Muggeridge & Anor and Moller

FAMILY COURT OF AUSTRALIA

MUGGERIDGE AND ANOR & MOLLER

[2019] FamCA 727

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where there are allegations that the first applicant father sexually abused one or both of the children – Where one of the children makes allegations– Where the mother supported the belief that the child was sexually abused – Where it is likely that the mother coached a child to make allegations – Where there is a consideration of the risk posed to the children – Where the mother now accepts that there is no evidence to support a finding that either child was sexually abused by the first applicant.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Best interests of a child – Where the children have always lived in the primary care of the mother – Where the children each have a different father – Where each father seeks that his respective child transitions into his care – Where the effect of transitioning the children to their respective fathers would seriously damage, if not sever, the relationship between the siblings – Where the mother now supports each child having a relationship with their respective fathers – Where separation of the siblings would not be in their best interests – Orders.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3)

Andrew & Delaine [2009] FamCAFC 182
Beckham & Desprez [2015] FamCAFC
Bennett v Bennett (1991) FLC 92-191
Blanding v Blanding [2016] FamCAFC 21
Chapman & Palmer (1978) FLC 90-510
H & H (1995) FLC 92-599
Mazorski & Albright [2007] FamCA 520

1st APPLICANT:

Mr Muggeridge

2nd APPLICANT:

Ms Ashworth

RESPONDENT:

Ms Moller

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

FILE NUMBER:	ADC	1580	of	2015
FILE NUMBER:	ADC	3888	of	2016

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29, 30 April 2019, 1, 2, 3, 6, 7 May 2019 and 15 July 2019

REPRESENTATION

COUNSEL FOR THE 1ST APPLICANT:

Mr Tredrea

SOLICITOR FOR THE 1ST APPLICANT:

Bartel & Hall

COUNSEL FOR THE 2ND APPLICANT:

Ms Lewis

SOLICTOR FOR THE 2ND APPLICANT:

Jacqui Ion Lawyers Pty Ltd

COUNSEL FOR THE RESPONDENT:

Ms Ross

SOLICITOR FOR THE RESPONDENT:

Angela Ferdinandy

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

That the first applicant and the mother have equal shared parental responsibility for B born … 2014.
That B shall live with the first applicant from the conclusion of school (or 4.00 pm if a non-school day) on Friday to the conclusion of school (or 4.00 pm if a non-school day) on the following Friday commencing 18th day October 2019 and each alternate week thereafter.
(3) That B shall live with the mother from the conclusion of school (or 4.00 pm if a non-school day) on Friday to the conclusion of school (or 4.00pm if a non-school day) on the following Friday commencing 11th day of October 2019 and each alternate week thereafter..
That during school holidays B shall live with the first applicant as follows:-
(a)For one half of the April, July and October school holidays as may be agreed and in default of agreement THEN for the first half of the school holidays in every even numbered year thereafter and for the second half in every odd numbered year thereafter;
(b)For one half of the December/January school holidays as may be agreed and in default of agreement THEN for twenty one (21) days from 3.00 pm on 24 December in even numbered years and for twenty one (21) days from 10.00 am on 26 December in odd numbered years.
(c)From 5.00 pm Maundy Thursday until 5.00 pm Easter Monday in 2020 and each alternate year thereafter PROVIDED that B shall live with the mother from 5.00 pm Maundy Thursday until 5.00 pm Easter Monday in 2021 and each alternate year thereafter;
(d)That in the event that Mother’s Day does not fall during the mother’s time with the child THEN from 4.00 pm on the Saturday prior until 5.00 pm on Mother’s Day PROVIDED that if Father’s Day falls during the mother’s time with the child THEN she will return the child to the first applicant’s care at 4.00 pm on the Saturday prior to Father’s Day.
(2) That B live with the mother at all other times PROVIDED that Orders 2 and 3 shall be suspended during school holiday periods.
That the second applicant and the mother have equal shared parental responsibility for D born … 2010.
That D live with the mother.
That D shall spend time with the second applicant as follows:-
(a)At the election of the second applicant either each alternate weekend or each third weekend from the conclusion of school (or 4.00 pm if a non-school day) until 7.00 pm Sunday (subject to flight time) commencing 18^th day of October 2019;
(b)For one half of the April, July and October school holidays as may be agreed PROVIDED that the time D shall spend with the second applicant coincides with the time that B shall spend with the first applicant;
(c)For one half of the December/January school holidays as may be agreed and in default of agreement THEN for twenty one (21) days from 3.00 pm on 24 December in even numbered years and for twenty one (21) days from 10.00 am on 26 December in odd numbered years PROVIDED that the time D shall spend with the second applicant coincides with the time that B spends with the first applicant.
(d)From 5.00 pm Maundy Thursday to 5.00 pm Easter Monday in 2020 and each alternate year thereafter PROVIDED that D shall be with the mother from 5.00 pm Maundy Thursday to 5.00 pm Easter Monday in 2021 and each alternate year thereafter.
(e)That in the event that Mother’s Day does not fall during the mother’s time with the D THEN the second applicant’s time shall be suspended for the entire weekend PROVIDED that if Father’s Day falls during the mother’s time with B THEN she will spend the entire weekend with the second applicant.
That D live with the mother at all other times PROVIDED that order 8(a) shall be suspended during school holidays.
That D shall fly between C Town and Adelaide (on an unaccompanied basis) at the expense of the second applicant PROVIDED that if the mother shall make application for a Child Support Assessment to issue in respect of D THEN the mother and the second applicant will share equally in the costs of D’s travel between C Town and Adelaide.
That all parties be at liberty at their sole cost to obtain school reports and photos from any school at which D and B attend.
That the first applicant and the mother shall contact B’s school and authorise the release of reports, notices and other information to each of the parties upon their request for same.
That the second applicant and the mother shall contact D’s school and authorise the release of reports, notices and other information in respect of the child’s attendance upon their request for same.
That each of the parties shall advise the other of any serious medical emergency involving either D or B with such communication to be by way of telephone or other electronic means.
That each of the parties shall keep the other advised of their mobile telephone numbers, email address and the residential address of any place at which D and B reside.
That the first and second applicants and the mother are each restrained and an injunction is granted restraining each of them from:-
(a)Denigrating each other in the presence or hearing of D or B or permitting any other person to do so;
(b)Permitting D or B to read documents filed in these proceedings;
(c)Discussing the allegations raised in these proceedings with D or B or permitting any other person to do so;
(d)Discussing current or future parenting arrangements with D or B or permitting any other person to do so.
That the mother is restrained and an injunction granted restraining her from:-
(a)Permitting the maternal grandparents or either of them from communicating with either the first or the second applicant either personally or for and on behalf of the mother SAVE AND EXCEPT in the case of an emergency;
(b)From taking either D or B to any health professional including a psychologist, therapist or counsellor for the purposes of counselling or therapeutic intervention or assessment without the express consent of the first applicant in respect to B and the second applicant in respect to D.
That the mother shall facilitate Face-time communication between D and the second applicant each Tuesday and Thursday from 6.30 pm to 7.00 pm and at such other times as D may request.

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

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1580 of 2015
FILE NUMBER: ADC 3888 of 2016

Mr Muggeridge

1^st Applicant

And

Mr Ashworth
2^nd Applicant

And

Ms Moller

Respondent

REASONS FOR JUDGMENT

Introduction

By Initiating Application filed 7 May 2015 Mr Muggeridge (“the first applicant”) sought parenting orders in respect of B born in 2014 such that he and Ms Moller (“the mother”) have equal shared parental responsibility for B who shall live with the mother and spend time with the first applicant increasing to significant and substantial time upon B commencing formal school education.
By Response filed 14 July 2015 the mother opposed the first applicant’s orders and instead sought that she have sole parental responsibility for B and that the first applicant’s time with B should be supervised and subject to agreement between the parties.
By Initiating Application filed 14 October 2016 Mr Ashworth (“the second applicant”) sought parenting orders in respect of D born in 2010. The second applicant sought that D live with him and spend time with the mother limited to one occasion per month under the supervision of the paternal grandparents.
By her Response filed 28 January 2017 the mother sought sole parental responsibility for D, to live with her and spend time with the second applicant as may be ordered by the Court.
B and D are half siblings. They live with the mother in C Town but spend separate time with their fathers.
On 20 September 2018 the Court ordered as follows:-
1.That the matter of Ashworth and Moller ADC3888 of 2016 and Muggeridge and Moller ADC1580 of 2015 be consolidated and heard as a single trial.
2.That all applications for final orders be adjourned for hearing on 29 April 2019 at 10.00 am as a 7 day matter and that the evidence in chief of all witnesses be given by affidavit.
Notwithstanding that the two files were the subject of one hearing, they were not physically consolidated but the files travelled together.
I propose to deliver one set of reasons common to both files but with separate orders.
The first applicant now seeks orders as set out in his Amended Initiating Application filed 14 January 2019. They are summarised as follows:-
1.That the first applicant have sole parental responsibility.
2.That B live with him and after a period of eight weeks during which B shall spend no time with the mother and thereafter B will spend time with the mother as follows:-
a.During term time, each alternate weekend from after school on Thursday until the commencement of school on Monday or 5.00 pm in the event of a public holiday or pupil free day;
b.For one week of each of the short end of term school holidays and for one half of the December/January long school holidays;
c.On other special occasions including Christmas, Mother’s Day, B’s birthday and if D’s birthday if she is with the mother at that time;
d.That the parties do all things necessary to change B’s surname to Muggeridge-Moller.
By Amended Initiating Application filed 21 December 2018 the second applicant now seeks that D live with him and after a period of one month during which D will spend no time with the mother nor be able to communicate with her, thereafter D will initially spend limited supervised time with the mother and after 10 months increasing to every third weekend from Friday night to Sunday night and half of all school holidays.
The mother’s position in relation to the children spending time with each of their fathers has dramatically altered. In her Amended Response filed 24 April 2019 she seeks that she have equal shared parental responsibility with the first and second applicants, that the children live with her but that B spends time with the first applicant increasing to each alternate weekend from the conclusion of school on Friday to the commencement of school on Monday, the intervening Thursday night and one half of each of the school holidays.
The first applicant lives in close proximity to the mother in C Town, whereas the second applicant lives in Adelaide. Accordingly, the mother seeks that D spends time with the second applicant each alternate weekend from the conclusion of school on Friday to Sunday evening (subject to flight time and availability) and one half of the short school holidays.
During Christmas school holidays D is to spend time with the second applicant as follows:-
(a)From 3.00 pm on 24 December in odd-numbered years; and
(b)From 10.00 am on 26 December in even-numbered years;
until the Friday prior to the commencement of school in Term 1 in each year.
The mother proposes that the second applicant will be responsible for the unaccompanied flight travel of D.

Background

The first applicant and the mother met whilst they were children.
The second applicant and the mother met in 2009.
Whilst the first applicant has generally lived in C Town, the second applicant was living in Adelaide.
The mother advised the second applicant that she was pregnant with D. The second applicant was a serving police officer and following the commencement of a relationship with the mother, he transferred his employment to C Town. It was intended by the second applicant that he would permanently move.
The second applicant contends that the mother was secretive as to the circumstances surrounding the birth of D. He was apparently told that the mother was resting whereas she was in labour. The second applicant arrived shortly after D was born in 2010.
On 12 October 2010 the second applicant suffered a serious work related injury. The treatment involved ongoing operative intervention and following medical advice that he would not be able to receive appropriate treatment in C Town, he decided to return to Adelaide for treatment and rehabilitation.
The second applicant asserts that communication with the mother and her parents became difficult and he was only able to communicate with her via the paternal grandfather.
The second applicant spent 20 to 30 minutes with D on 10 November 2010, but despite repeated requests for more time there was little or no response from the mother save for a letter from the mother’s lawyer in December 2010 alleging that he had been threatening to the mother and that his continued attempts at communication was to be considered as harassing and intimidating behaviour.
The second applicant sought advice and proposed to the mother that they attend mediation. The second applicant was issued with a s 60I certificate on 22 August 2011.
The first applicant and the mother commenced a relationship in 2011. The first applicant was living in E Town and working in allied health.
The relationship developed quickly and in June 2011 the mother and D relocated from C Town to E Town.
The mother considered that the first applicant had taken on a role as a de facto father to D. The mother asserts that the first applicant actively encouraged D to refer to him as “dad”. It is likely that the mother did not discourage the first applicant developing a close relationship with D.
In December 2011 the mother and D returned to C Town. There is some disagreement as to the status of the mother’s relationship with the first applicant. However, both she and her parents showed support for his move to C Town in September 2012.
The mother and the first applicant commenced cohabitation. D was almost two years old.
The first applicant undertook various employment opportunities in C Town whereas the mother remained at home and fulfilled the role of homemaker.
During their cohabitation, the first applicant and the mother do not agree as to the nature and extent of the relationship that was developing with D.
For his part, the first applicant contends that the mother involved him in a range of activities involving the care and parenting of D. In particular, the recollection of the first applicant is that there were no issues raised that suggested the mother considered the first applicant’s bathing practices as inappropriate or presenting as a risk to D.
Consistent with the mother’s conduct whilst in E Town, the first applicant believes that the mother strongly promoted the first applicant as D’s father and encouraged her to bond with him.
The mother places a different gloss on D’s relationship with the first applicant and his conduct in the home.
The mother contends that she was reluctant to provide her fulsome support for D’s relationship with the first applicant and denies that she was in favour of supporting D’s belief that the first applicant was her father.
The mother alleges that the first applicant would behave immodestly and inappropriately in front of D.
She alleges that the first applicant was prone to excess alcohol use and would make a practice of being naked around the house and on occasion he would dance to music naked in D’s presence.
At first the mother felt uncomfortable but did not consider that the first applicant’s behaviour was inappropriate nor that it could be an indicator of sexual abuse.
It appears that the relationship between the first applicant and the mother deteriorated during the mother’s pregnancy with B, continuing after her birth in 2014.
In the mother’s trial affidavit she alleges the following conduct by the first applicant at [95]:-
In 2013 on one occasion whilst living in [H Street C Town];
(a)[D] was in the shower. [The first applicant] was in the shower as well. I was getting [D’s] towel.
(b)I heard [the first applicant] say “[D], touch this”. [D] reached towards his penis. I had grabbed [D] out of the shower and yelled at him. We argued and on this occasion I locked [D] and myself in the toilet.
It appears that the mother ruminated over what she considered the first applicant’s inappropriate behaviour. She alleges that both she and D were the subject of physical and verbal abuse. The mother’s experience left her hysterical and in fear.
The mother formed the view that the first applicant’s behaviour could be considered as “grooming” and that D may well be at risk of sexual abuse.
Following B’s birth the parties separated on 18 April 2014.
Both the first applicant and the mother complain as to the other’s conduct but generally informal arrangements were put in place that enabled the first applicant to spend time with B and D. It is possible that the mother may have hoped for a reconciliation, whereas the first applicant was steadfast in his opposition to that prospect.
In January 2015 the first applicant commenced a relationship with his current partner. He considers that upon the mother gaining knowledge of his new relationship she attempted to obstruct him spending time with the children but in particular B.

For her part, the mother considers that the first applicant was seeking unsupervised time with the children and when she expressed discomfort with that proposition he threatened her with the commencement of legal proceedings.
The first applicant commenced proceedings on 7 May 2015. The parties negotiated a parenting plan that provided for him to spend time with B on one occasion per week for between one and two hours at a park in C Town.
The mother agrees that she and the first applicant were not able to reach agreement given the first applicant sought that B spend an increasing amount of time with him which was opposed by the mother.
By that stage the mother seriously considered that the first applicant’s violence was deep-seated and endemic and B was at risk of sexual assault by him. The mother sought advice from her general practitioner in August 2015 and she contends (denied by the general practitioner) that she was advised to take photographs of B’s genital area before and after the child spent time with the first applicant.
In the mother’s first Affidavit filed 14 July 2015 she sets out a litany of concerns in respect of the first applicant’s conduct.
In addition to allegations of “inappropriate sexual indecency in relation to D” the mother alleged that the first applicant had demonstrated indecent and sexualised behaviour in the presence of D, that he had sent explicit photographs and videos of his genitalia to third parties, was enthralled with pornography and suffered anger and mental health issues exacerbated by excessive steroid and other illicit drug use.
The mother also alleged that the first applicant was stalking her and was derelict in his supervision such that when left alone he had allowed B to fall in the bath. She further alleged that the first applicant had dropped B on almost every visit or occasion that they were together.
By reference to the notes taken by the mother’s general practitioner on 16 July 2015[1] the following allegations are recorded by the doctor:-
[1] Exhibit “34” in the proceedings.
[The mother] [c]ame to talk about her past relationship with [the first applicant] and domestic violence issues
Also grooming for sexual abuse for [D] for [the last two] years
…
[L]eaving the door open when he voids
[W]alks around the house with no clothes on
[O]n [Ds] ipad is [an] app which plays certain music – he would push this button, put his hands behind his back and wiggle his penis around in time to the music approximately 60cm in front of [D’s] face
[O]n many occasions told by [the mother] not to do that, that was child abuse, he was a paedophile
[H]is response was either – no its not your a prude your over reacting or would be well what are you going to do about it your old man has depression so if you tell anyone hes going to kill himself
…
Left [the relationship with the first applicant] in early 2013 when he started to undertake these actions in [E Town] and came home to her family in [C Town]
He followed her and manipulated the relationship to restart saying he had moved his whole life for her
…
Had been having a sexual affair with one of his fitness clients while [the mother] was pregnant
Had continued with the behaviours towards [D] during the pregnancy
A few weeks/months ago [the maternal grandfather] went and did a course on mandatory reporting through his work because he thought there was something wrong with how [the first applicant] had been acting towards [D] ([the mother] hadn’t told him anything because [the first applicant] had manipulated her into believing that [the maternal grandfather] may take his life if he knew all the details)
The [maternal grandfather] then came home and confronted [the mother] and made her tell him everything
…
[The mother’s] affidavit is then done as a right of reply [to the first applicant’s affidavit] and the timing of [the maternal grandfather’s] questions into what was going on has allowed [the mother] to state the truth in this report about [the first applicant’s] “grooming behaviour” towards [D].
[The mother’] affidavit is delivered to him tomorrow
[C]oncerned at what he might do when confronted with it
…
[The first applicant] is supposed to have a supervised visit with [B] on Sunday – will make [the maternal grandparents] aware that he may attempt to do a runner with [B] and to be prepared – not let him get between them and the door etc …
(Errors in original)
The mother states that she took advice from counsellors involved in a parenting course. According to the mother, the counsellors encouraged her to seek assistance for D given their belief that she had been the subject of sexual abuse and was being groomed by the first applicant.
The mother engaged D with Child and Adolescent Mental Health Service (“CAMHS”) counselling and with “Sand Play” therapy at Q Group. The mother considers (perhaps with hindsight) that it was the workers at this service that persuaded her that D was at risk and that the mother should facilitate an environment that would make D comfortable if she wished to make disclosures.
Exhibit “42” is a written report made by the mother on 24 September 2015 to the Child Abuse Report Line (“CARL”) for assessment. The report the mother makes is detailed and contained numerous allegations but is notable in that mother recorded D’s involvement in sand play therapy:-
As of Tuesday 15/9/2015 [D] attended The Children’s Health and Wellbeing program ‘Sand Therapy’ at [Q Group]. Since that day she has started to open up in complete detail about just some of the things [the first applicant] was doing to her when she was younger:
·Punching her
·Kicking her
·Pushing her
·Touching her genitals
·Grabbing/choking her around her neck
·Screaming in her face and cursing at her and calling her names
·Breaking her bedroom clock and throwing her belongings, hiding her toys
·Stripping off her bedding and breaking the slats on her bed.
Since opening up, [D] has been:
·Sucking [B’s] dummy
·Sucking her thumb
·Wanting a bottle like [B]
·Wanting her doggy-comforter when she was little (she has not had for many months).
·Pulling at eyelashes and biting off nails to make “wishes”-about protecting her sister from “yucky man [first applicant]”.
·Suffering Nightmares every night, crying out “No” and sobbing in sleep.
·Begging me to hide [B] so ‘yucky [first applicant]’ cannot [B] like he did to her
·[D] saying she wishes [B] was still in mummy’s belly so Yucky [first applicant] cannot hurt her and we can protect her
·Talking like a baby
·Wanting to be buckled in and out of the car seat.
·Touching her genitals
·[E]motional, fragile state.
The second applicant became aware that the first applicant and the mother had separated. He was apparently interested in what had happened to D and made contact with the first applicant in July 2015. The fathers met in August 2015. The second applicant was informed by South Australian Police (“SAPOL”) in December 2015 that there was a formal investigation ongoing in respect of the allegations made by the mother that the first applicant had sexually abused D and she was a child at risk.
Following an investigation, the allegations that had been promoted by the mother were found to be without substance and on 19 January 2016 the police concluded their investigation and closed their file.
The second applicant was informed by police that there were concerns in respect of the mother’s parenting capacity and there had been a recommendation that her capacity to parent be assessed.
The second applicant contacted the mother in March 2016. They spoke at length and agreement was reached that the second applicant would spend time with D. The mother sent him photographs of D and advised that on 22 March 2016 she had told D that the second applicant was her biological father. The conversation was the subject of a video recording and was forwarded to him. The second applicant and the paternal grandparents met and spent time with D on 26 March 2016.
Thereafter, the second applicant travelled to C Town on a regular basis to spend time with D; predominantly in the mother’s general presence.
The mother confided in the second applicant that she believed the first applicant had sexually abused D and that she was helping the police to investigate and hopefully arrest him.
D disclosed to the second applicant that the first applicant had “touched her funny” and was touching and sucking his “floppy funny” and producing “white wee”. The mother’s reports of D’s behaviour involved D experiencing nightmares and recounting and recollecting the sexual abuse that the first applicant had perpetrated.
On 3 April 2016 the mother forwarded a detailed email to the second applicant via D’s email account. The purpose of the email was to demonstrate to the second applicant the damaging effect that the first applicant’s abuse of D was having. The following appears in Exhibit “49”:-
[D’s] nightmares and mutterings in her sleep are every single night and they still have not gone away. [D] has torches and lights lighting up the whole bedroom, she refuses to sleep anywhere but with me and holds onto me while she sleeps lightly, she locks the door because she is scared ‘he will come in and wake her up like he did’, she is frightened to close her eyes because when she does ‘I see his face everywhere’. Thursday I was up with [D] up at 3am, she was hysterical from yet another nightmare. She wanted to call you and tell you all about ‘yucky [first applicant]’ so that you can keep her safe, because ‘my dad’s a policeman’. She even grabbed my phone to call you and said ‘I know his number its 000’. I spent the day with a sad, confused, withdrawn, angry little girl. Who would not let me out of her sight. This happens on many occasions and sometimes, we may go ‘offline’ for a while. …
The mother also forwarded video interviews with [D] to the second applicant. In a video dated 14 April 2016[2] D is observed to say:-
Hi dad, yucky [first applicant], he touched my funny in the bath and he pushed me, kicked me and punched me. And and he has a floppy funny, and he ate, actually I ate his wee and his poo. And I sucked his wee and um and um he lives up the hill down the hill and across the road. And like um, like, um at the park he touched my funny there, and he says if you tell your mum I’m going to kill [B], you, um [B] and me and that’s all.
[2] Exhibit “50” in the proceedings.
The mother also advised the second respondent that because of D’s oppositional behaviour at school and the lack of apparent support by the school principal, she was transferring D to a new school.
The second applicant continued to communicate with the mother and spend time with the D. He contends that the mother’s focus on allegations that D had been the victim of sexual abuse by the first applicant were frequent and had become a routine topic as between D and the mother.
The second applicant was also aware of the ongoing investigation of the allegations of sexual abuse by the first applicant. It appears that the second applicant’s cooperation with the SAPOL and Families SA (as they then were) investigation was in part motivated by a concern that there may be no substance and a concern that the mother may be promoting a false belief.
In June 2016 the second applicant had meetings with representatives from SAPOL, Child Protection Services (“CPS”) and Families SA. A decision was made that D would be placed in the second applicant’s care.
The second applicant and the mother were in constant communication during this period. At no time did the second applicant advise the mother that he had been in contact either with the first applicant nor that he was engaged in discussions with SAPOL, CPS or Families SA.
On 12 July 2016 the mother entered into a safety plan which she considered helped her manage her anxiety and put the Court proceedings into perspective. She was required to undertake therapy and did so over a significant period of time.
On 18 July 2016 orders were made that extended the first applicant’s time with B. The mother concedes that there were no difficulties with the relationship and she contends that as a result of the concluded investigations by SAPOL and Families SA and the benefits of the therapeutic assistance gained, she considers that she is “now able to accept that there is no proof that [the first applicant] sexually abused the children”. She also concedes that D may have picked up on the mother’s anxieties towards both fathers.
The mother contends that during 2015 and 2016 D would not leave the home or the car without wearing sunglasses because it was a disguise “so yucky [first applicant] won’t recognise me”.
The first applicant concedes that notwithstanding the mother’s allegation that he had sexually abused D, following the favourable conclusion that abuse was not substantiated and the mother’s apparent cooperation with Families SA, no further intervention by Families SA was planned. The children remained in the primary care of the mother.
By order made 31 January 2017 a family report was ordered. It was released on 19 June 2017. It appears that the mother continued to maintain a concern that the first applicant had sexually abused the children and was emotionally and physically abusive towards the mother.
On 4 August 2017 the first applicant’s time with B was extended to each Thursday from 10.00 am until 4.00 pm and from 9.00 am each Sunday until 5.00 pm Monday.
The mother admits that in preparation for D to spend time with the second applicant on 6 August 2016, she sewed a USB recorder into D’s hair tie. It was discovered by the second applicant. It was the catalyst for an angry exchange between the parties with the second applicant maintaining that when faced with the mother’s stated intention of terminating his time with D prematurely he picked her up to prevent her leaving. There then followed an angry and physical altercation in the presence of the child. For his part, the second applicant asserts that the mother tried to hit him and punched him in the sternum. The paternal grandmother called the police. The child was reported to have said words to the effect of “mummy told me dad doesn’t love me” and “dad is trying to take me from my mummy”. The mother’s version is that the second applicant was the aggressor and was punching her in the head. She alleges that he slammed his body into hers; forcing a collision with the fence. The child wrapped her legs around the fence and she was instructed by the mother not to let go. The mother observed D “hissing at the paternal grandparents” and at the second applicant “like a snake”. The parties each made a complaint alleging assault by the other. The mother was charged with using a listening device to which she pleaded guilty.
D currently spends time with the second applicant on each alternate weekend and for half of each school holidays. Whilst there is general compliance, the Facetime communication between D and the second applicant is asserted to be problematic.
B currently spends time with the first applicant on Thursday afternoon after school and from 9.00 am Sunday to 5.00 pm on the following Monday. The mother concedes that it has been easy to encourage B to engage with the first applicant, but D’s time with the second applicant continues to be problematic particularly with respect to their communication.

Documents relied upon

The first applicant relies upon the following documents:-
(1)Amended Initiating Application filed 14 January 2019
(2)The Trial Affidavit of the first applicant filed 19 December 2018
(3)Affidavit of Ms J filed 19 December 2018
The second applicant relies upon the following documents:-
(1)Amended Application filed 21 December 2018
(2)Trial Affidavit of the second applicant filed 21 December 2018
(3)Affidavit of Mr K Ashworth (“the paternal grandfather”) filed 21 December 2018
The mother relies upon the following documents:-
(1)Amended Response filed 24 April 2019
(2)Trial Affidavit of the mother filed 24 April 2019
The Independent Children’s Lawyer (“ICL”) relies upon the following documents:-
(1)Family Assessment Reports dated 25 May 2017, 19 June 2017 and 26 March 2019.

Orders sought by the ICL

The ICL was generally supportive of the orders sought by the first and second applicants.
The ICL supported the first and second applicants having sole parental responsibility and primary care for their separate children.
The ICL considered that there needed to be a period of one month during which the children spend no time with the mother, they resume time with the mother under the supervision of the maternal grandparents for a period of three months, transitioning to Friday until Sunday of each third weekend and one half of all school holidays.
The orders are predicated on two important considerations:-
(a)That the children obtain psychological assistance to help them adjust to the change in primary care; and
(b)The applicants obtain psychological assistance to assist them in supporting the children’s adjustment.
An important consideration that underpins the approach of the ICL is a level of confidence in the applicants making their own arrangements to facilitate the children spending time and communicating with each other.
Simply put, the orders sought by the applicants with the support of the ICL would see the children not just removed from the mother’s primary care but would also result in the siblings being separated with the potential for limited physical contact and communication. The potential consequences of the separation of the siblings is a central issue in the proceedings.

Issues in dispute

In the Family Report dated 26 March 2019, the family consultant outlined the issues identified during the assessment as follows:-
(a)How [D] formed the belief she was sexually abused by [the first applicant], why she stated that belief repeatedly and whether she was manipulated by the mother in the formation and expression of that belief.
(b)Whether the mother is promoting and/or (covertly) opposing the children’s relationship with their fathers, and any consequent risk to each girl’s psychological wellbeing.
(c)Whether there is a risk of further damage to the children’s relationship with their fathers once the proceedings are concluded.
(d)Whether, given the history and current allegations and disputes, shared parental responsibility can be viable.
(e)How these children’s needs for positive, appropriate relationships with both their parents can be best met.[3]
[3] Family Assessment Report 26 March 2019 [63] – [67].
To that list should be added a consideration of the psychological risk to the children (if any) of sibling separation. In highlighting the identified issues, it is not intended to derogate from the Court’s obligation to consider both the primary and additional considerations as set out in s 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”).
A further consideration is whether the mother genuinely accepts that the children were not the subject of sexual abuse by the first applicant and were never at risk, or whether the mother’s position is an acceptance that there is no evidence to support her belief that the children had been sexually abused and assaulted.

Division 12A considerations

At the commencement of the proceedings consideration was given to the application of pt VII – div 12A of the Act and in particular the principles applicable to parenting cases as set out in s 69ZN and issues of evidence that arise from a consideration of s 69ZT.
No application was made by either party to dispense with the provisions of s 69ZT in preference for the greater evidentiary rigor of the Evidence Act 1995 (Cth) (“the Evidence Act”). Accordingly, the admissibility of evidence was to be determined by reference to s 69ZT(1). However, pursuant to s 135 of the Evidence Act and the application of r 15.13 of the Family Law Rules 2004 (Cth) I heard and determined objections to evidence.

Notwithstanding that the application of s 69ZT was not displaced, the Court needs to consider the weight given to evidence that would otherwise be considered inadmissible but for the provisions of s 69ZT.

The evidence

The first applicant

The first applicant relied upon his trial affidavit and under cross examination by the second applicant’s counsel agreed that for a significant period the mother wanted him to take on the role of a father to D. Since the commencement of proceedings the first applicant has not spent time with D.
Exhibit “1” was comprised of email communication between the first applicant and the mother on 6 May 2011. It suggests that the mother and D were to cohabit with the first applicant in E Town and it is apparent that the mother considered the first applicant to be an ally and strongly supportive of her intention to limit the extent to which D would have a relationship with the second applicant or his parents.
The first applicant has been spending time with B since 4 August 2017. There has not been an increase in time notwithstanding that he has sought extra time. The first applicant has some current involvement in the child’s school in that he picks up B on Thursday afternoon and returns the child to the mother at about 4.00 pm. It is his intention that if the child is placed in his primary care he will ensure that she attends the same school.
The first applicant concedes that the children are close, but he is concerned at reports that at lunchtime and after school D would wait for B and remove her from her own friends.
The first applicant rejected counsel’s proposition that he and the mother are slowly re-establishing a communication pathway. He considered that communication between the parties remains strained and difficult. There is no trust, although attempts are made to shield B from the obvious dislike felt by both the first applicant and the mother.
The parties currently communicate via a communication book, now marked Exhibit “32”.
The first applicant was referred to pages 144 to 148, 164 and 158 to 159 as examples of civil and appropriate communication between the parties.
By reference to the communication passing between the parties there is some support for counsel’s contention. Unfortunately more recent communications between the parties, but in particular commencing at page 183 suggests that whilst the communication book provides a viable method of information about B passing between the parties, it also records aggressive exchanges between them. The more recent communication between the parties has a depressing tone of increasing vitriol. There is also a concern as to the extent that the maternal grandfather is the author of some of the entries.
The mother’s current position is either to concede that the first applicant did not sexually abuse or assault D or behave inappropriately in the child’s presence or that whatever her belief may be, there is no evidence that could substantiate the allegations.
In that context, it is difficult to understand the focus of the mother’s counsel’s cross examination of the first applicant when he was asked whether he was confident in showing his naked body and whether he had danced naked in front of the child while wiggling his hips or flopping his penis around. The father denied that there was any aspect of truth to the mother’s allegation, but did concede that from time to time he did not close the toilet door when occupied by him. He specifically denied that he had ever pointed his penis at D and exhorted her to call it a “dick, willy or penis”.
A specific allegation of the mother is set out in [95] of her trial affidavit. It is relevant to the cross examination of the first applicant and is in the following terms:-
In 2013 on one occasion whilst living in [H Street, C Town]:-
(a)[D] was in the shower. [The first applicant] was in the shower as well. I was getting [D’s] towel.
(b)I heard [the first applicant] say “[D], touch this”. [D] reached towards his penis. I had grabbed [D] out of the shower and yelled at him. We argued and on this occasion I locked [D] and myself in the toilet.
The first applicant denied that the alleged incident had taken place. He denied any allegation of inappropriate conduct.
The mother’s trial affidavit was filed on 24 April 2019. It is her evidence that certainly by this time she had accepted that the first applicant did not represent a risk to the child. There has not been any reasonable explanation as to why allegations of sexual abuse involving the first applicant as the alleged perpetrator were pursued in the mother’s trial affidavit or by her counsel in cross examination.
The first applicant denied that he had ever been physically violent to the mother but did agree that in the period leading up to their separation in April 2014 they argued constantly and were quite aggressive towards each other in their communications.
Following separation the first applicant concedes that the parties were not able to reach an agreement as to the extent of time that B should spend in his care. The first applicant was insistent on unsupervised time commencing, whereas the mother strongly resisted B spending any extensive time with him.
The first applicant confirmed that he and the second applicant learned of each other through a mutual friend and met in mid or late 2015. Thereafter, they spoke or communicated by text message on a regular basis. The first applicant was keen to express to the second applicant that the mother’s allegations of sexual abuse of D were unfounded.
The fathers discussed their litigation strategy and in particular if the Court was minded to place each of the children with their fathers, how they would maintain the sibling relationship.
The first applicant was aware of the safety plan entered into by the mother in 2016 and the level of supervision required by Families SA. The first applicant was kept informed as to what was happening and he underwent a psychological or psychiatric assessment as did the mother. The first applicant considered that the children were at risk in the mother’s care. That continues to be his belief. He supports a finding that the children (but in his case B) are at risk of emotional abuse should they remain in the mother’s primary care.
The first applicant agreed that he had made a complaint to SAPOL that B was coming into his care with a false belief that she had been the victim of abuse. The father considered that the mother was responsible for B’s false belief and asked SAPOL to re-open the investigation into the mother.
The first applicant conceded that of recent date there was nothing significant in B’s behaviour or presentation which would prompt him to make further complaint.
He also agreed that the level of communication between the mother and his partner Ms J had been maintained at an appropriate and civil level. He did not agree with the mother’s assessment that her relationship with Ms J was friendly but rather considered that they were child-focussed.
The father’s current proposal is that he have sole parental responsibility and after a period of suspension, B’s time with the mother resume initially on a supervised basis and then progressing to each alternate weekend and half school holidays. He explained the change in his position from the orders as set out in his original initiating application as having been influenced by his consideration of the evidence.
The first applicant has yet to complete a parenting course but says he intends to do so.
He reasonably observed that B’s overall conduct and behaviour has settled down and that she shows age-appropriate development.
He remains concerned that D tends to monopolise B’s time at school.
I considered that the first applicant was a reliable witness. His home environment is stable and whilst he clearly places a high level of reliance on the involvement of Ms J, there is no aspect of the first applicant’s evidence which would suggest B would be at risk in his home.
The cross examination of the first applicant concerning the allegations of the mother that he would parade around the house naked, display his genitals in front of the child or invite the child to observe him in the shower and whilst on the toilet can be seen as a button pressed faintly. The more serious allegation that the first applicant invited D to touch his penis which allegedly then required the mother to intervene was the subject of strong rejection by him. Given the mother’s stance that B was not at risk in the care of the first applicant, the continued reliance on those allegations as contained in the mother’s trial affidavit and further promoted on her behalf in cross examination, lends weight to a finding that the allegations of sexual and physical abuse involving either child are without foundation. The lingering concern arising from the first applicant’s evidence is the extent to which the Court can have confidence that he would promote and facilitate the children spending time together.
It was apparent that whilst the first and second applicants are in relatively frequent communication with each other, there was a level of naivety in his understanding of the importance of the children’s continued relationship with each other and a hope that once the litigation had concluded the first and second applicants would be able to reach an ongoing agreement to see each other. How this was to occur had not been properly considered by the first applicant and much was based on a hope that both fathers would show good faith.

Ms J

Ms J met the first applicant in mid-2013 and commenced a relationship with him in January 2015. She has lived with the first applicant since July 2015 and is involved in the care of B.
Ms J supervised the first applicant’s time with B for a period commencing in November 2015.
She agreed that there is a history of high conflict between the parties and that she considers there is a need to be careful in what she says. She considers that communication with the mother has improved and that they are generally friendly and positive towards each other.
She considers that she plays a role in helping B to grow up and assists with the care of B generally.
Ms J is a person who is supportive of the first applicant.

The second applicant

The second applicant and the mother met in 2009. At all material times the second applicant has been a serving member of SAPOL.
He conceded that the mother had told him of her fear of her previous partner. The mother’s position is that she sought assistance from the second applicant and that his response was to advise he would speak to his police colleagues in T Town and ask them to ensure that the mother’s former partner did not harass or intimidate her. The second applicant could not remember sending the text messages as set out in [18(a)] and [18(b)] of her trial affidavit.
It is likely that he did.
The mother sets out the following text messages that she says she received from the second applicant on 24 December 2009, 29 December 2009 and 9 January 2010:-
·“get fucked then it just proves you are never worth it can’t believe you.”
·‘hostile bitch.”
·‘friends and family you are a massive joke.”
The second applicant denies sending any of the text messages.
The second applicant and the mother terminated their relationship in early 2010. The mother contacted the second applicant in February 2010 when she discovered that she was pregnant with D. The mother’s evidence is that the second applicant was insistent that she have a termination. The mother relies upon seven text messages sent to her by the second applicant in February and March 2010. The tenor of the messages is directed to the second applicant’s concern that a child would adversely affect their lives.
The second applicant denied the text messages and in particular that he ever had any view that the mother’s pregnancy should be terminated.
The second applicant’s denials were not persuasive.
The mother states that the second applicant spent time with D on 10 November 2010. She alleges that the parties argued and that apart from some emails from the paternal grandparents in 2011, there was no further contact by him until 2016.
The second applicant refers to messages forwarded by him to the mother in late 2012 seeking to re-establish contact and seeking an opportunity to reconnect with D.
I find that the Facebook messages forming Exhibit “4” are persuasive of the second applicant’s attempts to make contact with the mother at least in 2012, 2013 and 2014.
The mother and the second applicant resumed contact in March 2016. The mother re-established contact with the second applicant in the course of the ongoing investigation by CPS and Families SA regarding the allegations of abuse. The mother considers that the second applicant had been contacted by Detective G who was the investigating police officer. The second applicant denied that he had looked the mother and the first applicant up on the police information system.
He referred to text messages passing between him and the mother forming Exhibit “6”. The messages demonstrate a developing level of relationship between the mother and the second applicant. The messages were tendered by the second applicant to show that very soon after contact between the parties occurred, the mother was actively promoting his relationship with D.
The second applicant sent a photograph of him on television and in uniform. The mother’s response is important:-
Unbelievable!
Ok so she says.. “I knew dad could keep us safe, that mans head is all weird and gone.. Is that dads gun?? Did he get his head off with his gun he must be yucky like yucky [first applicant], Will he go to jail and shovel poo like Hans? Are they dads friends?”… So many questions from a little 5 year old
The second applicant considered that the mother resumed a relationship with him to elicit his help in pursuing the allegations against the first applicant.
The second applicant did not deny the tenor of the text messages forming part of Exhibit “7” relating to his inquiry as to the mother’s actions in pursuing the investigation.
The mother refers to a text message sent by the second applicant to her on 17 May 2016:-
I am looking into all that stuff too…and I can assure you D will never need to feel scared again. It just doesn’t make it easy when it’s all a severe uphill battle now you’re making a complaint.
The second applicant did not challenge that he authored the text message and the mother’s concern was that she took it as an indication of his support for her. She did not know that by that time the first and second applicants had met and the second applicant was assisting both SAPOL and Families SA in respect of the ongoing investigation.
The relationship between the second applicant and the mother appears to have become increasingly more difficult. The parties were not able to agree on the parenting arrangements for D, but in particular the extent of time that D would spend with the second applicant. The text message exchanges between the parties took on an aggressive tone.
I am not able to find that the mother was deliberately interfering with D’s time with the second applicant. Given what might be considered as the second applicant’s duplicitous conduct in not disclosing to the mother his involvement with the first applicant and the authorities, it is difficult to find support for the second applicant’s contention that the mother was using D to gain an ally in the second applicant, or the mother’s contention that the second applicant was attempting to manufacture an outcome such that a decision would be made by Families SA that D was at risk of emotional abuse in the care of the mother and would be placed in his care.
The second applicant agrees that the incident between the parties on 6 August 2016 was particularly nasty. The mother concedes that she sewed a small USB recorder into D’s hair tie or scrunchie. Apparently the child was not aware of the device. It was discovered by the second applicant by chance. The parties argued and it is difficult to determine who was the aggressor. The second applicant denies that he punched the mother to the head or that he slammed his body into the mother causing her to hit a fence.
The unfortunate circumstances appear to have been further exacerbated by the mother’s assertion that D refused to leave her side and go with the second applicant or his parents.
The police were called and the second applicant recalls that D was screaming words to the effect of “mummy told me dad doesn’t love me”, “dad is trying to take me from mummy” and “I don’t want to live with him”.
I am not able to determine the precise course of events, but I can find that D was distressed and that neither party took any significant step to shield the child from the escalating conflict.
The second applicant issued proceedings on 14 October 2016. Orders were made on 31 January 2017 that D would live with the mother and spend time with the second applicant each alternate Saturday from 11.00 am until 4.00 pm and each alternate Sunday from 10.00 am until 2.30 pm in C Town. D’s time with the second applicant was initially supervised by either of the paternal grandparents.
The second applicant acknowledges that D appears reluctant to communicate with him via Facetime. He attributes the child’s reluctance to the mother’s refusal to promote a healthy relationship between he and D. The mother raises a number of complaints about the second applicant’s care as an explanation for the child’s reluctance to spend time with him.
The following allegations are made:-
·That the second applicant forces the child to eat food that she does not like thereby exacerbating the child’s constipation.
·That when D refuses to eat the second applicant and/or the paternal grandparents “would, with cutlery, force feed her”.
·That D is anxious about going to the toilet but the second applicant and the grandparents force her to hold on.
·That the second applicant takes D into male public toilets and that she feels uncomfortable.
·That the second applicant removes a silver cross necklace from D and requires that she wears a necklace that he has purchased.
·That the second applicant bullies D and makes her repeat words starting with an “s” to highlight her slight speech impediment.
·That the second applicant will not allow D to bring with her any item that belongs to the mother.
The second applicant denies each and every allegation but does concede that there was one occasion when he took the child to a male toilet in an airport but ensured that it was empty.
Under cross examination the second applicant agreed that he had been married, is divorced and now has a new partner who is currently residing in Melbourne but with an intention to relocate to Adelaide.
He conceded that he resented the mother for not facilitating his time with D and considers the years since the child’s birth and his resumption of contact as lost years.
He agreed that he had provided information to Detective G to assist her with the investigation concerning the mother’s parenting and whether she could be charged with an offence arising out of her “creating a false belief” that D had been sexually abused or assaulted by the first applicant.
On 8 June 2016 the second applicant provided a cache of documents to Ms G.
The second applicant was questioned as to his motivation for sending the documents. The documents comprise letters written by the second applicant in January 2011 and intended for D. It is accepted that the letters were never sent to the child. The letters contain the father’s personal history but also significant criticism of the mother and her family.
A short email dated 29 June 2016 from Detective G to Dr L asserted that the second applicant was not currently having contact with D and gave the impression that the mother was clearly recalcitrant and arbitrary in her preparedness to foster the second applicant’s relationship with D.

A critical consideration has been the likely and significant adverse impact on the children if they are separated from each other. It follows that the children be able to first and foremost identify as sisters rather than a change of name which has not been demonstrated to serve the children’s interests but rather, the sensitivities of each of the applicants.
Given the ages of the children, they would not easily understand why their surname is being changed. The gravamen of the orders to be made is directed to restoring stability to the children’s lives, reinforcing their relationship with the applicants and restraining the mother’s capacity to adversely influencing them if the mother remains under any residual misunderstanding as to how finely poised were the competing interests of the parties and the children brought about by the mother’s malevolent conduct.

Conclusion

I propose to make orders that provide for the parties to have equal shared parental responsibility for the children, that B will spend equal time with the first applicant and the mother, whereas D will spend either each alternate weekend or each third weekend and half school holidays with the second applicant.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and seventy-five (475) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 October 2019.

Associate:

Date: 11 October 2019

[2019] FamCA 727

11 October 2019

Key Legal Topics

Areas of Law

Family Law

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

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Standing