MACCALL & MACCALL

[2020] FamCA 226

FAMILY COURT OF AUSTRALIA

MACCALL & MACCALL [2020] FamCA 226

FAMILY LAW – CHILDREN – Best interests of the children – Parental responsibility – Where the father seeks orders that the children live with him and that the mother’s time with the children gradually increase until it is substantial and significant and is conditional upon her engaging in psychological treatment  – Where the mother abandoned her previous position that the father sexually abused the daughter and adopted the position at  final hearing that she did not believe the father posed any risk of harm to the children – Where the mother seeks orders that the children live with her and spend significant defined time with the father – Where a positive finding is made that the father did not sexually abuse the children – Where the mother’s capacity to provide for the children’s needs is the most salient matter to consider in relation to the best interests of the children – Orders made as sought by the father and largely in accordance with the proposal of the ICL – Orders in plain English form.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA , 60CC, 61B, 61C, 61DA, 65D, 65DAC

Deiter & Deiter [2011] Fam CAFC 82
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
M v M (1988) 166 CLR 69; [1988] HCA 68
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405; 41 Fam LR 483; [2009] FamCAFC 92
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT: Mr MacCall

RESPONDENT: Ms MacCall

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: PAC 1602 of 2017

DATE DELIVERED: 9 April 2020

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 26, 27, 28, 29 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Mahony

SOLICITOR FOR THE APPLICANT: PJM Lawyers

COUNSEL FOR THE RESPONDENT: Mr Reeves

SOLICITOR FOR THE RESPONDENT: SCB Legal Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Guterres

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All previous orders concerning the children X born … 2014 (“X”) and Y born … 2016 (“Y”) are discharged.

2. The father has sole parental responsibility for X and Y but he must:

   2.1 Write to or email the mother about any major long term decision he is going to make about X or Y before he makes that decision and ask the mother what she thinks about it;

   2.2 Think seriously about what the mother says before making the decision; and

   2.3 Tell the mother about the decision that he makes within two days of making it.

3. X and Y will live with the father.

4. For six months from tomorrow X and Y will spend time with their mother:

   4.1 Every Monday afternoon after school ends (or 3.00 pm if there is no school that day) until 6.30 pm; and

   4.2 Every Thursday from 9.00 am until 6.30 pm.  This means that Y will be with his mother from 9.00 am until 6.30 pm because he does not go to child care on Thursdays and X will be with her mother from when school ends (or 9.00 am if there is no school that day) until 6.30 pm; and

   4.3 Every Saturday from 9.00 am until 6.30 pm; and

   4.4 From 9.00 am until 6.30 pm on Mother’s Day; and

   4.5 From 9.00 am until 6.30 pm on each of the children’s birthdays.  If one of the birthdays is on a school day X will be with the mother from after school until 6.30 pm that day. If a birthday is on a day when X is not at school the children will be with their mother from 9.00 am to 2.00 pm.

Therapy with a Psychologist

1. The mother must do everything she can in the next 14 days to start receiving treatment from a psychologist. That psychologist may be Ms B or another person that Ms B recommends.  So that this happens:

   5.1 The mother must make and attend the first available appointment with Ms B or the other psychologist Ms B refers her to;

   5.2 The mother must continue seeing Ms B or the other psychologist and do everything that Ms B or the other psychologist recommends or asks;

   5.3 The mother must continue seeing Ms B or the other psychologist until she is told by them that she no longer needs to;

   5.4 If Ms B or the other psychologist recommends that the mother see some other professional person for her mental health then the mother must do everything she needs to, to see that health professional;

   5.5 The Independent Children’s Lawyer is allowed to give Ms B a copy of Dr J’s report and this decision and these orders;

   5.6 If Ms B is unable to or doesn’t want to see the mother, the mother must see the other psychologist Ms B recommends and must give that person Dr J’s report, this decision and these orders;

   5.7 The mother must tell Ms B, or any other  professional she sees for her mental health within seven days of first seeing that person, that the father must be told if the mother stops seeing them; and

   5.8 The mother must ask Ms B, or the other health professional, to write to or email the father to tell the father that she has started seeing that health professional.

2. As long as the mother is seeing the psychologist as she is required to do then after six months from today X and Y will spend time with their mother:

   6.1 Each Monday afternoon after school ends (or 3.00 pm if there is no school that day) until 6.30 pm; and

   6.2 Every week:

   6.2.1Y will spend time with his mother from 9.00 am each Thursday until 9.00 am each Friday; and

   6.2.2X will spend time with her mother from when school ends each Thursday until the start of school on Friday. On days when there is no school X will spend all day with her mother on a Thursday starting at 9.00 am until 9.00 am on Friday, the same as Y; and

   6.3 Every second Saturday from 9.00 am until 6.30pm; and

   6.4 On Mother’s Day and X and Y’s birthdays for the same time as during the first six months; and

   6.5 At Christmas each year from 12.00pm on Christmas Eve to 12.00pm on Christmas Day.

So long as the mother does everything she is required to do in relation to seeing a psychologist (as set out in Order 5) this pattern of X and Y spending time with her will continue until Y starts school.

1. When Y starts school so long as the mother continues to see the psychologist as required by Order 5, X and Y will spend time with their mother:

   7.1 During school terms:

   7.1.1Each Monday afternoon from after school (or 3.00 pm if there is no school that day) until 6.30 pm; and

   7.1.2Each Wednesday overnight from after school until the start of school Thursday (or 9.00 am if there is no school that day); and

   7.1.3Every second weekend from after school on Friday until 6.30 pm Saturday.

   7.2 X and Y will also be with their mother for half of each school holidays after Y starts school.  The parents are to try and reach an agreement about which half will be spent with the mother but if they do not agree then this will happen:

   7.2.1During the school holidays at the end of Terms 1, 2 and 3 X and Y will be with the mother from 10.00 am on the first Saturday of the school holidays until 10.00 am on the next Saturday;

   7.2.2During the Christmas/Summer holidays after Term 4 X and Y will be with their mother:

   a)   From 10.00 am on the second Saturday of the holidays until 10.00 am on the third Saturday and continuing in this same pattern every second week. This will happen even second year (whenever the holidays start in a year ending with an even number) ; and

   b)     From 10.00 am on the first Saturday of the holidays until 10.00 am on the second Saturday of the holidays and continuing in this same pattern every second week. This will happen every second year (whenever the holidays start in a year ending with an odd number).

   7.3 Every year after Y starts school X and Y will also be with their mother from 6.30 pm Saturday until 6.30 pm Sunday on the Mother’s Day weekend.

   7.4 Every year after Y starts school X and Y will also be with their mother on each of X and Y’s birthdays:

   7.4.1From after school until 6.30pm; or

   7.4.2If the birthday is on a day when there is no school from 9.00 am until 2.00 pm.

   7.5 At Christmas each year X and Y will be with their mother from 12.00pm on Christmas Eve to 12.00pm on Christmas Day.

2. Every year after Y starts school X and Y will be with their father from 9.00 am until 6.30 pm on Father’s Day. This will happen even if they are meant to be with their mother that weekend.

3. After Y starts school X and Y will spend half of the school holidays with the father. This will happen whenever they are not with their mother in the school holidays.

4. At Christmas each year X and Y will be with their father from 12.00pm Christmas Day to 12.00 pm Boxing Day.

5. Whenever X and Y are going to spend time with their mother, the mother is to pick them up from school or childcare at the end of a school day. The mother must deliver them to school if it’s a school day after spending time with her.  If X and Y (or either of them) are not at school or childcare because of the holidays or any other reason then the father will collect them and return them from the mother’s home.

Communication

1. Each parent is allowed to contact X and Y by phone at reasonable times when they are spending overnight with the other parent. The parents should agree about times for these phone calls but if they do not agree then the phone calls should be made between 4.00 pm and 5.00 pm. 

Information Sharing

1. In the next two days each of the parents must write to or email the other parent to give them their mobile phone number and email address so that the parents can communicate about X and Y.  

2. If one of the parents change their mobile telephone number or email address or the address where they are living that parent must tell the other parent about the change within one day.

3. Within seven days the father is to choose a general practitioner doctor for X and Y and tell the mother who that is.  After that the parents are only to take X and Y to that doctor when necessary except if there is an emergency. 

   15.1If the doctor chosen by the father is not available then X or Y must be seen by a doctor in the same medical practice unless both parents agree to seeing someone else; and

   15.2If the mother has X and Y with her and they are somewhere outside Sydney and can’t see the doctor the father has chosen then the mother must contact the father straight away and ask him about which doctor she should take X or Y to see.   

4. If X or Y gets sick or hurts themselves when being cared for by one of the parents the parent caring for X and Y must:

   16.1Tell the other parent about the illness or injury as soon as possible;

   16.2Tell any doctor or professional looking after X or Y to speak to the other parent about the illness or injury; and

   16.3Give the other parent at changeover all medications for X and Y as well as written directions about those medications and any other treatment.

5. The mother must not:

   17.1Photograph, film or record X or Y in relation to any concern about sexual abuse;

   17.2Take X or Y to any doctor or health professional to have them physically examined about sexual abuse without the father’s written permission;

   17.3Discuss with X or Y anything about these court proceedings;

   17.4Take X or Y to any counsellor or psychologist or similar person unless the father agrees to that in writing or email; and

   17.5Drink alcohol or be affected by it when X or Y are in her care.

6. Both parents must not say nasty or abusive things about the other parent in front of X or Y and if any other person is saying nasty or abusive things about a parent that X or Y can hear, that parent must remove X or Y from being able to hear those things.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 1602  of 2017

Mr MacCall

Applicant

And

Ms MacCall

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings concern the long term parenting arrangements for a little girl aged five and a boy aged three (“the children”) following the breakdown of their parents’ brief marriage.

2. Throughout the proceedings the father has held a fairly consistent position as to the future parenting arrangements for the children. He has always proposed that he have sole parental responsibility for them and that they live primarily with him. It is his case that the mother poses an unacceptable risk of harm to the children should the children primarily live with her due to her mental health difficulties. 

3. At the final hearing in November 2019 the father ultimately adopted the majority of the proposal of the Independent Children’s Lawyer (“ICL”) which includes orders that the children live with him and that the mother’s time with the children gradually increase until it is substantial and significant and be conditional upon her engaging in treatment in respect of her mental health difficulties.

4. The mother’s position changed dramatically in the course of the proceedings. She had for some time sought orders that she hold sole parental responsibility for the children and that they primarily live with her and spend limited and supervised time with the father on the basis that he posed an unacceptable risk of harm in relation to sexual abuse. Although the mother had held the view for some years that the father had sexually abused the daughter she adopted the position at the final hearing that she did not believe the father posed any risk of harm to the children. The orders sought by her at the final hearing, that the children live with her and spend significant defined time with the father align with this changed position. 

5. The final hearing also related to the parties’ dispute concerning a fair distribution of their property. Towards the end of the hearing it appeared that this dispute had been resolved between the parties and it was indicated by the parties’ lawyers that proposed orders in accordance with the agreement reached would be tendered and the Court be requested to make Orders in terms of that agreement.  After I was informed of the tenor of the parties’ agreement the wife’s counsel indicated that the wife no longer agreed to that position and that terms would not be placed before me. In these circumstances and at the request of the husband I recused myself from proceeding further in the property proceedings. 

6. Accordingly, this judgment is only concerned with the question of which of the parenting proposals is proper having regard to the best interests of the children being the paramount consideration.

Background

1. The father who is 39 and the mother who is 34 met in October 2013. Not long after meeting they formed a relationship.

2. In late 2013 or early 2014 the parties moved to a property owned by the father which became their family home.

3. Shortly after the parties began living together the mother ceased taking medication which had been prescribed for her in relation to depression. 

4. In … 2014, the parties’ daughter,  a girl now aged five (“the daughter”) was born.

5. In September 2014, just prior to the daughter’s birth the mother had concerns about the father allegedly taking an inappropriate sexual interest in his nieces. The mother’s concern about matters relating to sexual abuse of children is central to the father’s case that she poses an unacceptable risk of psychological harm to the children. He also contends that the mother’s concerns about sexual abuse are related to her mental health difficulties. For reasons which will become clear, the mother’s mental health and beliefs are significant matters that loom large in these proceedings in relation to the need to protect the children from harm.

6. Following the daughter’s birth, the mother began drinking alcohol to excess, (often to the point of unconsciousness according to the father), and this pattern of alcohol use increased in the course of the parties’ relationship. While the mother disputes the level of her alcohol misuse, she concedes that she did drink to excess and continued to suffer depression in the 18 months after the daughter was born. The mother’s mental health and use of alcohol are matters to which I will return.

7. In … 2016 the parties were married.

8. In … of that same year, the parties’ younger child, a boy now aged three (“the son”) was born. The mother was diagnosed with post-natal depression following the birth of this child, and recommenced treatment including prescribed medication for this condition.

9. In early 2017 the parties attended counselling together in order to address issues related to the mother’s symptoms of depression and the father’s grief reaction to his father’s death in November the previous year.

10. In the months that followed there appeared to be difficulties in the marriage relating to the parties’ parenting of the children and financial matters, which caused the parties to argue on a regular basis.

11. A particular chain of significant events in relation to these proceedings began on 24 March 2017 when the daughter complained to the mother that she had “tummy pain”. This complaint was the genesis of an allegation subsequently made by the mother that the father had sexually assaulted the daughter which caused the breakdown of the parties’ relationship and remained the central plank of the mother’s contention concerning the risk of harm posed by the father for at least the following two years. 

Alleged sexual abuse of the daughter  

1. The day after the daughter complained of “tummy pain” this child complained of pain when urinating and pointed to her genital area saying “ouch it hurts”. It was the mother’s initial impression that the child had contracted a urinary tract infection so she was taken to a general practitioner.

2. The following day the mother collected a urine sample from the daughter as advised by the general practitioner. At the time she took the sample the mother says she made certain observations about the child’s genital area which caused her to have concerns about the possibility of sexual abuse.

3. A few days later the mother’s concerns about the father became aroused as a result of her forming the belief that the father had been going into the daughter’s bedroom during the night. 

4. In the early hours of 30 March 2017 when the father was at the gym in accordance with his usual routine the mother questioned the daughter about the father attending the child’s bedroom in the night. The mother claimed that when she asked the daughter “did daddy touch you under the nappy?” the child said that he had. 

5. The mother then rang the Department then known as Family and Community Services (“the Department”) and also reported her concerns to police. 

6. A short time after the father returned home from the gym two police officers arrived at the family home. They spoke to the mother privately and then informed the father that she had made an allegation of sexual interference with the daughter which the father denied. 

7. The daughter was subsequently medically examined. It was found that she was suffering from either vulva vaginitis or “nappy rash” with no indication of sexual abuse.

8. The father left the family home following the mother’s allegations. 

9. On the day following the parties’ separation (31 March 2017) the mother sought an Apprehended Violence Order (“AVO”) against the father on the basis that she feared he had entered the family home without her knowledge or consent.

1. On 7 April 2017 the father commenced proceedings in the Federal Circuit Court seeking orders that the children live with him and spend limited time with the mother supervised by a maternal aunt. He reported in his Notice of Risk that having regard to the mother’s conduct to date the children are at risk of psychological abuse and serious neglect in her care.

Events since commencement of the proceedings

1. Following the commencement of proceedings the mother continued to hold the belief that the father had sexually abused the daughter. She warned one of the father’s sisters about the father’s behaviour and the risk he posed to children including his nieces. 

2. On 10 April 2017 police informed the Department that their investigation revealed that there was no evidence of sexual abuse of the daughter by the father. The Child Protection Unit (“CPU”) at the hospital also confirmed that the daughter’s vulva vaginitis was caused by not washing properly and was not related to sexual abuse.

3. A few days later orders were made with the parties’ consent on an interim basis that the children live with the mother and spend time with the father for four hours each week supervised by the paternal grandmother. An order was also made restraining the mother from facilitating any medical practitioner undertaking a physical examination of the children for the purpose of investigations of sexual assault.

4. At this court event the mother’s counsel informed the Court of an allegation that the father had abused a child of a former de facto partner and that an AVO had been sought for the protection of this child. It was subsequently not a matter in dispute that no such allegation had ever been made or AVO sought. 

5. Despite the findings of the CPU the mother continued to believe that the daughter’s behaviour and presentation indicated ongoing concerns that she had been sexually abused. The mother continued to report her concerns about the matter to the Department and have them investigated including taking the child for medical examinations. The content of these reports and ongoing involvement of the Department during these months is considered later in these Reasons.

6. On 29 May 2017 a safety assessment of the mother’s household was conducted by workers from the K program and the children were found to be safe in her care. The mother then disengaged from working with departmental caseworkers and further participation with the K program.

7. In early July 2017 the father sought by application to the Court to increase significantly his time with the children on the basis that none of the mother’s concerns about a risk of harm allegedly posed by him had been found by the Department to have any substance. 

8. A few weeks later a further allegation of sexual abuse of the daughter as against the father was reported to the Department.  

9. On 27 July 2017 the matter was transferred to the Family Court to be placed in the Magellan program[1].

   [1] The Magellan program is a fast–track Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse.

10. The children continued to spend time with the father pursuant to the interim orders then in place and on some occasions the mother agreed for the father to spend additional time with the children. 

11. In September 2017 notifications were made to the Department that the daughter engaged in sexualised behaviour including towards the son who himself was also reported to have a bruised buttocks after spending time with the father.

12. In a report dated 3 September 2017, concerns were raised by hospital staff about the mother presenting the daughter to the hospital with numerous photos of this child’s genitals before and after contact with the father and about the mother’s focus on the belief that the daughter had been sexually assaulted. On this occasion when the child was examined no redness or swelling of her genitalia as reported by the mother was found.

13. In late September 2017 police investigated a complaint that the father was in possession of child abuse material on his mobile phone, but determined it was unfounded.

14. On 3 October 2017 further interim orders were made providing that the father spend an additional three hours each week with the children supervised by the paternal grandmother. Orders were also made with the mother’s consent that she be restrained from photographing the genitals of the children and recording statements made by them for the purposes of obtaining evidence. A child and family psychiatrist (“the expert”) was also appointed to provide an expert opinion in the proceedings at this court event.

15. Between late 2017 and late 2018 the mother failed to attend at changeover on numerous occasions or arrived 20 to 45 minutes late. Other times during changeover both parents depose to having concerns about the proper care of the children as they presented as dishevelled and unclean or unwell. They also both depose to instances of severe denigration of each parent by the other in the presence of the children.

16. On one occasion in March 2018 concerns were raised about the son presenting at changeover with bruising under his eye. The child was taken to hospital for assessment with both parents present. It appears that the parties’ agree that the injury to the son’s eye was caused by a fall at day-care.

17. The family met with the expert in July 2018 and in October 2018 the expert’s report was released. The expert’s opinion to which I will return included an assessment that formal supervision of the father’s time with the children was not necessary and recommended that the children should begin to spend overnight time with the father but that this occur at the paternal grandmother’s home to reduce the mother’s anxieties. The expert also recommended that the children continue to live with the mother provided she undertake clinical intervention with an appropriately qualified clinician, but that the circumstances of the family be reviewed in 12 months’ time.

18. In November 2018 the mother began attending upon a psychologist.

19. On 28 November 2018 a letter was sent to the father from the mother’s lawyer alleging that he had recently assisted the daughter in drawing images of penises. The father insisted that the drawings were artworks of puppets drawn by the daughter with her cousins.

20. In December 2018, orders were made with the consent of the parties that the children spend time with the father on an unsupervised basis one day per week and each alternative weekend from 9.00 am Saturday to 4.00 pm Sunday. Trial directions were also made at this court event.

21. The children spent time with the father in accordance with December 2018 orders until February 2019 when the parties agreed that the father’s time with the children on each alternate weekend was to increase to include Friday nights.

22. There were further delays in allocating final trial dates as neither party filed their trial affidavits in accordance with directions. Ultimately, the final hearing was fixed for November 2019 and proceeded over four days.

23. On 29 November 2019, the parties made final oral submissions and judgment was subsequently reserved.

issues to be resolved

Does the father pose an unacceptable risk of harm to the children?

1. There is no dispute between the parties that the precipitating event for their separation was the mother’s complaints to police in March 2017 that the father had sexually abused the daughter. There can also be no doubt that the mother continued to maintain the belief that the father had sexually abused the daughter for a significant period of time thereafter.

2. Despite agreeing that she held the belief about the father’s abuse of the daughter for a lengthy period of time, by the time the final hearing commenced in November 2019 the mother was seeking orders that the children spend substantial and significant time with the father. This proposal is entirely consistent with the belief the mother claimed to hold at the final hearing that the father poses no risk of harm to the children should such orders be made. 

3. The tenor of the mother’s affidavit evidence and some of her oral evidence however is at odds with her repeatedly stated position that the father does not pose a risk of harm to the children. In particular the mother deposes in her affidavit and maintained under cross-examination that in 2014 she observed the father inappropriately looking at the “private parts” of his nieces when dressed in shorts and confronted him about this at the time. The mother also deposes in detail in her affidavit under the heading of “sexual abuse risk” to her specific concerns about sexual abuse of the daughter. She sets out at great length the daughter’s complaints to her, her own assessment of these complaints and the daughter’s behaviour as forming the foundation for her previously held belief that the daughter had been sexually abused by the father. The mother was unable however to identify in her affidavit or in oral evidence when she ceased holding this belief nor could she properly account for this significant change in position.

4. It is the father’s position that he did not engage in any conduct which would amount to sexual abuse or which gives rise to any risk to the children on the basis that he may sexually abuse them in the future. It is his contention that despite her statements to the contrary the mother does continue to hold the view that he sexually abused the daughter. The father also relies upon the expert’s opinion that if the mother holds with absolute conviction a false belief that the daughter has been sexually abused by him then she meets the criteria for a diagnosis of delusional disorder. Alternatively the expert opines that the mother may hold an overvalued idea as to this matter which is also harmful to the children. The expert is also of the view that if the mother does hold this belief it will become the children’s belief over time which will be psychologically damaging to the children. It is on this basis that the father contends the mother poses an unacceptable risk of harm to the children arising from psychological abuse and that the orders he proposes are the only appropriate way to reduce that risk of harm. The ICL takes a similar position.

5. The father’s contentions concerning the state of the mother’s mental health and the question of whether she holds delusional or overvalued beliefs about the risks posed by him are central to his proposition that the mother herself poses an unacceptable risk of harm to the children. Further, the harm arising from sexual abuse if it were to occur is so great that an assessment of the risk posed by the father must in my view be made given that all parties propose that he have a significant role in the children’s future. In these circumstances although the mother herself does not advance a case that the father poses an unacceptable risk of harm to the children I consider that I am required to determine whether the father did sexually abuse the daughter and whether there is a risk that he may abuse the children in the future. 

6. In M v M[2] (“M v M”) the High Court said when discussing allegations of sexual abuse at [23] – [25]:

   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….

   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 assessing 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….

   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.

   [2] (1988) 166 CLR 69; [1988] HCA 68.

7. In M v M, the High Court also said at [18]:

   In considering an allegation of sexual abuse, the Court should not make a positive finding that the allegation is true unless the Court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362.

8. In Johnson & Page[3]  the Full Court agreed that reference to the Evidence Act1995 (Cth) rather than Briginshaw is the appropriate standard, particularly having regard to s 140(2)(c) of that Act.

   [3] [2007] FamCA 1235 at [72].

9. I also have regard to the authorities concerning the inter-relationship between being satisfied that alleged harmful acts occurred, and a finding of unacceptable risk. One of the cases reviewed in Johnson & Page (supra) at [65] is W & W (Abuse Allegations: Unacceptable Risk)[4], where the Full Court noted at [111]:

   We accept as a matter of practice, a trial judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists.

   [4] (2005) FLC 93–235.

10. In Deiter & Deiter[5] (“Deiter”) the Full Court explained in the context of an interim hearing that risk assessment comprises two elements being a “prediction of the likelihood of the occurrence of harmful events” and a "consideration of the severity of the impact caused by those events”. 

    [5] [2011] Fam CAFC82.

11. In dealing first with the second of the two issues referred to in Deiter, it is beyond dispute that if the harmful events were to occur, the severity of the impact is of the highest order. The harms associated with children being the victims of child sexual assault are beyond doubt. In other words if I considered that there was any real possibility that the father may sexually abuse the children it would be established that he poses an unacceptable risk of harm to them should any of the orders proposed by the parties be made.

12. In these circumstances the real question to be determined is whether such a possibility exists. The suggestion that there is such a possibility that the father may behave in such a way in the future rests entirely upon the evidence of the mother about his conduct in the past.

The sexual abuse allegations

1. Although the mother attempted to disavow the contents of her trial affidavit, under the heading of “sexual abuse risk” she deposes to various events relevant to this matter beginning with the daughter’s complaints of tummy pain and pain when urinating on 24 and 25 March 2017. 

2. The mother first deposes to believing the daughter had a urinary tract infection and taking her to see a general practitioner on the same day, 25 March 2017. She agreed under cross-examination that the general practitioner did not physically examine the daughter but gave the mother a sample jar so that she could collect sample of the child’s urine at home. 

3. In her affidavit the mother deposes to examining the child’s genital area when they returned home and observing that “it look (sic) as though her insides were coming out” and that she saw “some skin that [she] had not seen previously”.

4. The mother returned the child’s urine sample to the doctor the next day and the results tendered in the proceedings indicate a diagnosis of a urinary tract infection. When cross-examined the mother indicated that she never received these results which led her to question whether the child’s condition resulted from sexual abuse.

5. The mother deposes that a few days later, on 28 March 2017 she woke up at 3.00 am to the sound of the father walking down the corridor towards the parents’ bedroom from the children’s room and complaining that both children were crying. She then deposes that the father “seemed like he was on edge and trying to detract attention away from something else” and that she became suspicious. The mother then went to check on the children and noticed that the daughter had shifted position in her sleep which she considered to be “out of the ordinary”. 

6. Under cross-examination the mother disavowed any recollection of this incident at all. She gave the confused explanation for the account of it in her affidavit signed a few months prior to the hearing that “that was past evidence given and that had to be in my affidavit”. When pressed about this particular evidence and any matter relating to the events around separation the mother was extremely evasive and persistently refused to answer the questions asked. 

7. The mother then deposes to continuing to feel uneasy throughout the following day about the events of the previous evening. She says that after picking the daughter up from day care in car journey home she asked the child some questions including “does daddy come into your room and wake you” to which she says the child replied “yes”. 

8. According to her affidavit, on the evening of 29 March 2017 the mother observed that the father “kept looking at [her]” which she considered unusual. She deposes to waking at around 3.30 am to 4.00 am the following morning to find that the father was not in bed and says that she ran straight to the daughter’s room to check if he was there. After noticing that the daughter was asleep and checking around the house she asked the child “did daddy come in to see you tonight” and “did daddy touch you under the nappy?” and the child replied “yes” to both these questions. The mother continued to be evasive under cross-examination when questioned about these events, denying that some of them had occurred, claiming to have no recollection of others but confirming other details as correct. Ultimately, the mother did concede that at the time she thought she held a firm view that the father was entering the daughter’s room in the middle of the night and sexually abusing her.

9. The mother deposes that she “rushed to the phone and called a sexual assault hot line” after hearing the daughter’s answers to the questions and reporting her belief that the father had been sexually assaulting the child. She deposes to being informed that she should call police and report her suspicions and being given a particular number. The mother says that when she was on the telephone she heard the father arrive home and panicked and hung up. She deposes that the father told her he was at the gym which she found unusual. According to her affidavit the father then questioned her about who she had been speaking to and saw the police telephone number on a piece of paper. She says that he then “began to go into a rage” asking her what she had done and following her around the house. At this stage the police arrived at the family home and she explained her suspicions to them.

10. According to the mother’s affidavit she then attended the police station with the children and was interviewed by police. She says that she was asked to take the daughter to a hospital for examination but when she expressed concerns about this being too intrusive the police officer “dismissed” her but the examination was not organised.

11. In relation to the events of 30 March 2017 the father deposes to leaving the family home to attend the gym at about 3.00 am in accordance with his usual routine. He then returned home at around 4.00 am and found the piece of paper with the telephone number of the police assistance line and asked the mother about it. He says that at about 4.30 am police came to the home, spoke to the mother privately and then informed him of her allegation that he had “inappropriately and sexually interfered with” the daughter. The father deposes to being in shock and denying that the matters alleged had ever happened.

1. According to the father’s affidavit he was informed the following day, 31 March 2017, by police that they were of the view that no abuse had taken place and no further action would be taken other than follow up enquiries with medical professionals. 

2. The mother deposes that subsequently she had further contact with the police and was informed that a physical examination of the daughter was not to go ahead due to her age. She deposes however to taking the child to a hospital herself about a week after her initial concern and that the staff treated the presentation in the following matter:

   …They told me words to the effect “from what we can see [the child] is suffering from nappy rash but in most cases, even if they are assaulted, by the time the child is brought to us, we can’t identify anything unless there is bruising or severe physical abnormalities”.

3. Under cross-examination the mother said that the staff at the hospital told her that the child was suffering from either “severe nappy rash” or “vaginal vaginosis” which I understand to be a reference to vulva vaginitis (inflammation or infection of the vulva and vagina).

4. Medical records from the hospital confirm that an examination of the child showed signs consistent with vulva vaginitis and nappy rash and that the mother was provided with a fact sheet outlining management of these conditions. Under cross-examination the mother was unable to explain why she continued to hold the view that the father had sexually abused the child after receiving this advice from the children’s hospital at the end of March 2017 in relation to the child’s presentation. 

5. The next incident in relation to the alleged sexual abuse according to the mother’s affidavit occurred on the evening of the parties separation when the daughter slept in bed with her. The mother deposes to the following:

   That night [the daughter] had a nightmare and screamed “daddy”. I was awoken by this and immediately noticed that [the daughter] said the word “fuck” which was a word that [the father] only used when finishing during sex. To my mind, at this time, this was further confirmation of what had occurred, and I was concerned for my daughter’s wellbeing.

6. Under cross-examination the mother also agreed that following March/April 2017 she continued to report to the Department things that the child said to her which she considered as allegations of sexual abuse against the father. She was unable to explain why each of these matters was not contained in her affidavit. The mother did not agree when it was put to her that she was attempting to indicate that she had not made any other allegations about the father in relation to the care of the children other than the March 2017 incident. 

7. The mother denied under cross-examination that she contacted the Department on 7 May 2017 and reported that [the child] was in the bath that morning and said “daddy fucked again-grandmas”. Although the mother was taken to documents produced on subpoena from police in relation to this notification in which it is recorded that she gave permission for her details as a reporter to be given to the police she continued to deny that she had made a report along those lines. 

8. Records of the Department indicate that this report was referred to the Joint Investigation and Response Team (“JIRT”)[6] but was subsequently rejected due to “not having a clear disclosure of sexual assault and the child being asked a leading question”.

   [6] The Joint Investigation and Response Team was made up of officers from Community Services and police and investigated complaints of sexual abuse and serious physical abuse of children.

9. The mother then agreed under cross-examination that on 16 May 2017 she reported to the Department the daughter disclosing to her the previous day that “daddy hurt me in the tummy. He was very angry”.

10. Although the mother makes no reference to this in her affidavit she agreed that the daughter had received counselling through the Victim Services Scheme through which people who have been the victim of an offence receive counselling. When it was put to her that she made arrangements for the daughter to participate in that program as she was of the view that the daughter had been the victim of a sexual assault by the father, the mother initially denied that that was the case though she subsequently conceded that she did believe that the daughter was a victim of sexual assault by the father. 

11. Documents produced on subpoena and tendered in the proceedings indicate that there were ongoing allegations of sexual abuse by the father of the daughter made to the Department in July and September 2017. A complaint was also made to police during this period that the father was allegedly in possession of child abuse material on his mobile phone.

12. The father denies ever having been in possession of child abuse material on his phone as had been alleged by the mother in September 2017 and deposes to his co-operation with police in relation to this matter. He annexes to his affidavit written confirmation from the detective who examined his phone to the effect that no child abuse material had been located.

13. Although the mother makes no reference to this in her affidavit, in September 2017 she presented the daughter to a second hospital alleging that the child had been sexually assaulted by the father. Once again under cross-examination the mother answered questions in relation to this event with significant obfuscation and evasion. The mother agreed that she reported to the hospital that she had observed redness to the daughter’s genitals after spending time with her father and ultimately agreed that she had reported noticing redness to the daughter’s genitals three to four times since March 2017 and always after contact with the child’s father. The mother did also agree that as at September 2017 she still held the view that the child was being sexually abused by her father in circumstances where the daughter was spending time with the father supervised by his mother. Although the mother denied continuing to physically check the daughter’s genitals following time with the father she went on to concede that she “just used to sort of check that area when she got back from dad’s, just to make sure”. 

14. The mother agreed that the staff at the hospital did not ever confirm that the daughter had been sexually abused. She also agreed that the child’s complaints to her that “it tickles” in relation to her genital region caused her to present the child to the hospital and to report this same matter to the Department. 

15. Documents produced on subpoena by the hospital in relation to the September 2017 presentation tendered in the proceedings indicate that the mother gave a history of the daughter having been with the father that day “unsupervised”, that there had been a history of previous allegations of sexual abuse and that when the child returned the mother noticed erythema (superficial redness of the skin) on the daughter’s vulva region and suspected possible abuse by the father. It is also recorded that the mother reported that she noticed redness on the child’s genitalia three to four times since separation and “always after contact with the child’s father”. The Emergency Department doctor who examined the child found no redness or swelling of the genitalia as reported by the mother. 

16. The mother also confirmed under cross-examination that when she contacted the Department in September 2017 she also made a report about the parties’ son and concerns about his behaviour upon his return from spending time with the father. The mother initially agreed that she informed the relevant person at the Department that because of the child’s behaviour she checked his anus but didn’t notice any injuries. The mother subsequently changed her evidence and denied having checked the son’s anus and steadfastly denied under cross-examination believing that the son had been sexually abused at this time. The mother agreed with some parts of the records of the Department in relation to this notification including that she reported that when the daughter plays with her dolls in the bath she slaps their private parts. She did not recall reporting that the daughter “jumps on her brother and starts to hump him”. The mother assiduously avoided answering the question that she had reported these matters because she believed they were indicative of sexual abuse. 

17. The mother also denied that she reported to the Department that since March 2017 there had been several occasions on which the daughter had returned from contact saying to her that “[I] don’t want to be touched there”. She did however agree that she had reported (apparently in July 2017 according to departmental records) that when reading a story book with the daughter with themes of protective behaviours the daughter pointed to one of the pages and said “daddy did that”. 

18. The issue of giving the daughter a book about protective behaviours was also explored under cross-examination. The mother agreed that the particular book in question was written for children who had suffered child sexual abuse and that she received it from an organisation that assists families where children experience sexual abuse. The mother confirmed that the daughter at the age of two pointed to some of the pages on the book and said “daddy did that” and “daddy hurt [her]” and pointed to her own “private parts”. She confirmed that at the time she believed the child. 

19. The mother was then taken to an occasion a few days after the hospital presentation in September 2017 when she took the daughter to a general practitioner other than her usual doctor. Once again the mother was evasive about the purpose for this visit and the matters she reported to the doctor or claimed to have poor recall of the event. When it was suggested to her that the doctor’s records indicate that she provided a history of “vulva redness” she conceded that she had possibly provided this history. She also said she possibly reported that the Department were involved and that the daughter returns from visits with the father with redness around her vulva as indicated in the doctor’s records. The mother then conceded that the doctor explained to her that the redness may be due to bubble bath or soaps and that she had received that same advice previously from the children’s regular general practitioner. 

20. In July 2018 the mother was interviewed for the purposes of the expert’s assessment. In summary the expert recorded that the mother “reported in varying degrees of certainty about how firmly she held her belief that [the daughter] was sexually abused by [the father]”. The expert also noted, that several days after the interview the mother contacted her and declared she “truly believe[d] the rape happened”. 

21. The mother was quite extensively cross-examined about matters she had reported to the expert. The mother agreed that she reported to the expert that she had recordings of the daughter saying “daddy hurt me on the inside” that she had made. She confirmed that the child had reported this to her but could not explain why this did not appear in her affidavit. When asked about these recordings, the mother explained that there was only one such recording which was both audio and video and claimed that it had been provided to the court in an earlier interim hearing. There is no record of any such recording having ever been exhibited. The recording was also called for but not produced. When asked about the state of her belief about the sexual assault of the daughter (which the mother refers to as “the rape”) at the time of the interview with the expert the mother said that she was “80 per cent sure”. She claimed to have no recollection of contacting the expert by telephone a few days after the interviews and telling the expert that she “truly believed the rape happened”. The mother also agreed that her position in the proceedings at that time was that the children could spend overnight time with the father notwithstanding her 80 per cent certainty that the daughter had been the victim of sexual assault at his hands.

22. The mother was also taken to a complaint made to the Department on 18 August 2018 in relation to a bruise to the lower back of her son and some behavioural changes in this child. One of the matters that was also reported in the course of that notification related to a separate occasion when the mother was at the zoo watching a seal show with the son and he said “eating dick” three times. The mother agreed that she may have made that report but was unable to explain why she had reported it. She agreed that she “guessed” she was concerned that there was a possibility the son was at risk of sexual harm and that she did think the father posed that risk.

23. The mother was also asked about taking the son to a general practitioner other than the son’s usual doctor in relation to the bruising observed in August 2018. Although she initially denied having any recollection of this event, when shown the reports of the medical practice she agreed that she did present the son in relation to “bruised buttocks” and that she believed the son had sustained that bruising while in the care of the father. When it was brought to the mother’s attention the bruise was recorded as being two millimetre in size and the mother stated “kids get bruised all the time” she was unable to explain why she had taken the child to the doctor on this occasion other than that the child was “not himself”. Once again after initially denying that she had concerns that something untoward had happened at the father’s home the mother ultimately agreed that she did believe that the son was at risk in the father’s care at that time.

24. The expert report was released in October 2018 and the following month the mother instructed her legal representative to raise concerns with the father that he had assisted the daughter in drawing images of penises. 

Discussion and findings

1. In summary the evidence that was said to support a contention that the father has sexually abused the daughter or both children consists of the following:

   ·Complaints said to have been made by the daughter on a number of occasions in March 2017 and on various occasions up until July 2018.

   ·The father’s behaviour said to be consistent with sexual abuse.

   ·Comments made by the son.

   ·The behaviour of the daughter said to be consistent with sexual abuse.

   ·Physical features of the daughter’s genitals said to have been consistent with sexual abuse.

2. The daughter’s first complaints which the mother considered at the time were consistent with sexual abuse consist of the answer “yes” to the questions asked by the mother “does daddy come into your room and wake you”, “did daddy come into see you tonight” and “did daddy touch you under the nappy” when this child was two years of age. In circumstances where the mother appeared to have a heightened sense of concern about the father and his conduct towards the child, where the questions asked were leading in nature and likely to have been suggestable to a two year old and as these “complaints” were only heard by the mother, I have real concerns about their reliability and probative value when considering an allegation of sexual abuse.

3. The mother next maintains that on 31 March 2017, the night after the parties separated the daughter screamed the word “daddy” and the word “fuck” which the mother says was a word that the father used when having sex. If it were accepted that the child did scream or say these words in the course of a nightmare there is in my view very little if any probative value to this evidence, given the child’s age.

4. Although the mother disavowed reporting to the Department that the daughter had been heard to say “daddy fucked again – grandma’s” in May 2017, about six weeks following separation (a denial that is difficult to accept having regard to the departmental and police records), this “reported complaint” by the child is also problematic.  According to the Magellan Report[7] the complaint received by the Department was as follows:

   [the child] was in the bath that morning…and said “daddy fucked again”, “grandma’s”.

   It was reported that the child was reminded of this complaint about ten minutes later when the unnamed reporter (who the evidence would suggest was the mother) asked the very leading question “you know you said that daddy fucked you again, was the last time at grandma’s?” to which the child said “yes”. As discussed earlier when considering the other alleged complaints along similar lines I consider this complaint as having been adduced by a leading question to a two year old child. This notification was sent to JIRT for assessment but was rejected on the basis that the specialist investigators at JIRT did not consider it amounted to a clear disclosure of sexual assault and due to the leading nature of the question. For these reasons I do not consider this to be reliable or weighty evidence. 

   [7] A Magellan report sets out the involvement of the Department with the family.

5. The next complaints said to have been made by the daughter were made when a book called “A secret safe to tell” about protective behaviours in relation to child sexual abuse was being read to her. According to the Magellan Report at various stages when the book was being read the child reported “daddy did that”. She was reported to have said these words in response to the reader reading “sometimes he did things that worried me and made me feel completely unsafe on the inside” and “it made me hurt in places that band aids could not reach” and that the daughter pointed to the “little girl’s private parts” on the book and to her own private parts. It was also reported that there was audio and video footage taken of the child making these disclosures. Under cross-examination the mother agreed that she had made the reports of the child’s complaints when the book was being read to her. 

6. In my view this evidence is of very little weight and particularly unreliable as I consider that it was tainted by the context in which the words were spoken. The mother agreed that the particular book was written for children who had suffered child sexual abuse which she believed had been her child’s experience at the time. She bought or received the book from an organisation which assists victims of childhood sexual abuse and domestic violence. The act of reading a book to a child aged two is of itself inherently conducive to a child participating in the narrative. I also have some concerns about more overt influence by the mother in relation to this incident as she made an audio and video recording of the child making these disclosures while reading the book which may suggest to the child that there was some particular significance to the event.

7. I do not accept that the daughter reported to the mother (as the mother told the expert) that “daddy hurt me on the inside”. This complaint had it been made in my view would be a particularly serious allegation made by the child against the father, especially if unprompted. The mother’s failure to produce a recording of this statement which she claimed to have made gives rise to the inference that no such recording exists or that the recording may reveal matters about the context in which it was made that the mother wishes to keep from the court. 

8. The mother also appears to agree that she previously considered the behaviour of the son and some things said by him to be consistent with that child also having been sexually abused by the father. The mother agreed that she made a complaint to the Department in August 2018 when she had observed a bruise to her son’s lower back and some behavioural changes in this child. When it was brought to her attention that one of the matters reported on that occasion was that this child had said the words “eating dick” the mother agreed that she may have made that report and guessed that she was concerned there was a possibility the son was at risk of sexual harm. Given that the son must have been about two or possibly younger at the time he was said to have spoken these words and the lack of context, I do not consider this to be probative of any allegation of sexual abuse by the father. Even when taken in conjunction with a vague and non-specific complaint of behavioural change at a time when the father’s contact was limited and supervised I do not attach any weight to it in relation to the question of whether the father sexually abused this child. 

1. As explained, for a period of over 12 months the mother continued to act on her belief that the daughter had been sexually abused by presenting the child to welfare authorities, doctors and hospitals and making reports about the father to the police. These overt actions which were clearly associated with the belief about sexual abuse abated over time. The expert nonetheless remained concerned about the mother’s general suspiciousness, belief about threats posed by men in general and unusual beliefs about the father’s behaviour and the threat posed by him, which the expert felt were still to some degree present.

2. In her affidavit, the mother deposes to believing that the father was trying to enter her house at night a couple of days after separation which caused her to be scared. She also deposes to becoming aware about one month later of someone walking down her driveway and getting into a car in the early hours of the morning (and indicates that it was the father) which she reported to police. She also deposes to making “numerous reports to police about incidents that have occurred at the house including harassment and damage to the property”.

3. The father recites a lengthy litany of many examples of suspicions held by the mother about him, the paternal grandmother and other friends and relatives prior to the sexual abuse allegations about which the expert expressed concern. So far as the future pattern of care for the children is concerned, the expert had regard to the mother’s suspiciousness and belief about threats after the point in time when the mother claimed to have effectively abandoned her specific concern about sexual abuse. For example, the mother contacted police in August 2018 alleging that the father had broken into her backyard and stolen her Family Court diary and some of the son’s clothes. A few days later, when the mother arrived at the father’s home for changeover, he deposes to her speaking rapidly and complaining of being followed and harassed. Two days later at another changeover, the father deposes to the mother claiming that someone had broken into her yard and tampered with her car.

4. In October 2018 when the mother was late for changeover (which she deposes was due to her losing her keys) the father deposes that during a phone call the mother sounded agitated and upset and was yelling “you stole my keys you dickhead. You are ruining my life; you broke my hot water”. The father then made a telephone call to the local police as he was concerned for the children’s safety and welfare. He says that when he subsequently arrived to collect the children the mother was yelling and abusive, brought the children to him soaking wet and shut the door without any clothes or towels to dry the children who she gave to the father.

5. The father also gives an account in his affidavit of changeover on 17 January 2019 when the daughter needed to go to the toilet.  He deposes that offered to wait with the son at the car while the mother took the child to the toilet to which the mother yelled, in the presence of the children “No. You will steal things from my car while I am gone”.

6. The mother does not address any of the matters raised in the father’s affidavit about these events in October 2018 and January 2019, nor was the father challenged about them under cross examination. On this basis, I accept that the mother engaged in this conduct.

7. The mother also agreed under cross examination that she thought as recently as April 2019 that someone was attending at her house without her permission. As previously discussed, in the same month she contacted police to carry out a welfare check on the children while in the father’s care after a court event when she believed that this event may have caused the children to be at increased risk of harm at the hands of the father.

8. In her oral evidence the expert opined that these examples of the mother’s conduct indicate her sensitivity to stressors and strains and the way in which when under stress she becomes concerned that the father is going to hurt the children.

9. The totality of the expert’s opinion about the mother’s parenting capacity was based on a concern about the mother’s suspiciousness and anxiety in particular relating to the dangers posed by men, together with her limited capacity to learn and make changes and lack of insight into those issues around her own behaviour. 

10. As previously noted, the expert described the potential effects on children who are raised by a parent who holds over valued ideas of this type as including that the children would over time form the same mistrust of their father which may leave them feeling unsafe with him. This in the opinion of the expert has serious consequences for the children’s long term relationships, their own sense of self and self-esteem and will affect their relationship with their father.

11. It is the opinion of the expert that the mother’s condition worsens when she is stressed and she becomes less integrated and that this is more likely to occur if the mother is not engaged with a psychologist providing appropriate therapeutic support. The expert opined that when the mother decompensates there is a risk that she may start drinking at a problematic level again and may begin contacting various agencies making claims about bad things that are happening to the children and contacting the father and being overtly aggressive with him.

12. In summary the expert felt that the mother was vulnerable in relation to her capacity to deal with stress and in her attitude to deal with the realities of life and in behaving predictably. 

13. The expert was not challenged about her opinion that the father appeared attached to his children and reported on his parenting in a realistic manner and engaged with the children warmly responding in an attuned manner. 

Aboriginal or Torres Strait Islander background and the children’s right to enjoy their culture

1. The father deposes to the children being Aboriginal on their maternal side, a matter of which he became aware when the daughter was born and he and the mother were completing the child’s birth certificate application.  He says that he learnt at that time that the mother’ father was Aboriginal.

2. The mother does not depose to any matters concerning the children’s Aboriginal heritage and there is no evidence of the Aboriginal community to which they are said to be a part or of any relevant cultural practices, lifestyle or traditions.

3. In the mother’s Case Outline it is asserted that the children are of Aboriginal heritage through the maternal grandfather and that the mother intends to introduce the children to the culture as they become older. 

4. At the commencement of the case the mother’s counsel was unable to identify any evidence concerning the children’s Aboriginal heritage upon which she relied in this regard and under cross examination the mother could point to nothing more than that her understanding that her father is “of Aboriginal descent”. 

5. It was conceded on behalf of the mother in the course of final submissions that there is no evidence about Aboriginal culture. Accordingly, even if I were able to find that the children are Aboriginal children as defined in section 4 of the Act[12] I am unable to make any findings about Aboriginal culture with respect to these children having regard to the relevant definition of that matter[13]. Accordingly, although this matter is raised in the submissions of both parties it cannot a weighty matter in relation to the best interests of the children in these proceedings.

   [12] Section 4 (1) Aboriginal child – means a child who is a descendant of the Aboriginal people of Australia

   [13] Section 4 defines Aboriginal culture as “the culture of the Aboriginal Community or Communities to which the child belongs and includes Aboriginal lifestyle and traditions of that Community or Communities”.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

1. It is clear that each of the parents loves their children and believes that the orders proposed by them are in the children’s best interests. 

2. In my view the father in particular has demonstrated that he is a responsible parent throughout the proceedings which he initiated almost immediately after the parties separated. He has proposed at all times that the children move to live with him and it is his case which I accept that he will provide the children with stability and will take the responsibilities of parenthood seriously. 

3. Although the mother’s pursuit of the child abuse allegations against the father and looking for evidence to support her views give rise to significant concerns about management of her anxieties and suspiciousness I do not consider that they arise from a poor attitude to the responsibilities of parenthood. 

Conclusion

Parental responsibility

1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.

2. Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.

3. In Goode & Goode[14] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.

   [14] (2006) FLC 93-286

4. Where the Court is to determine parental responsibility, the starting point is s61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).

5. The presumption applies in these circumstances but may be rebutted by evidence that it would not be in the children’s best interests for both parents to have equal shared parental responsibility for them.

6. It is each parent’s proposal that they alone hold sole parental responsibility. The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s61B the order sought by each of the parents must mean that the parent seeking sole parental responsibility would have all the duties, powers, responsibilities and authority which by law parents have in relation to the children and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the children. It is clearly a high bar to rebut the presumption for equal shared parental responsibility especially having regard to the Objects and Principles to which I have previously referred.

7. In her report the expert did not touch upon parental responsibility. Under cross-examination she was asked whether she had a view whether the parents were capable of exercising shared parental responsibility or whether it should lie with parent with whom the children principally live. The expert opined

   I think if [the mother] has continued to refer to the father as a paedophile in the way [the father] claims she has and she denies, but if her Honour should find that she is still using those sorts of language, then it’s speaks very poorly that they’re going to be able to communicate in a civil way.

   … But in terms of making decisions, I suppose the person, the children are living with, in this case, if the children move to live with their father, then he should have sole parental responsibility with some conditions attached that he asks her opinion about major things. 

8. I am satisfied that the mother referred to the father as a paedophile and spoke to him in a denigrating manner up until a short time prior to the proceedings. While the mother only agreed that she called the father a paedophile on one occasion I prefer the father’s evidence as to this matter over the mother’s as she did agree to sending many of the other messages to the father in the terms he alleges. Further, overall I found the mother to be a less reliable witness than the father as her general recollection of most events was vague, she was particularly evasive and inconsistent as to many matters when giving evidence and disputed the accuracy of other evidence which I consider reliable (such as records of the Department and doctors) when they did not favour her.

9. I did not understand the expert to be suggesting that the manner in which the mother communicates with the father ought to be determinative in relation to exercise of parental responsibility. However, it is one aspect of the evidence in relation to the capacity of the parents to make major decisions jointly for the long term care and welfare of the children. There is no evidence that since separation the parents have had this capacity. They remain fundamentally at loggerheads despite the mother’s protestations to the contrary about whether the father poses a risk of harm to the children. The mother’s high degree of suspiciousness and her tendency to decompensate when under stress does not give me confidence that she could effectively communicate and jointly make decisions with the father in the best interests of the children.

10. Ultimately, the expert did recommend that if the children were to move to live with the father, that he should have sole parental responsibility for the children with some conditions attached that he seek the mother’s opinion in relation to major issues. The proposed orders of the ICL with which the father agrees are in accordance with the expert’s recommendation..

Living arrangements

1. The proposals of both parties and the ICL will support the children having a meaningful relationship with both parents. Of the additional considerations for the reasons given, I attach particular weight to the capacity of each of the parents to provide for the children’s needs. 

2. I also attach particular weight to the opinion of the expert for the reasons given. As noted she recommended in September 2018 that the children continue to live with the mother and that there be a review of the children’s circumstances 12 months later. As it transpired this review was able to be achieved due to the time it took for dates to be allocated to final hearing. The mother did not comply properly with the recommendation of the expert to seek therapeutic support to assist her in overcoming the adverse effects upon the children of her overvalued ideas suspicions and anxieties, and significant weight is attached by me to this omission. 

3. The expert expressed an unchallenged opinion as to the adverse effects for these children if they were to continue living in the primary care of the mother while she holds overvalued ideas about the risk of harm associated with sexual abuse in particular and other behaviours of the father. In my view for the reasons given while she now claims to disavow those beliefs I am not satisfied that this is genuine. 

4. In all of the foregoing circumstances I am satisfied that the orders sought by the father (which are largely in accordance with the proposal of the ICL with some small differences) are those which are in the best interests of the children. Rather than make orders in the exact terms proposed I have expressed them in language which is “plain” with the intention that this will assist the parties and reduce the potential for confusion that may arise from the use of “legalese”.

5. The orders that I make are as set out at the forefront of these reasons for Judgment.

I certify that the preceding two hundred and sixty eight (268) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 9 April 2020.

Associate: 

Date:  9 April 2020