record of conversation between Ms PP and Ms KK, dated 2 March 2023.
F-33	Email from the mother to school, dated 3 March 2023.
F-34	Conversation with Ms KK and school dated early 2023.
F-35	Social media message, dated early 2023 on X’s phone.
F-36	Letter from father’s solicitor to mother’s solicitor, dated 8 June 2023.
F-37	Reply from the mother’s solicitor to father’s solicitor, dated 14 June 2023.
F-38	Letter from father’s solicitor to mother’s solicitor, dated 15 June 2023.
F-39	Response from mother’s solicitor to father’s solicitor dated 20 June 2023 together with enclosures.
F-40	Text messages between mother and Ms JJ dated early 2023.
F-41	Photograph/screenshot of social media video of the mother and Ms L from X’s phone in early 2023.
F-42	Messages between X and the Respondent.
F-43	Video played in court on 10 July 2023, dated early 2023 recorded on X’s phone.
F-44	Messages between Y and the father.
F-45	Email from Y’s school to the father advising of Y’s award, dated 28 April 2023.

ICL-1	X’s statement to Police on 23 January 2021.
ICL-2	Magellan Report dated 21 May 2021.
ICL-3	Y’s statement to Police on 23 January 2021.
ICL-4	Report of Dr LL dated 29 November 2022.
ICL-5	Voice message from Ms L to Ms K on 7 March 2023 at 8.53am. Refer to page 51 of Ms L’s affidavit.
ICL-6	Copy of email from NSW Child Protection to ICL dated 12 September 2023.
ICL-7	Supervisors’ notes for AC Contact Service.
ICL-8	Joint statement of agreed facts.
ICL-9	Observational reports of AE Family Services.