Massey and Wilenski

[2019] FamCA 657

FAMILY COURT OF AUSTRALIA

MASSEY & WILENSKI [2019] FamCA 657

FAMILY LAW – CHILDREN – Best interests – allocation of  parental responsibility  – allegations the child has been sexually abused by the father – where the mother alleges the father presents an unacceptable risk of harm to the child – finding on the balance of probabilities no evidence of sexual abuse by the father and the father does not present an unacceptable risk of harm to the child –  where the mother does not have the capacity to facilitate a meaningful relationship between the father and the child – where there is a risk of ongoing psychological harm to the child if the child continues to reside with the mother – order that the father have sole parental responsibility and the child live with the father – order that the mother spend no time with the child for a period.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 69ZN, 69ZT

Briginshaw v Briginshaw (1938) 60 CLR 336
M v M (1988) 166 CLR 69
Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
Mulvany & Lane (2009) FLC 93-404

APPLICANT: Ms Massey

RESPONDENT: Mr Wilenski

INDEPENDENT CHILDREN’S LAWYER: Creative Family Law Solutions

FILE NUMBER: MLC 10913 of 2015

DATE DELIVERED: 13 September 2019

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Johns J

HEARING DATE: 4, 5, 6, 7, 8, 12 and 13 March 2019

REPRESENTATION

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Dunlop

SOLICITOR FOR THE RESPONDENT: Trapski Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Stavrakakis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Creative Family Law Solutions

Orders

(1)That all previous parenting orders be discharged.

(2)That the Father have sole parental responsibility for the child X born … 2010 (“the child”) PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks her input on such issues.

(3)For the purpose of Order 2 hereof:-

(a)Before any such long term decisions are made in respect of the child, save in the event of a medical emergency:-

(i)     The Father shall advise the Mother by email of his proposal relating to the child;

(ii)    If the Mother wishes to comment on the Father’s proposal (or if she has any proposal she wishes to make relating to the child on this issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by email (to the email address from which the Father sent her communication) of her views;

(iii)   Upon receipt of any comment or proposal by the Mother the Father shall give consideration to her views;

(iv)   After the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and

(v)     If the Mother does not respond by email as provided in order 3(a)(ii) hereof, the Father shall be entitled to presume that the Mother does not wish to be involved and he may decide the issue.

(4)The Father advise the Mother by email of:-

(a)A nominated mainstream medical clinic (“the nominated clinic”) at which the child attends for general medical care and each of the parties shall ensure that the child attend that clinic for treatment at first instance, save in the case of genuine emergency or impracticality; and

(b)Any changes to that nominated clinic at least fourteen (14) days prior to such change occurring.

(5)The Father do all such acts and things as may be necessary to ensure that the Mother receives copies of any medical and academic assessments in relation to the child.

(6)Liberty is granted to the Mother to consult with the child’s doctors and allied health professionals in order to obtain information about the child’s health, such consultations to be at the Mother’s own expense and in the absence of the child.

(7)The child live with the Father.

(8)The child spend time with the Mother as follows:-

(a)As and from 30 November 2019:-

(i)     For 5 hours as agreed pursuant to paragraph 9 below, and in default of agreement each alternate Saturday from 10.00am to 3.00pm;

(ii)    By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm.

(b)From the commencement of the Term 2 2020:-

(i)     For 8 hours as agreed, and in default of agreement each alternate Saturday from 10.00am to 6.00pm;

(ii)    By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm.

(c)From the commencement of Term 3 2020:-

(i)     Each alternate weekend as agreed and in default of agreement from 10.00am on Saturday until 6.00pm on Sunday;

(ii)    By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm.

(d)From the commencement of Term 4 2020 and each school term thereafter:-

(i)     Each alternate weekend commencing the first weekend of each school term from the conclusion of school Friday until the commencement of school on the following Monday morning, or in the event that the Monday is a non-school day to the commencement of school on the Tuesday;

(ii)    By telephone, Facetime or skype once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm; and

(iii)   Any other time initiated by the child.

(e)For half of all school holiday periods from the commencement of the Term 4 2020 school holidays;

(i)     Half of the term holidays as agreed and in default of agreement the first half;

(ii)    Half of the long summer holidays as agreed and in default of agreement the first half in even numbered years and the second half in odd numbered years;

(iii)   As otherwise agreed in writing.

BY CONSENT IT IS ORDERED:

(f)As and from the commencement of Term 4 2020, the child spend time with the Mother as follows:-

(i)     From 3:00pm Easter Sunday until 3:00pm Easter Monday each year.

(ii)    From 3:00pm on the day prior to Mother’s Day until 5:00pm on Mother’s Day each year.

(iii)   On the child’s birthday, from 9.00am to 2.00pm if a non-school day and from the conclusion of school until 6.00pm if a school day.

(iv)   From 5:00pm Christmas Day until 5:00pm Boxing Day in 2021 and each alternate year thereafter.

(v)     From 3.00pm Christmas Eve until 5.00pm Christmas Day in 2020 and each alternate year thereafter.

(9)The child’s time with the Mother pursuant to Order 8(a) to 8(e) inclusive be suspended as follows:-

(a)On the child’s birthday, from 10.00am to 3.00pm if a non-school day and from 4.30pm to 6.30pm if a school day.

(b)From 5:00pm Christmas Day until 5:00pm Boxing Day in 2020 and each alternate year thereafter;

(c)From 3.00pm Christmas Eve until 3.00pm Christmas Day in 2021 and each alternate year thereafter;

(d)From 3.00pm on the day prior to Father’s Day until 3.00pm on Father’s Day each year; and

(e)From 3.00pm Good Friday until 3.00pm Easter Sunday each year.

(10)Each parent shall facilitate telephone communication with the other parent on their respective birthdays if the child is not ordinarily in that parent’s care from 7.00pm to 7.30pm.

BY THE COURT IT IS ORDERED:

(11)The mother’s time will be conditional upon:-

(a)The time referred to paragraph 8(a) being supervised by a supervisor as agreed and in default of agreement as nominated by the Independent Children’s Lawyer at the joint expense of the parties;

(b)The changeover for the time referred to in paragraph 8(b) taking place at a Children’s contact centre as agreed and in default of agreement as nominated by the Independent Children’s Lawyer at the joint expense of the parties;

(c)Unless otherwise agreed, the changeover for time referred to in paragraphs 8(c) to 8(e) inclusive taking place at school wherever possible and when not at school at McDonalds Suburb A at commencement of time and at McDonalds Suburb B at the conclusion of time;

(d)The Mother forthwith engage and attend upon a suitably qualified psychologist as agreed with the Independent Children’s Lawyer, and at her expense, for the purpose of providing the Mother:

(i)Support in relation to the implementation and facilitation of these Orders;

(ii)Therapeutic treatment to assist the Mother in relation to her belief that the child has been sexually abused by the Father; and

(iii)General counselling in relation to the outcome of this proceeding and parenting arrangements for the child.

NOTING THAT this Order is not intended to be an exhaustive list of matters to be dealt with by the Counsellor and the Mother.

(12)That the Father engage a paediatrician as approved by the Independent Children’s Lawyer for assessment as to the child’s current and ongoing needs, and comply with all reasonable directions of this specialist as to treatment and referral, and engage with the Mother as anticipated by paragraphs 2, 3 and 4 hereof.

(13)That at the conclusion of three months from the date of the orders the parties engage in family therapy as nominated by Independent Children’s Lawyer for the purposes of addressing the issues raised in the said Family Report, at the joint expense of the parties, and comply with all reasonable requests of the therapist as to attendance.

BY CONSENT IT IS ORDERED:

(14)The parties shall notify each other as soon as practicable of any significant medical illness or serious injury involving the child when in their care, and authorise the other parent to speak with any health professional involved with the child.

(15)That both parents be noted as an emergency contact and authorised to obtain any information they might require from any educational facility the child attends, and be at liberty to attend any function that parents normally attend, the Mother’s attendance at events to commence from the commencement of  Term 3 2020.

(16)That each parent will keep the other advised at all times of their contact details including telephone number, email address, and residential address, and notify the other as soon as practicable of any change in such information.

(17)That parties exchange all important information regarding the welfare of the child by way of email.

(18)That each party be and is hereby restrained from denigrating the other party, or any member of their family in the presence or hearing of the child.

(19)That all extant applications be otherwise dismissed.

(20)That the appointment of the Independent Children’s Lawyer be discharged 6 months following the making of these orders.

(21)The mother and father be at liberty to provide, any professionals they engage, pursuant to these orders, with a copy of:-

(a)The Family Report dated 13 December 2018;

(b)These orders; and

(c)Reasons for judgment.

(22)The mother is restrained by injunction from attending upon Mr D or allowing the child to attend upon Mr D.

BY THE COURT IT IS ORDERED

(23)That forthwith the Independent Children’s Lawyer attend upon Child Dispute Services to explain the orders to the child and assist in the transition of the child to the father’s care.

(24)That the father liaise with the Manager of Child Dispute Services in this Registry as to the time he may collect the child from the child minding room following the pronouncement of these orders and the Family Consultant or her nominee meeting with the child to explain to him the effect of the orders.

(25)That the mother be and is hereby restrained by herself, her servants and agents from communicating directly or indirectly, approaching or removing or attempting to remove the child from the father’s care or the care of any other person with whom he has placed him save to exercise time with the child pursuant to an order of this Court or with the prior consent of the father.

(26)That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

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

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10913 of 2015

Ms Massey

Applicant

And

Mr Wilenski

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant mother and the respondent father were in a relationship that spanned approximately five years. The only child of that relationship is X, who is aged eight years and has Autism Spectrum Disorder. It is uncontroversial that the mother has at all times been X’s primary carer.

2. The first set of proceedings regarding parenting arrangements for X began in the Federal Circuit Court of Australia in November 2015, approximately two and half years after the parties’ separation. There have also been proceedings in the Melbourne Magistrates’ Court in relation to competing family violence intervention order applications.

3. The parenting proceedings initiated in 2015 were concluded upon the making of final consent orders on 18 May 2017.

4. About four months after the final orders were made, the child made disclosures of inappropriate touching perpetrated by the father, including that the child had been told to touch the father inappropriately. These disclosures were made to the mother’s then partner, Mr C. Three audio recordings were made of these disclosures by Mr C, all within an hour and a half.

5. The next day the mother and Mr C reported the disclosures to police and X was interviewed by the Sexual Offence and Child Abuse Investigation team (“SOCIT”). The child made similar disclosures in that video recorded interview.

6. As a result of those disclosures, the mother unilaterally ceased all time between the father and the child. The mother commenced proceedings in the Federal Circuit Court of Australia in November 2017 seeking that all time between the child and the father cease if the Court finds there has been inappropriate touching between the father and the child. In December 2017, the proceedings were transferred to the Family Court of Australia.

7. The father spent no time with the child between September 2017 and August 2018.  Pursuant to interim consent orders made in July 2018, in August 2018 the father resumed spending time with X for three hours per fortnight, with such time supervised by a professional supervision service.

8. In May 2018, the child commenced attending on a psychologist fortnightly in relation to these allegations.

9. The mother maintains the truth of the allegations of inappropriate touching made by the child in the police recorded interview. When the final hearing commenced the mother also relied upon the audio recordings made by Mr C, although halfway through her evidence denounced her intention to rely on those recordings. On the basis of the alleged inappropriate touching, the mother maintains that the Court should make a finding that the father poses an unacceptable risk of harm to the child, and he should only be allowed to spend supervised time with the child, or failing that, none at all.

10. Throughout the proceedings the father has expressly denied all allegations of inappropriate touching between him and the child. The father is seeking orders that the child live with him at the paternal grandmother’s home. That application is motivated by the father’s concern as to the mother’s ability to encourage and facilitate a relationship between the child and the father if the child remains in her primary care.

11. The hearing in relation to these issues was conducted before me over seven days in March 2019.  The mother represented herself throughout the hearing.   The father was represented by counsel.

12. These are my Reasons for Judgment in relation to the parties’ competing parenting applications.

The parties

1. The mother is aged 39 and works part-time as a public servant.  The mother lives in Suburb A with X.

2. The father was born in Country E and is aged 36 years.  He migrated to Australia with his family in 1993.  The father works full time as a technical officer and lives in Suburb B with his mother and brother. The father has re-partnered with Ms F, who has two children from a previous relationship.

3. The parties commenced living together in August 2008, although there is dispute between them as to when their relationship commenced. Nonetheless it is common ground that they had commenced a relationship prior to X’s birth; little turns on this issue.

4. X was born in 2010 and is aged nine years.  X lives with the mother and currently spends three hours per fortnight of supervised time with the father. In 2015 X was diagnosed with Autism Spectrum Disorder.  He currently attends upon an occupational therapist and a speech therapist for assistance.

Procedural history

1. For a period of approximately two years following the parties’ separation they made arrangements for X to spend time with the father by agreement.  Those arrangements broke down in 2015 when the father alleges the mother refused to make X available to spend time with him. As a result, the father commenced parenting proceedings in the Federal Circuit Court of Australia in November 2015.  The father resumed spending time with X pursuant to interim parenting orders made in February 2016.

2. Those proceedings were concluded upon Judge Riley making final orders by consent on 18 May 2017 (“May 2017 Orders”). Those orders provided for:-

   ·The parties to have equal shared parental responsibility.

   ·The child to live with the mother.

   ·The child to spend time and communicate with the father as follows:-

   oDuring the school term, for two out of three weekends in a three weekly cycle from Friday to Sunday;

   oHalf of each school term and Christmas holidays; and

   oSpecial days as specified.

3. Specific orders were also made with respect to X’s medical treatments and therapies including how the parties were to keep each other informed and participate in decisions regarding X’s health care.  The parties were ordered to abide by the recommendations of X’s treating practitioners. If there was no agreement as to the appointment of new practitioners, they were ordered to follow the recommendations of X’s treating psychologist.

4. It is common ground between the parties that following the making of those orders there were ongoing issues between them at changeovers.  In July 2017, the mother’s former partner, Mr C made an application for an intervention order against the father. On 14 February 2018 the father consented without admissions to an intervention order in favour of Mr C for a period of 12 months. At the time of the final hearing the operation of that intervention order had expired.

5. In August 2017 the father made an application for an intervention order against Mr C.  The father withdrew that application in February 2018.

1. The applications for intervention orders made by both the father and Mr C were on foot at the time of X’s disclosures to Mr C.

2. There is no dispute between the parties that X has made disclosures of sexual abuse by the father to Mr C on 11 September 2017 and to the police on 12 September 2017.  At the time of those disclosures X was aged seven years.  The issue to be determined is what weight if any should be given to those disclosures having regard to the circumstances in which they were made, it being the father’s contention that those disclosures were made as a result of the coaching and influence of the mother and her former partner.  The mother maintains a steadfast belief in the child’s disclosures.  It is her case that X has been sexually abused by the father and that the father poses an unacceptable risk of harm.  I will address X’s disclosures in detail later in the judgment.

3. As a result of X’s disclosures a notification was made to the Department of Health and Human Services (“DHHS”).  Following an investigation of the sexual abuse allegations, SOCIT did not pursue criminal charges against the father.  The DHHS closed its investigations at the intake stage.

4. Following the child’s disclosures, the mother ceased making X available to spend time with the father.  The mother deposes she did so on the advice of both DHHS and SOCIT.

5. On 22 November 2017 the mother filed an Initiating Application in the Federal Circuit Court of Australia seeking that the father spend no time with the child if the allegations regarding inappropriate touching were substantiated. In the event the allegations were not substantiated by the Court, the mother sought that the May 2017 Orders be reinstated.

6. On 11 December 2017 Judge Riley made orders by consent that order 4 of the May 2017 Orders, regarding the father’s time with the child, be suspended. Orders were also made transferring the proceedings to the Family Court of Australia.

7. Upon transfer to this Court the matter was allocated to the Magellan List of cases.  On 28 February 2018 orders were made requiring the father to attend upon Dr J, Psychologist for a risk assessment and report. In addition, the Court made orders that the child attend upon an expert clinician in order to “assess the veracity of the child’s disclosures and for ongoing support”. This clinician was to provide a written report to the Court and to the parties.

8. On 4 July 2018 consent orders were made by Senior Registrar FitzGibbon providing that until further order the child spend time with the father each alternate Saturday for no more than three hours, such time to be supervised and the father to meet the cost of supervision.  Trial directions were made listing the matter for final hearing to commence before me in March 2019.

9. On 4 February 2019 I made trial directions, including an order pursuant to s 69ZT(3) of the Family Law Act 1975 (Cth) (“the Act”) that the rules of evidence shall apply throughout the final hearing.

10. The final hearing commenced before me on 4 March 2019 and was heard over seven days.

Material relied upon and orders sought

1. The mother relied on the following documents:

   ·    Initiating Application filed 4 March 2019;

   ·    Affidavit of the mother filed 4 December 2018;

   ·    Affidavit of Mr D filed 24 February 2018;

   ·    Affidavit of Mr C filed 8 December 2017; and

   ·    Exhibits M-1 to M-4 inclusive.

2. At the commencement of the hearing the mother tendered a minute of proposed orders sought (Exhibit M-1). The final orders sought by the mother are as follows:-

   Father Pose Risk:

   1)Sole parental responsibility.

   2)3 hours fortnightly (paid and supervised):

   ·    Father liable for cost.

   ·    If such a long order can’t be made, nil contact.

   3)Both parents be at liberty to access and view all information parents ordinarily do (ie therapists etc, medical, school).

   4)That the father correctly fill documents and allow [the child] to travel with the mother and obtain a passport.

   5)Clause 68P and 68Q removed from document [Final Orders made by Judge Riley on 18 May 2017], clause 68R is [put in].

   6)All father’s requests for changes in contact to be presented in writing to [the child’s] psychologist for consideration and recommendation.

   7)Father pay for out-of-pocket expenses for therapies specifically counselling and psychologist, until he no longer needs it.

   8)That the father contribute half of the cost of orthodontic and/or eye or other significant medical cost relating to X.

   Father Pose Nil Risk:

   1)Mother – sole parental responsibility.

   2)Child reside with mother.

   3)Fortnightly visit to father:

   ·Close school Friday until 5pm Sunday.

   4)Annually alternating half school holidays (term breaks).

   ·5pm middle Saturday until 5pm Sunday;

   ·School pickup to 5pm middle Saturday.

   5)Christmas break alternating yearly:

   ·Close of school pickup by parent A;

   ·10am handover Christmas Day to parent B;

   ·12pm middle Saturday of summer break to parent A.

   6)Father’s Day/Mother’s Day 10am-5pm with respective parent.

   [The child’s] Birthday

   ·Non school day- 5 hours agreed times or 9am – 2pm;

   ·School day 2 hours agreed times or 4.30-6.30. If cannot attend email no less than 3 days prior to arrange phone contact instead 6.30pm;

   ·Contact child’s mobile phone.

   7)Via telephone each Wednesday 6.30pm-7.30pm to speak to parent he’s away from, on the phone father has provided.

   8)Within 14 days father to provide mother with complete list of practitioners that [the father] has taken [the child]:

   ·Practitioners/clinicians/clinics;

   ·Medical therapeutic specialist, educational;

   ·With nature of their involvement;

   ·Father to make arrangements so mother can access [the child’s] information.

   9)Mother to advise father 7 days in advance where possible, or as soon as practicable (ie an emergency) [of the child’s medical and allied health appointments].

   10)Both parents have access, and be at liberty to access and be at liberty to access and view all information to be able to attend everything parents ordinarily do.

   11)Parents not to attend new practitioners without consent of other parent, unless recommended by [the child’s] treating psychologist and in [the child’s] best interests (or clinicians).

   12)Parents will not withhold consent unreasonably, and this to be resolved by [the child’s] psychologist should this not be agreed upon.

   13)The mother be allowed to obtain a passport for [the child] to travel and return home, with father doing the paperwork to allow this.

   14)All parents to keep emergency details updated with each other.

   15)Should [the child] have any special occasions like sport events, birthday parties etc that both parents exchange time (or make arrangements, to allow [the child] to attend with appropriate parents).

   16)That the father contribute half of the cost of orthodontic or any other significant cost medical – relating to [the child].

3. The father relied upon the following documents:-

   ·Outline of Case document filed 25 February 2019;

   ·Amended Response to Initiating Application filed 29 November 2018;

   ·Affidavit of the father filed 29 November 2018;

   ·Affidavit of the father filed 18 February 2019;

   ·Affidavit of Ms F filed 29 November 2018;

   ·Affidavit of Ms G filed 8 March 2019;

   ·Affidavit of Dr J filed 26 November 2018;

   ·Family Report by Ms H filed 13 December 2018; and

   ·Exhibits F-1 to F-7 inclusive.

4. At the commencement of trial the father sought final orders as set out in his Outline of Case document. By the conclusion of the hearing his position had shifted and during final submissions a minute of proposed orders dated 13 March 2019 was tendered on behalf of the father (Exhibit F-7).  The parties had reached agreement and sought orders by consent with respect to the sharing of special days and various specific issues.  The orders sought by the father at the conclusion of the trial with respect to the issues in dispute are as follows:-

   1)      All previous orders with respect to the child…be discharged.

   2)The Father have sole parental responsibility for the child PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and seeks her input on such decision.

   3)For the purpose of Order 2 hereof and before any such long term decisions are made in respect of the child:-

   a)The Father shall advise the Mother by email of the decision to be made and his proposal in relation to that decision;

   b)If the Mother wishes to have any input with the decision she must advise the Father by email of her input or views within 7 days with such email to be directed in reply to the Father’s email;

   c)Upon receipt of any input or views expressed by the Mother the father shall consider same;

   d)After the Father has considered the Mother’s input, the father make a decision and advise the Mother by email of the outcome immediately after making that decision.

   4)      The child live with the Father.

   5)      The child spend time with the Mother as follows:

   Time as per ICL proposed

   …

   7)Each parent shall facilitate telephone communication with the other parent on their respective birthdays if the child is not ordinarily in that parent’s care from 7.00pm to 7.30pm.

   …

   9)To facilitate the child’s time with the Mother pursuant to Order 5(b) the Mother and Father shall engage Family Constant Services to supervise the time and request that Ms G be assigned as supervisor with the Mother to pay for all costs associated with supervision.

   10)The Mother forthwith engage and attend upon a suitably qualified psychologist as agreed with the Independent Children’s Lawyer, and at her expense, for the purpose of providing the Mother

   a)Support in relation to the implementation and facilitation of these Orders;

   b)Therapeutic treatment to assist the Mother in relation to her belief that the child has been sexually abused by the Father; and

   c)General counselling in relation to the outcome of this proceeding and parenting arrangements for the child.

   NOTING THAT this Order is not intended to be an exhaustive list of matters to be dealt with by the Counsellor and the Mother

   11)The Independent Children’s Lawyer provide a copy of the following documents to the mother’s nominated psychologist upon engagement:

   a)A sealed copy of these orders and judgment in relation to this proceeding; and

   b)A sealed copy of the Family Report prepared by Ms H family consultant dated 13 December 2018.

   12)Each parent shall be at liberty to communicate with the child’s school to discuss the child’s progression and to attend functions that parents normally attend, shall be noted as emergency contacts at the child’s school and shall be authorised to obtain all material ordinarily disseminated to parents (at their own expense).

   13)Each parent shall be at liberty to communicate with and attend upon the child’s medical practitioners and shall be authorised to obtain copies of all reports and documents (at their own expense).

   14)Each parent shall notify the other as soon as practicable of any significant medical illness or injury involving the child when in their respective care and authorise the other parent to speak with any health professional involved with the child.

   …

   18)Each parent be permitted to take the child interstate during their ordinary time with the child as provided in these Orders without the other parent’s, on the condition that the travelling parent provide notice of the travel prior to the travel occurring.

   19)Each parent be permitted to take the child overseas during their ordinary time with the child as provided in these Orders without the other parent’s consent provided that the following is satisfied:

   a)The travelling parent must provide to the non-travelling parent no less than two months’ written notice of the intended travel;

   b)The travelling parent is to provide the non-travelling parent with a copy of the following documents within 14 days of the day of the proposed travel:

   (i)A complete itinerary of the travel;

   (ii)A true copy of the child’s travel tickets; and

   (iii)Details of the child’s accommodation and a contact telephone number.

   c)The travelling parent shall facilitate telephone communication with the non-travelling parent and the child no less than one per week.

   20)In the event that a parent wishes to take the child overseas outside of their ordinary time with the child as provided in these Orders, the travelling parent must obtain the other parent’s consent prior to making any overseas travel and the following must be satisfied:

   a)The travelling parent must provide to the non-travelling parent no less than two months’ written notice of the intended travel;

   b)The non-travelling parent is to advise the travelling parent of their consent or otherwise to the proposed travel within one month of receipt of the notice;

   c)In the event that the non-travelling parent consents to the children travelling with the other parent, then the travelling parent is to provide the non-travelling parent with a copy of the following documents within 14 days of the day of the proposed travel:

   (i)A complete itinerary of the travel;

   (ii)A true copy of the child’s travel tickets; and

   (iii)Details of the child’s accommodation and a contact telephone number.

   d)The travelling parent shall facilitate telephone communication with the non-travelling parent and the child no less than one per week.

   e)The non-travelling parent shall be provided with make-up time if requested.

   21)The parents do all such acts and things and sign all such documents to apply for a passport for the child, and thereafter extend or renew, at their shared cost within 14 days of a request from the other parent.

   22)The child’s passport shall be held by the Father who shall provide the passport to the Mother at least 14 days prior to any proposed overseas travel.

   23)The Mother and Father be and are hereby restrained by injunction from denigrating the other party to or in the hearing or presence of the child or allowing any other person to do so.

   24)The appointment of the Independent Children’s Lawyer be discharged upon the Independent Children’s Lawyer providing documents to the Mother’s psychologist pursuant to Order 11 herein.

   25)    All extant applications be otherwise dismissed.

5. The Independent Children’s Lawyer (“ICL”) relied upon the following material:-

   ·Magellan Report dated 26 February 2018;

   ·Family Report by Ms H filed 13 December 2018;

   ·Affidavit of Dr K filed 12 May 2017;

   ·Affidavit of Dr J filed 26 November 2018;

   ·Affidavit of Ms G filed 30 November 2018; and

   ·Exhibits ICL-1 to ICL-15 inclusive.

6. At the commencement of the hearing the ICL sought orders as provided in her Case Summary filed 26 February 2019.  However, during closing submissions the ICL tendered a revised minute of proposed orders (Exhibit ICL-13).  The orders sought by the ICL at the conclusion of the trial as relevant to the issues in dispute are as follows:-

   1)That all previous parenting orders be discharged.

   2)That the Father have sole parental responsibility for [the child] PROVIDED ALWAYS THAT the Father keep the Mother informed of significant long term decisions that he makes in relation to the child and actively seeks her input on such issues.

   3)For the purpose of Order 2 hereof:-

   3.1.Before any such long term decisions are made in respect of the child:-

   3.1.1.The Father shall advise the Mother by email of his proposal relating to the child; and

   3.1.2.if the Mother wishes to comment on the Father’s proposal (or if she has any proposal she wishes to make relating to the child on the issue) she shall, within seven (7) days after the date of the Father’s email, advise the Father by email (to the email address from which the Father sent her communication) of her views;

   3.1.3.upon receipt of any comment or proposal by the Mother or, the Father shall give consideration to her views;

   3.1.4.after the Father has considered the Mother’s comments, he shall make a decision and advise the Mother by email or SMS text message of the outcome immediately after making that decision; and

   3.1.5.if the Mother does not respond by email as provided in order 3.1.2 hereof, the Father may decide the issue.

   4)The Father advise the Mother by email of:-

   4.1.a nominated mainstream medical clinic (“the nominated clinic”) at which the child attend for general medical care and each of the parties shall ensure that the child attend that clinic for treatment at first instance, save in the case of genuine emergency or impracticality;

   4.2.a nominated paediatrician upon whom the child will attend for assessment, treatment and recommendations as to his specialist needs, and in particular in relation to his ASD or other diagnosis;

   4.3.any changes to that nominated clinic at least fourteen (14) days prior to such change occurring.

   5)The Father do all such acts and things as may be necessary to ensure that the Mother receives copies of any medical and academic assessments in relation to the child.

   6)Liberty is granted to the Mother to consult with the child’s doctors and allied health professionals in order to obtain information about the child’s health. These consultations shall be at the Mother’s own expense and in the absence of the child.

   7)The child live with the Father.

   8)The child spend time with the Mother as follows:

   8.1.From the commencement of the second school term 2019:

   8.1.1.For 5 hours as agreed pursuant to paragraph 9 below, and in default of agreement each alternate Saturday from 10.00am to 3.00pm;

   8.1.2.By telephone, Facetime or skye [sic] once per week as agreed an in default of agreement each Wednesday between 6.30pm and 7.00pm;

   8.2.From the commencement of the third school term 2019:

   8.2.1.For 8 hours as agreed, and in default of agreement each alternate Saturday from 10.00am to 6.00pm;

   8.2.2.By telephone, Facetime or skye [sic] once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm;

   8.3.From the commencement of the fourth school term 2019:

   8.3.1.Each alternate weekend as agreed and in default of agreement from 10.00am on Saturday until 6.00pm on Sunday;

   8.3.2.By telephone, Facetime or skye [sic] once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm;

   8.4.From the commencement of the first school term 2020 and each school term thereafter:

   8.4.1.Each alternate weekend commencing the first weekend of each school term from the conclusion of school Friday until the commencement of school on the following Monday morning, or in the event that the Monday is a non-school day to the commencement of school on the Tuesday;

   8.4.2.By telephone, Facetime or skye [sic] once per week as agreed and in default of agreement each Wednesday between 6.30pm and 7.00pm; and any other time initiated by the child

   8.5.For half of all school holidays [sic] periods from the commencement of the 2020 academic year;

   8.5.1.Half of the term holidays as agreed and in default of agreement the first half;

   8.5.2.Half of the long summer holidays as agreed and in default of agreement the first half in even numbered years and the second half in odd numbered years;

   8.5.3.As otherwise agreed in writing

   9)The mother’s time will be conditional upon:

   9.1.The time referred to paragraph 8.1 being supervised by a supervisor as agreed and in default of agreement as nominated by the ICL at the joint expense of the parties;

   9.2.The changeover for the time referred to in paragraph 8.2 taking place at a Children’s contact centre as agreed and in default of agreement as nominated by the ICL at the joint expense of the parties;

   9.3.The changeover for time referred to in paragraphs 8.3 to 8.6 inclusive taking place at school wherever possible and otherwise at a public place as agreed and in default of agreement at a McDonalds Restaurant midway between the residence of both parties;

   9.4.The mother forthwith engaging in intensive therapy to address the issues raised in the Family Report dated 13 December 2018. Such therapist to be nominated by the ICL and at the Mother’s expense, the Mother to comply with all reasonable directions of the therapist as to attendance, treatment and referral;

   10)That the Father engage a paediatrician as approved by the ICL for assessment as to the child’s current and ongoing needs, and comply with all reasonable directions of this specialist as to treatment and referral, and engage with the Mother as anticipated by paragraphs 2, 3 and 4.

   11)That as the conclusion of three months from the date of the orders the parties engage in family therapy as nominated by the ICL for the purposes of addressing the issues raised in the said Family Report, at the joint expenses [sic] of the parties, and comply with all reasonable requests of the therapist as to attendance.

   …

   17)All extant Final Applications be dismissed.

   18)That the appointment of the ICL be discharged 6 months following the making of the orders.

   …

1. On the final day of the hearing, the parties reached agreement on specific issues so as to narrow the issues in dispute. Two exhibits were tendered to reflect those arrangements:-

   ·    Exhibit ICL-14 provided for orders detailing the manner and timing of sharing special days with the child.  Those matters will be included in the final orders.

   ·    Exhibit ICL-15 provided for other miscellaneous orders agreed upon by the parties regardless of who the child is to reside with, which make provision for changeovers, sharing of information and other specific issues.  Again, those matters will be included in the final orders.

The issues

1. The issues in this matter as identified in the parties’ affidavit material, the expert reports and during the course of the hearing, may be summarised as follows:-

   ·    The allocation of parental responsibility;

   ·    Whether X has been sexually abused by the father;

   ·    Whether the father poses an unacceptable risk of harm to X;

   ·    Whether the mother has influenced X’s attitudes and views towards the father;

   ·    Whether the mother has the capacity to support the father having a meaningful relationship with X;

   ·    In light of the findings with respect to the above issues, with whom X should live; and

   ·    What time X should spend with the other parent.

Legal principles

1. Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

2. Section 60B(2) of the Act sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):

   (a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)parents should agree about the future parenting of their children; and

   (e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA of the Act). Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.

4. As to the manner in which the Court is to take into account those considerations May and Thackray JJ stated in Mulvany & Lane (2009) FLC 93-404 at paragraph 76-77 as follows:-

   It is important to recognise that the miscellany of “considerations” contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered.  Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant).  However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.

   It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…

   (Emphasis in original)

5. There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA of the Act). The presumption relates to the allocation of parental responsibility. For the reasons set out below I am satisfied that it is not in the child’s best interests for the father and the mother to have equal shared parental responsibility and that the father should have sole parental responsibility for making decisions regarding the child’s long-term care, welfare and development.

6. If there is an order for equal shared parental responsibility, the Court is then obliged to consider whether it would be in the child’s best interests and reasonably practicable for them to spend equal time or substantial and significant time with each parent (s 65DAA of the Act). Given that I have determined that it is not in the child’s best interests that there be an order for equal shared parental responsibility I need not consider these matters.

7. The mother alleges that the father poses an unacceptable risk of harm to X due to the allegations that the father has sexually abused him. 

8. The correct approach in considering allegations of sexual and by implication other types of abuse was considered by the High Court in M v M (1988) 166 CLR 69 (“M v M”).  There, the High Court made it clear that when proceedings involve an allegation that a child has been sexually abused, it does not alter the paramount and ultimate issue for the Court, namely what is in the child’s best interests.  The resolution of an allegation of sexual abuse is subservient and ancillary to the Court’s determination of what is in the best interests of a child.

9. The High Court noted at page 77 that:-

   …There will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place.  And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so. 

   In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring …and assess the magnitude of that risk.

10. The High Court then considered how to define the magnitude of risk and concluded that the test was best expressed by saying that the Court will not grant custody or access (as it then was) if it would expose a child to “an unacceptable risk” of abuse. 

11. The “unacceptable risk” test is applied by the Court “to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access” (M v M at page 78). Thus where the Court makes a finding of unacceptable risk, it is a finding that the risk of harm to the child in permitting time spent out-weighs the potential benefit to that child of spending time with that parent.

12. In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362 Dixon J said as follows:-

    Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal.  But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. 

13. Having regard to the serious implications that a finding of abuse has occurred, the Court should not make such finding that it has occurred unless it has been proven to this higher standard. 

14. The relevant standard of proof is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act1995 (Cth) provides that in applying that standard of proof the Court must take into account the following:-

    (a)the nature of the cause of action or defence; and

    (b)the nature of the subject matter of the proceeding; and

    (c)the gravity of the matters alleged.

The hearing

1. As this is a parenting case, the Court must give effect to the principles enunciated in Division 12A of the Act. Section 69ZN of the Act sets out the principles for conducting child-related proceedings which include:-

   ·That the Court consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings;

   ·That the Court actively direct, control and manage the conduct of the proceedings;

   ·That the proceedings be conducted in a way that will safeguard the child concerned from being subjected to or exposed to abuse, neglect or family violence and the parties to the proceedings against family violence;

   ·That the proceedings are as far as possible to be conducted in a way that will promote cooperative and child-focussed parenting by the parties; and

   ·That the proceedings are to be conducted without undue delay and with as little formality and legal technicality and form as possible.

2. As the mother was unrepresented, prior to the commencement of the hearing, I informed the parties that in accordance with the provisions of the Act, I must have regard to the best interests of the child as the paramount consideration. Further, I informed the parties that in determining what is in the best interests of the child, I would have regard to the considerations set out in s 60CC of the Act and I drew the parties’ attention to those provisions.

3. I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each party had to cross-examine the witnesses. 

4. The catalyst for the litigation was X’s disclosure that he had been sexually abused by the father.  That disclosure was originally made to the mother’s former partner, Mr C on 11 September 2017.  As a result of those disclosures X participated in a video recorded police interview with SOCIT the following day, on 12 September 2017.  Neither the mother nor the father had viewed the video interview prior to the hearing.  As a result, at the commencement of the hearing by agreement between the parties, that video recording was played in Court. 

5. The audio recordings made by the mother’s former partner, Mr C were also played in Court during the course of the hearing.

X’s disclosures

1. On 11 September 2017 X was at home and in the care of the mother’s partner, Mr C.  In his affidavit filed 8 December 2017, Mr C deposes as to the circumstances in which X’s disclosures were made to him. 

2. At paragraph 8 of that affidavit Mr C describes how he walked into the bathroom where X was taking a bath.  He deposes that he asked X “…What are you doing? Why do you keep playing with your doodle?”  He deposes that X did not respond to that question.  Mr C deposes that he then said “Come on X, time to tell me the truth.  Why do you keep touching your doodle?  Have you seen someone do that?”  He deposes that X disclosed to him that he had seen his father touching his penis.  Further, at paragraph 10 he deposes that X disclosed to him that his father’s penis “gets longer when I touch it” and that X touches his father’s penis “all the time.  It makes dad happy”.

3. Mr C deposes that his response to those disclosures was to commence recording his conversation with X on his mobile telephone.

4. That evening, Mr C made three audio recordings of his conversations with X, the first two whilst X was in the bath and the last recording shortly after X’s bath.  During his oral evidence, Mr C confirmed that the three recordings were made between 5.30pm and 7.00pm.  Mr C also confirmed that it was not the first occasion that he had recorded his conversations with X.

5. Exhibit F-2 is a transcript of the three audio recordings made by Mr C.  The first page of that transcript discloses a series of questions from Mr C to X in which he asks him what the father does with X’s penis.  The transcript records the following series of questions:-

   MR C= Yeah, can you tell me again what happ.. You keep playing with your willy, alright which is your doodle.  Who plays with their doodle in front of you?

   CHILD= My dad

   MR C= And what does he do with it?

   CHILD= Uhm uhm different things to play with it (father’s view) OR Tell me to do different things to play with it (mother’s view)

   MR C= How?

   CHILD= Uhh different kinds, also my dad showed me this

   MR C= Showed you what?

   CHILD= Is this a awesome thing?

   MR C= Yeah X’s actually shown me putting his finger inside his penis and pushing it back.  Okay,

   MR C=X uhm, what else does daddy show you?  With his doodle?  Does he show you his doodle a lot?

   CHILD= Yeah.  He shows me his doodle when he gets off the toilet

   MR C= Any other time?

   CHILD= No

   MR C= Okay

   MR C= Do you think that is just daddy going to the toilet?

   CHILD= Yes

   (As per the original)

6. Mr C persists in questioning X repeatedly about his father’s conduct.  On the third page of the transcript it records the following:-

   MR C= Okay, has daddy touched you?

   *No response*

   MR C= Don’t go quiet on me X, you gotta trust me mate

   CHILD= This is yes and this is no

   MR C= I need to tell me mate, I don’t do yes or no’s on the wall

   MR C= Has daddy touched you on your doodle area?

   CHILD = No, I clear it

   MR C= Sorry?

   CHILD = I will clear it

   MR C= Okay, so, does daddy, when he comes to touching the doodle, whose doodle gets touched?

   CHILD = My daddy plays with his own doodle.

   MR C= Your daddy plays with his own doodle?

   CHILD = yeah

   MR C= In front of who?

   CHILD = Me

   MR C= Mhmm

   CHILD = He shows me new things

   MR C= He shows you new things with the doodle does he?

   CHILD = yeah

   MR C= Like what?

   CHILD= Well, actually… *mumbles*

   MR C= No I need you to tell me, what does he ask you, what does he show you to do with the doodle?

   CHILD= Well, putting my finger in the doodle

   MR C= Putting your finger in a doodle?

   CHILD= Yeah, yeah then twirling it all around

   MR C= So he gets you, right, whose finger does he put in a doodle?  His or yours?

   MR C= Talk to me

   CHILD= He puts his finger in his doodle

   MR C= And.. *bubbles in background*

   MR C= Anyone else’s finger in his doodle?

   CHILD= No

   (As per the original)

7. Mr C persists in his questioning of X for an extended period whilst he is in the bath. 

8. That style of questioning continues during the second recording.  Towards the end of the questioning, Mr C pressed X as to where he touches his father’s penis.  Those questions concluded as follows:-

   MR C= Can I ask you a question?

   MR C= Do you touch, when you’re going to daddy’s bedroom and you’re with daddy, do you touch his doodle in the bedroom?

   CHILD= Nooo, I do this and this to my dad

   MR C= Sorry?

   CHILD= I do this and have a little rest.

   MR C= What do you do to your dad?

   CHILD= Cuddle him and have a little rest.

   MR C= Okay.  But in daddy’s bedroom, do you see daddy’s doodle at all?

   CHILD= No, my dad wears jocks and

   MR C= okay

   CHILD= and a t-shirt and pants.

   MR C= So where does daddy get you to touch his doodle? Just in the toilet and the bathroom?

   CHILD= Noo, only get off the toilet

   MR C= Alright, no worries mate

   MR C= Alright mate, thank-you.  You need to get out so I can do you some food now, come on.

   (As per the original)

9. The third recording continues the tenor and style of questioning that occurred in the first two recordings.  Mr C persists in asking questions about the father’s conduct.  He persists in pressing X for a response.  During the third recording, Mr C again focusses on where the sexual abuse is said to have occurred.  On the second page of the transcript of the third recording, the questioning continues as follows:-

   MR C= Every time daddy goes to the toilet, does he take you with him?

   CHILD= No, no, noooo, no

   MR C= Okay

   MR C= But every time daddy wants you touch his doodle, is it in the toilet?

   CHILD= No, no, noooo

   MR C= Oh where is it then? Is it outside the toilet as well?

   CHILD= Under the ground

   MR C= Sorry?

   CHILD= Under the ground

   MR C= Under the ground? Daddy asks you to touch his doodle under the ground?

   CHILD= Yeah

   MR C= How does that work?

   CHILD= There is an invisible portal on the wall.

   MR C= Okay *pause* okay.

   MR C= When you touch daddy’s doodle does it do strange stuff?

   CHILD= Yeah

   MR C= What does it do?

   CHILD= *coughing*

   MR C= You okay?

   CHILD= It went onto his head

   MR C= He touches his head?

   CHILD= no goes onto it

   MR C= What goes onto daddy’s head? His doodle?

   CHILD= mmhmm

   MR C= What does it get bigger or smaller?

   CHILD= can you please continue the show

   MR C= Yeah I will in a second

   MR C= Does daddy, when you, touch daddy’s doodle does it get bigger or smaller?

   CHILD= *mumbles something*

   MR C= I can’t understand you

   CHILD= *Makes noise*

   MR C= Oh daddy’s doodle grows when you touch it does it?

   CHILD= Yes and gets thinner

   MR C= And gets what?

   CHILD= Thinner

   MR C= Thinner?

   CHILD= Aha

   (As per the original)

10. The mother, the father, Mr C, the family consultant and X’s treating psychologist, Mr D were all cross-examined in relation to the audio recordings of X’s disclosures.  I will refer to their evidence in relation to those recordings in more detail later in the judgment.

11. Following the disclosures made by X to Mr C during the audio recordings, the matter was reported to police.  On 12 September 2017 X participated in a video recorded interview with police.  During that interview, X disclosed that “[he has] to play with [his father’s] doodle”. 

12. Further, X disclosed that he played with his father’s doodle “underground” in “a sneaky room”. 

13. X stated that “there is an invisible portal that takes me and my dad there”.  As to how he accesses the invisible portal, X disclosed that he gets there “from the lounge room, in my dad’s room, in the bottom drawer”.

14. When asked how frequently he plays with the father’s penis, X responded “Every time my dad gets off the toilet”. 

15. Ultimately, the police were not authorised to proceed with charges against the father in relation to X’s disclosures.  The memorandum of Detective Senior Sergeant L regarding the brief of evidence (Exhibit ICL-5) notes in relation to the video recorded statement that X:-

    …had difficulty in particularising any actual offending and, at times, he described events that are simply not possible eg teleportation.

16. Those notes also record there is no physical, medical or forensic evidence to support the allegations, that there are difficulties with the video evidence given the audio recordings made by Mr C, which included him prompting and using a leading style of questioning of X.

17. Again, the mother, the father, the family consultant and Mr D were cross-examined in relation to the video recorded statement of X.  I will address that evidence later in the judgment.

18. It is the disclosures made by X during the audio and video recorded interviews that form the basis for the mother’s assertion that the father poses an unacceptable risk to X.

The evidence

1. Findings are made on the balance of probabilities having regard to the evidence.  In applying that standard, the Court must have regard to the nature and subject matter of the case and the gravity of the matters that are alleged (s 140 Evidence Act 1995 (Cth)).

2. As with all parenting cases, the paramount consideration is the best interests of the child.  In this matter, the Court is being asked to make findings with respect to the most serious type of allegations that can be made against a parent.  The mother alleges sexual abuse of the child by the father.  The father alleges that the child has been subjected to psychological and emotional abuse by the mother as a result of her influence and manipulation, either as a result of a misguided belief by her that the child is at risk in the father’s care, or alternately, as a deliberate attempt to exclude the father from the child’s life. 

(v)any other relevant matter;

1. I have addressed the issues with respect to allegations of sexual abuse earlier in this judgment. 

2. Whilst there have been family violence intervention orders and personal protection orders as between the parties and their respective partners historically, there are no current family violence orders in place.

(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

1. X has been the subject of litigation since 2015.  At the time the first proceedings commenced he was aged five years.  The conflict between his parents has not abated, notwithstanding final orders made in May 2017.  X has been exposed to the conflict between his parents throughout that period.  There has been conflict at changeovers involving not only his parents but their partners, resulting in intervention order proceedings.

2. For example, in the months leading up to the disclosures made by X to Mr C, the father and Mr C were engaged in intervention order proceedings, with each making applications against the other. Those applications arose as a result of a dispute at a changeover at McDonald’s.

3. I have no doubt that X has been affected by the litigation.  There have been limitations on the time he has been able to spend with the father as a result of these proceedings. 

4. I am satisfied, having regard to the history of the dispute, that it is in X’s best interests for there to be a conclusion to these proceedings.

5. If I were to accede to the mother’s application, I have no confidence that this would bring an end to the proceedings. I am satisfied having regard to the evidence of the family consultant that the mother would have enormous difficulty in complying with any orders that the Court might make for X to spend time with the father, whether it be on a supervised or unsupervised basis.  There is a real prospect were such orders to be made that contravention proceedings would follow and that there would be a further application by the father for X to live with him. 

6. If orders are made as sought by the father and the ICL, it is to be hoped that the mother would accept and support such orders without the need for further litigation. 

(m)     any other fact or circumstance that the court thinks is relevant.

1. There are no other relevant facts or circumstances.

Conclusion

1. The first matter to be considered is the question of the allocation of parental responsibility.  The mother seeks orders that she have sole parental responsibility.  The father also seeks orders for sole parental responsibility provided that he keep the mother informed of proposed decisions and seek her input into those decisions.  That application is supported by the ICL.

2. That both parties seek sole parental responsibility highlights their inability to effectively communicate with each other regarding decisions relating to X’s long-term care, welfare and development. 

3. Ms H expressed some reservation as to the father’s attitude towards the mother, it being her view that the father has adopted a punitive approach towards the mother and that such approach had the capacity to negatively impact upon X. 

4. I observed the father giving evidence over three days of the final hearing.  During the course of his evidence I observed the father to be articulate and to make appropriate concessions as to the positive aspects of the mother’s parenting.  Further, during the course of his evidence the father expressed a belief that the mother would prioritise X’s needs so as to support his transition to the father’s care if orders were made as sought by the father.  The father impressed as a forthright witness who was committed to X’s welfare.  He expressed regret that X had been exposed to his parents’ conflict and was thoughtful and considered when questioned as to how to protect X from such conflict in the future.  I accept the father’s evidence.  Counsel for the ICL submitted and I accept that the father’s approach to the mother is not punitive.  It was not part of his application that there be a cessation in X’s time with the mother and throughout his evidence he was able to readily make appropriate concessions about the positive aspects of the mother’s parenting.

5. Given the significant conflict between the parties and the difficulties they have had in communicating over a protracted period of time, I am satisfied that it would not be in X’s best interests if the parties were to have equal shared parental responsibility.  That view is bolstered having regard to my findings that the mother continues to maintain a view that X has been sexually abused by his father.  Given the strength of the mother’s views, I am also satisfied that there would be little or no capacity for the father and the mother to consult regarding major long-term decisions regarding X’s care.

6. Moreover, there are practical difficulties with the parties sharing parental responsibility, given I am proposing to make orders that X live with the father and not spend time with the mother for a period of approximately 10 weeks, the mother’s time thereafter to be supervised and to gradually increase over a period of months.

7. Having weighed up all of the evidence and having had regard to the relevant s 60CC considerations, I am satisfied that it is in X’s best interests that he live with the father. There can be no doubt, having observed the mother present her case and give evidence that although she was aware of the prospect of X being removed from her care, she had no capacity to reflect upon how such outcome could be avoided. The mother will likely have enormous difficulty in coming to terms with these orders. Whilst I have sympathy for the mother’s position, I must do what I consider to be in X’s best interests. In this instance, it is to make orders that he live with the father. This will give him the opportunity to be freed from the narrative that he has been sexually abused and will ensure that he has the opportunity of a meaningful relationship with both of his parents.

8. As noted earlier, I am satisfied having regard to the evidence of Ms H that there should be a short period where X does not spend time with the mother.  This will enable him to settle into the father’s care without disruption.  Further, Ms H confirmed during her oral evidence that a period of no time will ensure that X has a break from the mother’s beliefs as to sexual abuse and will enable the mother to get some therapeutic intervention.  Ms H expressed concern that if the mother commenced spending time with X immediately following orders changing his living arrangements, that there was a risk that X would be re-exposed to the mother’s views repeatedly.  I accept that evidence.

9. Further, Ms H confirmed that after a period of no time there should be a period of supervised time.  That will provide an opportunity to test whether the mother can quarantine her views and regulate her emotions effectively so that X is not traumatised by re-exposure to her views.  I accept that evidence.  In light of that evidence I am satisfied that it will be in X’s best interest to make orders staggering the commencement of the mother’s time from no time, to supervised time, to gradually increasing periods of time, as sought by the ICL. 

10. In accordance with the recommendations of Ms H, I will also make orders as sought by the ICL that the mother engage with a psychologist for the purpose of supporting the mother in the implementation of these orders and to assist her in relation to her belief that X has been sexually abused by the father.  Having regard to Ms H’s evidence, it is essential for X’s relationship with the mother that she engage in such therapeutic intervention.  Such intervention will hopefully provide the mother with insight as to the impact her behaviour has had upon X.

11. Further, in accordance with Ms H’s recommendations I will also make orders for the parties to engage in family therapy after the mother has had a period of time to engage in individual therapy.  Hopefully that therapy will assist the parties to develop more co-operative and child-focussed parenting strategies for X.

12. In light of the therapeutic interventions to be undertaken by the mother, I propose to continue the appointment of the ICL for a further period of six months.  This will enable the ICL to monitor the mother’s commencement of therapy and ensure that the father meets his commitment to obtain updated assessments as to X’s ongoing allied health needs.

13. Otherwise, I will make orders by consent in the terms of Exhibits ICL-14 and ICL-15 regarding special days and other specific issues.

14. Although the father sought orders permitting the parties to travel overseas with X, no submissions were made in relation to that part of his application.  Accordingly, I dismiss that part of the father’s application.

15. Accordingly, I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and eighty-three (283) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 13 September 2019.

Associate: 

Date:  13 September 2019