Maloof & Kagan
[2023] FedCFamC1F 119
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Maloof & Kagan [2023] FedCFamC1F 119
File number: DGC 668 of 2018 Judgment of: CARTER J Date of judgment: 6 March 2023 Catchwords: FAMILY LAW – CHILDREN – allegations of sexual abuse perpetrated by the father – where the children have been diagnosed with Autism Spectrum Disorder and have special needs – whether the father poses an unacceptable risk – children’s best interests to live with the mother and spend time with the father – orders made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 61DA, 65DAE, 69ZT 69ZW
Cases cited: B and B (1993) FLC 92-357
Blinko & Blinko [2018] FamCAFC 104
Briginshaw v Briginshaw (1938) 60 CLR 336
Fitzwater & Fitzwater(2019) 60 Fam LR 212
G & C [2006] FamCA 994
Isles & Nelissen (2022) 65 Fam LR 288
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
Masson v Parsons (2019) 266 CLR 554
McCall and Clark (2009) FLC 93-405
Re Andrew [1996] FamCA 43
Division: Division 1 First Instance Number of paragraphs: 367 Date of last submissions: 7 February 2023 Date of hearing: 23-25 and 27 January and 6-7 February 2023 Place: Melbourne Solicitor for the Applicant: Hall Partners Lawyers Counsel for the Respondent: Mr Daniel Cash Solicitor for the Respondent: Aitken Partners Pty Ltd Counsel for the Independent Children's Lawyer: Ms Laura Colla Solicitor for the Independent Children's Lawyer: Bentleigh Family Lawyers ORDERS
DGC 668 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MALOOF
Applicant
AND: MS KAGAN
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
CARTER J
DATE OF ORDER:
6 March 2023
THE COURT ORDERS THAT:
Previous orders discharged
1.All extant parenting orders be and are hereby discharged.
Shared parental responsibility
2.The mother and father have equal shared parental responsibility for the children of the marriage X born 2012 and Y born 2014 (“the children”).
3.In the event that any issue arises in respect of the children’s long term care, welfare and development, the parent seeking that a decision be made to write to the other parent via email outlining:
(a)what decision needs to be made in respect of the children;
(b)the proposed date that the decision should be made;
(c)the proposed date that the decision should be actioned;
(d)how the issue arose;
(e)when the issue arose;
(f)the information gathered by that parent in respect of the decision;
(g)the source of that information (and no professional shall be further engaged in respect of the decision unless that professional is jointly engaged);
(h)the relevant considerations in respect of the decision in order of priority for that parent;
(i)the weight that parent places on each relevant consideration in order of weight
(j)the advantages and disadvantages of the decision for the children;
(k)the short, medium and long term impacts on the children of the proposed decision;
(l)the short, medium and long term impacts on the children of not making the proposed decision;
(m)alternatives to the decision with considerations set out above; and
(n)their offer to discuss the decision to be made in person with or without the family co-ordinator referred to in these orders.
4.In the event there is an email as referred to in Order 3 herein;
(a)the parent sending the email shall send the other parent a text message to advise that an email has been sent to that other parent for their attention; and
(b)the other parent shall respond to the email within 14 days.
5.In the event the mother and father cannot agree on an issue in respect of the children’s long term care welfare and development after in person consultations with the parenting co-ordinator referred to in these orders, then there be liberty to apply (from 13 months of the date of final orders) on short notice to the chambers of The Honourable Justice Carter.
Parenting orders
6.The children live with the mother.
7.The children spend time with the father as follows:
(a)commencing on 13 April 2023:
(i)each Thursday from the conclusion of school (or 3.30 pm if a non-school day) until 6:00 pm; and
(ii)each alternate Saturday (commencing 22 April 2023) from 9.30 am to 4.30 pm.
(b)commencing Term 3 2023:
(i)each Thursday from the conclusion of school (or 3.30 pm if a non-school day) until the commencement of school Friday (extended to 4.30 pm should the Friday be a non-school day) and
(ii)each alternate Saturday from 9.30am to Sunday 4.30 pm
(c)commencing Term 4 2023:
(i)each Thursday from the conclusion of school (or 3.30 pm if a non-school day) until the commencement of school Friday (extended to 4.30 pm should Friday be a non-school day) and
(ii)each alternate Saturday 9.30 am to the commencement of school Monday (or 4.30 pm should Monday be a non-school day);
(d)for school holidays in 2023:
(i)for the second term (June/July) holidays, the children shall spend time with the father in accordance with Order 7(a) herein;
(ii)For the third term (September/October) holidays, the children shall spend time with the father in accordance with Order 7(b) herein; and
(iii)For the long summer holidays in 2023/2022 the children shall spend time with the father in accordance with Order 7(c), with each alternate weekend time to be extended to conclude at 4.30 pm on Tuesdays.
(e)commencing Term 1 2024:
(i)each Thursday from the conclusion of school (or 3.30 pm if a non-school day) to the commencement of school Friday (extended to 4.30 pm should Monday be a non-school day) and
(ii)each alternate Friday (or 9:00 am should that day be a non-school day) until the commencement of school Monday (extended to 4.30 pm should Monday be a non-school day).
(f)for school holidays commencing Term 1 2024 as follows
(i)the first half of each school holiday period in Term 1, Term 2 and Term 3 holidays commencing from the conclusion of school on the last day of term to 4.30 pm on the midpoint day; and
(ii)for one half of the long summer vacation period as agreed between the parties in writing 120 days prior to the last day of Term 4 and failing agreement then on a week about basis with the mother’s half of the holidays to include that the children are returned to the mother’s care not less than three nights before the commencement of the new school year, and changeovers to occur at 4.30 pm with the mother to have the first week in even numbered years, and the father to have the first week in odd numbered years.
(g)for special occasions as agreed between the parties .
Supervision
8.The first four occasions referred to in Order 7(a) herein be professionally supervised at the parties’ joint and equal expense by an agreed supervisor, and in the event the mother and father cannot agree, then as nominated by the Independent Children’s Lawyer.
9.In the event a parent wishes for changeover not occurring at school be supervised then that parent pay for that supervised change over with such supervision occasions totalling no more than four.
10.In the event either parent wishes the supervisor to provide a short form written report to the parties and the parenting co-ordinator, such report be paid for by the party seeking the report and any such request for a report be made within seven days of any supervision event.
Changeover
11.Changeover occur at school on school days and otherwise at the purchase counter at B Shopping Centre, Suburb C, (“B Shopping Centre”) or such other venue as may be agreed by the parents in writing including text message.
12.In the event the child/ren do not attend school on a changeover day during school term, the parent with the child/ren in his or her care shall notify the other parent of the child’s absence from school that day by no later than noon, and changeover for both children shall occur at B Shopping Centre.
Parenting co-ordinator
13.The parties forthwith make arrangements to confer in person, separately, with parenting co-ordinator Ms D (“Ms D”) of E Clinic, F Street, Suburb G VIC for the purposes of an intake appointment with such appointment to occur as soon as practicable with the mother attending first (without the children) and the father attending second (without the children) and it be requested that the Independent Children’s Lawyer facilitate the making of appointments in compliance with this order.
14.For the purposes of that intake appointment the Independent Children’s Lawyer provide Ms D with a brief of documents in electronic and hard copy as follows:
(a)the final orders in these proceedings;
(b)the Reasons for Judgment in these proceedings;
(c)any extant Intervention Order;
(d)the parties’ applications in these proceedings;
(e)the parties’ trial affidavits;
(f)the police witness statements relied upon by the mother in these proceedings;
(g)prior orders made in these proceedings;
(h)all reports filed in these proceedings including:
(i)the Family Report of Ms H dated 31 August 2018;
(ii)the short form report by Ms J dated 16 January 2023;
(iii)the psychiatric assessments of the parties by Dr K dated 19 May 2019 and 12 August 2021;
(iv)the assessment report by Dr L dated 2 June 2019; and
(v)the Independent Children’s Lawyer’s file note report of the children’s FaceTime meeting with her dated 10 May 2022.
(i)the VARE dated 24 October 2018 and transcript;
(j)the father’s record of interview dated 30 October 2018 and transcript if any;
(k)the children’s reports in chronological order for both of the children by year; and
(l)any other document reasonably called for by the parenting co-ordinator;
AND IT IS REQUESTED that the brief be prepared forthwith by the Independent Children’s Lawyer for delivery to Ms D 14 days prior to the parties’ intake appointment.
15.The parenting co-ordinator be at liberty to inspect subpoenaed documents, the VARE and father’s record of interview at the Court no later than 30 days after the intake appointment AND IT IS REQUESTED THAT the Independent Children’s Lawyer and the subpoena clerk facilitate such inspection.
16.All subpoenaed documents, the VARE and the father’s record of interview remain with the Court for a period of no less than six months after the making of final orders.
17.Within 10 days of their intake appointment the mother and father each attend upon the parenting co-ordinator separately and the mother shall, if she wishes and if requested by the parenting co-ordinator, invite her parents to an appointment with the parenting co-ordinator (with an interpreter from the National Accreditation Authority for Translators and Interpreters if required with the mother to meet that expense of the interpreter).
18.Within a further 10 days of the private appointments referred to in Order 17 herein the parties attend upon the parenting co-ordinator with the children with the mother attending first and the father second, on the same day.
19.The mother and father otherwise attend upon and comply with the parenting co-ordinator’s reasonable administrative requirements from time to time for a period of no more than 13 months from the making of final orders.
20.The parents’ attendance upon the parenting co-ordinator is not confidential and not privileged.
21.The mother and father sign and date an irrevocable authority drafted by the Independent Children’s Lawyer or the parenting co-ordinator, to provide information regarding the children which will be issued to the children’s school, health care professionals, Church and children’s extracurricular service provider and shall expire at the end of the period referred to in Order 19 herein.
22.The parties shall pay the fees of the parenting co-ordinator as follows:
(a)the mother shall pay for her own appointments with the parenting co-ordinator or those where her parents attend, if invited by the parenting co-ordinator whether that appointment does or does not include the children;
(b)the father shall pay for his own appointments with the parenting co-ordinator or those where a contact of his attends, if invited by the parenting co-ordinator whether that appointment does or does not include the children;
(c)the mother and father shall share the cost equally of joint appointments with the parenting co-ordinator (including joint appointments where the children are also in attendance for that appointment); and
(d)the mother and father shall share the cost equally of the children’s appointments when they attend upon the parenting co-ordinator without either parent.
23.The mother and father follow all reasonable administrative requests of the parenting co-ordinator.
Provision of information
24.Within three days of these orders and thereafter each parent on or before the first day of each school term exchange by email their usual household routine with the children.
25.The parents shall keep each other forthwith advised in writing of any emergency, significant illness or injury suffered by either of the children, together with information regarding the attendance by either child on a health care professional, including information regarding any medication prescribed for a child, (including dosage, reason for prescription and prescribing practitioner) and any diagnosis or prognosis.
26.The mother and father be at liberty to contact, request and receive information from the children’s health care professionals from time to time, including copies of any reports, at their expense if any AND IT IS REQUESTED THAT such information be provided to the requesting parent by the health care professional.
27.The mother and father when communicating with the children’s health care professionals carbon copy (‘cc:’) the other parent and request ‘reply all’ replies from the health care professional.
28.The mother and father communicate non-urgent, brief, factual and important messages regarding the children’s care, welfare, development, needs and routines via email.
Attendance upon professionals treating the children
29.The mother and father ensure that the children attend upon the following professionals (and no other unless agreed in writing by the parents) as and when required:
(a)Dentist: Dr M, N Dental Service; (O Street, Suburb P,)
(b)General Medical Practitioner: Dr Q, R Medical Centre (S Street, Suburb T VIC)
(c)Paediatrician: Dr U, V Medical Centre, Suburb P VIC (W Street, Suburb P)
(d)Occupational Therapist: Ms Z, BB Health Services, (CC Street, Suburb C VIC)
(e)Speech Therapist: Ms DD, EE Company (FF Street, Suburb C VIC); and
(f)any other professionals as agreed in writing by the parents prior to the children’s attendance upon that professional.
30.Within 14 days, the mother and father secure a referral from the children’s General Practitioner for a new Psychologist and make an appointment with that new Psychologist on the day of receipt of the referral and the children attend upon that new Psychologist and no other as and from that appointment unless otherwise agreed between them in writing.
31.The mother and father by themselves personally and/or their agents are thereby restrained from having the children engage with or attend any other health care professionals unless agreed by them both in writing.
32.The mother and father by themselves personally and/or their agents are hereby restrained from having the children attend upon Dr GG, psychologist, and the Independent Children’s Lawyer provide a copy of this order to Dr GG.
School and community
33.The mother and father do all things necessary to maintain the children’s enrolment at HH School, JJ Street, Suburb KK VIC and ensure the children’s daily attendance at that school during term time.
34.The mother and father ensure that they are each noted as the children’s parents and noted as the children’s emergency contacts on the files of all health care professionals, the children’s schools and extra curricula service providers.
35.The mother and father ensure that they each, at their own expense, if any, have private access to the children’s school portal, all school reports, test results, assessments, notices, invitations, newsletters, invitations and school photograph orders.
36.The mother and father be at liberty to attend the children’s school events and functions, and extra-curricular activities to which parents are ordinarily invited.
37.The mother and father be at liberty to participate in the children’s Church community and both have direct access to information if any, from the Church at their own expense if any in respect of the children’s religious observance or any matter arising in respect of their participation in the Church community.
Injunctions for the parents
38.The mother and father by themselves their servants and agents are hereby restrained by way of injunction from:
(a)denigrating, abusing, belittling and otherwise speaking negatively about the other party or their family members to the children or either of them within their hearing or presence or allowing any other person to do so;
(b)exposing the children to discussions of problems/issues that have occurred in the parental relationship and/or these proceedings and/or any other proceedings;
(c)permitting the children to have access direct or indirect to any information including documents relating to these proceedings or any other proceedings
Extension of the appointment of the Independent Children’s Lawyer
39.The appointment of the Independent Children’s Lawyer shall remain in full force and effect for 13 months from the date of final orders.
Provision of orders
40.The Independent Children’s Lawyer provide a copy of these orders to the following entities:
(a)the children’s school;
(b)the health practitioners referred to in Order 29 herein; and
(c)the parenting co-ordinator.
General
41.Certify for counsel and solicitor advocate.
42.All extant applications are hereby dismissed and the matter be removed from the list of pending cases maintained by the Court.
AND THE COURT NOTES THAT:
A.These orders are inconsistent with the family violence order made in the Magistrates’ Court of Victoria Suburb ZZ in 2018 in that they provide for the father to come into contact with the children.
B.The family violence order prohibits the father from:
(i)contacting or communicating with the children;
(ii)approaching or remaining within five metres of the children; and
(iii)coming within 200 metres of the mother’s home address and the children’s school.
C.The Court is satisfied the parenting orders are in the best interest of the children.
D.The Court is satisfied that the orders do not subject the children or any party to any unacceptable risk of harm.
E.Pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency, the family violence order is invalid.
F.In accordance with section 68P(3) of the Family Law Act 1975, the Court will provide a copy of these orders to:
(i)Victoria Police;
(ii)the Department of Fairness, Families and Housing; and
(iii)the Registrar of the Magistrates’ Court of Victoria, Suburb ZZ.
G.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Maloof & Kagan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER:
INTRODUCTION
This parenting dispute involves complex issues, complicated by the vulnerabilities of the two young boys at the centre of the conflict - X, born 2012 (“X”), and Y, born 2014 (“Y”) (collectively referred to as the “children”). They are 10 and 8 years old respectively. Both children have been diagnosed with Autism Spectrum Disorder (“ASD”) and have language delays.
The mother asserted that X made a disclosure in late 2018 that he was the victim of a sexual assault perpetrated against him that day by the father. X was 5 years old at that time. Shortly after that allegation, all time and communication between the father and the boys ceased. The father was charged in 2019. However, those charges were subsequently discontinued in late 2021.
The mother remains of the view that the father sexually abused X, and that the children’s best interests require that they spend no time with him, that they do not communicate with him and that she have sole parental responsibility for the children. She sought that there be a positive finding of sexual abuse made against the father.
The father remains adamant that he has never abused either of the children. He said he is a dedicated and loving parent, and wants to resume an important role in their lives.
For the reasons that follow, I am satisfied the father does not pose an unacceptable risk to the children. Rather, it is my view that the children’s best interests will be met by the father resuming a significant and important role in the children’s lives, both in terms of spending time with the boys, and also in helping to make decisions for their care, welfare and development.
THE EVIDENCE
It is fair to say that the mother’s case was poorly prepared. It cannot be over emphasised that significant care needs to be taken in drafting affidavits for all cases, particularly those where serious allegations of sexual abuse are made. The affidavit of the party asserting that there has been abuse should contain a clear and concise chronology, setting out in full the complete circumstances in which each discussion regarding the allegations is had with the child or children. Every effort should be made to ensure that all relevant evidence is properly before the court, including affidavits from all relevant professional and lay witnesses. This was regrettably not how the mother’s case was prepared. The court has simply had to do the best it could with deficient material.
The mother did not have affidavits from relevant witnesses, including her parents, the kindergarten teacher, the priest or the medical professionals to whom she took X and to whom she asserted X made disclosures. She sought instead to rely on their police statements.
The mother also did not have affidavits from any of the children’s treators, including Dr GG (“Dr GG”), the children’s psychologist. She sought instead to rely on reports and other correspondence from Dr GG.
The mother’s lawyer had not made arrangements for any of those persons to be available for cross examination. Ms Hall said the mother’s parents were too elderly, and had already endured the County Court proceedings. She said Ms LL (“Ms LL”) the kindergarten teacher and at least one of the doctors had ‘moved’. She said Dr GG had not been prepared to be called as a witness.
In her evidence, the mother repeatedly said that children with ASD – and X in particular – could not be coached and could not lie. The mother did not ensure the court had the benefit of an expert giving evidence and being available for cross examination about that fundamental assertion. I note that amongst the documents tendered are reports of Dr MM (“Dr MM”) and Dr NN (“Dr NN”), neuropsychologists, who prepared reports assessments of X in the context of his ability to participate in the criminal proceedings. They both touched on this topic, yet neither expert was called to give evidence by any of the parties.
At the outset of the proceedings the father sought an order pursuant to s 69ZT of the Family Law Act1975 (Cth) (“the Act”) requiring that there be strict compliance with the rules of evidence. That would exclude the numerous statements and reports upon with the mother sought to rely, although he ultimately did not seek for the police statements to be excluded.
Whilst the mother indicated she was advocating for a positive finding of abuse, I was not satisfied that there were exceptional circumstances such that the rules of evidence should be strictly applied. It seemed to me appropriate to allow the mother to rely on the various statements and reports, although I made it plain that in the absence of the maker of those statements and reports being available for cross examination, it was likely limited weight would be attributed to them.
The statements and reports in my view provided context and a chronology for the alleged disclosures. Further, I was concerned that if I excluded those documents, the matter may have been adjourned again to ensure that the evidence was properly put before the court. Given the extensive delays the parties have already experienced, it was, in my view, more appropriate for the matter to proceed. The parties – and more importantly the children – need this litigation to end.
The matter was conducted in person. Both the mother and the father were subject to cross examination over an extended period.
Ms H, the Family Report writer (“Ms H”) and Ms J, psychologist and family consultant (“Ms J”) were also subject to cross examination. Ms J attended court via Microsoft Teams. There were no technical issues that impinged on the giving of that evidence.
None of the parties required Dr K(“Dr K”) (who prepared psychiatric assessment of the parties) or Dr L(“Dr L”) (who prepared a psychosexual assessment of the father) for cross examination.
There were numerous documents tendered throughout the proceedings, by consent between the parties.
I have listened carefully to the evidence, read all the affidavit material relied upon, and had regard to all the documents tendered. As I reminded the mother’s lawyer, I have confined myself to the material that was formally admitted into evidence.
BACKGROUND AND PROCEDURAL HISTORY
The parties were both born in Country OO.
The mother is 44 years old. She immigrated to Australia in 2004. The mother lives in Suburb C with her parents. She is engaged in full time home duties, having previously worked as a health professional. The children live with her. They attend HH School where X is in Grade 4 and Y in Grade 2.
The father is 48 years old. He immigrated to Australia in 2008, on a spouse visa, following the parties’ marriage in Country OO in 2007. He lives in Suburb P, and is working full time as a health professional at PP Health Service. He lives in a three bedroom home, which is set up to accommodate the children. They are familiar with the home, as the father has lived there for eight years, although they have not been to the premises for over four years.
It appears that in the early years of the marriage both parties worked hard to have their qualifications recognised in Australia. The mother passed her exams in 2008 and was able to gain employment in City QQ as a health professional in 2010. The parties moved from the mother’s parents’ home in Suburb C to City QQ at that time. The father commenced employment as a health professional in City QQ in 2011 and he passed his exams in 2013.
The children were both born in the City QQ area when the parties were living there.
The parties do not agree as to the date of separation. It was apparent from the evidence that the breakdown of the marriage was a slow process, with the parties substantially living apart from late 2014.
The mother moved from City QQ, and moved in with her parents in Suburb C, not long after Y was born, asserting she needed more assistance with the children. At that time, the father was working irregular hours, including nights and weekends. The father initially remained in City QQ, but then moved to Suburb P at the end of 2014. He commenced worked from about early 2015. He described the marriage as at an end from around that time.
The mother did not agree that at that time the marriage was over at this time. She said it continued, with the parties living substantially in separate homes. However, she said the father came to visit and spend time with her and the children. She described that when he did visit, he was not very helpful, and criticised her parenting. The mother said separation occurred in January 2016. In his trial affidavit the father noted that the parties “formally separated” in June 2017.
In reality, nothing turns on the date of actual separation.
In late 2016, X was diagnosed with ASD. In early 2017, Y was diagnosed with ASD. X also has language deficits, which in 2016 were described as severe. At the time of his diagnosis, Y was described as presenting with “significant and pervasive difficulties with his language and social communication skills”.
The father said from around 2015 onwards, the mother became increasingly restrictive regarding his time with the children. It is also clear that the father’s work commitments impacted on his availability to provide care for the children. The mother said the father’s long work hours and irregular schedule made it difficult to arrange suitable times for the children to see their father, as it interrupted their routines and interfered with various appointments the mother scheduled. The mother said the father also was somewhat in denial about the ASD diagnoses, and that he would cancel his visits with the children on short notice, causing them to become quite upset.
It is apparent the parties were not in complete agreement about how to manage their children’s special needs. The mother formed the view that the father did not sufficiently understand the children’s needs. In particular she said he did not adhere to the strict regime she said needed to be implemented to assist them to manage their anxieties. It appears a dynamic evolved in which the mother perceived the father as being dismissive of the structures and supports she put in place for the children. She said the father’s refusal to maintain the children’s strict routine caused them to be more difficult to manage when they were returned to her care.
Conversely, the father perceived the mother as seeking to micromanage and control his engagement with the children, permitting him only unnecessarily short and restricted visits and needlessly limiting the children’s exposure to experiences outside their home. He said the mother also excluded him from information about the children, their treators, their progress and their attendance at child care.
Both parents became increasingly distrustful of the other.
In mid-2017, Ms RR, Speech Pathologist, provided a report in which she noted that X’s understanding and spoken language skills were severely below average for his age. Whilst he had made gains, she opined that the significant delays he demonstrated impacted on his ability to communicate effectively.
In mid-2017, the parties attempted mediation. Whilst there were times the parties were able to reach an agreement, those agreements broke down. The father said the mother often insisted on remaining present when the boys were in his care, which he felt was unnecessary. She continued to insist on short visits, and complained he did not implement the regime she had established for the boys. The father also described that at the conclusion of the boys’ time with him they were reluctant, and even distressed to separate from him.
In around mid-2017, the mother engaged Dr GG, to assist with X’s behaviour and development.
In mid-2017, the mother obtained an interim Intervention Order against the father. She asserted that the father had subjected her to verbal abuse. The father denied he subjected the mother to abuse at any time. Those proceedings were resolved by the father offering an undertaking without admission.
Events in 2018
These proceedings were filed by the father on 28 February 2018. At that time the father sought time with the children on alternate weekends, for a meal midweek, for half the school holidays, and time on special occasions. He also sought to be informed regarding the children’s various appointments and treatments. The mother’s proposals at that time were for the children to spend day time visits only with their father.
On 7 May 2018, interim orders were made, by consent, for the children to spend time with the father each Saturday from 10.00 am to 4.00 pm, and each alternate Tuesday from 9.30 am to 4.00 pm. The father said that this time went ahead, substantially without issue.
In mid-2018, a further speech assessment was conducted in relation t o X by Ms SS. At that time X was assessed as presenting with language disorders.
In about mid-2018, the father met with Dr GG for the first time. He says prior to that time, the mother excluded him from being involved with Dr GG.
The father attended at X’s kinder on several occasions from around early to late 2018, and spent hours there, interacting with X. He said he also attended at Y’s kinder on a few occasions, but not as often as it was further away and the mother did not take him as often.
The family report writer, Ms H prepared a Family Report for the family on 31 August 2018. At interview, the mother expressed a view that overnight time with the father ought not occur until the children were in Grade 2 at school (which would not have been until 2020 for X, and last year for Y). The mother reportedly was not able to identify any positives for the children spending time with the father. She did not consider overnight time appropriate as she felt the father allowed the children to become overstimulated and overwrought, such that they returned to her care dysregulated and highly unsettled. She further felt the father would not pay proper attention to the children.
Ms H formed an impression that the mother was overly invested in the children and her role in their care, to the extent that the mother viewed herself as the only parent able to properly provide for their needs.
Notwithstanding the mother’s concerns, Ms H observed very positive interactions between the father and the children, including his ability to manage them appropriately over a protracted period at her premises.
Ms H recommended the father complete some training regarding parenting children with ASD, and that time then be increased, to include overnight stays on alternate weekends, on special occasions and for half the school holidays.
On 17 September 2018 the matter returned to court. Further consent orders were made for the father to complete a course in parenting children with ASD, and for the parties to complete a Parenting After Separation course. The matter was adjourned to 29 November 2018.
A dispute arose as to whether the children should be attending upon an occupational therapist or a psychologist, as had been arranged by the mother. In late 2018 the father wrote to Dr GG, and Ms TT, occupational therapist at UU Health Clinic advising that he did not consent to the children’s continued attendance. The father said he did not consent to the children attending in those practitioners as there had been no referral for same made by the paediatrician.
In late 2018, the children spent time with their father pursuant to the orders made on 7 May 2018. The mother asserted that when the children returned to her care, X was withdrawn and very anxious and appeared embarrassed. That evening, when putting him to bed she said she asked him what had happened that day. She said he told her that the father had put his penis in his mouth. I note at times in the material this is referred to with various spellings of slang terms. She asked him where it happened, and he said “in [dad’s] house”. She asked where in the house and he said “in the bathroom, I can’t talk”, and made a face that suggested his mouth was full. She said he then opened his mouth with two fingers and “described pushing something out of his mouth”. She asked what he said to his father, and X said “stop! It’s not fun” and put his hand up to gesture stop. When the mother asked “what did [dad] say?” he said the father said “no, it is fun”. She said she asked what X did next and he “used his pointer fingers to push it out”. He also said the words “bacteria” and “hot water in my mouth”. The mother has formed the view that this was a reference to semen.
The mother immediately told the maternal grandmother. According to the statement made by the maternal grandmother to the police, some 13 months after the event in late 2019, she recalled X returning from the father’s home, very quiet. She said the mother put him to bed at 8.00 pm that evening and came out of the room a few minutes later, very much in shock. She said the mother told her that X had said “[Dad] put his [penis] in my mouth”. The maternal grandmother said she was shocked and started exclaiming “Oh my god [sic]” and was beating her chest and face. The maternal grandmother then went into X’s bedroom with the mother who asked X “what happened today? Tell me”, and X repeated that “[Dad] put his [penis] in my mouth”. The mother asked where and he said in the house, and when asked where again, he said in the bathroom. The maternal grandmother said she did not understand what else he said, but he blew his cheeks up, and then used both hands “to show how he pushed [the father’s] penis out of his mouth”. He said “stop” and said it was not fun and the father said it is fun. She heard him say something about hot water in his mouth.
The mother and the maternal grandmother did not tell the maternal grandfather until the following day. According to his statement to police, made also some 13 months after the event in late 2019, the grandfather said he awoke around 6.00 am to discover the mother and maternal grandmother really upset, shaking and crying. He believes they were in X’s room, with X who was in awake in his bed. The maternal grandfather asked what had happened, and the maternal grandmother told him in their native language that X had said the father put his penis into X’s mouth. That is, X did not tell the maternal grandfather. Rather, the event was recounted to the maternal grandfather, in front of X, by his clearly distraught mother and maternal grandmother. The maternal grandfather said X was upset for a period and that the mother and maternal grandmother were also crying.
The children continued to spend time with their father in accordance with the interim orders. There is some dispute as to the dates on which the children were provided to the father by the mother. It is agreed they attended his house on Saturday, 6 October 2018. It is also common ground that there were no complaints made by either child about their father on that occasion.
The father spent time with X at kindergarten a few days later. He remained at the kindergarten for just over two hours.
The father said he spent time with the children on 13 October 2018. The mother said she could not recall whether the children did or did not spend time with the father that day. There is no evidence that the children made any complaints about their father on that occasion.
The father again attended at X’s kindergarten a few days later. He remained at the kindergarten for one and three-quarter hours. Ms LL provided a police statement the next day. In that statement she said on two dates in late 2018 when the father attended, “there was lots of whispering between [the father] and [X] which had never happened before”. The mother has formed the view that the father attending on those days with the purpose of convincing and manipulating X into not revealing the alleged abuse. That is denied by the father who said he understood he was permitted to attend, and that he did so to be involved with X’s attendance there, in circumstances where the children’s time with him was otherwise very limited.
The children did not spend time with the father on 16 October 2018 as he was attending a parenting children with ASD course.
On 18 October 2018, the Independent Children’s Lawyer wrote to the parties in which she stated her view that the children ought not attend upon either an occupational therapist, or a psychologist unless a specific referral to such professionals was made.
The father said the children spent time with him again on 20 October 2018. There was some suggestion by the mother’s lawyer that this was not correct. However, the mother’s own police statement confirmed that the children did attend the father’s home on 20 October 2018. There is no evidence that the children made any complaints about their father on that occasion.
That was the last time the children spent any time with the father.
A short time later, in 2018, the mother said she noticed “a crusted lesion on [X’s] upper lip” that she was concerned might be a sexually transmitted disease. She did not, however, take X to the doctor for a further two days.
On the same day, in 2018, the mother contacted a Mr VV (“Mr VV”) – a priest from her church – to attend at her home. He attended the following day. According to his statement to police, made in late 2019, he was only briefly at the home. He said the mother called X into the room where Mr VV was with the maternal grandfather. The statement reads:
[The mother] then said to [X], “Tell Father what Dad did to you”…
[X] then repeated the single line, “Dad put his penis in my mouth”.
In late 2018, the mother took X to speak to his kindergarten teacher Ms LL. According to Ms LL’s police statement the mother arranged with Ms LL to meet up before kinder that day. The mother brought X to the meeting. At the outset:
[The mother] said “we now needed to tell [Ms LL].” Then [X] told me “Papa had put his penis into [X’s] mouth”…
[X] said “Papa said it will be fun.” [X] then said “It is not fun”. I asked him where it happened and he said it was in the bathroom at his dad’s house.
I asked if [Y] was there. He said “No, [Y] was outside playing.” I asked [X] how many times did it happen and he said “Only once.” [X] also said his Papa had said not to tell anyone.
…
[X] doesn’t understand the enormity of what was being said. He seemed quite calm and cool about it. When I questioned him he answered straight away; he didn’t need to think about it and he was clear with what he was saying. He knew that he was coming to tell [Ms LL] what had happened and then he was moving on to whatever.
Ms LL does not provide other details of the conversation she had with X, but does refer at the end of her statement to X telling her that he could not talk, and that “he had his mouth half open and half closed like there was something obstructing his mouth and he couldn’t speak”.
That afternoon the mother took X to WW Medical Centre. According to Dr XXs’s (“Dr XX”) police statement made in late 2021, the mother told Dr XX words to the effect of “I’m sorry but [X] needs to tell you something. This is the hardest situation possible as a mum”. Dr XX said:
I asked [X] what happened. [X] replied that “Papa.” Mum asked “Who’s that?” and [X] clarified that it was dad. He said “Papa had put his penis in my mouth”. I asked “where did this happen?” and [X] replied with “at home.” I asked what room and [X] said “the bathroom.” I asked [X] when this happened and [X] said “Tuesday” I asked if it was the Tuesday just gone and he said “No.” I asked him if it was Tuesday last week and [X] said “Yes” but mum clarified and said that she that it was the week before.
The mother’s clarification suggested the allegation was made on a date a week later than it was actually made.
Dr XX said the mother told him she was in a state of panic, which is why she took “a little bit to present”. I do not know if he knew there had been a 22 day delay between X’s comment and the medical appointment. The mother also told Dr XX she had “since reported it to [X’s] kinder teacher”. I do not know whether Dr XX knew that report was only made on the same day that X was brought to the medical centre. According to Dr XX’s statement, the mother said she had made an appointment for a police interview that Friday. If that is the case, she must have made that appointment between seeing Ms LL at midday and then attending later as the medical centre.
Dr XX’s statement continued:
I asked [X] what happened next and he said “No dad, don’t do that, it’s not fun.” I asked what happened next. [X] said “Dad said no, it is fun.” I was not 100% sure about that last line because sometimes he mumbles. I asked what happened next and [X] said “Dad put his finger in my mouth.”…I asked what happened next and I didn’t really get an answer as he had gone off on a tangent.
After some further discussion with mum, she asked [X] what did daddy say when you saw him on Saturday. [X] said “Not to tell anyone.” I asked [X] if he was unwell and he said that he had a bacteria on his body. I asked if he was sore and he replied “No.” When he said that I thought he was referring to a what [sic] mum had also reported which was a crusted lesion on his lip which had now resolved. The main reason mum was seeing me was for a medical assessment and a risk of STI’s [sic]. Specifically, she was worried that the crusted lesion on [X’s] lip could be herpes. I couldn’t answer that because it was resolved.
(Emphasis added)
There does not appear to have been any clarification as to what the father had told X not to tell anybody.
Dr XX called another doctor, Dr YY (“Dr YY”) into the room. Dr XX asked X to say what had happened. Dr YY’s statement made in mid-2019 sets out that:
…he answered that his father had put his penis in his mouth. [X] said that it was not fun and he asked his dad to take it out.
It appears that a report was made to the (then) Department of Health and Human Services (now known as the Department of Families, Fairness and Housing) (“the Department”) in late 2018, who in turn notified the police. That initial report incorrectly recorded that the “Mother has kept [X] away from father since”.
It is the mother’s evidence that in late 2018 the police contacted her and requested she attend at the station. That is inconsistent with what she reportedly told Dr XX.
On that date, the mother attended the Suburb ZZ Police Station with X. I understand X participated in a disclosure interview, and then a VARE was conducted.
At that time, the Department prepared a Draft Case Plan that said the children were to have no contact with their father. That case plan included that the mother was to ensure X engaged with the AB Service (“AB Service”). However, I understand that the mother, only, attended upon AB Service.
Four days later, the father attended at the Suburb ZZ Police Station where he was advised he was under arrest. He was then interviewed. The father denied all allegations put to him. He appeared genuinely shocked and distressed when he was informed of the nature of the allegation against him.
Victoria Police sought an interim Intervention Order against the father and in favour of the mother and children. This was granted two days later. That order suspended the operation of the parenting orders.
The mother attended the Suburb ZZ Police Station the next day and made a statement. She reported:
…[In early] October, 2018 [X] came home broken. [The father] has [X] and [Y] between 10am and 4pm on a Tuesday. When I say broken I mean [X's] eyes were on the ground, he wasn't making any eye contact with me and I finished all the jobs being showering them, giving them dinner and everything and then I asked him "[X], what happened today?" He started talking about dad putting his [penis] in his mouth. I remember that the time was 8pm.
[This slang] is a word for penis as the word 'penis' is very confronting. [X] uses [that] word [...] and 'penis' interchangeably.
I said "Ok, where did that happen?" [X] said "In [dad]'s house." I then said "Where in [dad]'s house?" [X] said "In the bathroom." I said "What happened?" He said "I can't talk" For him that is a description of what was happening at that moment or something that he told [the father]. I then saw [X] make facial expressions that his mouth was full. [X] moved about like he was distracted when talking to him so I was taking the opportunity to speak to him when I could. When [X] moves about that is part of his autism.
I said "Then what happened [X]?" [X] opened his mouth with his two little fingers and he was describing pushing something out of his mouth. I asked him "What did you say?" he said "Stop, that's not fun" and used his hand showing his five fingers pushing ahead. That is a visual cue that he uses to show that he wants something stopped.
I said "Then what did [dad] say?" He said "No, it's fun” I asked him "What did you do?" and then [X] used both of his pointer fingers to push it out. So, he used his hand first to say 'stop' and then used both hands to push it out of his mouth.
I then said "What happened?" and he said "Bacteria. Hot water in my mouth."
It is apparent from other parts of that police statement that the mother engaged in repeated discussions with X regarding the alleged incident after late 2018 and before prompting him to repeat the complaint to Mr VV, Ms LL, the doctors at WW Medical Centre and then the police. I will return to those repeated conversations later in these reasons.
In late 2018 the Department recommended all contact between the children and the father cease. I note that Child Protection spoke with Dr GG, who apparently advised the Department it was unlikely X could be coached.
On 22 November 2018, the Intervention Order proceedings were again listed. The interim order remained in place and the parenting orders were suspended.
On 29 November 2018, the matter returned to the Federal Circuit Court (as it then was). The orders for time were suspended, and orders were made for the parties to be psychiatrically assessed.
The police notes set out that on a date in late 2018 the hand up brief was prepared. Part of the material referred to was supplied by Dr GG “re: ability to lie when diagnosed with ASD”. As indicated, Dr GG was not on affidavit in these proceedings, and was, apparently, not prepared to give any evidence to this court.
Events in 2019
In mid-2019, the father was formally charged with a sexual offence.
On 19 May 2019, an affidavit was filed on behalf of Dr K, who prepared the psychiatric assessment of the father. She had interviewed the father on 18 March 2019. She was of the view that the father did not suffer from any psychiatric conditions, and his presentation did not give rise to any concerns about his ability to provide appropriate care for the children. She regarded his mental health as normal. She said he appeared “thoughtful and concerned about his children’s health, well-being, welfare and development” and that he missed his children deeply. He strongly denied all allegations of abuse. As I have already indicated, Dr K was not required for cross examination. Whilst the mother asserted in her oral evidence that this report did not “mean anything to [her]”, the report is unchallenged.
In mid-2019, the terms of the father’s employment were restricted. I understand it was a condition of his employment that he not have contact with any children under the age of 18. The father said a large sign to that effect was erected in the reception area of his place of work.
On 17 June 2019, an affidavit was filed on behalf of Dr L, forensic and clinical psychologist, who prepared a Psychosexual Risk Assessment Report in relation to the father. She examined him in May 2019. Dr L described the father as cooperative and articulate, although she also noted he may have been attempting to present himself quite favourably. Dr L noted, however, that a degree of defensiveness and apprehension was anticipated. She further noted the father “demonstrated high levels of insight and capacity for self-reflection”. His score on one test “did not reveal any concerns suggestive of a problematic pattern of sexual interests” and his score on another was “incongruent with profiles of known abusers”. He did appear to be experiencing anxiety and depression.
Dr L assessed that the father presented a low risk of sexual offending against children. She opined there was “no basis upon which to consider [the father] as posing a sexual risk to his children should they be in his care”. She said he did not present with sexual dysfunction, sexual deviation, paraphilic sexual interests or sexually compulsive behaviour. Indeed she said he presented “with absence of relevant offence characteristics”. She concluded:
Ultimately there is no evidence available to the writer to suggest [the father] represents a sexual risk to the children…on the basis of risk assessment alone, the writer is of the opinion there is no rationale to prevent or limit [the father’s] time with the children, nor is there sufficient justification (based on risk assessment alone) to necessitate any time be supervised.
…
Given [the father’s] assessed Low Risk including the context of his alleged sexual offence, and no evidence of child or male sexual interest, it would appear to the writer a very difficult conclusion to draw that [the father] poses a risk to [X] or [Y] or any child with whom he may come into contact in the course of daily life or his work.
…
There is no basis upon which to consider [the father] represents a risk of perpetrating violence towards the children or intimate partners.
…
At this time however, in the context of the current allegations and the absence of empirically derived static or dynamic risk factors and the context of the allegations it would appear difficult to justify limitations to [the father] spending time with [X] or [Y].
As indicated, Dr L was not required for cross examination. I note the mother’s assertion in her oral evidence that this report is just meaningless “paperwork”. However, the report is unchallenged. It appeared to me to be a well-reasoned and thorough psycho-sexual assessment.
On 12 June 2019, the family law proceedings were adjourned pending the completion of the criminal proceedings.
There was a committal mention in mid-2019. The father entered a plea of not guilty. The matter was adjourned to a directions hearing and subsequently set down for a criminal trial in early 2020.
As I have already indicated, in late 2019 the maternal grandparents made statements to the police regarding what occurred in late 2018.
Events in 2020
There was a Special Hearing at the County Court in early 2020, to assess the ability of X to give evidence. At the conclusion of that, the criminal proceedings were adjourned to late 2020.
That trial was vacated due to COVID-19, and rescheduled to commence in late 2021.
Events in 2021
In early 2021, updated reports were prepared regarding the children’s language skills. It was apparent X’s language skills had continued to improve. He was assessed as having a moderate language disorder. Y was assessed as having mild difficulties with receptive language and moderate difficulties with expressive language.
In mid-2021 Dr NN, clinical neuropsychologist, completed a report commissioned by the Director of Public Prosecutions, assessing X’s competency to give evidence.
In late 2021 the criminal trial was again vacated. According to the police documents tendered by the Independent Children’s Lawyer this was “due to competency reports being filed by Defence” and further neuropsychological assessments being completed.
The further directions hearing at the County Court in late 2021 was again adjourned, as an additional neuropsychological report from Dr MM, senior clinical neurologist had only very recently been received.
After receiving those reports it was determined by the Office of Public Prosecution (“OPP”) to discontinue the criminal proceedings. In late 2021 the prosecution filed a Notice of Discontinuance of the charges against the father.
Events in 2022
The mother said in early 2022, Y was touched on his penis by another young boy at school.
In mid-2022 the Independent Children’s Lawyer spoke with the children via Microsoft Teams. They were at the mother’s house. When asked about their father, and whether they remembered him, X said he remembered his father, that he was fun sometimes and that he missed his father. The Independent Children’s Lawyer made a file note of that conversations. She recorded that X said he was getting used to not seeing the father, but expressed an interest in seeing him, “if he doesn’t touch our penis’s [sic]”. Y also said he wanted to see his father and missed him.
On 12 May 2022, Howe J made an order pursuant to s 69ZW of the Act, requesting information and/or documents from both Victoria Police and the Department. She also set the matter down for hearing in August 2022. By consent, an order was made for the parties to attend upon Ms J for an assessment of the children’s readiness and capacity to participate in family therapy with their father.
On 30 May 2022, the father was advised that the conditions on his employment were all removed. He was subsequently permitted to engage in child related work and his working with children clearance was reinstated.
In June 2022, Ms J met with the parties via videoconference.
In mid-2022, Dr GG wrote to the children’s school after meeting with the mother to “discuss the current situation regarding [Y] being inappropriate touched in the boys [sic] toilets at school”. Dr GG then went on to write:
When [X] and [Y] were toddlers they used to visit their father at his home, and [X] disclosed to [the mother] that their father sexually abused both of them on multiple occasions. [X] was able to describe what happened and demonstrate it physically, and he was able to clearly report what happened to his kinder teacher, his GP, the police and Child Protection workers. A court case was prepared against the boy's father but at the last minute it was dropped by the CPS because they felt the chance of a conviction was low due to [X's] young age and his communication barriers. However, all of the professionals involved at the time, including Child protective Services and the Police, as well as [the mother] and myself, believed that [X] was telling the truth. The long term impact of this abuse on the boys has been significant in terms of their anxiety and their fears about not being safe. In addition, it makes both boys vulnerable to being taken advantage of, but this particularly applies to [Y]. Because he is not always aware of his surroundings and because he is likely to freeze in situations where he feels unsafe, and he may look like he is passive and accepting of behaviours that other children would rebuff or defend themselves from. Being touched inappropriately is likely to be retriggering previous traumas for [Y], and [the mother] reports that he is indeed struggling to sleep and experiencing increasing levels of distress that it is continuing to happen. [The mother] is understandably protective of the boy's privacy, and does not want this information to be known by others, however in the context of our forthcoming meeting we felt it was important for you to have an understanding of the huge emotional impact this situation is having on [Y], [the mother] and [X].
The wording of the letter suggested that X had disclosed both children were abused on multiple occasions. Notwithstanding how that letter reads, I understand neither child has ever made an allegations of abuse directly to Dr GG. Her knowledge of the allegations comes solely from what the mother has reported to her.
In mid-2022 the Department provided a response to the s 69ZW order. At that time they said:
Child Protection would hold concerns for the childrens [sic] safety if they had contact with [the father] and would request a further report be made to Child Protection.
On 29 August 2022, the matter could not proceed as the Independent Children’s Lawyer had not been able to view subpoenaed material, and Ms J had been unavailable to meet up with the family for a second time. Her Honour Howe J transferred the matter to Division 1 of this Court, and the matter was listed before me to commence on 23 January 2023.
The orders of Howe J provided that any expert witness affidavits must be filed not less than 28 days prior the final hearing. The mother did not file any such affidavits.
A notation to those orders set out that the mother intended to file affidavits from the general practitioners at WW Medical Centre and from Ms LL. Those affidavits were never filed.
In November 2022, Ms J had a second appointment with the mother only. Ms J provided a report dated 16 January 2023. In that report Ms J noted that both parents presented as “calm, rational and coherent”. She said the mother presented as “particularly protective” of the boys, and very involved in their care and supporting their development. Ms J did not interview the children, and formed the view that it was important for the parties to undertake therapeutic work before involving the children in therapy. Without speaking to any of their treators, or the children themselves, Ms J formed an opinion that the children would not have the emotional resources to manage high anxiety situations, and she anticipated reconnecting with the father would likely be very stressful. She said given the mother’s anxiety about the children reconnecting with their father, and in light of the children’s developmental deficits, it would be difficult to establish the appropriate therapeutic relationship necessary to support that reconnection. Ms J concluded that the children were not then ready to commence family therapy. She wrote:
I have based this conclusion on the extensive information provided and on my assessment of the readiness of the parents to provide psychological leadership in such a process.
Events in 2023
When the matter commenced before me on 23 January 2023, it seemed to me that the mother ought be deemed the applicant. That was substantially to ensure that the father knew what case he had to answer, given the mother’s indication she sought a positive finding against him. There was no objection to that course.
Given that the Department advised in their response dated mid-2022 that they would have concerns for the children if they were to have contact with the father and requested a further report be made to Child Protection if that was to occur, the Independent Children’s Lawyer contacted the Department at my request and advised them of the hearing. The Department did not seek to attend or be heard before me.
In early 2023 the Department provided correspondence that stated:
I understand a s69zw [sic] was submitted by DFFH to the court [in August] 2022. This report contained information on previous assessments completed by DFFH to assist the court to make an informed decision in the best interests of the children. Contained within this report was a statement under the sub-heading ‘Protective Assessment’ whereby DFFH recommend further notifications be made for any contact between [the father] and the children. It is acknowledged that this statement was incorrectly included the report [sic] and that DFFH is not seeking to be notified by the court for any outcomes of proceedings.
DFFH is satisfied with the information and advice provided in the report to allow the court to make a determination in the best interests of the children without DFFH being party to the proceedings any further at this time.
THE MOTHER
The mother relied on her Amended Application filed 11 May 2022 and her affidavit filed that same day. Whilst that was identified as the mother’s trial affidavit it quite clearly fell well short of what might be reasonably expected to be included in an affidavit that is required to contain the deponent’s entire evidence in chief. As indicated, the mother was permitted to adopt her two police statements as part of her evidence and they were tendered.
Whilst giving her oral evidence, the mother frequently gave lengthy, discursive answers, and had to be re-directed to answer the question on multiple occasions. At times she was argumentative with counsel. At other times she made an impassioned plea to the court to protect the children. She took opportunities to criticise the father’s parenting and expressed a clear view that she does not regard the father as able to provide sufficient structure and routine for the children.
The mother’s belief in the allegations
It is apparent the mother has a fixed and rigid belief that X was sexually abused by the father in late 2018. She said the father’s seemingly shocked response during his police interview when informed as to the allegations was an act and pretence adopted by him. She said there was “nothing on earth” that could cause her to have doubt about the abuse having occurred. She did not identify any meaningful way the father might contribute towards the children’s wellbeing. That was consistent with Ms H’s observations about the mother’s poor regard for the father as a parent, which pre-dated the allegations being made.
I formed the impression that the mother genuinely believes the children were subjected to sexual abuse at the hands of their father, and she appeared incredulous that anyone might have a different opinion. At trial, the mother repeatedly said that she believed what X told her, and that the abuse did occur. She said that a mother does not need evidence to believe her children. She said that therapeutic counselling for her would not alter her view, because of what X told her, and she knows that it happened. She remains highly distrusting of the father. Indeed, the mother has apparently formed the view that there was a “long process of sexual abuse and assaults”. That is what she told the police in early 2019, despite that the only allegation he has ever repeated to anyone other than the mother – was that alleged incident in late 2018.
The mother remains of the view that X has truthfully recounted the events of late 2018. She maintains that as a result of his ASD and language delays, he does not have the ability to make up stories. Nor she says does he have the ability to be coached to make such statements. As already outlined, I did not have the assistance of any of X’s treators available to give evidence regarding these matters. Reports from two neuropsychologists, Dr NN and Dr MM, who prepared assessments of X for the purposes of the criminal proceedings were tendered. I will turn to the details of those reports later in these reasons. However, neither of those experts could rule out the risk of X being susceptible to suggestion. Indeed, Dr NN noted that X’s propensity to echolalic language could provide a means by which he was taught to consistently repeat information across multiple settings.
Notwithstanding her strongly held view, the mother was also very clear that she would abide by the orders of this court, whatever was determined. She emphasised that whilst she would be deeply disappointed, she is law abiding, and has always complied with court orders despite her concerns about the father’s parenting capacity.
The mother’s response to the allegations
It was apparent that key evidence was omitted from the mother’s affidavit material. The mother’s trial affidavit did not set out the multiple discussions the mother then had with X over the 24 days following the allegation first being made before he participated in the VARE. It only emerged during the running of the trial that there had, in fact, been many conversations the mother had with X about the alleged abuse, all of which were initiated by her.
The mother did not depose to the conversations she had with X preparing and readying him for the visits with Mr VV, Ms LL, and at WW Medical Centre. In her oral evidence she said before each meeting, that she arranged, she gave X “the heads up” about the topic he would be talking about, which was what his father did to him. At each meeting, the statement “[Dad] put his [penis] in my mouth” was made by X at the mother’s prompting. She remained in the room on each occasion.
There are other significant omissions in the mother’s trial material. The affidavit does not provide any explanation as to why the mother took no action to report the alleged abuse for weeks. Indeed, read in isolation the mother’s trial affidavit suggested that the mother told her parents and then rang the priest without any significant delay. That is not correct.
In her oral evidence the mother said she was so shocked by the allegation that it took her considerable time to process that information. She said she prayed to God for guidance. She said she was embarrassed, horrified, ashamed, and in a state of panic and felt unable to reveal the situation to anyone beyond her parents. She said there were cultural reasons she felt unable to report the matter immediately, given the nature of the allegations, which were “taboo” and “a disgrace”, and her conservative upbringing. She also said she was concerned about telling the police, and exposing X to what would follow from that.
Despite her concerns that at least X had been sexually abused by the father, she allowed the children to spend time with the father on three further occasions. In her oral evidence the mother said that when preparing the children to go to their father’s in late 2018 she advised X to bite the father’s penis if he put it in X’s mouth again. The mother did not depose this at any time in her affidavit material. She did not advise the police. It does seem to be somewhat extraordinary advice.
I note further, the mother says she saw a sore on X’s lip that she was concerned might have been caused by a sexually transmitted disease. However she did not obtain medical advice about that sore for about two days. According to the statement of Dr XX, by that time it had substantially resolved.
It is hard to understand why the mother delayed reporting the allegation – and continued to send the children for time – for as long as she did. In her oral evidence the mother said she permitted time to occur between the boys and the father as X was “very routine based” and it would have been too disruptive to stop time. When it was again put to her that if she genuinely believed X had disclosed abuse she would not have permitted time to continue she said the father was “so pushy” and “harassing”. Given the risk of sexual abuse as asserted by the mother, it is difficult to understand her decision to allow time to proceed. It seems to me possible that the mother had some doubt about what X was alleged to have reported in late 2018.
The mother has continued to have conversations with the children about the allegations since the charges were discontinued.
In her trial affidavit the mother said “[X] also told me that the applicant father sexually assaulted [Y]”. That allegation is made without any detail as to when that was allegedly said, the circumstances surrounding that alleged conversation or the particulars of that conversation. It seems unlikely X would have used the words “sexually assaulted”. This conversation must have occurred prior to mid-2022 when the mother filed her trial affidavit.
In her oral evidence the mother said after the prosecution filed a Notice of Discontinuance she has had conversations with the children about the alleged abuse. Shortly after the Notice of Discontinuance was filed, she said X told her that Y had also been ‘inappropriately touched’ by the father. She also said she did not ask Y about this for a protracted period. The mother acknowledged she initiated the conversation with X as she was “really concerned” and “needed to know what happened” and was seeking “closure”. She wondered who else she could ask, and said she had to resort to questioning the children.
In her oral evidence the mother said she also asked Y about two or three months before this trial commenced whether the father had “done anything to [him]”, and he said the father had touched his penis. She said he did not give more details. Again that was a conversation initiated by the mother. The mother’s view is that this touching occurred when Y was around three years old.
This alleged abuse of Y is not deposed to by the mother in her material. It also appears that the mother has not reported the allegation to the police or to Child Protection. It is difficult to accept that the mother would not have advised the authorities of the statements by X and Y if they were made. I note there does not appear to be any evidence that X has repeated that allegation to any person during the criminal investigation. Similarly there is no evidence that Y has reported any inappropriate touching by his father to any other person.
The boys’ behaviour
There is some inconsistency in the mother’s reports of the boys’ behaviours after returning from their father’s care in 2018. In her second police statement the mother asserted the children returned “very agitated and thirsty and hungry [sic]”, after spending time with the father. Additionally, she said X started constantly touching his penis, and that when the children returned home they pushed and pulled at their genitals. She further said the boys would wake up “screaming in fear”. In her affidavit filed 12 September 2018 the mother deposed to the children returning “hungry, thirsty, soiled and overstimulated”. She did not refer to the children touching their genitals. Nor did she depose to the children waking up and screaming in fear after spending time with their father. The father confirmed that he received no correspondence from the mother following the orders for time being made in May 2018 complaining about the boys’ behaviour upon their return to her care.
In her oral evidence the mother maintained that her resistance to the children commencing overnight time with their father in 2018 was appropriate, based on the father’s refusal to maintain the children’s routine when they were with him. She referred to the children returning hungry, thirsty and tired, experiencing meltdowns as their expectations of routine were undermined. She said his work schedule at that time meant it was difficult for him to commit to set days and times with the children, and on occasion he would cancel, leaving the children feeling very disoriented and upset. She said she did not agree to commencing overnight visits as the boys experienced a lot of issues regarding their sleep, and being able to settle down, which was best managed by strict adherence to a predictable and consistent routine. The mother conceded that the recommendation by the Family Consultant in 2018 to increase visits to include overnight time was shocking and distressing for her. She said that she was very frustrated at that time, and felt the report writer had not understood the level of exhaustion the mother had to endure every day and night managing the children’s special needs.
In her oral evidence the mother said the children still require structure and routine, which can be difficult to manage with school and their treators. Aside from the risk issues, if the children also spend time with their father it appears the mother is concerned that would be a significant change for the children which they may struggle to adapt to.
School attendance
It became apparent during the course of the hearing that the boys have missed a significant number of days at school. The Independent Children’s Lawyer said the mother had not provided copies of all of the children’s school reports. Those that were provided indicated that the children had extended absences. The children’s school reports indicated that both children had missed over one third of a semester in 2022.
In her oral evidence, the mother said it was extremely difficult for her to manage and facilitate the children’s return to school at the start of each term, due to their anxieties and disruption to routine. She said they generally miss around one to two weeks of each new school term. That is an issue that continues to cause difficulties in the mother’s home. It appears if one child stays home at the start of term, both stay home. I note the mother, the children and the maternal grandparents also have had to isolate due to COVID-19, which has impacted on the children’s school attendance.
The large amount of school the children have missed, and the significant issues the mother said she experiences in having them adjust to returning to school at the commencement of each new term was contradictory to earlier oral evidence the mother gave that the children always attend school on time and remain there for the whole day.
In an attempt to ensure that the court had all the information about the children’s attendance and progress at school, the Independent Children’s Lawyer communicated with the school during the course of the hearing, and requested complete copies of the children’s reports. Ms AC is an adviser for the school regulator that manages and operates the children’s primary school. In early 2023 she wrote to the Independent Children’s Lawyer and advised the mother:
(a)had contacted Ms AD, the school principal and said she did not give permission for the school to provide the additional documents requested, and
(b)did not want that put into writing, and it was an “off the record” request.
The mother told the court she was concerned about the amount of extra work the request for the reports was imposing on school staff, who were already busy at the start of the new school year. In my view, that was an inadequate explanation as to why she had directed the school not to comply with the requests by the Independent Children’s Lawyer.
The children’s treators
I understood from the mother’s evidence that the children attend a Dr U (“Dr U”), paediatrician, who Y sees every six months, and X less frequently.
In addition, the children see Dr GG, which could be fortnightly visits at the school, or a number of visits all within a school holiday period.
The children also attend upon Ms DD, speech pathologist, with a plan that those attendances are weekly. Y is seen at school and X after school at home.
The children were also seeing an Occupational Therapist on a weekly basis in 2022, but that treatment is in a state of flux as the therapist is currently on maternity leave and the mother did not know when visits would resume.
In her oral evidence the mother also advised that the children are on medication for their anxiety. She said she was provided with a script by Dr U some time ago, but did not commence the medication until around mid-2022. She said she commenced the medication for X as he was very anxious and had started trying to physically hurt her and Y. She said he tried to put a pen into Y’s eye.
All of this information is missing from the mother’s affidavit material.
THE FATHER
Like the mother, the father frequently gave lengthy answers, veering off from answering the question asked, and taking the opportunity to passionately plead his case. Despite being repeatedly directed to simply answer the questions asked by the mother’s lawyer, he and Ms Hall talked over each other, descended into bickering, and making unnecessary gesticulations at one another. The father was somewhat more self-controlled when being questioned by counsel for the Independent Children’s Lawyer. However he continued to attempt to give rambling, self-serving answers on multiple occasions, often raising his voice and talking over counsel and me.
I must consider and weigh the evidence, focussing on future risks. I acknowledge that whilst this is a predictive exercise, that can be influenced by factual findings about past events. I have already set out my findings in relation to the past events.
The children’s ASD diagnoses, language delays and other possible disabilities do mean these children are particularly vulnerable. Clearly, if the children had been abused as alleged, the magnitude of harm to them would be enormous. It is not simply a matter of the children getting older and better able to self-protect. However, I do note that X’s language skills appear to be improving.
I also note the psycho-sexual assessment of the father and the conclusion that he presented as low risk. As set out, Dr L was not required for cross examination. Similarly, the psychiatric assessment of the father concluded he did not appear to be a risk to the children. Dr K was not required for cross examination.
In terms of assessing whether an unacceptable risk exist, cases such as B and B (1993) FLC 92-357 indicate the court should also take into account any anxiety on the part of the primary carer about exposing the children to harm if that anxiety is likely to impact adversely on that parent’s functioning as a care giver.
Similarly, in the case of Re Andrew [1996] FamCA 43 the Full Court made it plain that an appropriate consideration in determining what orders are in a child’s best interests includes consideration of the effect of order on the children and on the primary carer. In that case, the trial Judge found the mother had a genuine fear of the father, to the extent that her capacity to provide adequately for the children would be impaired if time was ordered.
Likewise, the Full Court in the case of Blinko & Blinko [2018] FamCAFC 104 (“Blinko”) upheld the primary judge’s decision to make orders preventing any form of contact between the child and the father, notwithstanding that the primary judge was satisfied the father did not pose any risk to the child. In that case, there was clear and compelling evidence that if the father was involved in the child’s care, the mother would be unable to function as a parent. I note further that in that case the trial judge had made findings that the father had subjected the mother to violence.
Indeed, the mother in Blinko adduced evidence from her psychiatrist who was treating her for anxiety and depression. Given the level of extreme fear and anxiety the mother had regarding the father, the Family Report Writer was of the view that the mother’s concerns for the child could not be altered. The report writer’s evidence included that in all the circumstances of that particular case, if time were ordered, the mother’s anxiety and distress would be elevated to a level where her functioning would be dramatically and significantly impaired, to the extent that she could not adequately care for the child.
That is not the case in the matter before me. Whilst submissions were made on behalf of the mother that an order for the children to spend time with the father would have a negative effect on the mother, and significantly impact her ability to provide adequately for the needs of the children, that assertion was not made out on the evidence.
The mother in her affidavit material did not outline any concerns she had about her ability to provide appropriate care for the children in the event they are required to spend time with the father. She did not adduce any evidence from a psychologist or mental health worker to that effect either. Indeed, in her oral evidence the mother made it very clear that she would abide by the orders of this court – including orders for time, if that is what I determined was in the children’s best interests. She did not raise in her affidavit or oral evidence that she was concerned that requiring her to do so would impact significantly on her mental health such that her ability to properly and appropriately care for the children would be impaired beyond saying she would be “severely anxious” as she believes he is a perpetrator.
In her opening, the mother’s lawyer said that the children have been so distressed as a result of the abuse that she has had to resign from her employment to provide care for the children. The mother did make any such statement in her affidavit material, nor did she adduce any other evidence in support of that assertion.
The only evidence about the impact on the mother if time is introduced was contained in the report by Ms J. Ms J noted that the mother did appear to genuinely believe the allegations, and that she expressed significant distrust of the father. In her written report, Ms J expressed concern that the mother was anxious about the children reconnecting with their father through the process of family therapy. Ms J did not express concern about the mother’s parenting being compromised in the event the parties engaged a family therapist, but rather referred to the children finding the experience of that process as stressful if it was not supported by the mother. Ms J recommended that the parties engage in six months of fortnightly sessions to assist the parties to provide psychological leadership in the process of family therapy. That recommendation was revised by Ms J in her oral evidence, in which she said that she did not regard a six month period of therapy as necessary.
I note further that in her oral evidence Ms J described the mother as being open to therapy, and prepared to engage with therapy. That is, there was no suggestion (other than by the mother) that the mother’s views of the father were unable to be reframed or altered with the aid of a skilled and experience therapist.
Taking all these matters into account, in terms of the predictive exercise I must undertake, I am of the view that it is not open on the evidence to make a finding that there is an unacceptable risk to the children for them to spend unsupervised time with their father.
ADDITIONAL CONSIDERATIONS
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The mother asserted the children are distressed about the prospect of seeing their father. There is no independent evidence to support that assertion. Rather, I note that in mid-2022 X expressed a view that he would like to see his father, provided it was safe to do so.
Given the young ages of these children, and their diagnoses it is plain that limited weight can be attached to those views.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
It is not in dispute that the boys have a close and loving relationship with their mother and their maternal grandparents.
The boys’ relationships with their father have been ‘on hold’ for over four years. X was less than 7 years old when he last saw his father. Y was four years old. I note that when they were observed for the preparation of the Family Report in August 2018, Ms H described that the children appeared to enjoy strong relationships with both parties.
Specifically, Ms H observed that the children:
…were clearly happy to see [the father] and transitioned well to him. He was observed to be affectionate with them and to be able to manage them well and divide his time and attention between them. It appeared that [X] who has been assessed as having poor receptive language skills, that is difficulty comprehending what is said to him, appeared to interact with his father in a manner that suggested he did understand what his father was saying to him. He was able to follow his father’s directions for example at times. [Y] who is the more physically affectionate of the two children seemed relaxed and comfortable with his father and took opportunities to be in close physical contact with [the father].
Ms H said the father kept the children “quietly engaged” for over one and a half hours when the mother was being interviewed.
In her oral evidence Ms H said it was “quite powerful” to see how he and the children interacted. The children were calm, and the father was very gentle with them, and kept them entertained and contained.
Ms H said Y sought physical contact from the mother. She described the mother as being directive about how X was to sit, and whilst he expressed some opposition he eventually complied. Ms H noted that X did not sit down straight away, but walked around the room.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
Given the history of this matter, it is clear that the father has had a limited capacity to participate in the long term, or day to day care of the children. The mother has shouldered the bulk of the decision making for the children, as well as being their exclusive carer for many years.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
The father said he had paid child support on time in accordance with all assessments that have issued.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
Re-introducing the children to spending time with their father will be a significant change for them. It is the mother’s case that the children will be negatively impacted by a reintroduction to their father. She told Ms J the children are distressed about the allegations and are distressed about spending time with their father, but she did not depose to this in her material.
The mother also informed Ms J in mid-2022 that X was distressed after being interviewed by the police and after speaking with the Independent Children’s Lawyer. The mother did not depose as to X being distressed at any point after being interviewed by the police or the Independent Children’s Lawyer. In her oral evidence she said the conversation with the Independent Children’s Lawyer did provoke X’s anxiety – but this was not included in the mother’s affidavit material. Similarly, the mother did not report to the police in her second statement that X was distressed after completing the VARE.
When re-interviewed in late 2022 the mother reported to Ms J that the children were ‘continuing’ to demonstrate distress when the prospect of seeing their father was raised. Again, the mother simply did not depose to this in any affidavit material. Nor did she explain how that distress was allegedly demonstrated in her oral evidence.
These assertions that the children were distressed about allegations, and distressed about possibly seeing their father were repeated by the mother’s solicitor in closing. However, there seemed to be no corroborative evidence that the children are upset or distressed about the concept of seeing their father. There was no evidence adduced by any professional engaged with X or Y that confirmed that the prospect of seeing the father was distressing for the children.
Further, Dr XX reported that when X was telling him about the alleged abuse he did not seem sad or upset. Dr YY said X spoke “without any sign of distress or discomfort”. Ms LL said when X made the statements to her “He seemed quite calm and cool about it”. None of those people corroborated the mother’s assertion that X was distressed or upset about the alleged abuse. In her oral evidence the mother confirmed that X was not upset after meeting with the priest, the kinder teacher or the medical professionals. She said after the VARE he was extremely tired, but did not describe him as distressed or anxious.
I accept that without proper preparation, the reintroduction to spending time with their father could be difficult for the children to manage. To ensure they can transition as smoothly as possible between their parents, it seems to me that there is merit in delaying the reintroduction for a short time, so the children can be told about what is happening in advance and then be readied and prepared for the event. Supervised time in my view will also assist the children – and the mother – in feeling more comfortable and less anxious when those first few introductory visits occur. Ensuring the parties then engage with an appropriately qualified therapist to assist them in the implementation of my orders will provide the children with additional supports to minimise the impact on them of these changes.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
There are no practical difficulties or expenses associated with the children spending time with their father. I am ordering some supervised visits and the involvement of a parenting co-ordinator, which will impose some expenses on the parties for a period.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
The mother impressed as an engaged and attuned parent, devoted to ensuing high quality care and supports to assist the children’s development. She is well able to provide for their day to day needs. I do, however, have some concerns about the amount of school the children have missed.
It is also apparent that the mother keeps the children relatively contained. She does not arrange birthday parties for them, nor did she facilitate the children’s attendance at parties last year, indicating the children prefer quiet birthdays, and that Y in particular had significant issues with loud noises that limited the children’s ability to experience social interactions. The mother also said the children undertake sports lessons but no other activities or hobbies, as they are already quite overloaded with school and their medical and allied health appointments.
Notwithstanding the issues around school attendance, it is also clear the children are progressing well at school. This is to the mother’s credit.
I am also satisfied that the father has the capacity to provide appropriately for the care of the children. He was able to articulate an appropriate regime of time he arranged for when the children were in his care in 2018. He was able to speak warmly about activities the children enjoy and interests they have. He also said he would substantially comply with the routine implemented by the mother in his household, although he did not commit to doing so inflexibly.
I have also listened carefully to the father’s evidence that suggested he is also an insightful and attuned parent who will do all he can to ensure he best meets the children’s needs.
The observations conducted by Ms H indicated the father was well able to respond appropriately to the children, and to manage them at that time. In her oral evidence Ms H said she did not form the impression that the father was opposed to routine, but it appeared the mother was more rigid about the imposition and maintenance of a routine. Ms H said the father adopted a slightly different approach, but that was not a “wrong” approach. She acknowledged that routine is very important for the children, but that they must also be encouraged to do new and different activities, even if that causes them some stress and anxiety.
Certainly the parties parent differently. Whilst children on the spectrum do as a general proposition require routine and predictability, there was nothing in the evidence before me that indicated the exact routine adopted by the mother must be adopted by the father. There was nothing in the evidence before me that said the mother’s style of parenting was ‘better’ or ‘preferred’ to the father’s less regimented approach
I note further the observation by Ms H in her report:
[The mother] struggled with any alternative to her narrative such as that the parties may be differentiated along a continuum of safety and risk taking and that together they may provide the children with the requirements for resilience.
I agree with that observation. In her evidence at trial, the mother appeared to find it difficult to consider that any approach that differed from hers could be beneficial for the children. However, it seems to me that provided there are no real risk issues, it may well benefit the children to experience life outside the mother’s routine.
I note further the observation by Ms H that the father’s approach to the children was appropriate and whilst he adopted different parenting strategies to those implemented by the mother, X was compliant and not oppositional in his father’s care. Moreover, Ms H did not see the father allowing the children to become overstimulated. Rather, he maintained the children’s quiet attention for ninety minutes during the mother’s interview. They continued to interact calmly and appropriately during the father’s observation session with the children.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
Both parties are Christians from Country OO. They are both members of the same church. It is apparent they both draw significant support from their faith and their religious community.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
I have referred to the matters relevant to this consideration elsewhere in these reasons.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
The mother first sought an Intervention Order in 2017. That was resolved by the giving of an undertaking without admission by the father.
I note the father denied all allegations of violence.
In her trial affidavit, the mother did not outline at all any alleged violence.
I note that Ms H recorded in her report from 2018 that in relation to allegations of family violence, the matters the mother reported to her did not appear to fall within the definition of family violence. Ms H noted:
She provided not specific detail about [the father’s] alleged behaviours save that he was ctricla [sic] of her for not having children. What she described, if accurate, would be consistent with behaviours noted by [Mr AG] (Couple Therapy specialist) as strong predictors of relationship failure.
In her oral evidence Ms H confirmed that the matters outlined by the mother to her did not appear to amount to family violence or coercive control.
The Intervention Order subsequently made was in the context of the sexual abuse allegations. No findings were made in the context of those proceedings.
It does not appear to me that there is evidence to support a finding that the father has subjected the mother or children to family violence.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
I note the children have not seen the father for a protracted period. There is some attraction to making interim orders in those circumstances. However, I am also mindful that the family has been embroiled in legal proceedings in this court, and the State courts for a protracted period. They need some relief from the relentlessness of litigation. In my view the children’s best interests will accordingly be met by final orders being made, given my findings as to there being no unacceptable risk, and in light of the children’s previously positive relationships with their father.
ORDERS TO BE MADE
Parental responsibility
Pursuant to s 61DA of the Act, I must apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. That presumption does not apply if there are reasonable grounds to believe that a parent has engaged in family violence or abuse of the children. Alternatively, the presumption can be rebutted by evidence that it would not be in the children’s best interests if parental responsibility was shared.
The mother sought an order for sole parental responsibility. The father, with the support of the Independent Children’s Lawyer sought an order for equal shared parental responsibility. I note the proposed orders submitted by the Independent Children’s Lawyer at the conclusion of the hearing including prescriptive orders around how the parties would need to discuss and negotiate such matters.
Having listened carefully to the evidence in this matter, and having carefully weighed and assessed that evidence, I am of the view that both parents are loving, competent parents, with much to offer the children. I am of the view that the children will benefit from having both of their parents play an important role in their long term care, welfare and development. I accept it will be difficult for the parties to discuss the children – but in my view it is in the children’s best interests that the parties learn to do so.
I note further that in some important respects the parties have been able to reach agreement about the children’s long term care, welfare and development. They are in agreement about the children’s religious upbringing. They reached an agreement about the children’s primary school. Whilst the parties have not jointly made many decisions regarding the children’s treatment and other health issues, that seems to have occurred in circumstances where the father was substantially excluded from participating in those processes, rather than the parties attempting to reach agreements but being unable to do so. It is my view that the father’s input into and involvement with the children’s supports, treatments and interventions is likely to benefit the children. Further, the children’s treators will likely be assisted by information from both parents as to the children’s progress and presentation in their separate households.
Given the parties’ mistrust and lack of communication to date, it seems that any order for equal shared parental responsibility would need to be prescriptive. Without clear boundaries and mechanisms in place, it may be difficult for the parties to discharge their statutory obligations, as set out in s 65DAE of the Act to consult each other and make a genuine effort to come to a joint decision about an issue.
I am satisfied that the mechanism proposed by the Independent Children’s Lawyer creates a clear pathway for the parties to communicate and negotiate on these important issues, which they are both capable of adhering to.
Having made that determination, in terms of the legislative pathway, I must consider whether it is both in the children’s best interests, and reasonably practicable for them to spend equal time with each parent. If the answer to either of those questions is no, then I must consider whether it is both in the children’s best interests and reasonably practicable for them to spend significant and substantial time with the parent with whom they do not live. Again, if the answer to either of those enquiries is no, then I must then make whatever orders I determine are in the children’s best interests.
No party is of the view that orders for equal time would be in the children’s best interests. It is not in dispute that the children will remain in the primary care of their mother. She is a dedicated and attuned parent, and the children are progressing well in her primary care.
Orders for the children’s time with their father
The orders sought by the father and the Independent Children’s Lawyer provide for the children’s time with their father to gradually increase to substantial and significant time.
Having carefully considered the evidence, including the primary and additional considerations I need to take into account in determining the children’s best interests, I am satisfied that the children’s best interests will be met by making orders that substantially reflect the proposals made by the Independent Children’s Lawyer and the father. I am also of the view that these arrangements are reasonably practicable, taking into account the distance between the parties’ homes, their current and future capacity to implement the care arrangement; the capacity of the parties to appropriately communicate with each other and reach agreements; and the impact on the children of these arrangements.
However, given what I was informed regarding the availability of Ms D (“Ms D”) to engage with the parties, realistically time cannot commence before early 2023.
The orders I am making will ensure the father resumes an important role in the children’s lives, with the benefits to them that I anticipate will flow from that. As indicated, I am satisfied he is an attuned and caring parent. The time the boys spend with the father will be professionally supervised on the first four occasions of time, at the equal expense of the parties, commencing in the April 2023 school holidays. Given the mother’s evidence that the boys’ struggle at the start of each school term, it is preferable for the children to commence time with their father during the school holiday period.
It is expected the presence of another adult will assist the children to transition into the father’s care, and provide the mother with some reassurance as the children become re-acquainted with him. I note that in circumstances where the court was not of the view there was an unacceptable risk, both Ms H and Ms J supported there being some re-introductory visits on a supervised basis, with time to then progress to unsupervised visits. Both recommended the parties would need to also engage with an appropriately qualified therapist to support this process. Ms D has been nominated by the Independent Children’s Lawyer as the appropriate professional.
The children will then have the opportunity to get used to that spend time arrangement with the father over the next school term, before overnight visits are introduced. In my view, that provides a sufficient lead up so the boys can become accustomed to seeing their father, familiar with his home, and be well prepared for overnight stays.
Those arrangements will again remain in place for a term before being further extended to include a mid-week stay and a two night stay on alternate weekends with the father. Again, the children will be able to settle into that routine until it is extended once again at the commencement of the school year in 2024. At that time the children will progress to spending one week-night each week, and a full weekend with their father each fortnight, being a total of five nights per fortnight. In my view that gradual build up is sufficiently sensitive to the need for both boys to have time to adjust to the changes in their care arrangements.
The orders I am making will also provide for time with the father during school holidays, but with such arrangements gradually increasing time at a pace that in my view takes into account the children’s needs. I have not made the orders as sought by the Independent Children’s Lawyer and the father in regards to the holidays, as the proposed arrangements appeared to require a substantial number of changeovers, and disruption to the children’s routines. It seems to me that a more appropriate way to arrange the time is for the school week arrangements to continue to ‘roll through’ the holiday periods, so that the children continue to have that predictable structure, with the time to be extended slightly during the long summer holidays at the end of this year. A sharing of the school holidays will commence in 2024. By that time it is expected the children will be well used to spending time with the father. Additionally, that provides the children with an extensive lead up time to that change in arrangements, so that they can be well prepared and readied for this new experience.
These arrangements will ensure the children have the benefit of both parents being involved in their school lives, as well as being engaged in their social and extra curricula activities.
I am not making prescriptive orders regarding the care arrangements for the children in relation to special occasions. There was no evidence before me about the importance of particular events, or how various proposals for the division of those events might impact on the children. The mother advanced no proposals as a fall back. It seems to me in the circumstances that those occasions will ‘fall where they fall’, unless the parties are able to reach their own agreements. In view of the children’s particular needs, and the importance of routine and consistency it also seems to me that it could potentially be disruptive to impose arrangements on the children for various occasions involving multiple changeovers between households. The parties will need to work those matters out themselves.
In terms of reasonable practicability, the parties live in reasonable proximity to each other and the children’s school. I have already noted that the parties do not currently communicate with each other. They will need to start doing so.
I note that the mother is concerned the father will not maintain the same structures and routines in his home as she implements on hers. I anticipate she says this will result in the children returning to her overwrought and overstimulated, and thereby negatively impact on the boys.
I note further that it is not unusual for children of separated parents to take some time to settle back into the routines with their primary carer after spending time with the non-resident parent. There was no evidence adduced before me that indicated the boys’ behaviours were unusual in that regard, nor that their behaviour was dysregulated to the extent that time with the father ought be significantly curtailed.
To address these concerns, I am including an order that requires the parties to keep each other appraised as to the routines they have implemented for the children in their households. It is clear that the children do need structures and routines, and whilst the routines adopted in each household do not necessarily have to be completely in sync, it is obviously appropriate that the parties know what arrangements are being made for the children whilst with the other parent. That will provide the parents with insights about what works best in the other parent’s home. It will also ensure that the children’s treators are able to know what arrangements are being made for the children, so they can assist the children and the parents if issues arise.
I also note that having heard the father give his evidence, I am satisfied the father will be sensitive to the boys’ needs, and that he will be careful not to overstimulate them. He has now completed a course on parenting children with ASD.
In terms of the impact on the mother, for the reasons already referred to, I am not of the view that the mother’s parenting capacity will be impaired as a result of the orders. However, I expect the mother will need considerable support to understand and accept my determination. That is why the parties will engage with Ms D for up to 13 months, to assist with the implementation of these orders.
I note Ms J in her report initially recommended that the parties ought engage in extensive therapy, for approximately six months. In her oral evidence, Ms J indicated this work would be aimed at assisting the mother to alter her views and understand her role in facilitating the children’s relationship with their father. She said on reflection, a six month process was too long, and with an appropriately qualified therapist that the process could be significantly shorter, with the parties attending for separate intake appointments, then separate initial appointments and then potentially joint appointments with the father and children. She said the mother appeared willing to engage in therapy. Ms J also expressed a view that clear court orders for the children’s time with their father should be in place, and therapy would then focus on assisting the parties to implement those orders and learning to think differently about what their children might need.
There seems much merit in the recommendations made by Ms J, although I am not of the view that the children’s re-introduction to the father needs to be significantly further delayed until after the parties have had some therapy sessions. My order provides for the first four visits to be supervised, which in my view will provide the mother with some comfort regarding the children’s safety. Time will then progress to unsupervised day time visits, with the parties also being required to simultaneously engage with Ms D on a reportable basis, to assist the parties with the implementation of my orders. I understood from the submissions made by counsel for the Independent Children’s Lawyer that Ms D would be away in March and April this year. Accordingly, time will not start until April, so that the parties will have commenced with Ms D before the children’s time with their father progresses to unsupervised overnight visits.
Taking all these matters into account, and having considered the reality of the situation confronting both parents, I am satisfied that orders for substantial and significant time are both reasonably practicable and in the children’s best interests.
In relation to changeovers, these should occur where practicable at school. Those not at school will occur at B Shopping Centre, where the parties previously exchanged the care of the children.
My orders include orders for the exchange of information between the parents, and that each parent should be able to participate in the children’s education and health matters. Both parents need to be fully informed as to who is providing treatment to the children, and be able to engage with those professionals upon whom the children attend. This is essential to ensure that both parents are aware of the issues facing the children, and that the parents are informed as to appropriate ways to support and progress the children, manage their behaviours and provide the best parenting they can.
I am making a restraint on the children attending on Dr GG. It is deeply regrettable that she has not been prepared to provide an affidavit in support of the mother in these proceedings, despite her strong advocacy in support of the mother’s case in other arenas. It appears she has formed a view that the father is a sexual predator, but she has not been made available for cross examination. I have come to a different conclusion regarding risk. In the circumstances, the father could not be expected to have confidence in Dr GG and her continued involvement with the boys. The parties will need to arrange a new psychologist for the children.
In relation to the parenting co-ordinator, it is appropriate that she be armed with all the information as outlined in these orders. That will place her in a strong position to assist and support the parents and children through the reintroduction of the father into the boys’ lives. I note in particular the mother appeared in her oral evidence to be at a loss as to how to explain to the boys that despite having been abused by their father – as is her belief – they are to spend time with him. The parenting co-ordinator will be better placed to assist the mother, and to answer her questions about how to facilitate the children’s time if she is fully informed as to the background of the dispute, including the history of the criminal proceedings. Ms J too noted that the mother is more likely to be engaged and invested in the therapy if she knows the therapist has a full picture.
It is also my view that both parties should both meet the costs of the professional supervision and the parenting co-ordinator. I understand that may be a significant cost for the mother in particular to bear as she is not currently in paid employment. However, it is appropriate that the mother contribute to the costs of repairing the children’s relationship with their father, and towards the support she will need to facilitate same. Whilst the father is in employment, I accept he has considerable legal fees to meet, as a result of these proceedings and the criminal proceedings. I note the mother’s lawyer appeared pro bono.
For all of the foregoing reasons, I make the orders as are set out.
I certify that the preceding three hundred and sixty-seven (367) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter. Associate:
Dated: 6 March 2023