MELLINK & MELLINK

[2019] FCCA 3340

FEDERAL CIRCUIT COURT OF AUSTRALIA

MELLINK & MELLINK [2019] FCCA 3340

Catchwords:
FAMILY LAW – Interim parenting – whether disclosures made by Child give rise to concerns about unacceptable risk of abuse – where Court closely examines the evidence and concludes that, even at an Interim Hearing, there is no evidence of risk of harm to the Child – the use of ‘special words’ or ‘code words’ in supervised contact.

Legislation:

Evidence Act 1995 (Cth) s.140

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 69ZT, 69ZV

Cases cited:

Goode & Goode [2006] FamCA 1346

Insley & Insley [2018] FCCA 438

MRR v GR [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768

Vasser & Taylor-Black [2007] FamCA 547

W and W (abuse allegations: unacceptable risk) [2005] FamCA 892

WK v SR (1997) FLC 92-787

Applicant: MR MELLINK

Respondent: MS MELLINK

File Number: WOC 499 of 2019

Judgment of: Judge Altobelli

Hearing date: 9 October 2019

Date of Last Submission: 21 November 2019

Delivered at: Wollongong

Delivered on: 28 November 2019

REPRESENTATION

Counsel for the Applicant: Ms Doosey

Solicitors for the Applicant: Rossi Simicic Lawyers

Counsel for the Respondent: Mr Grew

Solicitors for the Respondent:	Heard McEwan Legal
Solicitors for the Independent Children's Lawyer:	Stanfords Solicitors

ORDERS

(1)Pending further order and unless the parents otherwise agree in writing, Order 2(a)(i) made 22 May 2019 be amended as follows:

(i) Week 1 – from 3:00pm on Wednesday to 4:00pm on Sunday.

(2)Pending further order, the Father be restrained from allowing X to co-sleep or co-bathe with him.

(3)The parties are at liberty to file terms in Chambers for the purposes of orders being made in Chambers in relation to the appointment of a Single Joint Expert Witness.

(4)Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.

(5)The matter be adjourned to dates to be fixed for Final Hearing.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

WOC 499 of 2019

MR MELLINK

Applicant

And

MS MELLINK

Respondent

REASONS FOR JUDGMENT

Introduction

1.This case is about X, born … 2014, now 5 years old.  The Court has to decide what interim Orders are to be made in relation to X’s time with her father and, indeed, whether she should be living with her father, instead of her mother.

Background

2.The case comes before the Court as a result of the Mother’s Application in a Case filed 23 August 2019.  However, she is the Respondent in substantive proceedings commenced by the Father on 9 May 2019. 

3.The Father was born on … 1977, and is 42 years old.  He describes himself as a tradesman, and lives in the City M area.  The Respondent Mother is 43 years old and she describes herself as a retail worker, also living in the City M area. The parents commenced cohabitation in 2012, married in 2013 and separated in April 2019.

4.As a result of the joint chronology that was filed, and which is reproduced in the First Schedule to these Reasons, it is possible to set out the following relatively uncontentious background facts.  Whilst there is a dispute between the parents about the precise nature and extent of the Father’s involvement in the care of X prior to separation, it seems reasonably clear from the material filed by both parents that he was involved in X’s care during this period, and indeed, there were periods when it is likely that he was sole carer for X, for example, when the Mother travelled overseas to Country N and Country O, in 2017 and 2018.  It is quite possible, therefore, that the Father had the sole care of X for periods of up to 10 days.  The Court does not exclude the possibility, indeed the likelihood, that the Father was assisted in the care of X during these periods, no doubt because he was also working full time. 

5.The Father ceased working in … 2018 as a result of a work injury.  In effect, he contends that he thus became even more available to look after X, and did in fact do so, notwithstanding his injury.  The Mother contends, however, that his injury debilitated him such that he could not, and was not involved in X’s care in this period.

6.It seems that between 2017 and 2019, X attended day care initially two days per week, and then three days, and finally four days per week. 

7.On any account of the relationship, problems developed in 2019 and the parties eventually separated in April 2019.  X and her mother did not immediately leave the home, but appear to have done so within a week or so of the actual date of separation.  Almost immediately problems developed between the parents in relation to the Father’s time and communication with X.  He contends, for example, that the Mother would not allow him to speak with X by phone until 30 April 2019.  By contrast, the Mother says that she sought to encourage X to speak with her father, but this did not take place.  In any event, it seems that the first time that X spent time with her father since 24 April 2019 was on 11 May 2019. 

8.The Father’s Application for orders in relation to his time and communication with X was filed on 9 May 2019, and came before the Court on 22 May 2019.  It is important to record that the parents entered into consent orders on this occasion, which provided for X to live with the Father in a two-weekly rotating cycle on Thursday nights, Friday through to Sunday, and then Tuesday through to Thursday – in other words, five nights each fortnight. 

9.The events that are relevant to the present issue before the Court commenced almost immediately after the consent orders were made on 22 May 2019.  The evidence in this regard will be discussed at length below.

The competing proposals

10.In the Mother’s Application in a Case filed 26 August 2019, over three months after the consent orders referred to above were made, she sought orders that the interim orders be discharged, or alternatively that the interim order for the Father to spend time with X be suspended.  In the meanwhile, X would continue to live with her mother and spend no time with the Father.

11.The Father’s Response to the Application in a Case was filed on 30 August 2019.  He also proposed that the interim orders made 22 May 2019 be discharged.  He sought an order for equal shared parental responsibility, that X live with him, and spend time with the Mother on a two-weekly cycle for, in effect, five nights each fortnight.

12.By the time of the Interim Hearing an Independent Children's Lawyer had been appointed for X.  She did not support the Father’s proposal for X to live with him and spend time with her mother.  The Independent Children's Lawyer submitted that if there was a risk of harm, then the Father’s time should become supervised, but if there was no risk of harm, then the interim orders made 22 May 2019 should simply be reinstated. 

The evidence before the Court

13.In the Father’s case he relied on the following material:

a)Application in a Case filed 31 October 2019;

b)Response to an Application in a Case filed 30 August 2019;

c)Affidavit of Mr Mellink filed 18 November 2019;

d)Affidavit of Mr Mellink filed 31 October 2019;

e)Affidavit of Mr Mellink filed 4 October 2019;

f)Affidavit of Mr Mellink filed 9 May 2019;

g)Case outline document filed 8 October 2019;

h)Written submissions filed 18 November 2019;

i)Written submissions filed 14 October 2019; and

j)Undertaking filed 30 August 2019.

14.In the Mother’s case she relied on the following material:

a)Response to Application in a Case filed 15 November 2019;

b)Application in a Case filed 23 August 2019;

c)Affidavit of Ms Mellink filed 15 November 2019;

d)Affidavit of Ms Mellink filed 4 October 2019;

e)Affidavit of Ms Mellink filed 19 September 2019

f)Affidavit of Ms Mellink filed 23 August 2019;

g)Case outline document filed 8 October 2019;

h)Written submissions filed 18 November 2019; and

i)Written submissions filed 14 October 2019.

15.The Independent Children’s Lawyer relied on her written submissions received on 21 November 2019.

16.The following material was tendered as evidence during the course of the proceedings:

a)Documents produced pursuant to subpoena on SuCo;

b)Text message exchange between the parties;

c)Documents produced pursuant to subpoena on Dr C;

d)Documents produced pursuant to subpoena on Relationships Australia;

e)Documents produced pursuant to subpoena on FMP Town D;

f)Documents produced pursuant to subpoena on NSW Police;

g)Documents produced pursuant to subpoena on the Department of Communities and Justice;

h)Documents produced pursuant to subpoena on A Children's Services; and

i)Record of Dr E dated 8 August 2019.

The applicable law

17.The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

18.The objects and principles of Part VII are set out at s.60B:

60B  Objects of Part and principles underlying it

(1)    The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

(2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)    to maintain a connection with that culture; and

(b)    to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)    to develop a positive appreciation of that culture.

19.At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

61DA  Presumption of equal shared parental responsibility when making parenting orders

(1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

(2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

(a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

(b)    family violence.

(3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

20.If the presumption applies, the Court is required to consider certain things:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)    If:

(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c)    consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)    if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:

(a)    the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii)    days that do not fall on weekends or holidays; and

(b)    the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii)    occasions and events that are of particular significance to the child; and

(c)    the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)    how far apart the parents live from each other; and

(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)    the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)    the impact that an arrangement of that kind would have on the child; and

(e)    such other matters as the court considers relevant.

21.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

(b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

(b)  the nature of the relationship of the child with:

(i)  each of the child's parents; and

(ii)  other persons (including any grandparent or other relative of the child);

(c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

(i)  to participate in making decisions about major long-term issues in relation to the child; and

(ii)  to spend time with the child; and

(iii)  to communicate with the child;

(ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

(d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

(i)  either of his or her parents; or

(ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

(e)  the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(f)  the capacity of:

(i)  each of the child's parents; and

(ii)  any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

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

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

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

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

The Case Law

22.In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

23.A little later in the judgment the High Court said:

13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

24.At [15] the High Court emphasised the need for a practical approach:

15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

25.The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

…

72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

…

82. In an interim case that would involve the following:

(a) identifying the competing proposals of the parties;

(b) identifying the issues in dispute in the interim hearing;

(c) identifying any agreed or uncontested relevant facts;

(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

24.          In Insley & Insley [2018] FCCA 438

The Challenge of Fact-Finding in this Case 

[61] This Court is in a very difficult position.  Whilst all the material before the Court can be closely scrutinised, the fact is that the evidence has not been tested and, in reality, cannot be tested for many months, simply because of the demands on the Court’s time from other cases.  The Supplementary Written Submissions proposed by Mr Knox SC highlight the evidentiary issues and emphasise the importance of credit, even in an interim hearing. 

[62] If the Court believes that there is substance to the Mother’s concerns, it is more likely to accept her proposal to remain in Melbourne, and to thus focus on what is the most appropriate arrangement for X to spend time with his Father and paternal family, but in Melbourne.  If the Court accepts the Mother’s concerns about family violence and abuse, it is unlikely to accede to a proposal that involves the Mother and X to the (omitted), even if all the financial issues are satisfactorily addressed by the Father.  The Court accepts that whether there is an objective basis for the Mother’s fear or not to bring her back to the (omitted) where she would be alone, and completely financially dependent on the Father, is merely likely to re-traumatise her, at least from her perspective.

[63] In Goode & Goode the Full Court warned against making findings of fact where findings are not possible.  The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions.  To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.

[64] Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode.  Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted.  For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.  Nonetheless, the Full Court warned, findings must be couched with circumspection. 

[65] The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.

[66] In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination.  In that case the evidence was a Family Report.  In this case, of course, it is a Child Dispute Conference Memorandum.

[67] In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously.  In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing.  In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible.  It is nonetheless imperative that allegations of family violence are treated seriously.

[68] At [61] in Deiter, the Full Court discussed risk analysis:

The assessment of risk is one of the many burdens placed on family law decision makers.  Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.

[69] The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.

[70] The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred.  However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.

[71] In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts.  Moreover, at [21] the Full Court recognised:

Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available.  It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.

[72] In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence.  Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available. 

26.A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (abuse allegations: unacceptable risk) [2005] FamCA 892, at paragraphs 92-115. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what is the relevant law:

92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.

Unacceptable risk test

(a) What is meant by “unacceptable risk”?

93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.

94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:

“(i) The reality of sexual abuse

The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.

...

It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”

95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:

“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”

96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:

“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.

But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 352 at pp. 364-365. In proceedings of that kind the Court is not enforcing a parental right of custody or right to access. The Court is concerned to make such an order for custody or access which will in the opinion of the Court best promote and protect the interests of the child. In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 C.L.R. 447 at pp. 450, 458, 462, 463-464.

Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the Court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.

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

‘The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.’

His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the Court when it is called upon to decide what is in the best interests of the child.

No doubt there will be some cases in which the Court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the Court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the Court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the Court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.

In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.

Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”

97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.

98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:

“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-

‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)

The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.

...

It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”

99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.

100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.

101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.

102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:

“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”

103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:

“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”

104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:

“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”

105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:

“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?

This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”

106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:

“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”

107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:

“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”

108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:

“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”

109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.

110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:

“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”

111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.

(b) The contact issue

112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.

113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.

114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.

115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

27.In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at para.47:

In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.

28.In Re W (Sex Abuse: Standard of Proof) [2004] FamCA 768, in referring to WK v SR the Full Court observed at paras.18-19:

18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in
WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.

19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.

29.In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at paras.38-39:

38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."

39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.

30.Another important statement from this Full Court decision is found in paragraph 45. It is important because it is in the interests of the administration of justice, and more importantly in the interests of the children involved in these cases, that sensible concessions be made so that both interim and final hearings can focus on real issues.

45. The concession by counsel in final address that the evidence would properly lead the trial Judge to conclude the much lower barrier of "unacceptable risk" had been reached could not be seen as some sort of admission of guilt by the husband and those appearing for him. It was no more than an acceptance of the forensic reality. The child had made damning disclosures. The father had denied them. All the Court needed to be satisfied of was whether an order for contact "would expose the child to an unacceptable risk of sexual abuse". An acceptance of the husband's unshaken denials would leave the child's disclosures unexplained. An acceptance of the disclosures as proof that the father behaved with gross impropriety towards G would mean a total rejection of the denials. In our view an acceptance by counsel that the likely outcome lay somewhere in between was not surprising nor could it be seen as an admission of guilt.

31.It is frequently the case that allegations of sexual abuse are raised in interim proceedings. Wherever possible it is important for the evidence of the protagonists, usually but not always parents, to be tested by cross-examination in some limited fashion. This enables the Court to form an impression, albeit only an impression, about the veracity of the claims made and of the character of the parents. Notwithstanding this, a Court should be wary about making findings of credit after only an abbreviated hearing.

32.Often it will not be possible to test the evidence in interim proceedings. The Full Court decision in Goode & Goode (2006) FLC 93-286 continues to apply in these cases. The Full Court in Vasser & Taylor-Black [2007] FamCA 547 made these comments, at paragraph 52 of its judgment, about allegations of abuse in interim proceedings:

At paragraph 5 of her written submissions counsel for the Independent Children’s Lawyer, having earlier referred to the test set out in M and M (supra) namely, “the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse”, submitted:

When allegations of abuse arise in interim proceedings, the court must weigh the competing risks of abuse, including the risk of interrupting or severing a relationship between a child and a parent.  In order to weigh the competing risks, the court should analyse what the risk is.  To simply state that there is a risk of psychological abuse is not providing an analysis of the risk to the child, nor does it assist in determining what, if any, safeguards could be put in place to ameliorate the risk.  (paragraph 5).

33.It should also be remembered that Division 12A of Part VII of the Act applies as much to proceedings involving these serious allegations as it does to other child-related proceedings. In each case, consideration needs to be given as to whether s.69ZT(3) should be invoked, thus reinstating the application of certain provisions of the Evidence Act 1995, in whole or in part, as regards an issue in the proceedings. The Court needs to give consideration to this, whether or not it is raised by the parties, but the Court also needs to have regard to the need to protect the child from harm, as well as protect the rights of those against whom serious allegations are directed. The Court must also not lose sight of the fact that even though s.100A of the Act has been repealed thus potentially excluding evidence of disclosures made by children if s.69ZT(3) is invoked, s.69ZV seems to be intended to, in effect, reinstate s.100A.

The disclosures made by X

34.The evidence about X’s disclosures come from her mother, and nowhere else.  All of the disclosures referred to above, therefore, have their source in the Mother’s Affidavits. 

35.On 22 May 2019 X returned from spending time with her father and told her mother that she shared a bed with the Father.  She also told her Mother, “Daddy said not to tell you what happens at his house.”

36.On 25 May 2019 X returned from spending time with her father and disclosed that she had a bath with the Father on both nights that she was in his care. 

37.On 20 June 2019 X disclosed to her mother that she has a bath with “Daddy” every time she is at his place. 

38.On 7 July 2019 the Mother deposes that X disclosed to her that she went swimming.

39.On 9 July X disclosed to her mother that she cannot speak to Daddy. 

40.On 11 July the Mother deposes that X said to her, “Mummy, I told you that I went swimming at the pool, but I didn’t go swimming.  I got sick because I didn’t have enough blankets on my bed.”

41.On 13 July 2019 the Mother deposes that X once again said to her, “I didn’t go swimming, Mummy.” 

42.On 28 July 2019 the Mother discloses that X said to her, “My Daddy asks me to keep secrets at his house and I say, ‘Yes.’  My Daddy has heaps of secrets.  He asks me to keep lots of secrets at his house.”

43.However, the Mother deposes that shortly thereafter X said, “Forget what I said.  Don’t call the police because they will say I am a naughty girl.”

44.On 4 August 2019, on returning from her father’s home, X tells her mother that she had a bath at her father’s house.  The Mother observed X’s hair to be very dirty.  X told her that she slept in her hair for two nights.  The Mother deposes to noticing that X had scratches on her inner thigh, lower right leg and what appeared to be a burn mark on her left leg.  The Mother noted that X did not have any irritation or redness to her vagina. 

45.On 5 August 2019 the Mother took X to her doctor.  No disclosure was made. 

46.On 18 August 2019 X says to her Mother, “I want you and Daddy to make love.”  She goes on to say;

Daddy said it’s not about making love, but it’s about how much you love each other.  Daddy said not to tell Mummy.  You won’t tell anyone, Mummy?  Not even your friends and you will never tell the police?

47.On 18 August 2019 the Mother ceased allowing X to spend time with her father.

48.On 21 August 2019 the Mother reported her concerns about these disclosures to the Police and there was a subsequent referral to the Joint Investigative Referral Team (‘JIRT’).  X made no disclosure. 

49.The above represents the totality of the disclosures made by X to anyone. 

50.The Court makes a number of observations.  On 7 July 2019 the Mother asserts that X told her that she went swimming.  Given that it was mid-winter, the Mother would be understandably concerned.  However, on July X told her Mother that she did not go swimming, and this was confirmed on 13 July 2019.  One would have thought that a reasonable parent might, after considering X’s inconsistent disclosures, have some doubts about whether X’s recollection of events was accurate.

51.On 28 July 2019 X is again inconsistent in what she tells her mother – initially that her father asked her to keep secrets, but a short time later asking her Mother to forget what she had said.  Again, a reasonable parent might have some concerns about X’s recollection of events.

52.On 5 August 2019 the Mother took X to see her doctor, Dr E.  The note records that the Mother was worried that the Father was applying Sudocream over X’s vaginal area, as she was complaining of a sore vagina.  To put this in context, on 25 July 2019, the Father’s evidence is that X had complained that her vagina was sore during bath time.  The Father deposes that he consulted his neighbour who had three daughters, who recommended applying Sudocream to X’s vagina.  The Father sent a text message to the Mother telling her of X’s complaint.

53.On 2 August 2019, again while in her father’s care, X complained that her vagina was sore.  Again, the Father texted the Mother advising of X’s complaint, and telling her that he had applied Sudocream to her vagina. 

54.Returning to the doctor’s file note, it records that X had not mentioned this to her mother.  The Mother had brought X to the doctor to be examined, and a visual examination was done.  The note records:  “Nil acute to note.”  The Mother said words to the effect:  “She gets bubble baths a lot.”  The note then records:  “?  Irritation from baths or hygiene??”  The advice that was given was to avoid baths or soap down below.  It also notes:  “Can try de-worming as well.”  The note also suggests that the Mother was to monitor the situation, and she was reassured, presumably by the doctor.

55.A number of observations can be made about the visit to the doctor.  It involved a physical examination of X’s vagina.  Just the day before, according to the Mother’s evidence, she had herself undertaken a physical examination of X’s vagina.  That must be the case, in order for her to conclude that she did not have any irritation or redness to her vagina.  It is clear from the doctor’s note that X made no disclosure to the doctor.  In addition, it is clear that the doctor raised three alternate hypotheses to the Mother’s implied hypothesis, never articulated in submissions but clearly forming the underlying premise, that the Father had sexually abused X. 

56.The first hypothesis was that X could be experiencing irritation from bathing.  This is in response, the note records, to the Mother telling the doctor that X:  “gets bubble baths a lot.”  The second alternative hypothesis recorded by the doctor is that if there was irritation to the vagina, it was attributable to hygiene.  The third alternative hypothesis raised by the doctor was that X had worms. 

57.From the Court’s perspective, viewed with the benefit of hindsight, and after having regard to all the evidence of the submissions made on behalf of the Mother, there can be no doubt that the Mother was implying that the Father had sexually abused X and thus presented an unacceptable risk of abuse to her.  Having regard to the evidence, this could only be based on the disclosures made by X, to her mother, and her concerns that the Father was applying Sudocream over X’s vaginal area.  As at 5 August 2019, however, Dr E had provided three plausible alternative hypotheses to that ultimately embraced by the Mother.  One can only assume that the Mother did not give serious consideration to these alternative hypotheses.

58.The Court accepts that the Mother had not herself seen any physical evidence on X of irritation that would warrant the application of Sudocream over her vaginal area.  The fact that it physically existed, however, is corroborated by the discharge referral note provided by a doctor at Town H Hospital on 13 August 2019 that explicitly refers to:  “Inflammation of vagina.”  The hypothesis, therefore, that there was in fact no such irritation that warranted the application of Sudocream, is not plausible.

59.Accordingly, in relation to X’s disclosures, the evidence indicates that X only ever made the disclosures to her mother, even though she had the opportunity to make the same disclosures to Dr E and those on the JIRT who interviewed her.  The allegations are ambiguous in the sense that X never says anything indicating her father had acted inappropriately.  That was a conclusion, however, that the Mother appears to have drawn based on the totality of what X said to her, but notwithstanding the inconsistencies in what X had said to her.

60.According to the Mother, her concern for X was not just from X’s disclosures and the issue of the Father applying Sudocream to her vagina, but also on the changes in X’s behaviour observed when she resumed spending time with her father.  But, as observed by Family Consultant Ms J in the preliminary expert advice provided in the Child Dispute Conference Memorandum to Court of 20 September 2019:

The allegation about X being at risk of sexual harm while in the care of her Father is, considering Ms Mellink’s account to this author, at best unclear.  X’s distressed behaviour, as reported by Ms Mellink, could be a response to a number of factors including her adjusting to or not coping well with the parental separation and/or the new parenting arrangement and/or the poor parental relationship and/or exposure to inappropriate behaviour.

61.With respect to Ms J, she correctly identifies a range of matters that are clearly established by the evidence before the Court.  There are multiple alternative hypotheses to that embraced by the Mother, i.e., that X’s changes in behaviour, together with the other matters referred to above, were indicative of her being sexually abused by her father. 

62.The Mother appears to genuinely believe that there is a risk to X.  On a close examination of the available evidence, however, there seems little objective basis for her concerns.  They are subjectively held, they have no objective basis.  There would appear to be no evidence to justify what would inevitably be the end, at least for the time being, of X’s relationship with her father, if the Mother’s proposal were accepted.

What orders are in the best interests of X?

63.The Mother’s proposal for the Father to have no time means, inevitably, that he will not have a meaningful relationship with X.  The proposals of the Father and the Independent Children's Lawyer will ensure that X’s meaningful relationship with both parents will continue. 

64.The Mother submits that her order, for no contact, protects X from harm.  A close examination of the evidence, however, does not reveal what is the physical or psychological harm that the Mother alludes to.  Whether it is the co-bathing, co-sleeping, application of cream to the vaginal area, or other comments made by X, no risk of harm is established.  In the Mother’s case outline, prepared by her Counsel, Mr Grew, states:

While each of the above may appear trivial in isolation, when viewed as a whole, and disclosed by the Child over a period of months, it is submitted that there is sufficient evidence for the Court to be concerned about the appropriateness of the Father’s behaviour when caring for the Child.

65.The Court accepts that each of the concerns expressed by the Mother are, in fact, trivial.  But those concerns remain trivial, whether viewed in isolation, or as a whole.  When the evidence discussed above is critically considered, and the alternative hypotheses are also considered, there is no risk of harm to X in spending time with her father.  The Mother’s case urged the Court to be cautious in allowing X to spend time with her father, in the absence of any formal assessment of the psychological and/or emotional impact on X of the Father spending time with her.  The Court believes that it has been cautious, and indeed thorough, in its assessment of the evidence of the risk of harm to X. X’s behaviour is of concern, the Court accepting the Mother’s depiction of this, the fact remains that the reason for this behaviour is unclear.  As the Family Consultant articulated in the Child Dispute Conference Memorandum, albeit by way of preliminary advice, X’s behaviour could be attributable to her not adjusting well with the parental separation, or the implementation of a new parenting arrangement, or the poor parental relationship that exists, or exposure to inappropriate behaviour.  The evidence is clear in this regard:  the separation is comparatively recent; X has experienced a number of parenting arrangements ranging from no contact or communication with her father, to limited contact and communication, to substantial and significant time, to no contact once again;  the relationship between the parents is self-evidently poor with no constructive communication or trust;  a reasonable inference is that X is very much aware of the parental conflict.  One would ask why, in these circumstances, should X’s time with her father be stopped?

66.It is important to explore the Father’s case about risk of harm to X were she to remain in her mother’s care.  The analysis of the Mother’s evidence in this regard undertaken by those representing the Father, and articulated through his Counsel, Ms Doosey, was very thorough, albeit sometimes emotional and hyperbolic.  Nonetheless, a number of very important points are made.  The Court accepts that the evidence indicates that the Mother has, in fact, publicly displayed a high level of antagonism to the Father.  The evidence relied on by the Mother to suggest a risk of harm to X was very much based on insinuation and innuendo.  Some of the Mother’s actions did not appear consistent with an underlying attitude of wishing to involve the Father in X’s life.  There are some elements of paranoia to the concerns and complaints made by the Mother.  In short, the Father’s case is that a close examination of the evidence would raise serious concerns in the Court’s mind about the Mother’s ability to foster an environment in her household in which X’s relationship with the Father can be supported. 

67.The Court accepts that there is a risk of psychological harm to X if her mother continues to not only believe, but expose X to a subjective belief of risk of harm, which has no objective basis.  There is some substance to Ms Doosey’s submission that; “The convoluted and unconvincing thinking of the Mother carries serious implications as to her state of mind and capacity to care for X.”

68.The Father contends that, given this risk, the risk of harm to X is best managed by her being placed in his care.  The orders that he seeks would certainly foster X’s relationship with her mother, whilst providing a more balanced perspective of life with her father.  The Independent Children’s Lawyer submits, by contrast, that X can still be protected by remaining in her mother’s care, but the implicit assumption here is that the Mother will be able to not only assimilate, but accept, the Court’s analysis of the risk of harm consideration, and thus not expose X to any remaining subjective beliefs that she has.

69.The most relevant additional consideration in this regard is to consider the likely effect of any change in X’s circumstances.  On the Mother’s proposal, this presents yet another dramatic change in X’s circumstances, i.e., she has gone from a consensual substantial and significant care arrangement to no contact.  This would be in the context of the impression of this Court that there is no risk of harm to warrant such a dramatic change in her circumstances.  The Father’s proposal, of course, also represents a very substantial change in X’s circumstances.  She would go from spending most of her time with her mother (during the period when her mother complied with the consent order) to most of her time with the Father.  It would be a big change for her, but the totality of the evidence before the Court suggests that it would be a sustainable change for her.  It must not be forgotten that there have been substantial periods of time in the past when he has been her exclusive carer.

70.The issue for the Court is whether such change is warranted in the circumstances and, in particular, whether the Mother can be trusted to accept the Court’s decision and not expose X to her subjective views, and to inappropriate discussions.  The Independent Children’s Lawyer believes that leaving X with her mother, based on the existing consent orders, adequately protects her from harm, but is also the least change in her life. 

71.There are a number of other relevant additional considerations to be taken into account.  X’s views are not relevant, in the present context.  She appears to enjoy a good relationship with both of her parents.  The Father alleges that the Mother has systematically excluded him from decision making in relation to X.  This may well be relevant to a greater degree at a Final Hearing, than in the present interim context.  There seemed to be no substantive issues about obligations to maintain.  There appear to be no issues of practical difficulty and expense.  There do appear to be issues, potentially quite significant issues, about the capacity of the Mother in particular, to meet X’s emotional needs in circumstances where there are some concerns about her ability to foster X’s relationship with her father. 

72.There are also potential issues about the Mother’s attitude to X, and to the responsibilities of parenthood, manifested in what might be described as attempts to control X’s relationship with her father in circumstances where there is no objective basis for doing so.  There may also be issues of family violence that need to be explored in a more fulsome fashion at a Final Hearing.

The Father’s Application in a Case

73.On 31 October 2019 the Father filed an Application in a Case seeking orders that X live with him and only have supervised time with her mother. This was supported by his Affidavit of 31 October 2019. The Mother’s Response to the said Application in a Case was filed on 15 November 2019. She simply sought dismissal of the Father’s application. Her Affidavit of 15 November 2019 supports this.

74.A first draft of these Reasons for Judgment had already been dictated by the time the Father’s application was filed. The Court decided to defer publishing its Reasons just in case the further material adduced in the application informed its decision. In short, it does not do so. The only further evidence was the tender bundle of the Father which included the SuCo file, and the A Children's Services file.

75.Since judgment was reserved on 9 October 2019, the parents agreed that the Father should spend time with X supervised by SuCo. All the SuCo reports were in evidence. Counsel for the Mother conceded that all these reports are positive. Indeed they are. From the Court’s perspective, there is not even the slightest indication that both the relationship and time spent between the Father and Child is anything other than excellent. There is not the slightest hint from X’s behaviour that she is fearful of her father, or has been traumatised or abused.

76.The Father’s Application in a Case seems to raise 3 issues, 2 of which may be summarily dismissed. The Father complains of one missed visit in the context of multiple visits, in circumstances where the Mother was under no obligation to facilitate supervised time and where her explanation seems plausible. The Father complains that X referred to him, apparently once, by his Christian name. There is no evidence to attribute this to the Mother. Neither of these issues are informative of the decision the Court needed to make in this case.

77.The third issue, however, is more problematic. The contact record of 27 October 2019 contains this entry:

Ms Mellink seemed reluctant to leave, even when, after approximately 5 minutes, X told Ms Mellink that she could go and that X was happy to stay with Worker. Ms Mellink told Worker that X had a special word to tell Worker if she wanted to end contact without telling “D-A-D” (Mr Mellink). X told Worker the special word.

78.No one disputed that X had a ‘special word’. The Mother deposes in her Affidavit of 15 November 2019 that the supervisor at SuCo told her; “We will have a code word that X can use if she wants to cut the session short” (paragraph 12). The Mother deposes that on 27 October 2019 she mentioned the code word to the supervisor of that visit, Ms P, “as I was unsure whether that information had been passed on to her.” The Father contends that the use of the code word emanated from the Mother. It is common ground that there is nothing in the SuCo file or records which indicates that the idea of the code word came from SuCo.

79.Both the Independent Children’s Lawyer and the Father submit that if the Mother did initiate the idea of a code word, it would be a very serious issue. In evidence was the ‘Contact Arrangements Forms’ used in respect of each visit. These appear to be in template or standard form. There is a section entitled ‘Specific Contact Conditions and Restrictions’ which is consistently in each form. This section states:

At all times the Contact Supervisor must be able to hear all conversations between Mr Mellink and X, whispering is not permitted at any time. X must be in the Contact Supervisors line of sight at all time.

The Contact Supervisor must accompany X to the toilet if she wishes to use the bathroom.

If at any time X becomes distressed and the Supervisor cannot settle her in a reasonable amount of time the contact will be ended and Mr Mellink will be asked to leave and then X will be returned to Ms Mellink’s care.

All conversations are to remain age appropriate and a child focussed. There is not to be any discussions regarding past or current court proceedings, or the child’s possible future living arrangements.

Neither party are permitted to speak in negative terms about the other party, their family, friends or associates.

During the contact person, unless agreed by all parties including SuCo at least 24 hours prior to the contact taking place, no other parties can attend the contact visit.

80.There is nothing to suggest the ‘Contact Arrangements Form’ are meant for the parents – indeed the impression is that it is meant for the supervisor for each visit.

81.There is no reference to the ‘special word’ or ‘code word’ in the ‘Contact Arrangements Form’, or anything else in the SuCo file. The Court’s impression is that it would be implausible that SuCo would have a ‘code word’ or ‘special word’ and it not be referred to on its documentation, particularly when their records make it apparent that the visits were supervised by a number of persons. One wonders, moreover, why a code word would be needed given the intense level of scrutiny that is reflected in the ‘Specific Contact Conditions and Restrictions’. If X becomes distressed, one would have thought she did not need a code word or special word.

82.The Court’s main concern is how X might be interpreting and experiencing this notion of the special word that, presumably, is a secret she is meant to keep from her father. Secrets already feature in this case. The Mother was obviously concerned about what X was telling her about secrets in her father’s home. It would be ironic indeed, if not hypocritical, for the Mother to be complicit in X being a party to other secrets. Quite apart from the emotional burden this might place on X, it might create in her mind distrust. Firstly, distrust that those supposedly supervising (and therefore protecting) her are not sufficiently observant or attuned to her needs, that she must use a special word. Secondly, the need for a special word probably raises a consciousness in X’s mind that she needs a special word due to some danger that is associated with spending time with her father. In this regard the Mother’s case frequently mentioned that she was an intelligent child, so it is not far-fetched to be considering what might be going on in her mind.

83.Both the Independent Children’s Lawyer and the Father are entitled to have serious concerns if the idea of the special word was the Mother’s and not from SuCo. It would suggest, amongst many other possible things, that she continues to struggle with her concerns about X’s safety, even in the closely regulated context of supervised time.

84.The Court simply cannot determine at an Interim Hearing whose idea the special word was. Whoever thought of it should, with the greatest of respect, reconsider the appropriateness of doing so.

85.Having consider these issues, the Court concludes that there is nothing that would cause it to reconsider the view it had formed before the matter was relisted.

Conclusion as to best interests of X?

86.For the time being, the Court is not prepared to make the orders sought by the Father.  The Court will also not make the orders sought by the Mother.  In relation to the Mother’s proposal, it is unsupported by any evidence.  In relation to the Father’s proposal, the Court is concerned about the impact of such a change on X, even though its preliminary impression is that she would probably cope. 

87.The Independent Children's Lawyer proposed that the Orders made 22 May 2019 simply continue.  The Court has some concerns about this.  X’s time with her father over a fortnight is in one, two, and two night blocks, totalling five nights each fortnight.  This means that there are six changeovers between the parents.  Whilst there is not much evidence to suggest that changeovers are problematic, the focus quite properly having been elsewhere, the Court suspects that for X changeovers are much more than just a move from one physical space to another, but is likely to be a move from one psychological space to another.

88.The Court believes that it may be difficult for the Mother to assimilate and accept the Court’s risk analysis contained in these Reasons for Judgment.  Subjective beliefs are often difficult to shake, even when they have no objective basis.  It is possible that the Mother’s subjective, albeit mistaken, beliefs are supported by those around her.  If this is the case, this means that her home could be a very toxic environment.  Part of the necessity for X to spend time with her father is to provide a safer, more balanced psychological space in which she can live.  It is for this reason that the Court intends to increase the Father’s time to six nights each fortnight, in a four night block in week 1, and then a two night block in week 2.  Accordingly, and unless the parents otherwise agree, Order 2(a)(i) made 22 May 2019 is to be amended so that it reads:

(i) Week 1 – from 3 pm on Wednesday to 4 pm on Sunday;

89.The Court’s intention is that this variation is to commence, depending on the date when these Orders are made, as soon as possible.  Thus, and for example only, if these Orders are made on a Tuesday, then week 1 commences immediately after the making of the Orders.  If, however, these Orders were made on a Friday, then week 1 would commence during the following week.  Week 2 would be the week after that. 

90.It is absolutely critical from X’s perspective that she not be further exposed to the parental conflict, or involvement in these proceedings.  In this regard, the Court notes that on 23 September 2019 it made, by consent, Orders restraining both parents from discussing the proceeding in X’s presence, or permitting anyone else to do so.

91.The Mother may well be assisted by counselling or some other form of therapeutic intervention to help her deal with the implications of the Orders the Court has made.  The Court will not make an order to that effect, but she is nonetheless encouraged to consider this. In order to reassure the Mother, the Court will also order that the Father is not to allow X to either co-sleep or co-bathe with him.

92.What happens if X makes further disclosures?  All disclosures made by children of inappropriate behaviour by any other person need to be taken seriously.  They also need to be realistically assessed and, before a parent takes radical action (such as ceasing time with the other parent), they need to carefully consider the alternatives.  Both parents have access to experienced family lawyers and family law counsel.  The matter can be relisted before me on short notice. 

93.This matter does not strike the Court as being one suitable for a Family Report, accordingly leave will be granted to file consent Orders in chambers appointing an expert.  The matter would benefit by the allocation of Final Hearing dates, even though that will not be until 2021.  Assuming the matter can be contained to three days, dates will be allocated as part of these Orders.

I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 28 November 2019

Schedule One

Joint Chronology

Evidence:

1.Affidavit of The father Mr Mellink filed 30 August 2019 (F).

2.Affidavit of The father Mr Mellink filed 9 May 2019 (C).

3.Affidavit of The mother Ms Mellink filed 21 May 2019 ("M1")

4.Affidavit of The mother Ms Mellink filed 23 August 2019 ("M2")

5.Affidavit of The mother Ms Mellink filed 19 September 2019 ("M3")

6.Affidavit of The mother Ms Mellink filed 4 October 2019 (“M4”)

7.NSW Police Subpoena Material – Sleeve 6

DATE	EVENT	FATHER'S EVIDENCE	MOTHER'S EVIDENCE	SUBPOENA MATERIAL
… 1977	Applicant father born.	F1	M3, 4
… 1976	Respondent mother born.	F2	M1, 1 & M3, 3
2012	Parties commence cohabitation.	F3	M1, 3 & M3, 6
2013	Parties marry.	F3	M3, 7
… 2014	The only child to the marriage, The child B is born.	F4	M3, 8
Early 2015	The child begins family day care	M1, 19
2016	The mother is diagnosed with Stage 3 melanoma; the father cares for the child whilst the mother is in hospital for 1-1.5 weeks. The child begins attending day care with Ms F at Family Day Care on one day per week.	C9 C11
2016	The mother is diagnosed with a melanoma mole on her leg. The mother underwent surgery and radiation dye testing. She took the child with her as her appointments were in Sydney. This was followed by a further day surgery procedure. The father was working and was worried about taking time off work. The maternal grandmother came over from Country N to assist with the care of the child.	M1, 27
2016	The mother underwent further surgery to remove the remaining cancer from her leg. She spent 5 days in hospital, including Christmas. The father did not visit the mother nor did he bring the child to visit her on Christmas day.	M1, 28-30
2017	The mother was still recovering from surgery. The maternal grandparents took it in turns for 3 weeks to fly from Country N to Australia to support the mother and care for the child.	M1, 31
2017	The child commences attending day care two days per week.	C12
2017	The mother returns to work following her melanoma treatment. Whilst building her business, the mother continues to be the primary carer for the child.	M1, 32
2017 or 2018	The mother travels to Country N for one week; the father cares for the child.	C13
Late 2017	The mother travels to Country N for 3 days for a friend's 40th birthday. The father cares for the child.	M1, 33
2018	The child commences attending day care on three days per week. The mother travels to Country O for a yoga retreat for 7-10 days; the father cares for the child.	C14 C21
… 2018	The father suffers a workplace injury.	C20
… 2018	The father suffers a torn hip flexor at work. He continues to work despite the pain.	M3, 31
Mid-2018	The mother becomes frustrated at the child and raises her voice; the mother describes herself as an empath who takes on people’s feelings and energy and does not like loud noises.	C22
… 2018	The father ceases working and begins receiving worker’s compensation payments; the father begins attending to almost all of the child’s day to day needs.	C20, 23	M3, 32
… 2018	The father injures his back at work. He could not walk, stand or lift the child. The mother continues to be the child’s primary caregiver. The father was severely depressed, was always negative and was not physically active.	M1, 39-40 M3, 32
2019	The child commences attending day care on four days per week.	C25
February 2019	After experiencing marriage problems for some time, the mother attempts to talk to the father about their issues. The parties agreed to go to marriage counselling through Relationships Australia.	M1, 42 M1, 53
… 2019	The father undergoes a gastric sleeve operation. His persona changed following his workplace injury and gastric sleeve surgery.	M1, 43 - 44
Early April 2019	The child spills a cup of milk whilst riding her scooter inside the house. She immediately hung her heard and crouched down and said "I'm sorry Daddy, I'm so sorry Daddy".	M1, 44
16 April 2019	The child stays overnight with the maternal grandparents. During dinner she discloses that she had been to the doctors with her Dad and that "Daddy very angry with doctor. I don't like it when Daddy is angry it makes me sad".	M1, 47
17 Apr 2019	The parties separate.	F3	M1, 48
24 Apr 2019	The mother offers to take the child to day care to which the father agrees; the father receives a phone call from the day care at 9:45am asking whether the child will be attending day care; the father becomes concerned and makes several phone calls to the mother which go unanswered; the father contacts the maternal family before telephoning the Police for assistance; the mother eventually responds to the father. The father sends the mother a message asking to speak with the child; the mother does not respond.	C28-35 C36
24 April 2019	The mother leaves the FMH with the child. That same day the father sent a text to the mother that he did not consent to the child going to Country N. The mother had no intention of taking the child to Country N.	M1, 50 M1, 51
25 Apr 2019	The father sends the maternal grandmother a message seeking that the mother facilitate a video call between the child and father each night at 6:30pm; no response is received. The father sends the mother a text message seeking that she facilitate a video call between the child and the father; no response is received.	C37 C38
26 Apr 2019	The father sends the mother a message asking to speak with the child; the mother does not respond. The father returns home to find the former matrimonial home had been ransacked with several items missing from the home. The father finds an Application for Country N Passport and Citizenship on the mother’s desk.	C39 C40 C41
26 April 2019	The mother attends FMH briefly to collect some personal items.	M1, 50
26-29 Apr 2019	The father sends the mother numerous requests over Facebook Messenger and text message to speak with the child; the mother does not respond.	C43-45
30 Apr 2019	The mother facilitates a telephone call between the father and the child; this is the first time the father had spoken to the child since 24 April 2019.	C46
April – May 2019	The mother encourages the child to speak with the father and tries to facilitate contact between the father and the child. The father did not agree to the proposed parenting plan provided to him the day after separation and as such refused to spend time with The child.	M1, 58 & M1,  62
3 May 2019	The father sends the mother photos of himself and the family dog Q and says “Q says hi to X”; the mother facilitates a phone call between the child and the father and says “Please do not tell her who is missing her and make her feel guilty”.	C49
6 May 2019	The father requests a video call with the child; the mother refuses to facilitate a video call.	C50
9 May 2019	The father files an Initiating Application; Orders are made in Chambers that the parents be restrained from removing the child from Australia and the child is placed on the Family Law Watch list.	F7
10 May 2019	The father proposes through his solicitor to spend time with the child from Friday 10 May 2019 until Saturday 11 May 2019; the mother counter offers 11 May 2019 until 3pm Sunday 12 May 2019 being Mother’s Day; the father accepts the mother’s offer for time.	F71
11 May 2019	The child spends time with the father for the first time since 24 April 2019.
12 May 2019 (Mother’s Day)	The father facilitates a telephone call between the mother and child; the mother does not otherwise request to spend time with the child on Mother’s Day; the father and child make the mother a Mother’s Day picture reading “Happy Mother's Day Love X”.	F71
22 May 2019	The matter is listed before His Honour Judge Altobelli and Orders are made by consent that the child live with the father in a two weekly rotating cycle as follows: Week 1: 3pm Thursday until 9am Wednesday and 10am Friday until 4pm Sunday; Week 2: 3pm Tuesday until 9am Thursday. The parties’ effect changeover; the father takes a drink bottle for the child from the mother’s car; the mother sends the father a text message reading “[…] do not reach into my car ever again without my permission […]”.	F8 F9	M2, 5
22 May 2019	The child returns from spending time with the father and discloses to the mother that she shared a bed with the father. The child also says to the mother "Daddy said not to tell you what happens at his house"	M2, 6 & 7
24 May 2019	The mother does not facilitate a video call between the child and the father in accordance with the Orders.	F10
25 May 2019	The child returns from spending time with the father and discloses that she had a bath with the father on both nights that she was in his care	M2, 9
26 May 2019	The mother sends the father a text message asking whether the child has bathed with the father; the father does not reply to the mother’s text message.	F11	M2, 11
27 May 2019	The father attempts to video call the child in accordance with the Orders through Facebook Messenger; the mother refuses to facilitate a video call between the father and the child through Facebook Messenger and insists on using ‘Facetime’ notwithstanding that the father’s iPad was broken, the father has a Samsung phone and ‘Facetime’ is an Apple specific app.	F12-15
27 May 2019	The mother instructs her former solicitor to send correspondence to the father's solicitor outlining the mother's concerns about the father's behaviour. No reply received.	M2, 14
29 May 2019	The mother advises the father that she has unilaterally changed the child’s swimming day to Friday; the father asks the time that the child will swim on Friday; the mother does not respond to the father’s message.	F17
30 May 2019	The father sends the mother a text message seeking that they agree on a mutually suitable app to facilitate video calls between the child and the parents in accordance with the Orders; the mother does not reply to the father’s email. The father sends the mother an email offering to look after the child at times that the mother is not available to care of her; the mother does not reply to the father’s email.	F18 F19
31 May 2019	The father attempts to video call the child on Whatsapp and Facebook Messenger; the mother does not answer the father’s calls; the parties’ exchange messages and the mother says “The order is quite specific it says Facetime if you wanted something else you should have said so […]”; the mother facilitates a telephone (and not video call) between the father and the child for 52 seconds.	F20-22
3 June 2019	The mother fails to facilitate a video call or telephone call between the father and child in accordance with the Orders.	F23
4 June 2019	The child is in the father’s care; the father facilitates a video call through Whatsapp between the mother and the child.	F24
8 June 2019	The father facilitates a video call between the mother and child notwithstanding that Saturday is not a day that the mother is to call the child in accordance with the Orders. The father takes the child to K Zoo.	F26 F28
9 June 2019	The father uploads photos of the child and himself at K Zoo on Facebook.  The mother sends the father a text message reading “Wow can never come up with anything original always have to copy”. The maternal grandfather comments on the father’s Facebook K Zoo post “What an arsehole – you learnt from The child that we were to take X to the zoo on Monday so you took her a day before to spoil Ms Mellink’s and The child’s day – such juvenile controlling behaviour […]”	F29 F30 F31
10 June 2019	The mother uploads a video to her public Instagram page whereby she says “I recently separated from my husband. I left with my daughter with the clothes I had on my back […] particularly with narcissistic abuse which I’m learning more and more about after having been involved in a relationship where by husband was and is a narcissistic and has continued to financially control me for a number of years and limit my world and my daughter’s world […]”.	F32
11 June 2019	The father instructs his solicitors to write to the mother’s solicitors in respect to the mother’s Instagram video.	F34
12 June 2019	The mother deletes the Instagram video.	F34
20 June 2019	The child discloses to the mother that she has a bath with "Daddy" every time she is at his place, they never shower. The mother sends a text to the father asking that he stop his behaviour. He replied stating "Kids can be awesome story tellers".	M2, 16 & 17
21 June 2019	The mother instructs former solicitor to send correspondence to The father's solicitor regarding the bathing. No reply ever received from The father's lawyers.	M2, 18
22 June 2019	The father facilitates a video call between the mother and child notwithstanding that it is not a day that the mother is to call the child in accordance with the Orders.	F35
24 June 2019	The father completes the Parenting After Separation Course.	F36
25 June 2019	The child advises the father that she will be going to Country N for Christmas to see her cousins.	F37
7 Jul 2019	The father takes the child for a walk on the beach with the dog, Q; the mother alleges the child went swimming; the father denies this.	F38	M2, 19
7 July 2019	The child discloses to the mother that she went swimming saying to the mother "I went swimming".	M2, 19
9 July 2019	The child discloses to the mother that she cannot speak to "Daddy". The mother receives a text from the father stating "I'm not having baths with X" and "X is sleeping in her own bed now".	M2, 20 & 21
11 July 2019	The child discloses to the mother that "Mummy, I told you that I went swimming at the pool but I didn't go swimming. I got sick because I didn't have enough blankets on my bed".	M2, 22
13 July 2019	After collecting the child from the father, The child explains to the mother (out of context) the reason she was unwell was because "I got cold in my bed, I didn't go swimming Mummy".	M2, 25
16 Jul 2019	The mother’s solicitors advise in correspondence that the mother sought to obtain a mental health care plan for the child and cause her to attend upon a psychologist; the father instructs his solicitors to write to the mother’s solicitors seeking, amongst other things, the name of any psychologist the mother causes the child to attend upon.	F40	M2, 26
17 Jul 2019	The mother and her parents attend the former matrimonial home with the Police to collect the mother’s belongings; the maternal grandmother calls the father’s family a “loser family” and makes derogatory comments about the father wearing the mother’s clothing; the maternal grandfather refers to the paternal aunt as a “Rottweiler” and “bloody mongrel”.	F42
19 Jul 2019	The father makes enquiries with the child’s day care if they had noticed any changes in The child’s behaviour.	F41
21 July 2019	The child is very upset when The mother collects her from The father. The father was in a bad mood. The child was upset when leaving and said: "Daddy didn't give me a hug" she then noticed The father's car was gone and immediately relaxed.	M2, 29 - 31
21 Jul 2019	The father requests that he and mother sit down at changeover to discuss finalising a chattel list and the child’s schooling; the mother refuses to meet with the father. The mother alleges the father drove his car at her whilst staring her down; the father denies this.	F42 F43	M2, 30
23 Jul 2019	The father receives an email from the child’s day care provider, Ms F regarding The child’s behaviour.	F41
24 July 2019	The mother the child to the GP and obtained a mental health plan	M2, 32
25 Jul 2019	The father sends the mother an email regarding the child commencing Kindergarten in 2020; the mother does not reply. Whilst in the father’s care, the child complains that her vagina is sore during bath time; the father consults his neighbour who has three daughters who recommends applying Sudocrem; the father applies Sudocrem to the child’s vagina and packs Sudocrem in the child’s day care bag the following day for the mother; the father sends the mother a text message advising of the child’s complaint	F44 F45-47	M2, 34 - 35
26 July 2019	The child asks the mother "Mummy do you keep secrets?". The mother says "No, why? Do you?" The child replies "Yes, I do because if I tell, someone will get mad". The mother tells The child "That it is always best to tell the truth"	M2, 37
28 July 2019	The child talks more about keeping secrets and says to the mother "… secrets are the best!", "My Daddy asks me to keep secrets at his house and I say yes", "My Daddy has heaps of secrets. He asks me to keep lots of secrets at his house". A short time later the child says abruptly "Forget what I said. Don't call the Police because they will say I am a naughty girl!"	M2, 38 – M2, 40
29 July 2019	Following on from yesterday's discussions about keeping secrets, the child says to the mother "So I don't keep secrets at Mummy's house, only Daddy's?	M2, 43
2 Aug 2019	Whilst in the father’s care, the child complains that her vagina is sore; the father sends the mother a text message advising of the child’s complaint; that he has applied Sudocrem to the child’s vagina and suggests that the child’s tight clothing or swimming lessons could be the cause.	F49	M2, 45
3 Aug 2019	The mother sends the father a text message advising that it was unhealthy for the father to be examining and applying Sudocrem to the child’s vagina.	F50
4 August 2019	The child, upon returning from the father's home advises The mother that she had a bath at Daddy's house. The mother observed The child's hair to be very dirty. The child advises The mother that she slept in her hair for 2 nights. The mother notices that The child has scratches on her inner thigh, lower right leg and what appeared to be a burn mark on her left leg. The mother also notes that the child did not have any irritation or redness to her vagina.	M2, 46 - 48
5 Aug 2019	The mother sends the father a text message advising that she has taken the child to a GP and that the father has breached the child’s privacy; the mother also advises that the child should be returned to her care if there is a perceived problem with the child’s genital area. The father attends upon L Public School to obtain enrolment forms for the child for 2020; the father is advised that the mother had already enrolled the child into L Public School on 12 June 2019.	F51 F52	M2, 49
7 Aug 2019	The mother’s solicitors write to the father’s solicitors advising that the child has attended upon a GP, Dr E and attach a medical certificate in respect to same advising that the child ought to “avoid baths and soap in the genital area”.	F53	M2, 50
8 Aug 2019	The father attends upon Dr E without the child to discuss the child’s vaginal irritation; Dr E provides clarity that the child should avoid soapy baths and bubble baths; that the child can have regular baths and that Sudocrem is appropriate to apply; Dr E issues a medical certificate.	F54
10 Aug 2019	At changeover in the presence of the child the mother says “You need to return that to us” in reference to the child’s hot water bottle; the child says to the father “Mum said you will keep my … and not return it”.	F55
13 Aug 2019	The child complains of vaginal soreness in the father’s care; the father takes the child to Town H Hospital; a doctor confirms that barrier cream can be applied on the child and the child appears to have chemical irritation; the father is provided with a discharge referral note which provides a diagnosis of “Chemical irritation vagina” and “Inflammation of vagina”.	F56, 59
14 Aug 2019	The father instructs his solicitors to write to the mother’s solicitors advising that the child was taken to Town H Hospital.	F57	M2, 52 - M2, 54
16 Aug 2019	The child tells the father “Mummy says she left you because you are too bossy”.	F60
18 August 2019	The child returns from the father very distressed and tired. She tells The mother "Daddy didn't let me watch TV all weekend. We did nothing. Daddy didn't let me wear my bunny dress and I wanted to". Later that night when The child was in the bath, she said to The mother out of the blue "Will you call the Police?" The mother says: "No I won't call the police. You are not naughty. Why would I all the Police?" The child then says: "I want you and Daddy to make love". This comment horrified the mother. She asked The child who told her about making love? The child says "My Daddy. He said that when I am older like you, I'll make love. But it's a secret. Are you allowed to keep secrets?" The child then says "Daddy said it's not about making love but it's about how much you love each other. Daddy said that but he said not to tell Mummy. You won't tell anyone Mummy? Not even your friends and you'll never tell the police?" The mother asks the child further about whether or not the father is still applying cream to her vagina and about the sleeping arrangements when she is at The father's house. The child advises that her bed is broken so she sleeps in bed with The father.	M2, 55 M2, 57 – M2, 63
18 Aug 2019	The father receives a message from the maternal grandfather reading “Just because you don’t get your own way you punish The child – you are an abusive shit”. The father ceases spending time with the child.	F61 F63
19 August 2019	The mother withholds the child from spending time with the father to protect her.	M2, 64
20 Aug 2019	The mother’s solicitor’s write to the father’s solicitors advising that the mother will not be facilitating time between the child and the father due to ‘disclosures’ the child made; the father instructs his solicitors to write to the mother’s solicitors seeking that they summarise the child’s alleged ‘disclosures’; no reply is received.  The father attempts to telephone the child; the mother does not facilitate a call. The child ceases attending her extra-curricular activities and day care.	F62 F64 F65
20 August 2019	The child says to the mother "My Daddy lets me wear my dress to bed. It's a very short one." This comment together with the co-sleeping worried the mother as the child had always worn flannelette pyjamas to bed.	M2, 67
21 Aug 2019	The mother fails to take the child to day care.	F65
21 August 2019 *	The mother reports her concerns to police. The mother’s concerns were referred to the Joint Referral Unit. This referral was rejected as it did not meet the criteria for sexual abuse. “There is no disclosure of sexual assault. It is noted that there is conflicting evidence in regards to the child’s need for cream to be applied to her vagina. The child has made no disclosure of sexual assault.”	M2, 68	S6, Tab 4.4
22 Aug 2019	The father instructs his solicitors to write to the mother’s solicitors seeking that the mother facilitate telephone calls between the child and the father.	F66
22 August 2019	The mother says to the child "you know how you share a bed with Daddy, do you both go to bed at the same time or do you go to bed and Daddy come into bed later?". The child replies "we always go to bed together". After reporting the concerning disclosures made by the child to the police, the police speak with The child. The detectives advise that the disclosures made by the child are not sufficient to lay any charges against the father.	M2, 69 M2, 70
23 Aug 2019	The mother files an Application in a Case.
24 Aug 2019	The mother advises the father that she will facilitate telephone calls on Monday and Friday until matters are resolved; the father responds with a request that the mother explain why the child is being withheld; the mother does not respond.	F67
26 Aug 2019	The father sends the mother a text message seeking that the mother continue to take the child to her day care and extra-curricular activities; the mother does not respond. The mother facilitates a telephone call between the child and the father; the child speaks to the father for a total of 30 minutes; the child asks to remain on the phone with the father during dinner; the mother tells the child she has to hang up and the child begins to cry before the call is terminated. The father asks the mother whether she will be denying the child time with the father on Father’s Day; the mother alleges the father did not allow the child to spend time with the mother on Mother’s Day.	F68 F69 F70
27 Aug 2019	The father sends the mother a message advising of R’s birthday party that the child was to attend with the father; the mother does not respond. The father makes an open without admissions offer to the mother to spend supervised time with the child on Father’s Day.	F72 F73
27 Aug 2019	After becoming aware in the mother’s Affidavit that the mother made a report to the Police, the father telephones the Police and is advised that the child was interviewed in the absence of the mother and no offence was detected; the Police Officer encourages the father to subpoena to the NSW Police.	F75
30 Aug 2019	The mother through her solicitors advises she was not agreeable to the child spending supervised time with the father on Father’s Day. The father files an Undertaking that he will not collect the child from day care or extra-curricular activities pending adjudication of the matter.	F74
23 Sept 2019	The matter is listed for Mention before His Honour Judge Altobelli and the matter is adjourned to 9 October 2019 for Interim Hearing.
28 Sept 2019	The mother and child inadvertently see the father at the beach. The father and the child briefly spend time together. The mother stood back for some time to allow the father and child to speak with each other. The child and her friends then advised the father that they were just about to leave and they left. Following this incident the child's behaviour changed and she became uncharacteristically emotional and unpredictable. The child threw tantrums, demanded that the mother buy toys for her at the supermarket and petrol station. The child would say "I want you to buy me a toy!", "I want it!". When the mother would say "No" the child would kick and scream. When the mother would ask the child to do something, the child would shout "No, I'm not doing it!" and was defiant in a way she hadn't been before seeing the father. The child also became clingy towards the mother and would seek hugs and at night would request that the light be left on. The child would say "Mummy, can you leave my light on, I'm scared of the dark. Can you stay with me?"	M4, 3 – M4, 7 M4, 8 – M4, 14 M4, 15

6 October 2019 The child spends time with the father supervised by SuCo

* Chronology entry dated 21 August 2019 incorporated by Chambers