Madden and Callanan

FAMILY COURT OF AUSTRALIA

MADDEN & CALLANAN

[2020] FamCA 28

FAMILY LAW – CHILDREN – Unacceptable risk of sexual harm to children alleged by mother from the father, paternal grandfather and paternal uncle – Where the mother alleges the children demonstrate hypersexualised behaviours and supports the belief that the only basis for this behaviour is that the children were sexually abused by the father, paternal grandfather and paternal uncle – Where there is no evidence to support a finding that the children were sexually abused by the father or the paternal family – Where there is no evidence to support a finding that the children are at any risk in the care of the father or the paternal family – Where there is a positive finding of no risk of sexual harm or any other unacceptable harm to the children from the father or the paternal family – Where the risk of harm to children is the mother’s erroneous belief of the reasons for the children’s behaviour – Where the mother’s application that the father spend supervised time with the children four times a year is dismissed – Children to spend day time only with the mother for a period of time after which overnight time will be introduced – Sole parental responsibility granted to the father.

Family Law Act 1975 (Cth), ss 60CC(2), 60CC(3)

B & B (1993) FLC 92-357
Goode v Goode [2006] FamCA 1346
M v M (1988) 166 CLR 69
Massey & Wilenski [2019] FamCA 657
Wolleman & Wolleman [2019] FamCAFC 107

APPLICANT:

Ms Madden

RESPONDENT:

Mr Callanan

INDEPENDENT CHILDREN’S LAWYER:

DGB Lawyers

FILE NUMBER:

WOC

1081

2015

DATE DELIVERED:

24 January 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Henderson J

HEARING DATE:

14, 15, 16, 17, 18 and 31 October 2019, 1 November 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-Represented Litigant

COUNSEL FOR THE RESPONDENT:

Mr Guterres

SOLICITOR FOR THE RESPONDENT:

Barnes Law Group Pty Ltd

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER :

Mr Grew

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER :

DGB Lawyers

Orders

All previous parenting orders in relation to the children X born … 2008 and Y born … 2010 are discharged.
The father have sole parental responsibility for X and Y.
The children live with the father.
The children spend time with the mother as follows:
(a)From the commencement of these Orders until the first Saturday in March 2020, from 10am to 5pm on each Saturday;
(b)From the first Saturday in March 2020 until the first Saturday in April 2020, each Saturday from 9am until 10am the following Sunday morning;
(c)From the first Saturday in May 2020, each Saturday from 9am until school commences on the following Monday morning; and
(d)From the first Friday in June 2020, each Friday from after school until school commences the following Monday morning.
Where changeover is not at school the mother will collect and return the children to and from the father’s residence.
The time specified in Orders 4 (c) & (d) is to continue during the school holidays up to the third term school holidays in 2020.
Commencing from the third term school holidays in 2020 the children shall reside with the mother in the first half of each short school term holiday period until 3pm on the midpoint of the holiday period in odd numbered years and in the second half of each short school term holiday period in even numbered years.
The children shall reside with the father in the first half of each short school term holiday period until 3pm on the midpoint of the holiday period in even numbered years and in the second half of each short school term holiday period in odd numbered years.
For the purpose of these Orders, the school holidays will be deemed to include any pupil free days held by the school.
From the first Christmas school holidays following the date of these Orders, the Children shall reside with the parents as agreed between the parties, and failing agreement as follows:
(a)In odd numbered years:
(i)With the mother from the commencement of the Christmas school holidays until 10am on 24 December;
(ii)With the father from 10am on 24 December until 3pm on Christmas Day 25 December;
(iii)With the mother from 3pm on 25 December until 3pm on 26 December;
(iv)With the father from 3pm on 26 December until 10am on 9 January;
(v)With the mother from 10am on 9 January until 10am on 23 January;
(vi)With the father from 10am on 23 January until the commencement of school.
(b)In even numbered years:
(i)With the mother from the commencement of the Christmas school holidays until 3pm on 25 December;
(ii)With the father from 3pm on 25 December until 10am on 9 January;
(iii)With the mother from 10am on 8 January until 10am on 23 January;
(iv)With the father from 10am on 23 January until the commencement of school or as otherwise agreed.
To implement school holiday time if the children are not otherwise being collected from school, the parent into whose care they are to come shall collect them from the other parent.
Notwithstanding anything elsewhere contained in these Orders the children shall spend time:
(a)With the father:
(i)from 10am to 5pm on Father’s Day each year;
(ii)if not otherwise in their father’s care on each child’s birthday from after school to 8pm on a school day and from 12 noon to 6pm on a weekend day unless otherwise agreed.
(b)With the mother:
(i)from 10am to 5pm on Mother's Day each year;
(ii)if not otherwise in their mothers care on each child’s birthday from after school to 8pm on a school day and from 12 noon to 6pm on a weekend day unless otherwise agreed.
Unless otherwise agreed between the parties, changeover for the children for the purposes of Order 12, the party who is to spend time with the children shall collect the children from the other party or school at the commencement of their time and shall return the children at the conclusion of their time.
The parties shall ensure that the children are contactable by telephone as is reasonably practicable to speak with the parent with whom they are not residing at all times and at the request of the child shall ensure the children can FaceTime, Skype or telephone the other parent on any occasion.
The mother shall be restrained from making arrangements for the children to attend upon any health professional or therapist, including but not limited to, any general practitioner, counsellor, psychologist or psychiatrist, without the written consent of the father unless:
(a)The attendance is in accordance with a written direction or recommendation made by Family and Community Services or NSW Police; or
(b)The attendance is upon a general practitioner nominated by the father and is for the treatment of minor illnesses or ailments such as cold or flu.
The father is permitted to provide a copy of these Orders and Reasons for Judgment to any treating health practitioner of the children at his discretion and the children’s school.
The Independent Children’s Lawyer may provide a copy of these Orders and Reasons for Judgment to the Department of Family and Community Services with a request that these documents be placed on the children’s file with that department.
The mother shall be restrained from recording any conversations with the children which relate to matters raised as issues in these Court proceedings.
Each party shall be restrained from discussing any matters relating to these Court proceedings with the children and from showing the children any documents relating to these Court proceedings.
Each of the parties are restrained from:
(a)Denigrating the other party or their extended family or new partners (if any) in the presence or hearing of the children.
(b)Discussing financial arrangements between the parties or any disputes between the parties, including but not limited to these proceedings with the children.
(c)Allowing the children to be in the presence or hearing of any other person denigrating the other parent or any member of the other parent’s extended family.
That the children continue to be enrolled in E School until the conclusion of primary school unless otherwise agreed.
If the mother files any further parenting proceedings such application is to be listed before Justice Henderson initially.
The Independent Children’s Lawyer shall provide to Ms H and Dr B a copy of the Court’s Orders and Reasons for Judgment.
The father shall facilitate the children’s participation in therapy with Dr B no less than once every 6 months until Dr B informs the father that this is no longer necessary.
Each party shall comply with the recommendations of Dr B in relation to the children’s therapy including attendance at sessions with Dr B, as directed or requested by Dr B.
For the purposes of the children’s therapy with Dr B, the parties shall be responsible in equal shares for the costs of the children’s attendance upon Dr B and each party shall be pay the costs of any individual consultations with Dr B, as directed or requested by Dr B.
The mother, at her expense, shall continue to attend regular therapy sessions with Ms H until such time as Ms H determines this is no longer necessary.
In the event the mother seeks to raise concerns about risk to the children in the father’s care the following process shall apply:
(a)The mother shall discuss the matter with Ms H or such other therapist with whom she is engaged;
(b)The mother’s therapist may convey the mother’s concern to Dr B; and
(c)The parties shall comply with any recommendations that Dr B may make in relation to the matter.
Each party notify the other, as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by the children whilst in the care of that party.
Each party notify the other party in writing (by way of text message or email) in the event that either child is not attending school (with such notice to be provided by 10am on the morning of each day of non-attendance if as a result of illness or at least 24 hours prior if such non-attendance is for any other reason), where practicable.
Each party shall notify the other:
(a)Of all changes to his or her residential address, mobile telephone(s) and email address within 24 hours of all changes to the same; and
(b)As soon as reasonably practicable on becoming aware of the children or any of them, being involved in a medical emergency.
Each party shall keep the other party informed at the earliest opportunity of all medical and health issues affecting any and all of the children including any and all medical treatment that has been obtained, sought or is required for either child.
Forthwith upon the making of these Orders and continuously thereafter, the parties shall each provide all authorities and shall give all necessary consents to ensure that each child's treating medical practitioners are authorised and directed to communicate with, and provide information and copies of documents directly to, each of the parties upon either party's respective request and at the requesting party's own cost.
Forthwith upon the making of these Orders and continuously thereafter, the parties shall provide all authorities and shall give necessary consents to ensure that the principal of each child's school (and thereafter each child's school teachers) are authorised and directed to communicate with, and provide information and copies of documents directly to each of the parties upon either party's respective request and at the requesting party's own cost.
Pursuant to Order 34, that each of the parents is authorised by these Orders:
(a)To obtain from the children’s school copies of their school reports and developmental assessments and other information regarding the children’s academic progress and development;
(b)Attend events at the children’s school to which parents are usually invited; and
(c)To obtain the children’s annual class photograph order forms, so that each parent has the opportunity to order same.
Each of the parties be at liberty to attend the children’s school events and sporting competitions and fixtures, excluding training, regardless of whose care the children are in pursuant to these Orders.
The Independent Children’s Lawyer may explain these Orders to the children if in her opinion this is necessary.
Pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) both parties be permitted to temporarily take the children from the Commonwealth of Australia for the purposes of overseas travel and holidays provided that:
(a)The travel takes place, unless otherwise agreed between the parties in writing, during school holiday periods that the children are with the travelling parent pursuant to these Orders;
(b)The party proposing overseas travel gives to the other party, at least 6 weeks in advance of the proposed travel, written details of the names of places outside of the Commonwealth of Australia where the children will be travelling (being countries, cities and towns);
(c)The party proposing overseas travel gives to the other party, at least 6 weeks in advance of the proposed travel, written details of the departure and arrival dates to and from each country to which it is intended travel will occur;
(d)Not less than 2 weeks in advance of the proposed travel, the party taking or sending the children outside of the Commonwealth of Australia must provide to the other party a photocopy of all return airline and/or shipping tickets for each child evidencing each child's return to the Commonwealth of Australia together with copies of all written itineraries;
(e)Not less than 2 weeks in advance of the proposed travel, the party taking or sending the children outside of the Commonwealth of Australia must provide to the other party written notice of the contact telephone numbers and addresses of all places where the children will be staying overnight when outside of the Commonwealth of Australia;
(f)The party proposing the overseas travel must ensure each child travelling outside of the Commonwealth of Australia is covered by a valid travel insurance policy for the duration of travel outside of Australia and a copy of such policy shall be provided to the other party not less than 2 weeks prior to the proposed travel.
The father will retain the passports for the children and will provide all necessary passports to the mother for the purposes of facilitating any overseas travel for the children pursuant to these Orders at least 7 days prior to the proposed departure date (unless the passport is required earlier to enable appropriate travel documentation to be obtained), with the mother to return the passports to the father within 48 hours of her return to Australia.
It is declared that X born … 2008 and Y born … 2010, permanent and habitual place of residence is the Commonwealth of Australia.
Pursuant to section 11(1)(a) of the Australian Passports Act 2005, the parties consent to X born … 2008 and Y born … 2010 having or being issued with an Australian travel document.
Pursuant to section 11(1)(b)(ii) of the Australian Passports Act 2005 and these Orders, X born … 2008 and Y born … 2010 are permitted to travel outside the Commonwealth of Australia using an Australian travel document.
That the parties will do all acts and things and sign all documents, within 7 days of being requested to do so, necessary to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable X born … 2008 and Y born … 2010 to be issued with an Australian travel document.
In the event that a party refuses or neglects to sign any document necessary to issue X born … 2008 and Y born … 2010 with an Australian travel document, such refusal will constitute sufficient special circumstances for the father to seek that the Minister administering the Australian Passports Act 2005 give consideration to issuing an Australian travel document pursuant to section 11(2)(a) of the Australian Passports Act 2005.
The Order appointing the Independent Children’s Lawyer is discharged, save for carrying out any obligations placed upon them pursuant to these Orders and pending any appeal of this matter.

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 Madden & Callanan 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 SYDNEY

FILE NUMBER: WOC 1081 of 2015

Ms Madden

Applicant

And

Mr Callanan

Respondent

REASONS FOR JUDGMENT

The matter of Madden & Callanan was a seven day parenting matter in which the mother alleged the father, paternal grandfather and paternal uncle had sexually abused the parties’ children, X and Y, claiming they were “sexual predators”.
The mother firstly seeks that the father spend supervised time with the children four times a year at a Contact Centre. Secondly, the mother sought to remove the children from the J Region to Suburb L to live with her mother, however abandoned that application in her oral submissions.
The father’s application was that the children live with him from Monday to Friday each week and with their mother on the weekends and that he have sole parental responsibility. The father opposed the mother moving the children from their current location in the J Region.
Mr Guterres of Counsel appeared for the father, Mr Grew of Counsel for the Independent Children's Lawyer and the mother was self-represented. The parenting proceedings concerned X, born in 2008, and Y, born in 2010.
A number of witnesses were cross-examined:
a)For the mother:
i)The mother;
ii)Ms N, a friend; and
iii)Ms H, the mother’s treating therapist.
b)For the father:
i)The father;
ii)Mr G, paternal grandfather; and
iii)Ms F, paternal grandmother.
c)Dr O, child and family psychiatrist and Ms Q, Family Consultant, had each prepared Reports in this matter; marked Court Exhibit 1 and 2 respectively, and each were cross-examined.

MATERIAL READ

For the applicant mother:
a)Further Further Amended Initiating Application, filed 19 September 2018;
b)Notice of Risk, filed 2 November 2015;
c)Affidavit of mother, filed 15 August 2019 and 27 September 2019 and tender bundle of documents annexed to mother’s Affidavits;
d)Affidavit of Ms N, filed 27 September 2019; and
e)Affidavit and Report of Ms H, filed 13 October 2019.
The mother’s exhibits:
a)Exhibit 1, recording of Y’s alleged disclosure to mother in car dated 23 November 2015;
b)Exhibit 2, recording of first JIRT interview with Y dated 13 November 2015;
c)Exhibit 3, recording of second JIRT interview with Y dated 22 January 2016;
d)Exhibit 4, transcript of mother’s Exhibit 2;
e)Exhibit 5, transcript of mother’s Exhibit 3; and
f)Exhibit 6, transcript of a recording played in Court dated 17 October 2019.
For the respondent father:
a)Amended Response, filed 25 March 2019;
b)Affidavit of father, filed 11 October 2019 together with a tender bundle attached to his Affidavit;
c)Affidavit of Mr D, the father’s brother, filed 11 October 2019;
d)Affidavit of Mr G, the paternal grandfather, filed 11 October 2019;
e)Affidavit of Ms F, the paternal grandmother, filed 11 October 2019; and
f)Affidavit of Ms S, the paternal aunt, filed 11 October 2019.

The father’s exhibits:
a)Exhibit 1, Affidavit of the mother, filed 2 November 2015;
b)Exhibit 2, report to FACS by Dr C dated 19 November 2015 children’s medical practitioner;
c)Exhibit 3, subpoena material from P Clinic;
d)Exhibit 4, subpoena material from Ms H the wife psychologist;
e)Exhibit 5, subpoena material from R Medical Centre where the children attend;
f)Exhibit 6, JIRT material volume 1 dated 3 November 2015;
g)Exhibit 7, subpoena material from the New South Wales police dated 12 October 2018;
h)Exhibit 8, subpoena material from the U School; and
i)Exhibit 9, subpoena material from E School which both children currently attend.
There were three Court exhibits:
a)Exhibit 1, Report of Dr O, dated 5 September 2016;
b)Exhibit 2, Report of Ms Q, dated 12 June 2018; and
c)Court Exhibit 3, Report prepared by Dr B, Educational and Developmental Psychologist, dated 29 March 2019.

CHRONOLOGY

The father was born in 1971, aged 48.
The mother was born in 1974, aged 44.
The parties met in October 2000 and commenced living together in July 2001.
In 2001, the mother asserts she was feeling extremely broken and attended over 10 sessions with a therapist.
In late 2002, it is the father’s case that the mother disclosed to him childhood sexual abuse and difficulties in her relationship with her father and that the mother was suffering from mental health issues at that time.
From 2002 to 2004, the parties move between AA Town, New South Wales and Sydney. The paternal grandparents live in AA Town.
In 2004, the parties marry.
In April 2005, the parties purchase a home next door to the paternal grandparents with an adjoining back fence.
The mother claims that in late 2005 she told the father she wanted to separate. This is denied by the husband.
In early 2006, the parties attend marriage counselling.
In November 2006, the father opened a business and established a family business. The mother works in the business until May 2007 with the father.
In 2007, the mother commenced an allied health course.
In 2008, X was born. The mother objects to the children being immunised and the father asserts the mother professes and practices a laissez-faire parenting style.
In November 2009, the mother claims in her trial Affidavit that the father sexually assaulted her and Y was conceived. The father denies ever forcing himself upon the wife during the relationship.
In 2010, the mother graduated from her course and commenced a small clinical practice.
In 2010, Y was born.
On January 2013, X commences at the U School in MM Town, New South Wales.
In February 2013, the mother claims the father attempts to force himself onto her during a family holiday. The father denies this allegation.
The wife asserts a separation occurred in February 2013 whilst the husband asserts it occurred in 1 April 2013. Nothing turns on this dispute. The father leaves the home and moves to his parents’ house.
Following separation, the children spend time with the father on Mondays and Tuesdays when he does not work, and on other occasions as agreed by the parties.
In April 2014, the mother and children moved to E Town, New South Wales.
On 17 April 2014, the mother and father have a meeting at the U School regarding X’s attendance. The mother claims that the father loiters after dropping her off causing her to have separation anxiety.
In May 2014, the mother begins to resist the children going to the paternal grandparents’ home and insists the father be always present with them.
In January 2015, the mother is involved in a car accident and the father says the mother’s behaviour changes.
In early 2015, the mother observes concerning behaviour in the children such as touching each other’s genitals whilst being bathed, becoming increasingly defiant, bedwetting, and using obscene language that they heard from the father and the paternal grandfather.
In early 2015, the parties divorce.
In March 2015, the mother claimed she observes X pull her pants down and attempt to defecate through the springs of a trampoline. Around this time, the mother claimed she finds X playing in a sleeping bag with a friend and X tells her mother “we are just touching each other’s private parts”. The father first hears of this incident at a session with Ms C many months later.
On 1 March 2015, the mother requests that the father have additional time with the children to assist her.
On 20 March 2015, X and some of her friends were involved in an incident at the U School where they urinated into a dish with sand and poured it into a drink bottle.
On 25 March 2015, the mother unilaterally withdrew X from the U School despite the father’s concern that X may not cope with that change.
On 30 March 2015, the mother asks X to stay with her to enable her to heal from the trauma of the school incident. The father consents however does not observe any trauma.
On April 2015, the mother allegedly observed the children naked and “simulating sexual intercourse” on her bed. The father was not informed of this incident at that time.
On 3 April 2015, the father and paternal grandmother collect the children and travel to Melbourne with them until 8 or 9 April 2015.
On 18 April 2015, the mother contacts the father and tells him that she has an issue dropping the children off to the paternal grandfather’s house unless the father is present. Upon requesting why this was the case, the mother’s complaint was that the paternal grandfather is a “pervert” and was invading her privacy when he mowed the lawns without her request and on occasions entered the home without asking.
On 21 April 2015, X commences at E School, E Town.
On 21 April 2015, the mother has a meeting with her supervisor in her allied health course, Ms BB. The mother accepted Ms BB’s ill-informed opinion expressed in the mother’s Affidavit that the behaviour of the children the mother was witnessing indicated they had been sexually abused.
On 21 April 2015, the mother speaks to her general practitioner Dr C in relation to the children’s behaviours. Dr C said to the mother, “such behaviour does not arise spontaneously”. In response, the mother tells Dr C that she will speak to the father, which occurs on 29 April 2015.
Between 21 April 2015 and 7 June 2016, X had 16 partial absences and 27 whole absences from school, some of the reasons being:
a)5 May 2015, medical appointment;
b)14 May 2015, psychology appointment;
c)19 May 2015, transition issues missing her other school and friends; and
d)20 May 2015, psychology appointment.
On 25 April 2015, the mother claims that she and the children attend an Anzac Day ceremony when the father and paternal grandfather are present. The children state that they wish to return to the father’s home after the ceremony. The mother does not consent. X subsequently becomes extremely upset and angry. The mother’s response to X’s behaviour at this time is to ask her, “Has anyone ever made you do anything you don’t want to do?” X’s response, “I can’t talk about it mum. It makes me sad”.
On 27 April 2015, the father picks up the children to spend his usual time with them.
On 29 April 2015, the parents meet at the request of the mother. The mother tells the father that the children are displaying oversexualised behaviour and X may have been sexually interfered with. The mother claims that in response, the father tells her, “you think it is my father”, and “this is ridiculous” and walks away. The father requests information about the signs the mother has observed with the children which, at that time, included X’s tantrum on Anzac Day 2015; the incident at school involving the urine; the simulated sex between the children on the mother’s bed; and X kissing her mother with her tongue and calling it a “wedding kiss”.
On 29 April 2015, the father claims that he contacts the mother requesting he collect X from school. The mother does not consent following the ill-informed advice of Ms BB. The mother informs the school that X is to only be picked up and dropped off by her.
Following the meeting, the mother attends LL Town Police Station to ask for support regarding the situation and she is advised that she can make a report or discuss with a medical professional.
On 30 April 2015, the mother takes the child to Dr C who refers her to a child psychologist.
On 30 April 2015, the mother and father have a meeting with Mr A the mother’s massage and reiki therapist. The mother confirms at that meeting that “I knew immediately that it wasn’t you” in relation to the allegation made on 29 April 2015.
On 2 May 2015, the father spends time with the children at the local park with the mother present.
On 2 May 2015, the father discloses the mother’s allegations to his brother.
On 3 May 2015, the father discloses the mother’s allegation to his parents.
On 3 May 2015, a report is made to FACS by the Principal of the U School in regards to possible sexual abuse of X which report appears to have arisen after the father attended the school on 1 May 2015 wanting to know where the children were. No action is taken by the Department on this notification.
On 4 May 2015, the parties commence mediation where they agree the children will not come into contact with the paternal grandparents or the paternal uncle. The parties also agree for X to attend child psychologist.
On 4 May 2015, the parents agree for X to see a child psychologist at CC Centre, DD Town, and make an appointment for to attend on 5 May 2015.
On 5 May 2015, the parties attend their first appointment with Ms C from CC Centre.
On 5 May 2015, the father is at the mother’s house having dinner with the children. The parties each state that Y came back from the toilet with his pants off and playing with his penis and said, “I am going to lick it [his penis]”, the mother’s response was “you would have to be a contortionist to do that”. He then went to his sister and said “lick my [penis]”. X said to him words to the effect of, “okay if I lick your [penis] and then you lick my [vagina]. It is unclear what either parent did to stop the children behaving in this fashion other than the father saying “stop that”.
On 5 May 2015, the mother claims that she observes X holding her electric toothbrush against her genitalia and tells the mother, “It feels good mum”. The mother then allegedly responds, “You are not allowed to put objects near your private parts, it is dangerous, please do not do that again”.
On 6 May 2015, the father moves into rental accommodation.
On 6 May 2015, the parties attend further mediation.
On 14 May 2015, X had a second appointment with Ms C. The notes reveal the father discussed with Ms the incident of 5 May 2015.
On 16 May 2015, an incident occurs with Y at the home of a friend, Ms A. The mother leaves the children with friends on many occasions. The mother was told by Ms A that Y had stood up and pointed his penis at one of Ms A’s children’s mouth and said he was going to urinate in it.
On 18 May 2015, the mother has a meeting with Ms C to express her concerns that she had to defend herself during the sessions; that the focus of the sessions had turned to her and the father and away from X because of the father’s actions; that father did not accept what she saw and heard about the children; that he was protecting his father and he cannot be protecting X at the same time; and finally, that she had lost confidence in Ms C.
On 20 May 2015, the parties have a third appointment with Ms C. Ms C says to the parent’s words to the effect of “in my opinion there is no evidence of sexual interference. I do have concerns about the children’s behaviours. This is more likely to be about the parents failing to put appropriate boundaries and controls in place surrounding the behaviour of the kids”. These words are later echoed by Dr O, Ms Q and Dr B. Ms C repeated to the mother, “I understand this is not what you want to hear but I have simply not seen any signs of abuse”.
On 24 May 2015, the parties enter into an interim parenting plan. The interim arrangements were that the father spend time with the children from Monday until Wednesday with the children to stay overnight with the father at the grandparents’ home and not to be left with anyone else during the time. The father agreed that he will be with the children 100% of the time during this period. Y confirms this to be the case in the JIRT interviews in November 2015 and January 2016.
In late May 2015, the father contacts the mother as X has difficulty attending school, alleging that she did not want to be separated from him.
On 27 May 2015, X continues to display resistance about attending school. The mother ties X’s resistance with the children being back in contact with the paternal grandfather.
On 29 May 2015, the father moves into his own accommodation at LL Town.
On 24 June 2015, Dr T from the R Medical Centre made a notification to FACS relating to the mother’s allegations of hypersexual behaviour and a large scar on Y’s arm. Dr T professed himself to be an expert in this area when he is not. This investigation was closed at the end of July, however, the father was not informed of this by the mother or Dr C until mid-August.
On 26 June 2015, the mother cancels further appointments with Ms C asserting that the counselling process was not in alignment with a mental health care plan for her.
On 31 July 2015, the mother attends upon Dr W, a paediatrician who specialises in the area of child sexual abuse. His Report dated 12 August 2015 concludes, “There has been no child sexual interference, that there is no other psychotherapy that needs to be investigated and the parents are competent and are keeping the children safe”. Dr W only heard the mother’s version of events and did not see the children or the father.
In early August 2015, the mother asserts the children’s concerning behaviours become more frequent, occurring several times each day.
Between 13 August 2015 and 19 August 2019, the father says that the parenting arrangements return back to what they were prior to the allegations contending that the children do not exhibit the behaviours the mother professes when with him.
On 19 August 2015, the father says that he received an SMS from the mother stating that he will not be required to collect the children from school that morning. The father contacted the school, who informed him that the mother had sent an email saying that she had taken the children for a week.
On 18 September 2015, another incident occurs whilst the children in the care of the mother’s friend, Ms A. The mother contends that Ms A’s daughter had said to her “Y said he wants to pull his willy out and lick it”. When the mother told Y this was inappropriate, she says he laughed. During this period, the mother says that the children’s responses to her reinforcement of boundaries began to escalate and the children’s behaviour worsened. The father was not informed about this incident.
On 26 September 2015, the mother claims that an incident occurred where Y took his underwear off, jumped onto X and wrapped his legs around her waist. The mother says she then observes Y looks at his penis, says it was ticklish and felt good. The mother says, “What felt good?” to which he replied “my willy rubbing on X. It’s like being tickled”. The mother then said “what do you mean ‘being tickled’”. Y: “you know, like being tickled in the private parts”. The mother asked who tickles him in the private parts. Y’s alleged response, “Mr G and Mr D”. The mother then begins to record the conversation.
In early October 2015, the mother alleges that the children make serious disclosures to her, where both children reveal that the father told them to “keep secrets” about being touched on their “private parts”. The mother unilaterally ceased all contact between the children and the father. The father denies all allegations of sexual abuse.
In October 2015, the mother asserts that the children display increasingly sexualised behaviours. The mother says the following incidents occurred:
a)On 2 October 2015, the mother alleges an incident whether X touches Y’s genitalia. During this period, the mother also asserts that Y disclosed to her that the paternal grandfather tickles him on the bum, the willy, in the mouth and on the eyeballs. Y also allegedly tells the mother that the paternal uncle punches him.
b)On 4 October 2015, the mother says Y called out to her from the bath, saying, “X is touching me on the private parts”. The mother asserts that she stopped them bathing together from that point
c)On 8 October 2015, the mother says she sees the children urinating off the trampoline. X was allegedly rolling around with her underwear pulled down. Y again said words to the effect of “X touched my willy” and she observes him touching X’s buttocks.
d)On 10 October 2015, Y allegedly says “X touched my private parts”.
e)On 11 October 2015, the mother claims Y says that he wishes the paternal grandfather and the paternal uncle were dead and that they are “naughty” for always tickling him.
f)On 14 October 2015, the mother says that Y disclosed he spent a day with the paternal grandfather. Upon return to the mother’s care, she asserts that he was extremely distressed and defecated outside on the gravel. Later at home, the mother says that whilst Y was on her bed, he stood up and pulled his pants down. The mother says he had an erection and said to the mother, “this is what Mr G does with his pants, they disappear up his bum”. She says to Y, “you know you are not allowed to put anything up into the bottom?” Y, “except for a carrot or a knife”.
On 18 October 2015, the mother speaks to Dr C regarding her concerns about the children’s sexualised behaviour.
Between 19 October 2015 and 24 January 2016, the mother ceases the children’s time with the father.
Between 19 October 2015 and 10 November 2015, X did not attend school.
On 19 October 2015, Dr C makes a report to Family and Community Services.
On 2 November 2015, the mother files an Initiating Application in the Federal Circuit Court of Australia seeking Final Orders that the children live with the mother. The mother sought Interim Orders that provided no contact between the father and the children; that the mother have sole parental responsibility to arrange counselling/therapy or the children; and that the paternal grandfather and paternal uncle not come into contact with the children.
On 10 November 2015, Interim Orders are made providing that the father have weekly Skype contact with the children three times per week; that the children resume schooling, and that there be a restraint upon the children attending any health professional or therapist unless by consent.
On 13 November 2015, Y was interviewed by JIRT.
On 14 November 2015, the father contacted the children via Skype. The mother alleges she observed Y take his pants down, point to his penis, and shake himself around. The mother says she told Y to pull up his pants. During the call, the mother also alleges that X began to lie down and spread her legs with clothes on, describing her actions as provocative.
On 23 November 2015, the mother records a conversation with Y where he makes disclosures that the father forced him to touch his penis with his hand. The mother forwards this recording to Mr T, Detective Senior Constable at JIRT. X tells the mother that Y is lying in the recorded conversation.
On 27 November 2015, the mother calls JIRT regarding Y’s disclosures and Mr Q at MM Service recommended counselling. The mother telephones Mr Q again on 9 December 2015.
In November 2015, file notes from the NN Centre state that Y did not present with any problems.
In December 2015, the mother and children stay with Ms N in PP Town.
On 3 December 2015, the father filed a Response seeking Final Orders that the children live with him.

On 8 December 2015, the matter is listed for interim hearing at the Federal Circuit Court.
In January 2016, the mother says that she notices the children talking about their genitalia and that their behaviour is increasingly sexualised following the recommencement of spending time with the father.
On 15 January… 2016, Dr C provides a mental health care plan for the children and a referral letter to Ms EE. The father was not informed of the referral.
On 22 January 2016, the matter was transferred to the Family Court of Australia and Interim Orders were made restoring the father’s unsupervised time with the children from Monday morning until Wednesday each week. The parties were to have equal shared parental responsibility and were restrained from taking the children to any health professional or therapist except by agreement or as directed by Family and Community Services or New South Wales Police.
On 22 January 2016, the father has a telephone call with JIRT Caseworker, Mr FF, Detective Senior Constable GG, and child protection case worker Ms M regarding Y’s disclosures. Y was interviewed by Mr GG and Ms M. The result is that no actionable disclosures were made during the interview.
On 25 January 2016, unsupervised time with the father recommenced on Monday and Tuesday nights.
On 27 January 2016, the mother says Y commences anxious behaviour, including bed wetting, clenching his jaw and grinding his teeth while sleeping. The mother also asserts that X starts experiencing bad dreams, and that both children’s hypersexualised behaviour increases following the recommencement of spending time with the father.
Between February 2016 and June 2016, Y has one partial absence and two whole absences from school. The School Report for Semester 1 does not indicate any behavioural issues, stating that, “Y displays beautiful manners in the classroom and always exhibits a positive attitude towards school”.
On 1 February 2016, a file note of a JIRT telephone call notes that, “X can say that Y was a very anxious boy, but believes that this was exacerbated by his mother who was not very consistent and describes her as a helicopter mum”.
The mother makes further allegations of Y’s sexualised behaviour on 3 February 2016, claiming that Y says, “My penis is going to wee wee in my pants. X you get your [vagina] to wee in your pants”.
On 4 February 2016, the mother files a Notice of Appeal against the Orders of 22 January 2016.
On 5 February 2016, Y was interviewed by JIRT. File notes state that Y’s disclosure was led and that there was no context. JIRT contacted previous schools the children attended, where there was no indication of sexualised behaviours revealed.
On 8 February 2016, the mother files an Application in a Case seeking a stay of Interim Orders and supervised time pending Appeal, and an Application in an Appeal seeking expedition.
On 11 February 2016, the father files a Response to the mother’s stay application seeking that the application be dismissed.
On 15 February 2016, Suburb HH JIRT determine not to substantiate the allegations involving both the paternal grandfather and father noting that there was no context to Y’s disclosure.
On 22 February 2016, Judge Altobelli dismisses the mother’s stay application and on 24 February 2016, the Full Court dismisses the mother’s application to expedite the Appeal.
On 25 February 2016, JIRT recommend that case file be closed.
On 15 April 2016, the mother attended her GP to obtain a mental health care plan. A referral was subsequently made to a psychologist, Mr JJ.
Between 6 June 2016 and 13 April 2018, Y has a total of 19 partial absences and nine whole absences from E School. X has a total of 23 partial absences and 21 whole absences.
On 7 June 2016, Consent Orders are made appointing Dr O as single expert.
On 14 and 15 June 2016, Dr O interviews the parties.
On 20 October 2016, Interim Orders were amended by consent providing that the father spend time with the children for block periods during the school holidays. The parties’ property matter was settled on a final basis by consent.
On 30 January 2017, the mother filed an Application in a Case seeking Interim Orders that she be permitted to relocate the children to Suburb L, New South Wales. The mother also sought Orders for equal shared parental responsibility and that the children spend time with the father each alternate weekend, half the school holidays and on special occasions.
The mother completed the Circle of Security Parenting Course on 9 February 2017 in accordance with Dr O’s recommendations.
The children first meet with the Independent Children’s Lawyer on 31 March 2017.
On 6 April 2017, the Father files a Response to Application in a Case seeking that the mother be restrained from relocating the children’s residence.
On 22 August 2017, the mother is referred by Dr C to Ms H, mental health social worker, for “assistance with distress relating to the family situation and sexualised behaviour of the children”.
On 27 September 2017, Consent Orders were made by Registrar Aitken for the appointment of KK Group to facilitate family therapy and individual therapy for Y.
On 3 October 2017, Justice Johnston makes an Order that a Family Report be prepared in relation to the children.
On 24 January 2018, KK Group referred the children to Dr B at P Clinic for a mental health care plan. On 15 February 2018, Y’s mental health care plan indicates depression and behaviour problems requiring counselling. X’s mental health care plan indicates a behavioural disorder requiring ongoing counselling.
On 5 February 2018, an initial parent consultation at P Clinic indicated the matter was a high conflict case requiring therapeutic intervention for the children.
On 2 March 2018, the children commence therapy with Dr B at P Clinic. Between March and April 2018, the children attended a total of six sessions.
On 26 April 2018, the children and the mother attend the family interview with Ms Q.
On 6 June 2018, P Clinic noted that the children displayed no concerns of possible sexual abuse during the sessions. The mother asserts that the children are still being secretive.
On 17 July 2018, the children were seen by Dr B, who says that Y’s relationship with the father appeared very positive and both children were comfortable and compliant.
On 19 September 2018, the mother filed a further Initiating Application setting out her current proposal that she have sole parental responsibility; that the children live with the mother and spend supervised time with the father for three hours every three months, and that the father attend upon an expert until it is recommended that he is “at low risk of performing paedophilic acts and psychological grooming of the children”.
On 25 March 2019, the father filed an Amended Response seeking sole parental responsibility; that the children live with the parties in a shared care arrangement, and that the mother be restrained from relocating the children’s residence.
On 1 June 2019, the mother finished the ‘Parenting After Separation – Focus on Kids’ course by KK Group.
On 16 July 2019, the mother was provided with a medical certificate for R Medical Centre to submit to the Department of Human Services to exempt her from full-time work.
On 15 August 2019, the mother files an Application in a Case seeking that the Independent Children’s Lawyer be discharged. This application was ultimately not run by the mother. The father files a Response on 16 August 2019.

THE LAW IN RELATION TO UNACCEPTABLE RISK OF HARM TO CHILDREN

The mother alleges the children are at a risk of unacceptable harm in their father’s care, being a risk of sexual harm. This is despite two police interviews with Y where Police determined not to proceed with the matter, and Dr O, Ms Q, Ms C, Dr W and Judge Altobelli all coming to the same conclusion that in their respective professional opinions, the children were not at risk of sexual harm from their father.
Only two persons the mother has taken the children to or spoken about the children with; Ms BB, who has no qualifications in relation to this vexed area and Dr T, a medical practitioner who professed to have qualifications which were not apparent to me, have supported the mother’s concerns. Neither of those parties filed evidence or came to Court to support the mother’s case, nor were there sufficient notes or other reporting of their opinions for the Court to be cognisant of them.
Of significant concern to the Court is that as this matter has progressed through the Court processes, and particularly after the mother’s concerns had not been accepted by Judge Altobelli and the two Court experts Dr O and Ms Q, the mother’s allegations in relation to the children’s behaviour and her concerns regarding the father have increased, such that she now proposes the children spend only recognition time with their father four times a year with such time to be supervised. Thus, the mother’s concerns have continued to grow in complexity and depth, and her position in relation to the father harming the children has hardened and would appear now to be fixed.
The law in relation to unacceptable risk of harm to children is well settled and set out in decisions such as M v M[1] and B & B[2]. This is particularly so where the allegation of unacceptable risk is the potential risk of sexual harm perpetrated upon a child by an adult, as is the mother’s case in this matter. The case law is clear that it is not for the Family Court to determine whether sexual abuse has occurred unless it is self-evident on the agreed facts or objective evidence such as a criminal conviction, for example. Rather, a Judge of the Family Court is to assess whether the child, in spending time with or communicating with in this case the father and his family, will be exposed to an unacceptable risk of harm.
[1]M v M (1988) 166 CLR 69.
[2]B & B (1993) FLC 92-357.
As always at the core of my decision is my obligation to make an Order that is in the child’s best interests, and this has been expressed as a paramount consideration in the case law. My obligation to make an Order in a child’s best interests is a process whereby I assess all the evidence and then apply the factors set out in sections 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) to the evidence as I have found it to be, clearly identifying evidence to which I have attached significant weight.
A decision of Justice Johns of the Family Court in Massey v Wilenski[3] was recently decided on 13 September 2019 and has a similar factual basis to the matter before me as the mother there alleged, consistent with the mother in this matter, that the father presented an unacceptable risk of sexual harm to the child.
[3] Massey & Wilenski [2019] FamCA 657.
Her Honour determined that the father did not present an unacceptable risk of harm to the child; that the mother did not have the capacity to facilitate a meaningful relationship between the father, and that there was a risk of ongoing psychological harm to the child if the child continued to reside with the mother and thereby ordered the father to have sole parental responsibility and the mother to have no time with the child.
A more recent decision of the Full Court in relation to unacceptable risk is found in the decision of Wolleman & Wolleman.[4] In this case, the mother made allegations that the father posed an unacceptable risk of sexual and physical harm to the children. Their Honour’s found that there was no positive evidence to support a finding that this risk was unacceptable, and therefore dismissed the mother’s appeal.
[4]Wolleman & Wolleman [2019] FamCAFC 107.

THE EVIDENCE

The children have been subjected to various counselling interventions, latterly with Dr B, upon the recommendation of Dr O the single expert in these proceedings.
Dr B’s Report, marked Court exhibit 3, states:
X has developed the considerable assertiveness skills required to set boundaries with Y. She reported being happy with her friends, school and comfortable spending time in each parent’s home. The primary concern for X is the impact of the conflict instigated by Y towards his mother. According to the mother, Y damages property and behaves in a threatening manner on a weekly basis.
This Report was produced on 14 March 2019. Dr B’s recommendation is that the mother and the child, Y, continue child and parent therapy. The father is agreeable to this and this is occurring.
The mother’s allegations of sexual harm perpetrated on Y by the paternal family are that the paternal grandfather punched or touched Y’s penis, as has the paternal uncle, and that the father grabbed Y’s hand and placed his hand on his father’s penis.
In relation to X, the allegations are the father has in some way sexualised the child which has been observed by Y at times. The mother also alleges that her observations of X and Y’s concerning sexualised behaviour is a result of what they have been exposed to in the paternal family’s home.
X has not been interviewed, however Y has been subjected to two Joint Investigation Response Team (“JIRT”) interviews in relation to allegations that the paternal grandfather punched him on the penis and that his father took his hand and, to use Y’s words, grabbed his hand and put his hand on his father’s penis.
The mother was clear in her Affidavit and her oral evidence that she believes both children have been exposed to inappropriate sexual behaviour at the hands of their father, paternal grandfather and paternal uncle. The mother was asked did she still hold this belief on many occasions throughout the trial and particularly at the conclusion of Dr O and Ms Q’s respective evidence, and after viewing and reading the JIRT interviews, and was steadfast and unwavering in her belief that the paternal family posed an unacceptable risk of sexual harm towards her children.
The mother observed the children touching, what she called, each other’s private parts in the bath in March 2015, and became concerned as she regarded this as sexualised or oversexualised behaviour. As Dr O opined, the mother did need to take action if this behaviour was engaged by the children, however, it is the conclusions that the mother has drawn from this behaviour with which all persons in authority or with specialised training and expertise in these matters such as JIRT teams, Dr O, Ms Q and Dr W disagree. The mother has concluded that it is inappropriate behaviour by the paternal family, including the father, which is led to her children behaving in an oversexualised manner. The mother was and continues to be unable to accept that her children’s behaviour may be as a result of other adult behaviours, including her own.
The mother’s reaction to the children behaving in this fashion in the bath was to permit them to continue bathing together up until at least October 2015 and continue to leave them alone in the bath. It is difficult to reconcile the concerns the mother said she had as a result of this behaviour and then allowing the children to continue to bathe together and unattended by her at times. The mother’s lack of action permitted and ultimately condoned this behaviour continuing.
The mother’s exhibit 6 is her recording of her conversation with the children in late October 2015 in relation to the allegation that the father made Y touch his penis with Y’s hand. It begins, with the mother asking “Really?”
Y responded “Yes. I put my hand on his penis". The mother says, “Wow. And what happened?”
X pipes in at this point and says, “That is not true”.
The mother, “Well, Y is telling me what happened to him. Okay? So were you there, X, when it happened for Y? So how do you know?”
X was there because in the interview with the police, Y said she was. X continues, “Because I just know he did not do it because he always says that and he actually did not”.
The mother:
Now, Y, are you telling the truth?
Y:
Yes.
The mother says:
Well…I believe Y.
X:
I do not.
The mother says:
Well, you can believe whatever you want.
And:
If Y is saying that, then I believe him. Is there anything else, Y?
Oh, so I got some Lego.
So when did that happen? So what did Dad ask you to do?
He asked me to touch his penis.
Sorry?
Then he grabbed my hand and - - -
He grabbed your hand and?
He made me – he made me touch his penis.
The mother:
I am so sorry. You know you are not allowed to do that.
Y became quite indignant as he had not done anything:
But I did not do it. He also grabbed my hand, and he just made me. So I did not touch it. He just made me put my hand – he grabbed my hand.
Then the mother says:
Sweetie, it is okay. It is important you tell the truth. You know that. You know you are not allowed to touch anyone’s private parts, and no one is allowed to touch yours. You know that?
I do. He forced me.
I am so sorry.
I believe you. I do believe you.
Y:
Can I get out of here?
I am so sorry it happened.
Can I get out of here?
The mother said on many occasions during the hearing she believed her children needed to have a voice and she was there to protect her children. On this occasion the mother believed Y over X and disregarded X’s voice. I find she did so because it suited her purpose and X’s statement did not support her erroneous opinion.
The mother could not see that Y saying at the end of the conversation, “can I get out of here?” was an indication that he had been overborne by his mother and suggestions made by her to him. Given that the interview starts some moment in the middle of what was clearly an ongoing conversation, I have no idea of the context of the conversation or what the mother said to the child prior to this alleged disclosure.
Secondly, X was there and she said nothing as described by Y happened. In these matters, I prefer X’s evidence to that of the mother who was not there.
The first interview JIRT was on 13 November 2015, marked mother’s Exhibit 2 and the second on 22 January 2016, marked mother’s Exhibit 3. The oral recording of the interviews were played in Court and transcripts of those interviews were taken out and marked mother’s exhibits 4 and 5, respectively.
In the first interview, Y is asked questions about body parts; discussed what he understands is the truth; who his family is; that his dad is a very good; that his mum likes a party, and that he sister X punches him.
At page 10.40 the interviewer says:
I’m going to ask you some more questions about your Mr G.
I don’t want to.
When was the last time Mr G tickled you?
He touched me. He punched my penis.
He punched your what?
Penis.
Punched your penis?
Then he tickled me.
Y was most agitated and difficult to contain in the interview with the female officer and nothing came of this disclosure. He was pressed and asked, “Can we talk about the time he punched your penis?” Y’s answer was a clear “no” and after that the interview descended into this little boy clearly not wanting to continue.
The context of the disclosure and his behaviour at the time could not be acted upon and appeared to me to be a fantastical tale told by a young child who was having difficulty being contained in a room when asked these questions. It may well be that the paternal grandfather accidentally came into contact with his penis when tickling him. That is not unusual or to be unexpected.
Again, after the second JIRT interview Y was subjected to on 22 January 2016, JIRT and the Department took no action.
In that interview he was asked questions by a male officer and his behaviour was much more contained than in the first interview.
In that interview, Y is asked on page 12:
All right. Who touches you on the penis?
No one except my sister.
Except your sister?
She always does it. She does it, she say, and I say, and Mum comes and says, “Stop, X.”
All right. Why does she do that?
I don’t know. I don’t know because I don’t know what she does – what she – I don't know.
Where are you when she does that?
Usually in the bath. Because that’s when … that’s the only reason we can be naked mum says.
The interviewer went on to talk about body parts and who touches “your hands, your mouth, your boobies, your bum and your penis”, at page 14:
Interviewer: Have you touched anyone on their penis?
No
What about a bum you ever touched anyone on their bum?
No, why would I do that?

Y asked at this point “more questions?” and began to become more distracted and difficult to focus on the questions in the interview. He was foolishly assured at this time the interview would not go on for much longer, when in fact it did.
The interviewer asks Y about allegations the mother raised that X had pulled up her dress and spread her legs apart in the car at a time she was not wearing underwear. The time X was not wearing underwear occurred because the mother took the children swimming and failed to take underwear for them. Y had no memory at all of this event although he did remember going to the swimming centre. There was no corroboration by Y of what the mother said she observed X do in the car:
Interviewer: Someone told me that you said that someone touched you on the penis.
My sister. I already said that.
Does anybody else do that?
No.
Somebody told me you touched someone else on the penis.
I didn’t.
You didn’t?
They might have made a mistake.
They might have made a mistake?
Because I didn’t do it – well, if they touch me on the penis, then I would’ve done it back, so I wouldn’t have done it if they touched me on the penis.
Okay.
So if I touch – if they touch me on the penis, I will have done it back to show them how that feels.
Okay. I see what you mean. Well, someone told me that you might have been made to touch someone else on the penis. Has anyone ever made you do that?
No.
Oh, no. All right.
Then the interviewer speaks to someone is a control room:
Y, someone told me that your Dad made you touch his penis.
The child is led to this allegation that the father had made the child touch the father’s penis. Y’s first response is, “Oh, no. No, he didn’t.”
Interviewer: No? He didn’t?
Well, he did once.
He did once. What do you mean?
He actually did when – he did make me touch him.
Okay. When was that?
Friday, movie night, watching, always on Friday nights which is our special day.
On Friday night movie night?
Y wanted to know why the interviewer was writing all this down:
So you remember that?
Yes, I remember.
So you said on Friday movie night where you were when this happened?
Friday movie night I always go home because I watch movies, so we all get to choose a movie.
When you say “home”, where do you mean?
Home is … it can be AA Town, E Town, LL Town and anywhere in the world.
So you said Dad touched you once – made you touch his penis once during Friday movie night?
Yes.
Where were you on that time when Dad made you do that? Whose place were you at?
At our grandparents’, my grandpa and my aunty.
Where do they live?
AA Town.
What’s your grandpa’s name?
Mr G. Ms S and Mr G.
The interviewer says, “Okay, Y. I wasn’t there on that Friday night when you said your Dad made you touch him on the penis”.
Y answers “Were you there?” This is the level that the child’s alleged disclosure comes to, after being led to it by the interviewer:
Can you … no, I wasn’t there. Can you tell me everything that happened from the beginning to the end?
It was near the room where we sleep with him, where our cupboard is, right out the room, and the toilet is right next to that room.
Okay, Y. I need you to pay attention. Can you just tell me what happened, like, where you were, who was there, what happened bit by bit? Do you think you can do that?
The interview then continues:
Was your Dad there?
Yes, he’s always – he’s always there.
Your sister?
Yes, she was there. Sometime she’s with Mum and I’m with Dad.
This is highly relevant as there is a recording of this same disclosure and event to the mother transcribed in her Affidavit where X pipes in whilst the mother is cross-examining the child and says, “He’s lying. It didn’t happen.” Thus, it is clear X was there at this time and Y has confirmed she was there.
Y then goes to describe the home that his grandparents have:
What room were you in when your Dad made you touch him?
I was – I was outside of it, near the door. Right. Yeah. Outside the door and - - -
So you weren’t in a room?
Well – and I was doing with Dad and Daddy made me touch him.
At this stage, the child is wriggling and has his fingers in his mouth:
So you were outside of a room. If you weren’t out – if you weren’t in a room, where were you in this house?
In the bedroom where we sleep together.
Who was there on that day or night at the house you sleep in?
Just my aunty and my Mr G. No one really except my Mr G’s friends – some of my Mr G’s friends.
Y is becoming agitated and fidgety, unsurprising given that he has now been interviewed for well over 20 minutes and was told there would only be a few more questions, yet the interview continued for 40 minutes in total.
The interviewer then asks, “Can you just tell me what happened bit by bit, you think you can do that?”
Y then goes on to describe the paternal grandparents home bit by bit which was where his father was living at that time, not the alleged incident.
Interviewer: Okay. So you’ve told me a couple of different things. You said you were not in a room, but then you said you were in a room. So can you tell me where you were?
In the room when he touched my - - -
Where? Sorry, get your finger out of your mouth again. [We cannot hear the child]. Which room?
The room that we always sleep in.
Who sleeps in that room?
Our Dad and our Ms S does because I do not want to.
Who was in the room with you?
Just Dad. Dad always goes in the room. When Dad goes in, we follow him.
All right. You and your Dad were there. Was anyone else in the room?
No.
So can you tell me what happened next?
I cannot even remember.
You cannot remember?
Yes, because it was a real long time ago when I was four, but I am five. When I was four.
So how do you know it happened if you cannot remember?
No, I cannot remember after – like, that is all I can remember because it is such a long question.
How did your Dad make you touch his penis? Tell me more about that?
I really cannot remember that either.
The child has his fingers in his mouth, and the interviewer says:
I cannot understand you?
I cannot remember.
You have got to take your hand out of your mouth, bud?
I cannot remember.
You cannot remember?
Mmm.
Can you tell me what clothes you were wearing and what clothes was your Dad wearing?
He – my Dad, he wore his blue top and blue shoes, no, his black top and his blue jeans with his black belt. His black belt is not a karate belt. Okay? It is just a normal black belt that buckles.
What were you wearing?
Y at this stage looked at the clothes he was wearing; his T-shirt, his shorts and his undies:
How did your Dad tell – tell me more about how your Dad made you – you touch his penis?
Cannot remember still, and maybe I do not remember any of it. Okay?
Yes? --- He said, “Touch my penis.” That is when I do not remember.
Okay. Do you remember?
But he screamed.
He screamed?
Well, he shouted.
What did he say when he shouted?
“Touch my penis”.
You are saying he shouted at you, “Touch my penis”?
Yes.
All right?
Yes.
When he told you your – his penis, was it on top of his clothes or was it under his clothes?
It was underneath his clothes. You know, it was – “Can you come touch my penis so it - - -”
Take your hand out of your mouth, Y. Tell me again?
It is underneath his clothes. You do not – if you could not see it, it would have to be under your clothes because you cannot even see it.
That is true. So your Dad was wearing jeans?
Blue jeans, and his black top and his black belt with a silver buckle.
And you do not remember much about it?
Yes, I cannot even remember any more questions. And you said you were only going to ask a few more questions.
Is that – is it that you cannot remember, or is it that you do not want to talk about it?
I cannot remember.
So you cannot remember it happening?
Yes.
Have you told anyone about what happened with your Dad?
Mmm.
You have never told anyone?
I kept it a secret because I did not want anyone to know that I - - -
I cannot understand you, Y. Take your hand out of your mouth?
Because everyone – everyone – penises and everyone – no one can touch it. They – they just grab their hand, and that is what they do.
That is what they do, is it?
Yes.
Do you know why your Dad made you touch his penis, why he made you do that?
I do not know.
You said he shouted at you. How did he make you do it?
I cannot remember.
We will finish up now.
No action followed this interview either given that the only disclosure made by Y was when he was led to it by the interviewer.
Dr interviewed the family on 6 September 2016 in relation to the allegations of sexual abuse and the family dynamics generally. Dr O’s Report was marked Court exhibit 1 and is dated 12 January 2018.
At page 27 of her Report, Dr O states:
I cannot conclude at the present time Y has been sexually abused by his father or anyone but have no doubt he has experienced his family environment to be unsafe.
Ms Q prepared a Family Report, marked Court exhibit 2. Ms Q says at page 19:
Ms Madden wants to move to Sydney to live with her mother, but the issues of the sexual abuse need to be considered initially.
The mother’s concerns about Y’s behaviour seemed vague and not necessarily associated with sexual abuse or grooming.
Ms Q, Dr B and Dr O’s respective Reports all raised concerns about the uncontained behaviour of both children with both parents, and that there were clearly issues regarding the setting of boundaries by the parents in relation to parenting. All three experts had read each other’s Reports and this was one of the common themes in their expert opinions.
The other issue Ms Q raised was the mother’s evidence of Y’s reported preoccupation with X’s genitals in 2018, whereas it had been X’s preoccupation with Y’s genitals earlier. As Ms Q opined, this seemed inconsistent with the mother allowing them to share a bedroom and was certainly inconsistent with the mother allowing them to continue to bathe together unsupervised.
Ms Q could not see or observe anything in the children’s conversations or behaviours that suggested that they had been subject to sexual abuse. Their manner with their father was demonstrative and warm, and there was a notable lack of self-consciousness in the interactions between him and the children.
Both Dr O and Ms Q indicated that it was not in the children’s best interests to move away from the area.
The mother with the children saw Ms C, who is part of CC Centre, on three occasions. Despite the mother’s allegations, Ms C found that X had not been exposed to sexual risk and could see no evidence of grooming, sexualised behaviour or concern being sheeted home to anyone in the paternal family.
It was raised by Ms C, and opined by Dr O and Ms Q, that the children had difficulties with boundaries because the mother was not setting boundaries for the children. Dr O said neither parent was setting boundaries for the children when she saw them, and it is clear in Ms C’s Report that these children were uncontained. Dr C said precisely what Dr O said:
... My concerns were that neither parent appeared to be putting sufficient emphasis on behaviours to do with the body.
Ms C also said that the disassociated state of X the mother referred to on Anzac Day 2015 was more likely to be a tantrum, and any sexualised behaviour could not be sheeted home to the father. Further, Ms C was not concerned that something had happened X having regard to her behaviour and as with the father and consistent with my finding this was simply a child wanting to go with her father on that occasion, the mother not agreeing and she had a tantrum. The mother turned this event into the child behaving in such an unusual and extraordinary manner that it appeared she was disassociating. Again, a term used by professionals when children have been sexually abused.
The mother was well aware of all the language necessary and used words such as trauma, disassociated state, oversexualised behaviour and grooming throughout her oral evidence and in her written material.
In 2016, the mother was referred to a paediatrician, Dr W, who specialises in children who have been subjected to sexual abuse. Dr W did not see the children, only the mother. After an interview with only the mother where she no doubt would have recounted her concerns of her children’s behaviour, Dr W concluded that the children had not been sexually abused by any adult.
As Dr O said orally in Court, and in her Report, if the mother was observing the behaviours of the children that she has set out in her Affidavit, to which I will refer to shortly, she did need to take action, have the children seen by a therapist in an endeavour to determine why the children were behaving in this fashion.
When the mother appropriately took action she immediately jumped to the conclusion that the only explanation for the children’s behaviour is that they have been subjected to sexual abuse, initially from the paternal grandfather, then the uncle and finally by the father. This conclusion is now so firmly fixed and entrenched in her mind that despite the plethora of professional evidence, including an interim decision by his Honour Judge Altobelli, that the father presented no risk of harm to the children the mother is more firmly fixed in her view today that the father and paternal family present a risk of harm to the children than she was when in the concerning behaviour first arose.
Not only is there support for this opinion of her even more fixed view from the evidence at trial but also from the mother’s carefully crafted and thorough submissions delivered orally in Court on 16 October 2019 to which I will refer.
The mother’s opening submission was that she commenced proceedings because X and Y had displayed behaviours that were of concern and that she addressed those concerns in a normal way that a caring mother does. I accept this is correct. The mother then said, “I took action and sought advice from trusted professionals about these behaviours and followed the recommendations that were given.” This is where the mother’s submissions diverges from reality as the mother did not take on board the recommendations of Ms C, Dr W, Dr O, Ms Q, Dr B, the outcome of the two JIRT investigations and Judge Altobelli’s decision that the children were not at an unacceptable risk of harm in their father’s unsupervised care, and that there were other explanations for why the children were behaving as the mother asserted they were.
The mother firmly believes Y made a serious disclosure about his father when the tape she played to support that disclosure discloses no such thing. The tape shows the mother leading the child to this point with X clearly saying this did not happen. The mother submitted she had done nothing to cause her children to behave as they had or reveal behaviours to her concerning their father and the paternal family. Her transcribed tapes reveal that the mother is mistaken.
The mother persisted in her submissions that the reason Y behaves as he does with her, as described by Dr B, is because he believes that she has betrayed him and has not been able to keep him safe. This is how the mother is able maintain her rigid and fixed belief in the face of overwhelming professional evidence that the children have not been abused by their father and are not at risk in his care. The mother’s mantra is that the behaviours exhibited by her children can only be sourced from sexual abuse, that this sexual abuse has come from the paternal family, and she has rejected any other explanation for the concerning behaviours she witnessed.
The mother persisted with her belief that as at the time of writing her Report Dr O had not properly analysed or viewed the JIRT file and recordings and I should reject her conclusions. The difficulty with this submission is that by the time she gave oral evidence Dr O had already viewed this material.
The mother focused on Dr T reporting hypersexualised behaviours of the children, however, those behaviours were as recounted by the mother and not observed by him. Dr T, unlike Dr O, Ms Q, Ms C and Dr B, did not see the mother, the children or the father, yet he along with the mother’s friend Ms BB, are the only two people whose position she has accepted, despite neither being professionals in the area of child sexual abuse and family therapy as the evidence stands.
The mother sought the Independent Children’s Lawyer be removed and that application was ultimately not run by her but she was extremely critical of how this matter had been run by the Independent Children’s Lawyer. These criticisms were not justified.
The mother attempted to explain her strange comment about needing to be a contortionist when Y came to the table saying he wanted to lick his penis, that she was shocked by this behaviour and what she said was completely out of line. However, it was not out of line, rather it was consistent with other behaviours, such as X defecating on the trampoline, the children urinating on the grass, not wearing clothing, and letting children who have reportedly touched each other’s private parts continue to bathe together unsupervised.
The mother maintained that the father had taken the focus off X in Ms C’s sessions and had cancelled further sessions, and that he and the Independent Children’s Lawyer had compromised the JIRT investigation, when the evidence is that the mother ceased Ms C’s therapeutic intervention and no one compromised the JIRT investigation.
The mother cavilled with Dr B drawing conclusions about the source of sexualised behaviour being other than sexual abuse because the mother said this was not the focus of her therapy. Dr B was providing therapy to the family and is professionally obliged to draw those conclusions from her observations of the family, including the father. This is a classic example of the mother’s incapacity to accept any explanation for her children’s behaviour other than that they have been sexually abused by the paternal family.
The mother submitted that the father did not want therapy for the children and had objected to it at every stage because he believed that the children may disclose something to a therapist about his sexualised behaviour towards them. That submission is not supported on the evidence. The father was concerned about the cost of therapy, and that the children had seen many different therapists in a short period of time. This is a justified concern. However he complied with his obligations and saw therapists when ordered and is desirous of Dr B’s therapy continuing. Unsurprisingly, the children have made no disclosures whatsoever to any therapist, family consultant or child and family psychiatrist they have seen, yet the mother does not see the evidence that way.
The mother is not happy, relieved or pleased that her children have not made a disclosure of sexual abuse such is her fixed belief that it has occurred.
This perpetuation of a one and only reason for the children’s concerning behaviour caused Dr O some significant concern at the trial. To that end, she endeavoured to explain to the mother whilst the mother was cross-examining her, that there may well be other explanations and other reasons why the children were acting as the mother described they were, and to jump immediately to conclusion of “abuse by a child of an adult” when not one professional tasked with this work has agreed with her, and to remain fixed in that view, is a significant concern for the mother’s capacity to parent the children, and may well amount to abuse of the children. Unfortunately, I could see no glimmer of understanding by the mother of these possibilities.
Going now to the mother’s Affidavit and the allegations of sexual abuse that she sets out. At paragraph 14, the mother clearly sets out her general concerns and allegations:
In April 2015, I told Mr Callanan my concerns about the children simulating sexual intercourse and of their hypersexualised language. From that moment, the cooperative co-parental relationship was compromised. Later in October, both children revealed to me that their father told them to keep secrets about being touched on their private parts. Since this time, co-parenting has not been sustainable. In November 2015, Y disclosed to me his father forced him to touch him on his penis, and then again to the detective who interviewed him on 22 January 2016.

The mother made much of an incident which happened at the U School X attended. X and three or four other school friends were making a “magic potion” of sand and urine. They intended to put this “magic potion” into a particular boy’s drink bottle. X should have been punished for this behaviour. It is an improper thing to do, but is hardly an example of oversexualised behaviour. The mother saw it as such and placed it under the heading in her Affidavit of “oversexualised behaviour”.
After this incident, the mother unilaterally removed X from the U School and sent her to a local school in E Town where both she and Y attend. The mother did not consult the father or even inform him of the incident, and he objected to this occurring as he believed would disrupt X stability and be a difficulty for her and the father was right. X reported she found it very difficult and noted this to Dr B in her words, “Didn’t speak to anyone for a term.” X is a child who does not take change well.
Defecating outside was also placed by the mother under that category oversexualised behaviour. Yet this is an activity the grandmother said the mother was not worried about and I accept the grandmother’s evidence.
Not wearing any clothes was placed under the heading oversexualised behaviour. Again, this is something the grandmother said the mother was not worried about and I accept the grandmother’s evidence.
On another occasion the mother says X kissed her on the lips and put her tongue in her mouth and twirled it around. The mother was clear in oral evidence this was an example of oversexualised behaviour. Further, when she asked X what she was doing, X said it was a marriage kiss and this made her even more concerned.
The mother told the father of this behaviour when she first made allegations of his father behaving inappropriately towards X in April 2015. The father said, “Well, perhaps she has been watching our wedding video, which she does a lot, and saw us kissing.” The father made a proper connection and gave the mother and explanation that should have reassured her but the mother would have none of it and linked her daughter’s behaviour to her assertion that the grandparents have adult channels playing on their television when the children are spending time with their father.
The mother and the father have a meeting at a coffee shop on 29 April 2015. The conversation as recited by the mother is as follows:
Mr Callanan, X is displaying worrying signs of oversexualised behaviours.
So what are you saying?
Well, I walked in on her and Y on my bed and she was saying to him that she could put her [vagina] in his [penis] and then he could put his [penis] on her [vagina].
What are you going to do with this?
I’m letting you know that the signs are worrying and she may have been sexually interfered with.
You think it’s my dad, don’t you?
I didn’t say that, but we need to look at who she has spent a lot of time alone with, and there’s you and your dad, and I don’t think it could be you. Your dad does show signs of a sexual predator nature.
Do you realise what you’re saying, Ms Madden? What sort of accusation you’re making? Do you realise how serious this is?
I’m not accusing anyone. Our daughter is showing clears signs of oversexualised behaviours. I organised to speak to you about this to work out how to handle it. I know we are aligned to handle this process together.
The mother now describes the father, his brother and the grandfather as sexual predators.
The mother told the father about an incident on 18 April 2015 when she was on the phone to a friend and had to hang up. The children had been in the bath unsupervised. The mother walked into her room and observed them simulating sexual intercourse on her bed. If this was correct understandably the mother would have been most distressed.
The father, “This is ridiculous.”
I know this is shocking to hear, but what I saw and heard is extremely concerning.
This is just ridiculous.
The mother then writes to the father:
Don’t interrogate our daughter about these issues. I have to find a way to face her behaviour. Hope you can face it too. Don’t sweep it under the table.
The mother did not let the children spend time with their father after this meeting and their father was deeply distressed by not only not spending time with his children but the allegations that had been levelled against his father. He said in oral evidence he knew the mother was talking about his father at this time as she had an issue with him and I accept that the mother and the grandfather did not get on well.
The mother was not justified in preventing the father spending time with the children given she had not made any allegation that he had behaved poorly towards the children. The mother says to him:
Mr Callanan, it’s important we de-escalate the situation between you and I. X’s wellbeing is a priority.
When pressed on her reasons for preventing the children from seeing their father at this time the mother said: “I was frightened by Mr Callanan”. There is not one skerrick of evidence produced by her or from the father’s own conduct, words or behaviour which supports the mother’s words that she was frightened of this calm, quiet, forgiving, gentle man who had followed her lead in parenting the children from birth. His calmness, gentleness and forgiveness was palpable in the witness box and is a rare scenario in this Court. He harbours no anger towards her, which I accept. This is despite her scandalous allegations against not only himself but his father and brother.
The father has called the mother “nuts”. The mother found this offensive and demeaning, which I accept, however, the basis her allegations are difficult to accept and although I agree this is an inappropriate choice of words, one can understand the father’s frustration with the mother at times.
The mother asserted that the father obstructed the psychology sessions with Ms C and the children. He did not. It was the mother who ceased those sessions, because she did not like what Ms C said:
I was satisfied that Ms C would not address my concerns about the children’s behaviour or, indeed, fulfilling her obligation under the referral made by Dr C either.
The mother was unhappy and she cancelled the follow-up appointments, not the father. Ms C challenged the mother and asking at one point, “What are you trying to prove here?” particularly about X’s tantrums, which the mother described as “disassociated behaviour”. This pressing did not suit the mother and she left Ms C not the father.
The mother’s evidence is that on 26 September 2015, the children were mucking around and playing. Y had taken his underwear off. As the evidence flowed this was a normal occurrence in the mother’s home:
He jumped on X’s back, came down, looking at his penis. Said it was ticklish and it felt good. He had cut a hole in his long-sleeved top and he was putting his penis in and out of the hole.
At first blush I would say the child should have been admonished for damaging his clothing, but nothing is said about this. The mother did not say anything to the effect of, “Stop that silly behaviour,” or “why did you put a hole in your shirt?”
Rather, the mother says “What felt good?” He responded: “My willy rubbing anything, it’s like being tickled.” The mother said: “What do you mean being tickled”? Y then said: “You know, like being tickled in the private parts.” To which the mother asked, “Who tickles you in the private parts?” He whispered, “Mr G and Mr D.” This is the allegation of inappropriate sexual conduct towards the child by the paternal uncle.
I could see no justification for the mother to ask the question, “who tickles you in the private parts?”, and it is an example of the mother leading the child to where she wants him to go.
At this point the mother switched on her phone. There is an issue about the conversations the mother has recorded in her trial Affidavit. The mother said the phone was damaged and she could not retrieve these transcripts. Yet at an earlier point in time she confirmed she had retrieved the transcripts and transcribed the conversations in an earlier Affidavit. The transcription in the earlier Affidavits is markedly different to that which she has transcribed in her trial Affidavit.
Nevertheless, the mother asserts the conversation is as follows:
You know how you said about being tickled in your private parts, did someone tell you it was a secret about tickling private parts?
Daddy did.
Are you sure?
Yes.
When did he tickle you? How come you whispered it to me?
Because it’s a secret. Someone touches your private parts, it’s a secret.
Do you keep a secret if someone touches your private parts?
Yes, because it’s a secret.
How do you know it’s a secret?
Because it’s a secret.
The children were laughing and giggling. Yet the mother believes this is a disclosure by Y and part of the father’s campaign of grooming the child by the use of the word, “secrets.” I find it is an example of the mother putting a thought into the child’s head.
These concepts of secrets, secrets about tickling private parts are introduced by the mother not disclosed by the child. What the child said was, “you know like being tickled in the private parts”, which could in fact occur from a piece of fabric, pyjamas, a teddy bear, a towel or any object or thing that may have inadvertently come into contact with Y’s private parts in the ordinary course of cleaning or dressing himself. The benign explanation of Y’s words are numerous yet none were even considered by the mother. The mother immediately put the thought of some person tickling the child in his private parts and keeping secrets in his head and he followed.
On 2 October 2015, the mother says:
I’m going to have a little rest before we pick X up.
And for reasons beyond comprehension, she asks then asks Y:
Who else is naughty?
The Court does not know if there was more conversation prior to this question which appears to come from nowhere and is apropos of nothing.
Y: Mr G.
How come?
He always tickles me and I hate him doing it. I say “stop that.”
Where does he tickle you?
He pointed to his bottom, which he did not repeat at the JIRT interview, and “between his boobies,” which he did repeat at the JIRT interview.
The mother asks “Where else?”
The mother said Y pointed to his penis. He did not repeat this to any officer at the JIRT interview rather that his grandfather hit him in the penis.
The mother asks:
What is that part?
Willie.
The mother was clearly obtaining evidence to use at a later point.
He tickles you on the Willie?
Y’s head moves up and down, and he then said:
He tickles me in the mouth, on the eyeballs. It really hurts.
Y’s answer cannot be correct and he was telling a story it seems, however, the mother responded:
But you know no-one’s allowed to tickle on the private parts.
He’s so naughty, he just feeds me cakes and more cakes every day. I come, he says I have to have cake and eat it. I eat it because I like it. He’s naughty and he punches me. He wants me to spit cake out for him.
The mother goes on:
You know no one’s allowed to touch you on your private parts?
Yeah. Mr G’s naughty.
It’s terrible. It’s bad. You’re not allowed to.
Why can’t he touch me on the poo?
Why would he want to do that?
Touch on the poo-poo, touch on the poo. Yes, kick him. He touches my private parts, I kick him in the bum.
This is a fantastical tale by a little boy being overborn, lead, or both by his mother.
On 14 October 2015 the mother records another conversation. Again, this conversation appears from nowhere with certainly no introduction or context
Are you sure? Where do they disappear to?
This is what Mr G does with his pants and they disappear. The pants disappear in his bum?
How could they disappear in his bum?
They squeeze the pants in the bum.
Who squeeze the pants in the bum?
So they can fart them out.
I said you’re not allowed to put anything in your bottom.
Except for a carrot or a knife
The mother asks:
Who would do such a thing? Y, you’re not speaking in a real voice.
This is a little boy is leading his mother along. The mother should have known when she says to him, “you’re not speaking in a real voice”, that he was telling another fantastical tale because she must have been leading him somewhere from the conversation that we have not been given. The mother has placed these recorded conversation of her leading her child, him telling her a fantastical tale in response under the heading of, “Oversexualised behaviour and disclosures by the children”.
As the evidence unfolded it became clear that X has never made any disclosure of poor behaviour let alone sexualised behaviour by her father or paternal family. X does not make disclosures and disputes the disclosures Y has made to his mother. It is Y who is the most fertile ground for disclosures. From viewing the video, it is apparent to me that he likes the attention. From the grandmother’s evidence it is clear he is a difficult child at times and can be a handful. He likes to tell a tale and is clearly an intelligent child. The combination of these factors have allowed the mother to lead Y to make statements which she calls disclosures, again language consistent with children who have been sexually abused.
This is not the case for X who has her own clear and firm views about Y and his allegations of the father making Y touch the father’s penis, which the mother simply rejected out of hand. The mother has been unable to manipulate X in the same way she has been able to manipulate Y to make so-called disclosures if for no other reason than she was some years older than Y at this time. The best the mother gets to with X is concerning behaviours, and if correct, they were concerning.
After Dr O had heard these tapes and read the mother’s Affidavit, she formed the view that if there is no finding of unacceptable risk there would be more harm to the children living with their mother, particularly if they had no time with their father. Dr O went on to say that the mother had engaged in a mission against the father and although the children’s behaviour was of concern, she has now formed the view that sexual abuse of the children is the only explanation for their concerning behaviour, that this occurred and occurred at the hands of the father and paternal family.
Dr O confirmed that the mother showed no understanding how to question children and how they can be led to say things that adults put in their mind. Therapeutic intervention would not help the mother unless she wanted to change and had some insight and willingness to look at the concerns which have been raised about herself and her functioning. The mother needed to be able to conceptualise that her thoughts were wrong, namely that sexual abuse is the only reason the children behave this way and that it happened at the hands of the father and his family otherwise therapy will not help.
Dr O was clear that one of the most horrendous things for children is to grow up thinking that a parent has sexually abused them when they have not, and it is worse to believe one has been abused if they have not been abused, as children who are abused can retrieve functioning with good therapeutic intervention. She asserts that living with someone who has a belief, for example the mother in this case, that the father sexually abused the children and acts out that belief, may result in the child taking on that belief. Most importantly was Dr O’s opinion that false memories can be embedded in children.
When cross-examined by Mr Guterres, Dr O opined that, “once we emotionally invest in a conclusion, we are very good at finding facts and behaviours to support that conclusion”. I find that this is what has occurred with the mother’s preoccupation with sexual abuse and whenever there is unusual behaviour of her children this is her first conclusion and she has now become fixed in that conclusion.
Dr O said, however, that if I found that the father had behaved in this fashion then he should have no time with the children.
Another one of the mother’s words throughout the trial and in matters where children have been sexually abused was “grooming”. When asked to expand on what she meant by grooming, the mother stated categorically that the father was grooming the children by buying them excessive gifts and giving these gifts to them from the boot of his car. The father is perhaps overindulgent with gifts for the children, however, there was simply no evidence that the father was grooming the children.
Both Dr O and Ms Q could see no evidence at all of grooming and did not accept that the evidence supported grooming. Her confirmed evidence that not just giving gifts but giving them out of the boot of his car was part of grooming was astonishing.
I have formed the view that the mother is preoccupied with sexual abuse of children and the evidence does not support this has occurred and there are many other reasons why her children have behaved as they have. During the trial, Dr O tried to explain to the mother that there are other reasons why her children behaved in this way, such as her laissez-faire style of parenting. This sage advice fell on deaf ears.
The mother said in oral evidence that X had been sexually abused by the grandfather and Y was sexually abused by the father, paternal uncle, and paternal grandfather. Given these serious allegations which she confirmed she firmly believes are true, it was of concern to the Independent Children’s Lawyer, the Court and the father, whether she would be able to comply with Orders for the children to spend unsupervised time in their father’s care.
Despite this clear and often repeated position, the mother said she could support Orders made by the Court, including the father’s Orders whereby the children primarily lived with him during the week and with her on the weekends, and that he have sole parental responsibility. This was difficult evidence for me to reconcile with her strong belief. In her oral submissions, the mother explained that she had done all she could to protect her children and would comply with Court Orders. There is a disassociation with her serious allegations and accepting orders for unsupervised time between the children and their father.
However, on the other hand, the father’s evidence that he harboured no anger towards the mother despite her scandalous allegations was also difficult evidence for me to accept. In these circumstances, I will accept what the mother says that she can carry out whatever order I make as I accept what the father says that he will accept and carry out any order I make.
The father impressed as calm and thoughtful and understood the nature of his children’s different personalities. He has opened a new business in DD Town with a business partner and must work daily in the business from Wednesday to Saturday to prep, and must be at the business Friday night and Saturday nights otherwise he is able to take the children to school and collect them from school on all other days, including his two days off on Monday and Tuesday. He can fit his work requirements around the necessity to be available for the children. Additionally, he has the support of his parents. I was impressed with the level of support the paternal grandmother has provided and will provide to the father, and her insight and understanding of the nature of Y and the difficulties that the mother had in dealing with him from a very young age.
The father will always have the support of his parents to assist him in caring for the children during the school week if he is unable to do so due to his work commitments each of a car and drive.
In relation to the mother’s allegation that the father and his family present an unacceptable risk of harm to the children from inappropriate sexual behaviour, I have come to the conclusion that it is the mother who presents a risk of harm to the children due to her erroneous interpretation of her children’s behaviours and the cause of those behaviours.
I find that the father and paternal family do not present any risk of harm let alone an unacceptable risk of harm to the children and that this finding is supported on the evidence as found by me, the results of two JIRT investigations, Ms C, Dr W and the opinion of both Dr O and Ms Q, together with the children’s presentation and behaviour with their father. This is also the position of the Independent Children’s Lawyer.

The decision of Goode & Goode[5] provides a pathway I must follow in making an order in children’s best interest be it in relation to a relocation as the mother initially sought and the parenting orders the parties seek or both.
[5]Goode & Goode [2006] FamCA 1346.
The orders that the mother seeks, namely that the children have recognition contact supervised four times a year, was not recommended by either Dr O or Ms Q, and both experts were solidly against the mother’s proposal to move the children to live in Suburb L and the consequent separation of the children from their father paternal family and the usual well-settled environment. The mother abandoned this aspect of her application during her written submissions.
The father’s proposal is that the children remain living where they have effectively lived all their sentient lives in the J Region area, supported by paternal grandparents with whom they have always had an involvement since birth, involvement at the same schools, activities, friendships and most importantly maintaining their all-important relationship with their father.
Additionally, it is clear that despite the mother’s evidence to the contrary that X does not adjust well to change, for example the change from the U School to E School was quite difficult for her on her own evidence and from the subpoenaed material.
For Y, a change of his living circumstances and not being in close proximity to his father could cause his behaviour to further deteriorate, behaviour which the mother clearly struggles to address. Dr B’s Report is clear, Y pays little attention to his mother has no boundaries with her, and, as Dr O said, he simply does not feel safe with his mother due to her laissez-faire parenting and therefore he acts out. To minimise the capacity of the father to be a part of Y’s life on a day-to-day basis is tantamount to an experiment which could have serious repercussions for Y. I accept the father’s evidence that Y does not behave in the same fashion as Dr B described he does with his mother when with him. X supported the father’s evidence in this regard.
In circumstances where I have found the mother is the parent who poses a risk of harm to the children to effect by order any minimisation of the father in the children’s day-to-day life is a serious matter.
I must now follow the pathway set out in Goode & Goode[6] in order to determine what order I should make in the children’s best interests.
[6]Goode & Goode [2006] FamCA 1346.
In determining what is in a child’s best interests, a Court must consider the matters set out in sections 60CC(2) and (3) of the Act.
The primary considerations in section 60CC(2) of the Act are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The additional considerations in s 60CC(3) of the Act are:
(a) 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;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) 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; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

(f) the capacity of:

(i)each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

(h) if the child is an Aboriginal child or a Torres Strait Islander child:

(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;

(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.

The first task is to determine whether I will rebut the presumption of equal shared parental responsibility as sought by the father as the consequences of rebutting or not the presumption will have an impact on time arrangements I must consider under the Act.
I do not see it is practicable or in the children’s best interests that parental responsibility be shared. I cannot see how the mother could make a decision based upon her children’s needs in circumstances where she is still firmly of the view that the father and paternal family are sexual predators. Any decision the mother makes would be seen through this filter and would be warped because of it and in those circumstances this responsibility must rest with the father who has no such erroneous view.
Having rebutted the presumption I need not consider whether there ought to be an Order for equal time or significant and substantial time but must determine what Order is in the child’s best interest in terms of time.
I have formed the view that the mother’s proposal to provide the children with four periods of recognition time supervised at a Contact Centre per year with the father cannot possibly be in the children’s best interests. To do so would be conducting an experiment with the children at the request of the mother and neither expert nor the Independent Children’s Lawyer supported this drastic change for the children.
The time sought by the father is a change to the current regime of time to four nights each week with their father and three with their mother. On any assessment, the father’s proposal is for significant and substantial time with the mother and is a form of shared parenting, whereas the mother’s proposal is for recognition time four times per year at a supervised Contact Centre.
I formed the view it is imperative that the children maximise the time with their father and this was consistent with Dr O’s opinion if I found that the father or his family was not a risk of harm to the children, which I have found.
There is no doubt the children benefit from a meaningful relationship with each of the parents. The mother has been their primary carer and the father is still supportive of the children spending time with her including overnight time, despite her scandalous accusations against him, his father and his brother.
Ms Q and Dr O were each asked if I formed the view that the mother posed the unacceptable risk should there be a break of time with the children and the mother. Both experts opined this would not be best for the children given their strong attachment to the mother which is recognised by the father and supported by him. Ms Q said it may be beneficial for a period of time that the mother only have day time with the children to see how things progress and whether she is able to accept the children are not at any risk of harm in their father’s care.
There is much sense in that proposal given my concerns of the mother’s fixed position and the Orders I propose to make and this was a position Independent Children’s Lawyer accepted as well.
I do not see that the children have been exposed to neglect, family violence or poor behaviour in either parent’s household, and reject the mother’s assertions to that effect. I reject the mother’s evidence entirely that the father was violent towards her during the relationship or that he sexually assaulted her. The mother may now believe these allegations as part of her erroneous view that the father is a risk of harm to the children, however, the Court rejects them.
The wishes of the children are not relevant in this matter. However, each child has expressed a wish to spend more time with their father and have spent time with him since separation and were observed to have a strong and attached relationship to him. Given there is no risk of harm to them in their father’s care, it is appropriate that more time with the father is ordered.
If I adopt Ms Q’s sensible approach, the children will be spending all overnight time with their father for a period until time with their mother increases. I was confident after hearing the father and particularly the paternal grandmother give evidence that if the father is working as he must on Fridays and Saturday nights, his parents will care for the children on those occasions.
This is appropriate arrangement as the children would be in a familiar environment and given the strong relationship between the children and their grandparents and my finding that the paternal family is not a risk of harm to the children.
I am concerned as to the parents’ capacity to set boundaries for the children, as was Dr O. However, the father took on board Dr O’s advice and I accept that he does not have the difficulties with Y and X’s behaviour that the mother asserts she does. I am concerned that the mother’s attitude to the children’s education is less than ideal and X and Y have had many absences from school whilst primarily in her mother’s care.
Both parents have a capacity to provide for their children’s educational, emotional and psychological needs, however, the mother’s capacity is significantly diminished if she maintains her erroneous position that the paternal family and the father are a risk of harm to the children, and thus the father is the parent who has the greater capacity than the mother to provide for these needs at this time and into the future.
Both parents take the responsibility of parenthood seriously. The father has always paid child support and provided additional items to for the children as and when necessary.
To leave the children in the primary care of their mother and limit their time to supervised time four times per year would be to perpetrate significant harm upon the children and they would suffer a significant loss. This would have a negative impact on their emotional and psychological well-being into the future and they may well become embroiled in the mother’s erroneous position in relation to the risk of harm to them from the paternal family.
It is imperative that the children live primarily with their father so that he can exert upon them the calm and steadying influence that I observed he is capable of in the witness box, and to relieve them from the pressure of their mother’s erroneous position in relation to their paternal family.
Without the children spending significant time with their father, I would be concerned at the mother’s capacity to promote the children’s all-important relationship with him into the future. Given her view of the father and his family, this is a near impossibility unless he is present in their lives and present more often than the mother which would be the case if the Court makes the orders sought by him.
Each parent takes the responsibilities of parenthood seriously, however, the father has the higher function to parent the children into the difficult teenage years when they will challenge the world view their parents hold and maintain boundaries for them to ensure their emotional safety which is now missing, particularly in Y’s relationship with his mother.
It is an imperative that the children spend the maximum time with their father that he is able to achieve for them so that they have a balanced view of the world and are free from their mother’s clear erroneously held views and hypervigilance in relation to sexualised behaviour.
The only way the children can grow up with a balanced picture of life, relationships and acceptable sexual behaviour, is if they spent maximum time in their father’s care. Thus, the father’s application must succeed as the Order in the children’s best interests and I will so order.
I accept Ms Q’s position that the children should only spend day time in their mother’s care initially so that important emotional overnight time when the children may require additional nurturing and comfort is kept as far as possible free from the mother’s erroneous view as to the paternal family. In those circumstances, the mother’s time with the children will be day time only initially then increase to one night a week, then two nights a week and finally three nights a week.

I certify that the preceding three hundred and forty-eight (348) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Henderson delivered on 24 January 2020.

Associate:

Date: 24 January 2020

[2020] FamCA 28

24 January 2020

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Family Law

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Jurisdiction

Appeal

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