Matera and Matera

FEDERAL CIRCUIT COURT OF AUSTRALIA

MATERA & MATERA

[2013] FCCA 675

Catchwords:
FAMILY LAW – Parenting – allegation of sexual abuse by the father – determination of question of unacceptable risk – no such risk – mother’s own history of sexual abuse and longstanding present personality disorder – history of the mothers disruption of the children’s relationship with the father – orders crafted to repair the child-father relationship – children to continue to primarily reside with mother – mother on notice as to consequences of her failure to comply with orders.

Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZN and Part VII

Briginshaw v Briginshaw (1938) 60 CLR 336
AMS and AIF (1999) 24 Fam LR 756
Goode v Goode (2007) 36 Fam LR 422
MRR v GRR [2010] HCA 4
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright [2007] FamCA 520
McCall & Clark[2009] FamCAFC 92
Lansa & Clovelly [2010] FamCA 80

Applicant:

MS MATERA

Respondent:

MR MATERA

File Number:

SYC 243 of 2011

Judgment of:

Judge Foster

Hearing dates:

20, 21, 22 March, 20, 21 May and 20 June 2013

Date of Last Submission:

20 June 2013

Delivered at:

Wollongong

Delivered on:

28 June 2013

REPRESENTATION

Counsel for the Applicant:

Mr Guterres

Solicitors for the Applicant:

Rachel Stubbs & Associates

Counsel for the Respondent:

Ms Nash

Solicitors for the Respondent:

B Hayward & Co

Counsel for the Independent Children’s Lawyer:

Mr Ladopoulos

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW Wollongong

ORDERS

That the mother and father have equal shared parental responsibility for the children [Y] born [in] 2007, [Z] born [in] 2008.
That the said children live with the mother.
That the father spend time with [X] as agreed between the mother and father having regard to the child’s reasonably expressed wishes.
That the children [Y] born [in] 2007, [Z] born [in] 2008 spend time with the father:
(a)For a period of 3 months from the date of the orders between 10.00 am and 4.00 pm each Saturday with handover of the children at the commencement and conclusion of the father’s time to occur at the [omitted] Catholic Care Contact Centre;
(b)Thereafter for a period of 3 months 9.00 am and 5.00 pm each Saturday with handover of the children at the commencement and conclusion of the father’s time to occur at the [omitted] Catholic Care Contact Centre;
(c)Thereafter and until [Y] attains the age of 7 years, each alternate weekend from 9.00 am and 5.00 pm on Saturday and 9.00 am and 5.00 pm on Sunday with handover of the children at the commencement and conclusion of the father’s time to occur at the McDonalds Family Restaurant, [suburb omitted];
(d)Thereafter for a period of 6 months, commencing 10 May 2014, each alternate weekend from 9.00 am Saturday to 5.00pm Sunday with handover of the children at the commencement and conclusion of the father’s time to occur at the McDonalds Family Restaurant, [suburb omitted];
(e)During the June/July school holiday period 2014, the children’s weekend time with the father shall be extended on such weekend until 5.00pm Tuesday, where such extended time falls within the school holiday period;
(f)During the September/October school holiday period 2014 the children’s weekend time with the father shall be extended on such weekend until 5.00pm Wednesday where such extended time falls within the school holiday period;
(g)Commencing 7 November 2014, each alternate weekend from after school Friday until before school Monday, with the father to collect and deliver the children at their school at the commencement and conclusion of his time with them;
(h)During the Christmas school holidays 2014/2015 in addition to the fathers weekend time, the children’s weekend with the father shall be extended on the weekends commencing 2 January 2015 and 16 January 2015, until 5.00pm Thursday;
(i)Thereafter, commencing the school year on 2015, the children [Y] and [Z] spend time with the father as follows:
(i)During school terms, each alternate weekend from after school Friday until before school Tuesday, with the father to collect and deliver the children at their school at the commencement and conclusion of his time with them;
(ii)For one half of the NSW school holiday periods to be the first half in odd numbered years and the second half in even numbered years.
(j)On Fathers Day in 2013 from 10.00am to 4.00pm, in 2014 on the Fathers Day weekend from 9.00am Saturday to 5.00pm Sunday and in 2015 on the Fathers Day weekend from after school Friday to before school Monday if not otherwise periods that the children are to spend time with the father, provided always that the children’s time with the father shall be suspended on the Mothers day weekend in each year;
(k)In the Christmas festive period as follows:
(i)In 2013 from 9.00am to 5.00pm Christmas Eve,
(ii)In 2014 from 2.00pm Christmas Day to 5.00pm Boxing Day,
(iii)In 2015 and each alternate year thereafter from 9.00am Christmas Eve to 10.00am Christmas Day and in 2016 and each alternate year thereafter from 10.00am Christmas Day to 5.00pm Boxing Day.
(l)At such other times as may be agreed between the mother and father in writing with such writing to include SMS or email. In this respect the mother and father shall have reasonable regard to the children’s birthdays, their birthdays and other special occasions;
(m)That for the purposes of the children’s time with the father, he shall be at liberty to make such arrangement for the before and after school or pre school care of the children as he may wish at his expense.
That at the expiration of 12 months from the date of these orders, the father is permitted to attend upon any occasion relevant to the education, health, sporting activities, extra curricular activities, religious education or other occasion significant to the welfare of the children, being occasions where the attendance of either or both parents is to be reasonably expected, provided always that the father is, in the intervening period, able to make arrangements for parent-teacher interviews in relation to the progress of either child provided such interviews are in the absence of the mother and the children and attend upon any health professional or practitioner treating the children in the absence of the mother and the children.
That any handover of the children that is not otherwise specified in these orders shall occur at McDonalds Family Restaurant, [suburb omitted].
That each party is restrained form physically disciplining the children.
That on any occasion when the children are spending overnight time with the father the father shall ensure that the children have their own bedroom.
That the mother use her best endeavors to ensure that the children sleep separately from her and if practicable in their own bedroom.
That each party is restrained from denigrating the other party in the presence or within hearing of the children or allowing any other person to do so.
That each party is restrained from discussing with the children any allegation raised in these proceedings.
That the father is authorised to receive reports, newsletters and other information disseminated by the children’s school or preschool and to obtain such information as he may reasonably request of the children’s medical practitioners or other health professionals from time to time and for the purposes of this order, the mother shall provide to the father, within 7 days of this order, details of the children’s treating general practitioner or other health professional who has attended upon the children in the 6 month period before the date of these orders and shall promptly inform the father in writing as to any future change in such details.
That the mother inform the father of the engagement of either of the children with any medical practitioner or health professional as and from the date of these orders including contact details of any such practitioner provided always that the mother be restrained from engaging the children or either of them in any counseling, family therapy, “recovery from family violence” therapy or psychological therapy without the written consent of the therapist referred to in Order 17.
That the father be restrained from attending upon the mother’s home unless in accordance with these orders or otherwise agreed in writing by the mother and that the mother be restrained from attending upon the father’s home unless in accordance with these orders or otherwise agreed in writing by the father except in circumstances of emergency relating to the children.
That the mother and father provide to each other their current mobile, landline telephone numbers and email address within 24 hours of the making of these orders and they each be restrained from contacting each other except in relation to the implementation of these orders and the welfare of the children with any such communication unless in an emergency to be by SMS or email.
That the mother and father promptly advise the other of any medical emergency or hospitalisation of the children or either of them.
That the parties shall do all things necessary to promptly facilitate their attendance upon a therapist, skilled in providing parenting advice and family and individual child therapy and specialising in high conflict families, to be recommended by the Single Expert Dr K and shall comply with all recommendations by that therapist including ensuring each child attends appointments with that therapist as scheduled by the therapist, attending themselves and that the Independent Children’s Lawyer provide a copy of Dr K’s single expert report and these orders to the therapist and that such therapy continue for a minimum of 12 months or such longer period as is recommended by the therapist.
That the mother has leave to provide a copy of the report of single expert of Dr K to her individual therapist and is to provide to the Independent Children’s Lawyer details of any such therapist promptly upon her engagement with such therapist.
That each party is restrained from removing or attempting to remove the children [Y] born [in] 2007, [Z] born [in] 2008, from the Commonwealth of Australia without the written consent of the other or court order and that:
(a)The Marshal of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to restrain either party from removing or attempting to remove the said children from the Commonwealth of Australia.
(b)Until further order the Commissioner of the Australian Federal Police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the said children's names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia.
(c)The Australian Federal Police maintain an airport watch of the said children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
(d)The Australian Federal Police and the Police Forces of the States and Territories of the Commonwealth of Australia assist in the implementation of, and give effect to, these orders.
That either party have liberty to apply as to overseas travel for the children by application in a case supported by affidavit in the event that it is asserted that consent to such travel is being unreasonably withheld.

IT IS NOTED that publication of this judgment under the pseudonym Matera & Matera is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

SYC 243 of 2011

MS MATERA

Applicant

And

MR MATERA

Respondent

REASONS FOR JUDGMENT

The Proceedings

These are parenting proceedings in relation to the children [Y] born [in] 2007 and [Z] born [in] 2008.
The primary issue for determination is what parenting orders should be made in relation to the said children, particularly in the context of the mother's assertion that there is an unacceptable risk of the child [Y] being sexually abused by the father.
The applicant mother filed her application commencing proceedings on 16 March 2012. That application in summary sought orders that provided:
a)That the mother have sole parental responsibility for the said children;
b)That the children live with the mother;
c)That the children spend time with the father for a period of two hours each fortnight supervised at the Wollongong Catholic Care Contact Centre; and
d)That the mother and father be restrained from removing the said children from the Commonwealth of Australia.
In previous proceedings between the parties final orders as to parenting were made by consent on 31 January 2011. Those orders in summary provided:
a)That the mother and father have equal shared parental responsibility for the children;
b)That the children live with the mother;
c)That the children spend time with the father as agreed between the parties, and in default of agreement:
i)Each Wednesday from 5:30pm to 9:00pm, supervised by the mother;
ii)Every second weekend from 9:00am Saturday to 3:00pm Saturday and from 9:00am Sunday to 3:00pm Sunday, supervised by the mother; and
iii)Otherwise as agreed between the parties.
The orders provided further that the father had telephone contact with the children at least twice per week, that the father enrol in and complete and anger management course and parenting course within six months from the date of orders.
The mother’s application was first listed before the Court on 6 June 2012. On that day the parties were directed to attend a child dispute conference, the mother was ordered to file and serve a notice of abuse and an Independent Children’s Lawyer was appointed to represent the two children. Proceedings were adjourned for further directions to 17 July 2012.
On 17 July 2012, the matter was further adjourned to 30 October 2012 with the parties given leave to file terms in Chambers appointing a single expert.
On 31 July 2012 the Court made orders by consent in Chambers appointing Dr K as the single expert in the proceedings.
Relevantly on 14 November 2012 proceedings were adjourned for hearing to Wednesday, 20 March 2013 allocating three days for trial. The Court made trial directions and made further orders that provided:
a)That the mother be restrained from causing or facilitating the child [Y]’s further attendance upon family therapist Ms P, or any other health professional except in cases of emergency without the consent of the Independent Children’s Lawyer;
b)That the parties do all things necessary to attend upon the Catholic Care Contact Centre, Wollongong, so as to facilitate the commencement of the children’s time with the father supervised by that organisation. The Court ordered that the mother must deliver the children to and collect the children from the Contact Centre at times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity prior to the commencement of contact time.
At trial the mother relied upon the following documents:
a)Her amended initiating application filed on 12 March 2013; and
b)Her affidavit filed on 12 March 2013.
At trial the father relied upon the following documents:
a)His amended response filed on 11 March 2013;
b)His affidavit filed on 12 March 2013 and his further affidavit filed later on 8 May 2013;
c)The affidavit of his mother, Mrs M, filed on 21 May 2012; and
d)The affidavit of his father, Mr M, filed on 21 May 2012.

Proposals

The orders proposed by the mother at trial were set out in Exhibit D2 and, in summary, relevantly provided:
a)That the mother have sole parental responsibility for the children;
b)That the children live with the mother;
c)That the father spend time with the subject children [Y] and [Z] as follows:
i)Until 30 June 2013, for two hours per fortnight to be supervised at the [omitted] Catholic Care Centre, or such other Contact Centre as may be agreed between the parties;
ii)Thereafter and until 30 September 2013, for up to four hours per fortnight, such time to be supervised by a professional contact supervisor and such time permitted to occur outside a Contact Centre at the discretion of the supervisor;
iii)Thereafter and until 31 December 2013, for four hours per fortnight, such time to be supervised by a person to be nominated by the father and agreed to by the mother;
iv)Thereafter until 1 July 2014, between 10:00am and 5:00pm each alternate Saturday to be supervised by a person to be nominated by the father and agreed to by the mother;
v)Thereafter until 1 January 2015, each alternate weekend from 10:00am Saturday to 5:00pm Sunday to be monitored by a person nominated by the father and agreed to by the mother, with such monitoring to involve that person attending upon the father and the children on at least two occasions on each day;
vi)Thereafter until 1 July 2015, each alternate week from after-school Friday to 5:00pm Sunday;
vii)Thereafter until 31 December 2015, each alternate week from after-school Friday until before school Monday; and
viii)Thereafter commencing from 1 January 2016, each alternate week during school terms from after-school Friday until before school Monday and for one half of the New South Wales school holiday periods.
Otherwise the mother sought various specific issues orders that in summary provided:
a)That the father be restrained from bathing or toileting the children and do all things necessary to ensure that he is not naked in the children’s presence;
b)That each party be restrained from physically disciplining the children;
c)That each party be restrained from denigrating the other in the presence or within hearing of the children;
d)That on any occasion when the children are spending overnight time with the father he shall ensure that the children have a separate bedroom;
e)That the father be authorised to receive reports from the children’s school in relation to the progress;
f)That the father be restrained from attending upon any function at the children’s school until no less than 12 months from the date of orders;
g)That the father be restrained from attending upon the mother’s home unless in accordance with these orders or otherwise agreed in writing by the mother;
h)That the father be solely responsible for any costs associated with supervision of his time with the children pursuant to orders; and
i)That both parties be restrained from removing or attempting to remove the children from the Commonwealth of Australia.
At trial that the father sought orders in terms of the orders in his amended response filed on 11 March 2013, that, in summary, provided:
a)That the orders of 24 January 2011 be discharged;
b)That the father have sole parental responsibility for the subject children;
c)That the children live with the father;
d)That the mother spent time with the children in accordance with any recommendations made by Dr K or their therapist;
e)Or in the alternative, the children live with the mother and spend time with the father as follows:
i)From 12:00pm to 2:00pm on the first and second Sundays following the making of orders;
ii)From 9:00am to 1:00pm on the third and fourth Sundays following the making of these orders;
iii)From 9:00am to 5:00pm on the fifth Sunday and each Sunday thereafter for a period of three months;
iv)Commencing on the first Saturday in the month three calendar months from the date of orders from 9:00am Saturday to 5:00pm Sunday each alternate weekend;
v)Commencing on the first Friday in the month six calendar months from the date of orders from Friday 6:00pm and to Tuesday 9:00am each alternate weekend and each Wednesday evening from 6:00pm to 9:00am Thursday;
vi)For half of all school holidays;
vii)For four hours on each of the children’s birthdays and the father’s birthdays;
viii)In the event that the mother’s birthday falls upon a day the children would be spending time with the father, then such time be suspended for that day and the children spend time with the father for an additional day in the following week;
ix)That the father shall not have the children on the weekend which includes Mother’s Day, but in substitution, the father will have the children with him on the following weekend;
x)On Father’s Day in each year, if this falls on a weekend on which the children would not otherwise spend time with the father; and
xi)At such other times as may be agreed between the parties.

At the commencement of the trial the Independent Children’s Lawyer (ICL) had not formed a view and was not in a position to inform the Court as to orders sought.

Background

At the commencement of the trial, the Independent Children’s Lawyer’s outline of case was marked into evidence as Exhibit C. That document included a detailed chronology that was substantially adopted by both the mother and the father. The Court was greatly assisted by the chronology which was crossed referenced to the parties’ trial affidavits.
The mother is presently aged 35 and was born in the Philippines. The maternal grandmother is Philipino and the maternal grandfather Scottish. The mother is an only child. Her parents were married for only three years before separation and the mother had little contact with the father.
Regrettably, as will be seen later, her father interfered with the mother sexually when she spent three weeks with him at the age of 13. The mother also complains of being sexually abused by her aunt, who was a prostitute at the time, and one of her aunt's customers when she was aged 8. The mother engaged with the [omitted] Sexual Assault Service from October 2003 until 10 December 2003 in relation to these issues but voluntarily disengaged with that service thereafter (Exhibit L). The father was aware of the mother's history in this regard.
The maternal grandmother resides in Sydney but suffers from some mental illness. As a consequence, the mother has little social support in the community, living on her own with the children. The mother refuses to contemplate calling upon the father for assistance when needed.
The father is presently aged 32 and was born in France. His parents reside in France. He also has little social support in the community, living alone in a one bedroom apartment in [suburb omitted] since January 2011, where he has bunk beds for the children. The father purchased the apartment for the sum of $185,000 with a mortgage of $165,000 and acknowledged that he would be unable to maintain his mortgage payments should he not be able to work full time..
The father proposes that the child [Y] attend [omitted] Public school and that the child [Z] attend a preschool nearby, with the children to remain in their present circumstances until the end of this year. At trial there was little evidence as to the availability of before and after-school care to assist the father should the children live with him. Nor had the father made any enquiries as to the availability of preschool on a five-day week basis for the child [Z].
The father's plans for the children during school holidays were also unformed and there is some doubt as to whether he would be able to make appropriate arrangements for the children’s supervision, should he be required to work in the event that the mother was unavailable. In his oral evidence, the father proposed to speak to the school principal in an endeavour to establish social supports, should the children live with him.
The father is presently employed as a [omitted] in Sydney, working Monday to Friday from 7:30am to 4:30pm and as at the date of the trial was not working weekends but had previously worked some Saturdays from 8:00am until 12 noon. He usually arrives home between 6:00 and 7:00pm during the week and leaves early in the mornings. The father acknowledged in his oral evidence that there was no real prospect that his employer could relocate him to a worksite closer to his home. His planning, he asserted, was contingent upon the outcome of these proceedings.
The mother came to Australia in about 1984.
In February 1998, her son [X] was born of another relationship. [X] is presently 15 years of age but during the cohabitation was part of the parties’ household. The child suffers from Asperger’s syndrome that is within the autism spectrum. Regrettably, the mother has enmeshed the child in her own perceptions and conclusions as to the nature of her relationship with the father and her allegations of his improper conduct in relation to the child [Y], to the extent that the prospect of any relationship between the child [X] and the father is at best problematic, this notwithstanding, that the parties planned to adopt the child during their cohabitation, and that the child has adopted the use of the fathers surname.
In late 2004 the mother and father met, with the father being in Australia on a working visa. The parties commenced a relationship and in February 2005 the parties commenced cohabitation.
The father was able to remain in Australia on a de facto visa with the mother, at that time, employed part-time as a [omitted] and the father unemployed until 2006 when the father obtained full-time employment as a [omitted].
In [omitted] 2007 the eldest child of the relationship [Y] was born. [Y] is now six years of age.
On [omitted] 2007 the parties married and in October 2007 the parties relocated with the then children to France, proposing to live there permanently. At first the parties resided with the father’s parents with whom the mother had a difficult relationship.
In [omitted] 2008 the youngest child of the relationship [Z] was born.

2009

The parties purchased a home in October 2009 in an area about 60 km to the east of Paris.
There is no doubt that the mother experienced the parties’ period in France as socially isolating and psychologically confronting, resulting in her resorting to alcohol and feeling depressed and having feelings of lack of self worth. The father acknowledges that whilst in France the mother complained that he was not helping enough within the home and with the children.
Whilst in France the mother was becoming concerned as to the father’s discipline of the children, observing him to hit the children regularly on their bottom or arms and legs. The father conceded that he used physical discipline on the children and that he would reprimand them in a loud voice, agreeing that his tone “made everyone nervous".
The father further acknowledged that on occasions he would lose his temper and smack the children. The father's disciplining of the children was a source of conflict between the parties.
As to the parties relationship the single expert offered this insight:
That the mother would show a pattern outwardly of compliant and constructive behaviour whilst inwardly having storms of negative emotion. And it was my view that it was likely that this is what occurred with the father. I formed the view that the father was not deliberately or – sort of with intentional disrespect imposing a pattern of family violence on the mother. But that the father as a pretty concrete sort of guy would have strong views about things, and the mother would have a storm of distress inside her about his lack of respect and about his control whilst outwardly complying.
So, I formed the view that the relationship was unfortunate in the degree of distress and alienation that the mother felt, but that there was a large contribution to that from the mother’s personality difficulties, as well as some contribution from the father’s rather black and white concrete way of being. That it wasn’t as simple as a sort of unilaterally imposed pattern of family violence brought from the father. So, that’s the way in which I meant that the pattern continued. Because the two previous relationships had been similar in that the mother had been extremely distressed about aspects of them, but had continued in those relationships.
In early 2009, the mother returned to Australia for a period of about ten days and all three children remained in the father’s care in France.
In late 2009 the mother says that she had concerns about the way in which the father interacted with the eldest child [Y] particularly when he was changing the child’s nappy. At this time the child [Y] was about 2 ½ years of age. The mother asserts and the father concedes that he would say to the child “show me your kiki”. Notwithstanding the mother's complaint, the father continued to use the term when changing the child [Y].
The mother suggests that the word “kiki” means vagina in French. Whereas the father reasserts that it is French colloquialism for “little girl’s private parts” and was not a rude term. The meaning of the word was ultimately never really explained however the father acknowledged that he told the police later that the term referred to a girl’s vagina.
As to this issue the following exchange took place between the father and the Independent Children’s Lawyer:
Mr Matera, can I just go back to the word “kiki”?---Yes.
“Show me your kiki”. Your evidence here was that in French it means a little girl’s private parts?---Yes.
When you say private parts, what’s included in private parts?---I don’t know how to explain it. What she – what she got under the – what she got in front of the insides of her undies.
Right. Okay?---I don’t know how to explain in English.
All right. Well, can we do it this way. Does it include everything that’s inside her undies? Does it include her bottom?---No, not the bottom.
Not the bottom?---Yes.
Okay. All right. So it’s basically the whole of the area between her legs that’s inside the underwear or inside her nappy?---Yes.
Later the following exchange:
And she complains in her affidavit, she says instead of saying to her something like, “Come and change your nappy” you would say, “Show me your kiki”?---In French, yes.
In French?---Yes.
And she says that she would say to you, “Don’t say that. It makes me uncomfortable”?---Yes.
Do you agree with that?---Yes.
She said that to you?---Yes.
Did you not think it would be a good idea for you to say something different, to change what you said to [Y]?---Yes. I wish I said something differently. Maybe I hurt – I hurt her feeling. Yes.
So you say that now?---Yes.
At the time?---At the time I was – I didn’t like what she was telling to me, why she was saying that.
You didn’t see any difficulty at all with you saying to your daughter, “Show me your kiki”?---In French, no.
And when you say “In French, no”, why? Is that something that’s commonly – an expression commonly used - - -?---Yes.
- - - in France?---Yes.
With little girls?---Yes.
It’s a different expression for little boys?---Yes.
What’s the expression for little boys?---“Show me your zizi”.
Did you use that expression with [Z]?---Yes. Sometimes.
Did Ms Matera complain about that?---No, never.

2010

In July 2010, the mother and the 3 children returned to Sydney. The mother moved in with the maternal grandmother in Sydney and several weeks later they were joined by the father.
On returning to Australia the father resumed his previous employment as a [omitted].
Following her return to Australia and in September 2010, the mother commenced to attend upon a psychologist, Ms W, to help deal with her depression and anxiety. Dr P of [K] referred the mother under a Mental Health Plan.
The mother disclosed to Ms W that prior to her return to Australia from France she had seen a psychiatrist in France in May 2010 who had prescribed her Prozac for depression. The mother identified stressors including moving back to Australia from France, living with her mother, who had serious mental illness, and unhappiness in her marriage. The mother related experiencing significant depression in which she had suicidal thoughts. She had turned to alcohol and shopping to manage her mood.
In early November, after 6 sessions, Ms W reported that the mother’s depression was unstable and that it would be necessary to address personal vulnerability issues due to some aspects of her childhood and early adult life. In a report letter of the 31 December 2010 to the referring practitioner, Ms W noted a minor improvement in the mother’s depression with the mother expressing concerns over marital issues, particularly trust issues over money. In session notes on 1 November 2010, the mother expresses in some detail concerns arising from her unfortunate reunion with her father and her sexual abuse at his hands. The psychologist notes “sometimes worries about [Mr Matera] molesting [Y] but no evidence”.
On 22 November 2010, the mother told psychiatrist “that she has been abused by a number of people and had to be vigilant to other people’s behaviour and motives”. Then, on 3 December 2010, the mother informed the psychologist “she was stressed by marital conflict–sick of fights. [Mr Matera] has said he wants to separate, she has suicidal thoughts”.
On 13 December 2010, the mother informed her psychologist that she and the husband had dismissed wanting to make the relationship work.
On 20 December 2010, the mother informed her psychologist that she was again thinking of separation and that the father had admitted that he had an anger problem. The mother expressed the fear that “we are impacting on the kids”. Then on 17 February 2011, the mother informed her psychologist that she had separated from the father “following concern that he had touched [Y] inappropriately, nothing clear, no charges laid but AVO in place”.
In December 2010, the child [Y] was referred by her general practitioner to Ms C, a child psychologist. The child attended upon

Ms C on two occasions, resulting in Ms C making a report to the Department of Family and Community Services regarding disclosures made by the child through the mother. At no time was the father consulted or given the opportunity to engage with the child psychologist.
On 22 December 2010, the mother informs the father that the child [Y], then aged three years and seven months, had said something bad about him. The mother then asserts that she became seriously concerned about the father’s behaviour with the child [Y] and that the child had complained on two separate occasions that the father had acted inappropriately towards her. The mother asserts that the child said: “Papa pinches and bites my kiki”.
The mother further asserts that following disclosures to her, the child began wetting her bed with increasing frequency and on occasions hide under the table and the bed. She further asserts that the child changed her underpants several times a day and had night terrors.
On 27 December 2010, the father acknowledges that the child [Y] when sitting next to the mother said “Papa bit me, Papa hurt me”. The parties agreed at that time that the child should consult a psychologist.
On 31 December 2010, the mother confronts the father again expressing concern about what was being said by the child [Y]. On that day the mother was sitting next to the father, called the child over and says to the child “has anyone hurt you?” With that the child points to the father and says “Papa”. The mother then says to the child “Can you point where he hurt?” and the child points to her groin area. The father angrily denied the child’s assertions.

2011

Subsequently, the father moved out of the matrimonial home to a flat in [omitted] in the first week of January 2011. Over the next few weeks the father alleges that he stayed overnight in the matrimonial home on two occasions and spend other time with the children. The mother maintains that she did not leave the children alone with the father when he visited the children.
On the 4 January 2011, the mother obtained a Mental Health Plan Referral from her general practitioner Dr F for the child [Y] as to the child’s assertions of “inappropriate touching”. The referral notes the mother’s history of mental illness of “depression and anxiety”.
In early January 2011, the mother again attended upon Ms C, Clinical Psychologist. On the basis of the mother’s history given to Ms C of the father inappropriately touching the child, a notification was made to DFCS by the psychologist. In Ms C’s notes the mother is reported to have said that she had questioned her children “about the father touching them”. There was no temporal context as to when the mother did this. However in play assessment on the 6 and then the 13 January 2011 the child made no disclosures to the psychologist.
On 14 January 2011, the parties agreed to final orders as to property settlement and orders were made by consent. Notwithstanding the mother’s ingenuous complaints as to financial coercion by the father during the cohabitation she retained the whole of the net proceeds of sale of the parties’ French property in the sum of $159,000.
On 18 January 2011, the mother was required to bring the child [Y] to an interview with the JIRT team at [K] and on 21 January 2011 the police sought an apprehended domestic violence order against the father for the protection of the child [Y]. However, prior to the JIRT interview the mother was spoken to by a DFCS officer and concerns were expressed as to the mother’s leading questions of the child. The mother also confirmed her own hyper vigilance as a consequence of her own history. Subsequent to the JIRT interview, the JIRT officer expressed concerns as to any disclosures made by the child as a consequence of the mothers repeated questioning of the child, expressing the concern that the child’s responses are now “just to please people”.
On 24 January 2011, the parties agree, somewhat surprisingly, to final consent orders as to parenting that provide for the children to live with the mother and for the father to have time with the children each Wednesday from 5:30pm until 9:00pm and each second weekend from 9:00am Saturday until 3:00pm Saturday and 9:00am Sunday until 3:00pm Sunday with the time to be supervised by the mother.
The mother asserts that her solicitor drafted the orders and that she “did it for him”, that is the father. The father gave evidence that he consented to the orders because he wanted to reconcile with the mother and conceded that he did not undertake the anger management course or the parenting course as provided for in the consent orders. The father subsequently participated in an anger management course in late September 2011 and a parenting course in May 2012 and engaged in some counselling.
On 25 January 2011, the father was interviewed by the JIRT team and on 3 February 2011 a final apprehended domestic violence order was made for a period of five years in general terms presumably for the protection of the child [Y]. Relevantly in relation to the father as defendant the orders, inter-alia, provide “the defendant must not approach, contact or telephone the protected person by any means whatsoever except through the defendant’s legal representative or as authorised by a parenting order under the Family Law Act 1975 unless the parenting order has been varied, suspended or discharged under section 68R of the Family Law Act 1975.”
In March 2011, the mother relocated from Sydney to a 2-bedroom unit in the Wollongong area with the children.
On 15 March 2011, the mother telephoned an officer from the JIRT team at [K] saying that she had had time to think about the allegations made in relation to the child [Y] and that she didn’t think that anything could happen to and the information may have been misinterpreted or taken out of context.
The father asserts that he assisted the mother in her move to the new residence and that indeed from early March until sometime in April he was residing with the mother and children as husband and wife. During this time the children commenced attending the long day care centre at [omitted]. In April the family had an outing to [omitted] and later that month the father took time off work to care for the children whilst the mother was unwell and took the child [X] to hospital in relation to his tonsils.
In April 2011, the mother commenced attending upon the [omitted] Community Health counselling team and became engaged with the Illawarra Family Services and the Staying Home Leaving Violence Scheme. Her counsellor at Community Health was Ms B.
By May 2011, the mother, by reason of her involvement with agencies providing education to women about domestic violence, asserts that she at that time commenced to realise that she had been a victim of domestic violence in her relationship with the father. Indeed it appears that she has more recently made a claim for compensation through her present solicitors for herself and the children.

The mother on 29 April 2011 says to her counsellor that she is confused, as the father has been nice and considerate. She says that she is concerned about how nice the father is being and can’t trust his actions.
Then on 3 May 2011, the mother confides in her psychologist Ms W that she is concerned that she was emotionally abusive to the father.
However, over the period from late April 2011 until August 2011 the father was spending regular time with the children and the mother. This included over-night time. In May 2011 the father spent time with the younger children alone whilst the mother was at hospital. He otherwise took them bike riding alone and overnighted in the mother’s home on 22 nights from late May to August 2011.
The mother asserts that during this period it was only by reason of the father’s insistence that he was allowed into her home and that he was staying at her home for over nights and weekends. The mother further asserts that the father sought to pressure the mother into a resumption of their relationship. The mother concedes that the father sought to spend more time with the children and to spend time alone with the children.
On 6 May 2011, the mother tells her counsellor that the husband had spent time at her home over the weekend as she was having suicidal thoughts. On 17 May 2011 the mother confides in her counsellor as to her childhood with her own mother and that her own mother was physically abusive. The mother is advised to see a psychiatrist for help.
In May 2011 the mother says that the child [Y] woke during the night and was confused, as she had no underpants on. The mother asserts that the child said to the mother “don’t tell Papa, he will get angry.” The mother says that at this time the father had been staying overnight and had been sleeping in the child [X]’s room. Yet in cross-examination the mother conceded a perfectly plausible and innocent explanation was possible.
By mid 2011, the mother insisted that the father comply with orders as to his time with the children and thereafter the father’s time with the children did not generally take place at the mother’s home. On one occasion the father smacked the child [Z] hard and was reprimanded by the mother.
In June 2011 the mother informs the counsellor that the relationship with the father is difficult as he was becoming threatening and aggressive in relation to the ongoing supervision of his time with the children. She further complains that the child [X] is exposed to the conflict between herself and the father. The mother informs her counsellor that the child [Y] had been asking about the father and missing him. The child is questioning as to why the father is not living with them.
In June 2011 the father commenced seeing a psychologist, Ms K.
The mother asserts that upon her ceasing the father’s supervised time with the children in August 2011, [Y]’s bedwetting had reduced and she had ceased bedwetting by late September 2011.
On 18 August 2011, the father received an abusive phone call from the mother during which she told him to go back to France and disappear from their lives.
Then on 21 August 2011 the mother informs the father that she had taken an overdose of antidepressant medication. The father attended at the mother’s home and looked after the children unsupervised whilst the mother was attended to. This is the last occasion that he sees the children at the mother’s home at [omitted].
On 22 August 2011, the mother tells her counsellor that she is finding it difficult to supervise contact. She informed her counsellor that the father has threatened he will go back to Court and apply for full access with the children. That day Ms B refers the mother to the Staying Home Leaving Violence service.
On the 24 August 2011, the father’s solicitors wrote to the mother seeking to vary the existing arrangements to allow the father to see the children without supervision. On 4 September 2011, the father spends time with the children supervised by the mother. The mother calls the father a pussy and a coward and tells him that the child [X] doesn’t love him.
On 14 September 2011 the mother cancels the father’s arranged time with the children and makes no other arrangements for the children to spend time with him.
Yet the mother concedes that communication between herself and the father was polite and non-aggressive. The mother further concedes that the father’s time with the children since January 2011 was not as contemplated by the orders made at that time.
The mother further asserts that in late 2011 she was driving the child [Y] to a park and the child reported being upset about an incident that occurred with her father. The child, asserts the mother, says “they wouldn’t stop laughing at me. They pulled undies on my head and stockings on my arms and they just kept laughing at me. They didn’t even say sorry. [Z] didn’t even say sorry to me. Papa touched my kiki to.” The mother asserts that some months later in 2012 she questioned the child [Z] about this incident and the child said “Papa put her undies on her head and it was very funny. She didn’t have any clothes on.”
The Court treats the mothers evidence in relation to the conversation is set out in the previous paragraph with some circumspection. On the mother’s evidence the father has had little or no unsupervised time with the children since separation and it appears that the prospect of the father behaving in a manner the mother asserts was complained of by the children seems improbable.
The mother, on 16 September 2011, made contact with a supervised Contact Centre at [omitted]. The mother acknowledges that her proposal in this regard was a substantial reduction in the children’s time with the father.
Subsequently the mother refused to attend mediation at the Family Relationships Centre at [omitted].
On 16 October 2011, the mother signed a supervised contact agreement at the Interrelate Contact Centre at [omitted] and the father spent supervised time with the children on 5 November 2011. The children are reported to have been happy to see the father and they had a good time together, yet on 7 November 2011 the mother called the Contact Centre complaining that she did not have a positive rapport with the supervisor and wanting another supervisor allocated. The mother was critical of the supervisor’s techniques in trying to ensure a smooth transition to the children’s time with the father. The mother informs the case worker at the Contact Centre that “my daughter will not be alone with him”. She then goes on to say that “He is looking squeaky clean”. The mother expresses her concerns that the father will get custody of the child [Y]. The caseworker engages the mother in supportive counselling for about an hour and a half and notes that the mother sounded highly anxious, that she was speaking rapidly on the telephone and began to cry when speaking to the case worker.
The mother’s father died on [omitted] 2009. It appears that she was informed of this on [omitted] 2011. On that day she spoke to her counsellor Ms B. The mother reported having flashbacks and nightmares in relation to past issues with her father. She said that she felt alone and that no one would protect her and her daughter.
On 19 November 2011, the father was only provided supervised time with the child [Z]. The mother asserts that after the supervised contact session with the father of the child [Y] began wetting herself during the day and resumed night bedwetting. The mother asserts that the child has become increasingly reluctant to separate from her at the centre and thus she did not make the child available. In cross-examination the mother was at a loss to explain the change in her daughter's presentation.
On 3 December 2011, the mother cancelled a supervised contact appointment and the father saw neither of the children.
Then on 17 December 2011, the father commenced to spend time with both children at the Contact Centre but the child [Y] leaves after only 5 minutes after being reluctant in transition. Thereafter, the Centre was closed over the Christmas period until 7 January 2012.
The mother failed to facilitate any time at Christmas for the children with the father. On 28 December 2011, the mother called the Contact Centre saying that she was finding the sessions difficult and stressful when she goes home. She stated that the child [Y] was having a problem with separation anxiety and bedwetting. She confirmed that the child [Z] loves his father. She wanted to know what the centre could do to make it work. She said that she did not feel positive

2012

On 14 January 2012 the father was advised by the Contact Centre that he would be only able to see the child [Z]. This occurred again on 28 January 2012.
On 11 February 2012 the mother cancelled the supervised contact visit giving no reasons.
Then on 25 February 2012 the father spent supervised time with both children at the Contact Centre. The child [Y] greets him warmly with kisses and hugs and was happy to see him but she only remained for 15 minutes, leaving with the mother.
On 10 March 2012, the mother cancelled the supervised contact visit asserting that she was unwell. The mother makes various complaints about the centre and the caseworker saying that she will take her complaints to DFCS, the ombudsman and management.
On 14 March 2012, the mother speaks to the counsellor and informs her that she is experiencing flashbacks from her own child sexual assault and her daughter’s experience. The flashbacks are happening frequently during the day and night and she is having dreams. The mother says she is remembering more information.
On 16 March 2012 the mother filed the present application before the Court.
The mother cancelled the supervised contact visit on 24 March 2012, alleging that both children were sick.
On 7 April 2012 the paternal grandparents arrived from France for a short visit.
On that day the mother only made the child [Z] available for supervised time, asserting that [Y] was distressed and refusing to go. However documents from the Contact Centre note that both children on arrival immediately walked into the Contact Centre before the mother called the child [Y] back. The child [Y] was observed to hesitate and then walk back to the mother saying “I don’t want to go, I want to stay with mummy”. The child [Z] spends time with the father. The mother engages with the caseworker regarding policies and procedures at the Centre. On leaving the centre the father finds a package on his windscreen presumably left by the mother informing him of a new Contact Centre at Wollongong.
On 16 April 2012, the mother tells her counsellor that the child [Y] did not want to see the father but that [Z] did. The mother also told the counsellor that she was agreeable to the paternal grandparents visiting the children.
Then on 21 April 2012 the mother only makes the child [Z] available for supervised time with the father and the paternal grandparents. The mother alleges that the supervisors suggested that by reason of the child [Y]’s distress it was best for her to cease contact. There is no support for the mother’s contention in material produced on subpoena by the Centre.
On 30 April 2012, the mother informs her counsellor that she had met with a new caseworker at the Contact Centre as the child [Y] had not wanted to attend. The mother informs her counsellor that the Contact Centre had recommended that visits with [Y] be suspended. There is no truth to the mother’s assertions in this regard
On 4 May 2012, staff from the Contact Centre telephone the mother. The mother informs the staff that she was unwell and unable to bring the children to contact the next day. The mother was further informed that the Centre is impartial and not in a position to decide whether the child [Y] can or cannot see the father. The mother was critical of the Centre and was offered a meeting with the coordinator and manager of the Centre. The mother refuses. The mother complains that no one is listening to her daughter and until she is given a solid answer about a number of things she will not bring the child. The mother then cancels the father’s supervised contact on 5 May 2012.
The mother concedes in her oral evidence that the child [Z] wanted to spend more time with the father, as did the child [Y] who liked her time with the father when the mother facilitated it.
On 19 May 2012, the mother brings both children to the Contact Centre. The caseworker asks the child [Y] if she would like to come into the centre with her brother to see her father. The child shakes her head and then runs to the cubby house to begin playing. The mother offers the child no encouragement to transition into the centre. The child [Z] enjoyed a warm and engaging time with his father.
In May 2012 the father commenced to attend upon Ms V for counselling and attended a parenting seminar.
On 21 May 2012, the father filed his response in these proceedings seeking orders that in summary provided for the parties to have equal shared parental responsibility, that the children [X] and [Z] live with him and spend defined time with the mother and that the child [Y] live with the mother and spend gradually expanding time with him.
On 16 June 2012, the mother writes to Ms C, psychologist seeking a brief report for the ongoing parenting proceedings. Although not having seen the child since early 2011 the psychologist suggests that the child [Y] would need weekly therapy to provide a containing environment for her where she would be able to deal with the trauma.
From July 2012, when the mother cancels supervised visits and then until December 2012 the father spends no time with the children. As to [Z], the mother concedes her actions were not in the child’s interest.
Prior to family interviews with the single expert which were to take place on 24 August 2012 the mother told the child [Y] that she would be seeing a doctor and talking about things and that she would see her “Papa”. The mother then warned the child that she might remember things but that the mother would be there and that the child would be safe. The Court considers the mother’s actions in this regard to be of significant concern.
On 24 August 2012, following interviews with the Single Expert, the mother questions the child [Y] who responds with further disclosures. The mother reports the child’s disclosures to DFCS who facilitate a further JIRT interview of [Y]. Yet prior to such interview the mother speaks to the child in a manner that could only result in the contamination of any anything said to JIRT by the child.
On 28 August 2012, the mother saw her counsellor Ms B. The mother stated that she was scared, worried and concerned that the Court would allow the father to have unsupervised time. She stated that it this was to happen she did not know how she would cope or manage. On returning to see her councillor on 4 September 2012, the mother tells the counsellor that the child [Y] has not been herself since the family assessment with the single expert and that the child has regressed. The mother asserts that the child is crying in her sleep and now sleepwalks.
[Y] is interviewed by the JIRT team on 12 September 2012. JIRT contact the mother and inform her that there was no context provided in relation to the child’s alleged disclosures or any other information suggesting sexual abuse. Upon speaking to the mother it was established by the JIRT team that the child had seen the father three times since October 2011 with one of those occasions being the appointment with the single expert.
On 26 October 2012, the mother enquired of the JIRT team at Wollongong what was happening in relation to their investigation. The mother was advised by the police that the matter will not be proceeding as there was no disclosure.
On 30 October 2012 the mother informs her counsellor that she was having dreams about the father taking [Y]. On 6 November 2012 the mother informed her counsellor that her dreams were continuing.
On the 8 November 2012 the mother and the child [Y] attend upon

Ms P, family therapist. The child tells Ms P that she had forgotten to tell her previously that she didn’t want to go back to see her father. The mother and Ms P discuss at this conference a letter in support of the mother’s application that the father have no contact with [Y]. On 9 November Ms P writes a letter to the Court expressing her opinion that it is not appropriate to force the child [Y] to attend contact against her will and that she supported [Y] not attending contact until further notice given her disclosures and her continued anxious presentation which may be as a result of a trauma response.
On 14 November 2012 parenting proceedings were again before the Court and on that day an order was made by consent that the mother be restrained from taking the child [Y] to the family therapist Ms P or any other health professional except in the case of emergency without the consent of the Independent Children’s Lawyer.
On 16 November 2012, the father was informed by the Wollongong Catholic Care Centre that supervised contact was due to commence on 1 December 2012 at that Centre.
On 19 November 2012 the mother makes a further report to the DFCS helpline saying that she was having a general conversation with the children about visiting their father when the child [Y] disclosed that she was scared to go on contact. The mother said that on asking the child why the child replied “daddy did a naughty thing to me, he put my undies on my head and touched my Kiki (vagina).”
The departmental note records that the harm for the child [Y] related to the mother’s own hyper vigilance due to her own childhood sexual trauma and her personal experiences of the father whom she alleges was a perpetrator of domestic violence. The departmental note further records that because of the mother’s own personal experiences, it is possible that she seeks out information from [Y] to support her belief in the sexual assault, that [Y] may feel the need to please her mother and to provide information that is not entirely accurate to meet her mother’s expectations. That same day the mother speaks to the counsellor Ms B making the same complaint and advising that she has also spoken to [omitted] police.
The mother thereafter cancels the initial supervised contact visit on 1 December 2012.
On the 15 December 2012 the children spent two hours with the father at the Contact Centre. The child [Y] made a bracelet but the mother refused to allow her to take it home. The mother concedes that the time went well. Yet she warned the staff to “not be fooled by the father”.

2013

On 12 January 2013, the child [Z] attends for supervised time but [Y] does not.
The child [Y] commences school in kindergarten in late January 2013. The child has some difficulties settling in at school and some absences from school, the mother asserts through illness.
On 3 February 2013, the mother cancelled the scheduled supervised contact visit.
On 15 February 2013, the mother informs the child’s teacher that the child’s father was a paedophile. The teacher refers the incident to the school principal.
On 17 February 2013, the mother presents the child [Z] for supervised time with the father but not the child [Y]. The next day the mother tells her counsellor that [Y] has been distressed in the mornings before school but the teachers tell her that the child settles in after 10 min and enjoys her day. The mother informs her counsellor that she took the children to the Independent Children’s Lawyer and that [Z] attended but [Y] was anxious and did not want to attend. The mother further informed counsellor that she had “prepared” [Y].
On 3 March 2013, the mother informs the supervised Contact Centre that the child [Z] was unwell and she would not be bringing the children to the Centre.
On 8 March 2013, the father is advised by the supervised Contact Centre that his parents who will be visiting from France have been approved to attend contact. The mother is informed of this and has no objection. The mother asks if [Y] only wants to see the paternal grandparents and not the father could she do this. The mother was told to encourage the child to see both the father and the paternal grandparents.

On 13 March 2013, the mother contacted the supervised Contact Centre saying that she had advice that third parties were not permitted for supervised time. The mother was advised no limitations that would exclude the paternal grandparents.
On 17 March 2013, the mother informed the supervised Contact Centre that the child [Y] would not be attending for contact with the father because of illness. The mother provided a medical certificate for [Y]. The child [Z] attends supervised time with the father and the paternal grandparents.
The hearing before the Court commenced on 20 March 2013 and on 22 March 2013 was adjourned part heard to resume on 20 May 2013.
On 22 March 2013 the mother and father agreed to interim orders allowing for supervised contact to continue through Catholic Care and under the supervision of the paternal grandparents using the Contact Centre as a changeover only.
Supervised time was to occur on 23 March, 24 March, 29 March and 30 March 2013 and then each Saturday from 9:00am until 1:00pm in addition to contact provided for in orders made on 14 November 2012.
Both children spend time with the father and the paternal grandparents on 23 and 24 March 2013. Notes from Catholic Care raise no concerns and reveal that the time was positive for the children and the father. The children then spent time with the father and the paternal grandparents on the 29 and 30 March 2013 and then again on 6 and 13 April 2013. The children spend further supervised time with the father on 20 April and 27 April 2013 in the presence of the paternal grandmother.
On 28 April 2013 supervised time took place between both children and the father. The overall assessment of the visit was that the father was able to engage well with both children and they both sought him out for attention. However, at the end of the session, the mother prompted the child [Y] to tell the caseworker what the child had previously told the mother. [Y] then told the caseworker that she “liked coming to visit the centre the best because there are people there to watch her”.
On 12 May 2013, the father and the paternal grandmother again spent supervised time with both children at the Contact Centre.
The mother, in oral evidence, denied requesting JIRT to reopen their investigation. The mother confirmed in her oral evidence that in the event that the child makes further disclosures she will notify DFCS “every time”.
Confronted with the Single Expert’s report and recommendations, the mother, in her oral evidence, somewhat unconvincingly asserted that she would focus on the children having a meaningful relationship with the father “from today”. The mother acknowledged that she had failed to provide information to the father as to schooling and health and failed to consult with him on any parental responsibility issue. When pressed the mother asserted that she would do so in the future.
On questioning by the Independent Children’s Lawyer, the mother agreed that if ordered she would attend therapy. She agreed that it was healthy for the children to spend time with the father and the past should be put behind. However she confirmed her belief that the child [Y] was “abused” by the father and that her own thoughts were unhealthy. When questioned as to her negative thoughts being transferred to the children, the mother acknowledged that she continued to feel anxious.
Notwithstanding that the mother told her counsellor that she had implemented separate sleeping arrangements for the children, in cross examination the mother conceded that both [Y] and [Z] continued to sleep in the same bed as her. The mother said it was up to the children to decide when they move out of her bed.
The father, in his oral evidence, acknowledged that in the event that the children were to live with him they would need therapeutic intervention but he had made no enquiries as to an appropriate therapist in the event that the Court made orders sought by him but would act on the Single Expert's recommendation. He proposed that in the event that the children were to live with him he would spend the first 10 days of that period with the children full time and then make such arrangements as he could in respect to before and after-school care for [Y] at [omitted] Public School and for the child [Z] to attend preschool five days per week.
The father acknowledged the nature of the children's relationship with the mother as reported by the Single Expert.

The Family Consultants Memorandum

On 6 June 2012 the parties attended a child dispute conference with a family consultant. The consequent memorandum was admitted into evidence as Exhibit B in the proceedings.
The memorandum noted that the mother's proposal was that she have sole parental responsibility for the children and that the father spend two hours a fortnight supervised time with the children [Y] and [Z] at the supervised Contact Centre at Wollongong. The father's proposal was that there be equal shared parental responsibility and that all three children spend time with him each alternate weekend and for half of the school holidays.
As to family safety factors, the memorandum notes the mother's allegations that the father was very controlling and coercive. The mother asserted that when she was in contact with the father she felt a negative impact on her self-esteem, her sense of confidence to parent and to make good decisions and her ability to be a capable and mindful parent. She further asserted that she feels anxious depressed and focused on trying to appease the father. The mother asserted that since she had had no contact with the father and has engaged in counselling that she had a more positive self-esteem and had experienced an ability to be a more mindful and considerate parent to the children.
As for the father he denied the allegations by the mother.
As to issues relating to the children in the memorandum noted the mother's allegation that the father had sexually assaulted the child [Y]. The father denied this allegation.
The mother told the family consultant that her concerns about the father being sexually inappropriate with the child [Y] grew over time, starting from prior to the parental separation and culminating in her belief that the father had certainly sexually assaulted [Y] after she had viewed the police recording of [Y]'s interview.
The mother also expressed concerns as to the father’s physical discipline of the children on a daily basis during their relationship. The mother noted that the child [X] had a largely negative relationship with the father as a consequence of the father’s continual criticism of the child and his derogatory comments towards the child.
Somewhat surprisingly, the mother informed the consultant that the child [Y] was refusing to spend time with the father at contact visits and refusing to attend the Centre. This assertion by the mother is contrary to the circumstances referred to above.
The memorandum recommended an expert child and adolescent psychiatric report be obtained together with relevant subpoenaed material.

The Single Expert Report: Dr K, Child Adult and Family Psychiatrist

On 19 December 2012 the Court released the Single Expert report by Dr K. The report was admitted into evidence as Exhibit A in the proceedings.
The report presents a details and comprehensive analysis of the subject family and has provided to the Court significant insight into the reasons for the history referred to above.
The mother was initially interviewed alone and then later that day with the children in the afternoon. The Single Expert provides an overview of the mother's presentation, her family and social supports, her work history, study and significant events in adult life, her past relationships and physical health.
The Single Expert notes that the mother had little contact with her own father but that when she did spend three weeks with him at the age of 13 he interfered with her sexually.
In the context of obtaining background information, the Single Expert spoke to the early childhood director and the early childhood officer at the [omitted] Children's Centre that [Z] and [Y] had attended. Enquiries were then made of Ms W, psychologist of [omitted] on whom the mother initially attended in September 2010 and Ms D, psychologist on whom the mother and the child [X] attended in relation to “effects of domestic violence on the family and in particular on [X]”.
The single expert then made enquiries of Ms M of the "Staying home, Leaving violence" service.
The Court has some reservations as to the involvement of the "Staying home, Leaving violence" service with the mother. The mother's history with the service was admitted into evidence and marked exhibit EE. The mother first engaged with the service it appears in August 2011. References to the father in the organisations documentation variously referred to him as the offender or perpetrator thus, by inference, making the assumption that any allegations made by the mother were, without question, correct. The mother’s mental health history was noted by the service to be one of "anxiety, depression and suicidal thoughts".
The "domestic violence" perpetrated by the father was described as "psychological and emotional control, threats and intimidation". The service procured on behalf of the mother a home security audit by a New South Wales Police Service Crime Prevention Officer. In a "Lethality and Risk Assessment” questionnaire the mother identified the following aspects of the fathers behaviour:
a)More frequent threats of violence post separation;
b)The father's extensive attempts to control meals, clothing and spirituality;
c)Using the children as a way of threatening the mother by reason of a history of the father undermining her parenting capacity;
d)Fears of the mother that the children may be taken to France; and
e)The father insisting on access visits with the children in her home post separation.
As a consequence of the Services involvement with the mother there is no doubt that she is firmly of the view that she and the children have all been victims of domestic violence.
The single expert put to Ms M of the Service his view that a pattern of paternal dominance can vary in the degree to which it arises from the maternal incapacity/vulnerability or maternal psychopathology and asked to what extent Ms M felt that they may have been a factor. Having had no contact with, nor having seen the father Ms M guessed that the father "saw her coming", that he was a "white collar perpetrator" who saw someone with vulnerabilities and to psychologically white-anted the mother.
As to the mother's interaction with this Service, the Single Expert regrettably observes:
When the “Staying home, leaving violence” team commenced working with the mother in August 2011 they conducted a “risk and lethality” assessment of the mother’s property, and improved security as a result. In my view, such an approach in this case underlines the mismatch of service and circumstance. The father’s recurrent attendance at the home had not resulted from control, entitlement, or threat or risk of violence. It had resulted from an unwise resolution of a sexual abuse allegation by assigning the mother as long-term supervisor of the father’s contact with the children, to which (as shown by the JIRT interview of the father in January 2011) the father was just as much a confused and uncertain party as the mother.
The involvement of the “Staying home, leaving violence” team assisted the mother greatly by helping to resolve her chronic ambivalence and self-doubt about making a clean split from the father, but it did so in my view by applying a false though enticingly clean and simple “script” to the circumstance, at cost to the mother’s personal insight and relational maturity, and at subsequent cost to the children’s relationship with the father.

Mental Health Assessments

The Single Expert formed the view that the mother has significant underlying personality vulnerabilities of the borderline type, and may well have a borderline personality disorder. He says that the hallmark of borderline personality functioning is instability in sense of self, in emotions, in thinking, and in relationships. The mother's presentation, he observes, is one of what can be termed a "high functioning borderline personality disorder", in that whilst she experiences intense inner instability, insecurity and distress, her outer presentation is mostly controlled such that she shows little or no overt aggression, behavioural dysregulation, or impulsivity.
In the context of these proceedings, is it is the Court’s view that it is important to record the Single Expert’s overview in relation to his psychiatric assessment of the mother [at 164-182 of Report]:
Borderline personality functioning typically results from instability, insecurity and adversity during childhood. The mother described experiencing a “perfect, beautiful and amazing” first five years of life, raised in the context of loving and active extended family relationships in the Philippines, in particular the loving attention of three maternal great aunts, who were “warm, fashionable, animated, and fun”. Her development may, however, have been in part been disrupted during this early period by the absence of a single stable attachment figure.
The mother then describes a sudden shift to an experience of adversity, when she moved with her mother to live in Australia. She was isolated from extended family, with only the care of her mother, who was suffering from untreated schizophrenia.
The mother couldn’t make sense of it. The maternal grandmother’s moods would change. The maternal grandmother belittled and emotionally abused the mother, called her stupid, hit her. She was controlling. The mother had to clean the house to be immaculate. The mother supported herself. She had no adult mentor.
The mother was quite bright, but was bullied at school.
The mother experienced sexual abuse. First, when she was aged 9, she was molested by her aunt and her aunt’s customer. She told her mother, who told her that she was a liar. Then, when she was 13, she flew to see her father in Scotland for three weeks. He groomed her, watched pornography with her, then sexually intruded upon her. She sat, and was numb. Then, when the child saw him again in late adolescence, he tried it again, and she said no.
On this background, the mother has had significant instability and insecurity in sense of self, some aspects of which include:
Her change of name, from [Ms Matera] to “[omitted]”, back to [Ms Matera] in the mid-2000’s
Obtaining breast implants in 2002, then having these removed in 2009.
Her anxious presentation to Ms W, full of self-doubt, fluctuating in perspective of where the problem lay and seeking the certainty of a “label” or “script”.
In intimate relationships, the mother has shown a pattern of disrespect to self, lack of assertiveness, and outwardly compliant and constructive behaviour, whilst inwardly experiencing storms of negative emotion:
When aged 14, the mother had her first sexual experience with [name omitted], the father of [X], who was 13 years older than her. The mother didn’t believe in having sex at that age, but said to herself, “well, I’ve already been tainted”. They remained in a relationship for some years.
In the early 2000’s (when aged about 24) the mother was dating a man whose sister had died. He was suicidal, but wouldn’t tell his family, would only tell the mother. So, she would lie awake worrying about him, and ended up distressed and prescribed sleeping tablets and tablets for anxiety and depression by the doctor.
In my view, this pattern continued in the relationship with the father.
Related to the above difficulties, the mother has a preoccupied adult attachment style, that is she tends to be preoccupied with, ruminate regarding, and to be emotionally reactive to the status of her intimate relationships.
The mother has had longstanding instability of emotions, with a likely longstanding associated anxiety disorder and depressive disorder, of fluctuating intensity. The mother described anxiety symptoms dating back to school years, including breathing difficulties and insomnia. She experienced an exacerbation of depression when she left high school, and didn’t want to leave the house. She became very depressed in France, and even had suicidal ideation, but did not act on these thoughts.
The general practitioner’s notes record the mother being treated with various antidepressant, anti-anxiety and sleeping tablets between 2001 and 2004, then again in October 2010 and May 2011.
The mother overall has had behavioural control. She has had unstable and impulsive thoughts, but not actions. In more recent years, the mother had difficulty with a secondary alcohol abuse, drinking up to a bottle of wine per night for a few months in France before she commenced antidepressants at that time. For over a year now, she has consumed alcohol only occasionally, and not to the point of intoxication. The mother engaged in some compulsive spending in 2010/ 11.
The mother has not used illicit drugs in the past, or currently.
The mother has consistently prioritised her responsibilities as a parent, such that she has protected the children from the impact of her own emotional and relational struggles, and has remained focussed on their needs. In fact, the mother’s preoccupied adult attachment style, whilst it can lead to her being rather emotionally intense with the children, also leads to her being very focussed on, thoughtful about and responsive to them.
Whilst the mother has been overall unassertive in intimate relationships, her commitment to the responsibilities of parenthood have led her to assert herself on behalf of the children. Thus, whilst the mother felt distress at many attitudes and behaviours of the father, the ones which she raised with him and argued about tended to be those involving the children, such as his high standards about their eating or not interrupting adult conversation, or his use of harsh tone or physical discipline with them.
In my view, the mother is capable and has shown herself to be capable of meeting the children’s basic needs for food, clothing, shelter, and protection from danger. She is capable of meeting their developmental and intellectual needs. Notably, the mother has been active and thoughtful in meeting [X]’s developmental needs, including special needs. This has involved attendance at speech therapy, advocacy with schools and treatment services, and the mother being sensitive to [X]’s vulnerabilities such as a need for routine and for clear guidance in complex interpersonal settings.
The mother in a day to day way is capable of meeting the children’s emotional needs. She is empathic and responsive to their emotional state, and can be comforting and containing. The mother’s emotional intensity and preoccupied adult attachment style have likely contributed to the younger two children’s emotional reactivity, noted by child care staff, but this is not present to a pathological degree.
At times, the mother may have fuelled rather than contained the child’s negative emotion, because her own negative emotion at that time was uncontained. In my view, this probably happened more during the periods of exacerbation of the mother’s symptoms of anxiety and depression, and in recent times in the context of handovers before and after contact visits.
The parental dyad’s capacity to meet the children’s emotional needs was disrupted during the latter period of their relationship by their frequent arguing, which distressed the children and led [X] (for example) to withdraw to his room rather than be exposed to the ongoing tension and fighting.
In my view, the mother’s distorted perceptions and judgements regarding the risk of paternal sexual abuse of the children has resulted in her unintentionally disrupting the children’s wellbeing and their relationship with their father, and hence not meeting their needs in that area.

The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent:

The Single Expert’s conclusions in this regard were not put in issue:
The mother told me that, to be honest, the best thing for the children would be for them to have no contact with the father, for them to heal. She felt that enforcing contact sends a message to the children that “the father still has rights to you”. She was worried that the father enticing the children into desiring contact with gifts was not psychologically safe for them, and was unwise in the context of there having been sexual abuse. She made the comment, “even a contact centre has to be psychologically safe”.
When the mother saw me at the end of the day, after I had seen the father with the children, the mother presented as somewhat distressed and agitated. She commented, “If [Mr Matera] had them alone… he’s a totally different person… [Y] would not be able to wear that dress… he’d continue to molest her”.
Earlier in the day, the mother had said, “To molest a child… to hurt a child… he was coming from a position of control…. We’re objects to him…”.
The mother is convinced that the father has sexually interfered with [Y], and in that context it is not surprising that her parental protective instincts are aroused, proportionately to that concern, and that she is unwilling and probably also unable to facilitate unsupervised contact which might lead to further “molestation”. In my view, she would only be able to support unsupervised contact if she altered her conclusions about the likelihood of abuse (an outcome which I believe would be profoundly in the interests of the children, but is unlikely), or if the child engaging in such contact was of an age where the mother felt confident that protective awareness and reporting ability in the child were sufficiently developed to mitigate against the risk of abuse.
The mother has developed an (I believe) inaccurate and distorted view of the father as controlling and emotionally abusive, and hence is unlikely to be able to encourage even supervised contact in the immediate future, and is likely to find something in the procedures or actions of even the best contact centre which she considers will disrupt the children’s “psychological safety”.
But, I believe that the mother would reluctantly be able to facilitate supervised contact if such contact was clearly and unequivocally court-ordered, and if she feared the consequences of not facilitating such contact more than the consequences of contact. (emphasis added)
The mother is empathically engaged with her children and respectful of their wishes. In my view, as [Y] and [Z] grow older and more capable of judgement and communication, if they were expressing a consistent desire to spend more time with the father, the mother would take this seriously and would seek to facilitate it if she could be satisfied that it could be made “safe”.
In my view, the father will facilitate and encourage contact between the children and their mother.
The Court considers that this factor favours the mother provided that her compliance with orders was mandated and she is aware in no uncertain terms that non compliance without reasonable cause could only result in a change of the children’s primary residence to the father.

The likely effect of any changes to the child’s circumstances including the likely effect on the child of any separation from either of his or her parents or any other child or other person with whom he or she has been living:

The Single Expert’s opinion was expressed succinctly:
In my view, a separation from the mother would be extremely distressing and disorganising for these children. She is their primary attachment figure with whom they have had an uninterrupted relationship from birth. Whilst the relationship with the father has been significant for the children, the relationship with their mother forms their primary relational foundation because she has (in my view) the greater capacity for empathic attunement, she has been the “softer” of the two parents, and she spent more time with the children because the father was in the primary employed role.
In my view, the father is committed to the children, but would struggle to be “good enough” to manage the emotional consequences of such a change, if the children were to come into his primary care.
I am concerned that if the children moved into the primary care of the father, the mother’s fear about the welfare of the children and particularly the risk of sexual abuse in the father’s care would create significant distress and disorganisation in her, such that for a significant period of time she would struggle to be a competent and emotionally contained contact parent, thus increasing the loss and anxiety experienced by the children.
The Court concurs with the Single Expert’s opinion. The father’s circumstances and unformed proposals, should the children move into his primary care at this time, at best leave the Court with the view that his ability to be the children’s primary carer is, at best, problematic.
This factor favours the mother.

The parties’ capacity to provide for the needs of the children including their emotional and intellectual needs:

This has been considered above in the context of a consideration of the mental state of both the mother and father. Both parties present with complex and difficult personality traits that present as both positive and negative factors. In the context of the Single Expert’s recommendations, a consideration of this factor favours the Expert’s primary proposal.

The maturity, sex, lifestyle and background of the children and of either of the children's parents, and any other characteristics of the children that the Court thinks are relevant:

This factor is significant to the extent that the Court is mindful of the children's ages in framing orders, particularly in the context of the Single Expert’s recommendations. Many of the factors considered are impacted by this consideration. The children are young and there is hope that the father child relationship can be rescued and the mother child relationship ameliorated by appropriate orders and the passage of time.
A consideration of this factor conditionally favours the mother.

The attitude to the child and to the responsibilities of parenthood demonstrated by each of the child’s parents:

This factor has been subsumed into the considerations above.

The primary considerations: s.60CC (2)

The benefit to the children of having a meaningful relationship with both of the child’s parents:

In Mazorski v Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Brown J considered ordinary definitions of the term “meaningful” and observed:
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark[2009] FamCAFC 92; (2009) FLC 93-405 the Full Court of the Family Court, at 83,476, accepted as appropriate this interpretation by Brown J of “meaningful relationship”. The Full Court observed at 83,476:
…Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a Court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage to a child.
The Single Expert considered this issue in the following terms:
If the father is thought to have sexually abused one or more the children, then there is no benefit to the children having an ongoing relationship with him.
If the father is shown to have perpetrated a pattern of family violence upon the mother and children, then the primary consideration needs to be the protection and recovery of the mother and children, and any contact with the father needs to be in a context and an amount that will not re-expose the children or the mother to family violence.
In my view, it would benefit the children greatly to have a meaningful relationship with the father, as well as the mother. This is true in general for all children, but is particularly relevant in this case because:
there are some vulnerabilities and instabilities in the maternal parenting system, that is the mother’s personality, mood and relational difficulties. This means that:
the relationship with the father would prove an important backup if in future the mother is temporarily or in a more ongoing way unable to contain or care for the girls. Without this backup, the children may persist in a harmful environment, or end up in alternative care.
the relationship with the father and the father’s side of the family can potentially balance or compensate for any vulnerabilities on the mother’s side. For example, the mother’s preoccupied attachment style and emotional intensity can be balanced by the father’s dismissing attachment style and more cognition-driven rather than emotion-driven approach.
Relationship with the father and father’s side of the family will keep the children connected with their French heritage.
Having regard to the Court’s findings as to unacceptable risk, set out above, the characterisation of the issue of “family violence” in the objective material before the Court and the Single Expert’s report, it is appropriate that the Court facilitate a relationship with both parents for each of the children.

The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence:

This consideration has more recently been given primacy by reason of the amendments to the Act.
The nuances of the parental relationship in the context of this consideration are many and complex. They have been well summarised in the Single Expert report as follows:
The degree to which the parental relationship was one characterised by a pattern of family violence is not clear to me.
I note that Ms W (consulting with the mother between September 2010 and mid-2012) Ms M (August 2011 to the present) and Ms D (July 2012 to the present) appear to concur that the mother experienced the father as angry, critical, blaming, and aggressive towards & demanding of the children, and that in response the mother herself experienced self-doubt, a loss of confidence and a loss of voice within the relationship.
Where the above therapists differ is that Ms W through the mother’s eyes perceived the father as “a distressed and lonely young man himself” and the mother’s insecurity as resulting from relational dissatisfaction and her own vulnerability, whilst the more recent two therapists once again through the mother’s eyes perceived the father as a perpetrator of family violence, which included domination, control, denigration, and psychological violence, and the mother’s insecurity as a contextual response to paternal domination.
My own perception of the father, based upon my own interview, the recorded JIRT interview of January 2011, and court documents, is closer to that of Ms W than that of the more recent therapists.
I have previously noted that in intimate relationships, the mother has shown a pattern of disrespect to self, lack of assertiveness, and outwardly compliant and constructive behaviour, whilst inwardly experiencing storms of negative emotion. In my view, the father because of his dismissing attachment style, accepted the mother’s compliance as assent, and whilst he perceived and was sensitive to her sadness did not perceive her distress at certain points of shared decision-making.
So, the issue was more one of relational difficulty than coercion. At the level of attitude, the father presented as respectful to the mother’s person and role, acknowledging of her strengths as a person and a parent, empathic to her emotional state, and expecting shared decision-making. His recollection of decisions about money, renovations, artwork to be displayed on walls, and larger decisions such as the move to and from France were that they were mutual.
I think it likely that the mother subjugated herself in distress at the cut-and-dried certainty of the father’s opinions and his lack of sensitivity to her hurt, and that the father did not appreciate the extent to which this was occurring. He was sensitive to her sadness (in the JIRT interview of January 2011 he said, “sometimes, [Ms Matera] is fragile, sometimes crying, not feeling the best”, and speaking with me he clearly understood how unhappy she was when in France), but not understanding the extent to which the mother was feeling unheard.
Similarly, the father’s attitude to the period between January and August 2011 was in my view respectful to the mother, not coercive. From his perspective, the couple had “argument problems” and there was the issue of the abuse allegations, so he and his wife were trying to sort this out, through him living elsewhere but visiting the family home. The mother was uncertain of her own perspective during that period and had difficulty setting personal and interpersonal boundaries, and the father filled that space with efforts to engage, such as cooking dinner or buying flowers.
In my view, the father does not demonstrate the majority of the attitudes and behaviours typical of family violence perpetrators. I make reference to a list based on a literature review in Bancroft L, Silverman J & Ritchie D (2012) The Batterer as Parent 2nd Edn. SAGE: Los Angeles.
In my view, the father has not overall been controlling or possessive of the mother. He had views about the children’s manners or behaviour, but gave space for the mother’s “calm” way of raising them. I prefer the father’s account of the time in France as one where the mother felt isolated and could not connect with his family or the school despite his best efforts, to the mother’s current retrospective account of the father executing control over her money and movements. The impression gained by Ms W appeared to be closer to the former than the latter.
The father does not present as entitled, or selfish and self-centred. He does not have an air of superiority. Externalisation of Responsibility, and Denial, minimization and victim-blaming are not prominent.
Two features of the above list are Manipulativeness and Confusion of Love and Abuse. The mother appears to retrospectively interpret the father’s efforts to reconcile or to extend his time with the children during 2011 in this way, but it is my view that at the time these were honest and respectful efforts to restore his marriage.
The mother has interpreted the father’s insistence on time with the children and talk of legal action in that regard as possessive of the children, but in my view these actions are consistent with the father’s commitment to his role as father and grief at disruption in the father-child relationship.
The father’s response to the sexual abuse allegations in January 2011 was not one of control or entitlement, and did not display the other attitudes listed above. Considering that the JIRT interview was carried out when these allegations were very “fresh”, the father shows a notable measuredness and respect for mother in general, for her role as a parent, and for the fact that the mother would be concerned if the child made the disclosure that she did. He places significant blame on himself for the family “argument problem”. This contrasts with the entitled, bombastic, aggrieved, unempathic, derogatory aggression which one often observes in the perpetrators of domestic violence when accused by their victims.
The father had an almost naïve lack of controlling behaviour after the abuse allegations were made. At interview on 25^th January 2011 he recounts that he agreed a month ago to the mother’s suggestion that she take [Y] to a psychologist. He was aware that [Y] had been taken to a psychologist once or twice with the mother, and appeared to have given space for her to do so without any control or intrusion, let alone a request to speak to the psychologist himself.
When the “Staying home, leaving violence” team commenced working with the mother in August 2011 they conducted a “risk and lethality” assessment of the mother’s property, and improved security as a result. In my view, such an approach in this case underlines the mismatch of service and circumstance. The father’s recurrent attendance at the home had not resulted from control, entitlement, or threat or risk of violence. It had resulted from an unwise resolution of a sexual abuse allegation by assigning the mother as long-term supervisor of the father’s contact with the children, to which (as shown by the JIRT interview of the father in January 2011) the father was just as much a confused and uncertain party as the mother.
The involvement of the “Staying home, leaving violence” team assisted the mother greatly by helping to resolve her chronic ambivalence and self-doubt about making a clean split from the father, but it did so in my view by applying a false though enticingly clean and simple “script” to the circumstance, at cost to the mother’s personal insight and relational maturity, and at subsequent cost to the children’s relationship with the father.
Of concern is the mother’s report that the father lied to her and placed her assets in his name when the family moved to France. The father’s account is that the mother had access to and made use of her assets in France, and still has them now. If the court finds that the father was controlling, deceitful or restricting of finances, in particular finances which properly belonged to the mother, then this is suggestive of a pattern of family violence.
Whilst in my view, the parental relationship was not one of family violence, in many ways, the mother’s experience of that relationship parallels that of the experience of women in a situation of family violence, in that she did “lose herself” and felt disrespected in the context of the relationship, and was not able to balance assertion with accepting the influence of the other. So, it is not surprising to me that the family violence “script” fitted with the mother’s experience and that she has found treatment and intervention based on that “script” affirming and useful.
The children, on the other hand (including [X]), in my view, did not have such a negative experience of the father, and their involvement in a perspective and interventions based on a “family violence” script has involved a significant distortion of their attitudes and memories. So, [X] describes a time when “I thought he [the father] was nice”, but now has re-written this story. He has written the father out of his involvement in pleasant activities such as fencing. [Y] describes the father as “nice sometimes”, but then has to wonder whether he is just “pretending to be nice”. [X] is confident that when [Z] grows up and “starts understanding things, and puts it together”, [Z] will also reject the father.
In the context of this consideration, the Court is well satisfied that its task is to ameliorate the relationship between the children and the father in such a circumstance that the mother does not, as it were, deconstruct herself and is given the opportunity to comply with graduated Court orders that would see in the minds of the children a reinforcement of their non threatening relationship with the father.

It is indeed the mother's reaction to and compliance with Court orders that represents a risk to the children in the context of this consideration.

Parental Responsibility

Both parties, in the event that the children were to live with them, sought an order that they have sole parental responsibility for the children. The Single Expert recommends that the parent with whom the children primarily reside have sole parental responsibility.
In this regard to court is mindful of the useful discussion on this issue in Lansa & Clovelly [2010] FamCA 80 by Murphy J.
The presumption provided for in s.61DA does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.
The Court has significant reservations in relation to this recommendation in that, having regard to the matters discussed above, the Court is not satisfied that the mother would not use that responsibility in a coercive or manipulative way so as to seek to interfere with the children's relationship with the father.
The Court is not satisfied in the circumstances of this matter that the presumption is rebutted by reason of abuse or family violence nor is the Court is satisfied that an order for equal shared parental responsibility would not be in the children's best interests.

Section 65DAA Question

Following a consideration of the factors set out above, the Court is well satisfied that it is not in the best interests of the children for there to be an equal shared parenting arrangement at this time nor that there be an order for substantial and significant time.
That question having been answered in the negative, the Court need not consider the second limb of the enquiry in terms of practicability.

Discussion

The Court is satisfied that that it is in the best interests of the children for the Court to make orders that provide for the parties to have equal shared parental responsibility for the children, that the children live with the mother and that the children have time with the father has substantially recommended by the Single Expert.
The Court is also satisfied that it is in the best interests of the children and their relationship with each of the parents that there be therapeutic intervention orders and injunctive orders as proposed by the Single Expert.
The Court will make orders accordingly.
However, it is appropriate for the Court to sound a warning to both of the parties in these proceedings, and primarily to the mother. In the event that, on the part of the mother, there is a failure, without reasonable cause, to facilitate the children's time with the father as ordered by the Court and a failure without reasonable cause to undertake ongoing therapeutic intervention as recommended by the Single Expert and as ordered by the Court, then the most likely outcome on appropriate application to the Court will be that the children will primarily reside with the father and that the mothers time with the children at least initially will be significantly constrained.
As to the father, he is to be mindful that the orders to be made by the Court are fashioned in a way that is designed to reconstruct his relationship with the children in circumstances that are protective of their relationship with him and recognise the vulnerabilities of the mother as discussed above. In all of the circumstances, he is not to be intemperate or impatient and is particularly to ensure his compliance with the Court orders and the conduct of his relationship with the mother in a respectful manner.
The Court will make orders accordingly.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Foster

Date: 27 June 2013

[2013] FCCA 675

28 June 2013

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction

Remedies