Mustonen & Mustonen
[2025] FedCFamC1F 270
•30 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mustonen & Mustonen [2025] FedCFamC1F 270
File number: SYC 4943 of 2023 Judgment of: BOYLE J Date of judgment: 30 April 2025 Catchwords: FAMILY LAW – PARENTING – Spend time with arrangements – Parental responsibility – Allegations of sexual abuse by the father towards the children – Allegations of family violence perpetrated by the father – Where the mother has an eating disorder – Orders made for the mother to have sole parental responsibility save for changing the children’s names – Orders made for the father to communicate with the children through sending cards and gifts on special occasions Legislation: Evidence Act 1995 (Cth) s 135
Family Law Act 1975 (Cth) ss 60CA, 60CC
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) part 7.1
Cases cited: Bant & Clayton [2019] FamCAFC 198
Bielen & Kozma [2022] FedCFamC1A 221
Biggs & Biggs [2014] FamCA 1033
Fairfield & Hoffman [2021] FamCAFC 151
Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Pickford & Pickford [2024] FedCFamC1A 249
Re Andrew [1996] FamCA 43; (1996) FLC 92-692
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
R & C [1993] FamCA 62
Sieger & Department of Communities and Justice [2020] FamCAFC 172
Division: Division 1 First Instance Number of paragraphs: 167 Date of hearing: 24-28 February 2025 Place: Sydney Counsel for the Applicant: Mr Cox SC Solicitor for the Applicant: Farrar Gesini Dunn Sydney Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Lander & Rogers Solicitor for the Independent Children's Lawyer: Mr Clack of Legal Aid NSW ORDERS
SYC 4943 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MUSTONEN
Applicant
AND: MS MUSTONEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
30 APRIL 2025
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The children, X born 2014 and Y born 2018, live with the mother.
2.The mother have sole parental responsibility and decision-making authority for all matters concerning the long-term care, welfare and development of the children, X born 2014 and Y born 2018, subject to the following:
(a)The mother is not permitted to change either of the children’s names.
3.The mother’s sole parental responsibility shall extend to obtaining or renewing an Australian passport for the children.
4.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother, her servants or agents shall be at liberty to travel with the children outside of the Commonwealth of Australia.
5.The mother shall ensure the children continue to see Ms B for as long as Ms B recommends.
6.The mother has leave to provide Ms B with a copy of these Orders and Judgment dated 30 April 2025.
7.The mother has leave to provide the children’s school/s with a copy of these Orders.
8.The father is at liberty to contact Ms B, and Ms B is requested to speak with the father in the event that he contacts her.
9.The father be permitted to send cards and gifts to the children:
(a)On the children’s birthdays;
(b)At Christmas;
(c)At Easter; and
(d)At the commencement of each school term.
10.The father’s cards and gifts shall be posted or sent to the children via the maternal grandmother’s home.
11.The mother be at liberty to view any card or gift sent by the father to determine if it is appropriate to give to the children, or either of them.
12.The mother shall provide to the children cards and gifts sent by the father which she deems appropriate.
13.In the event the children wish to provide a response to any card or gift they receive from the father, the mother shall facilitate the children forwarding a response to the father.
14.The father be restrained from contacting the mother directly and any communication between parties shall be through the maternal grandmother and in writing.
15.The father shall keep the mother informed of any change to his postal address and the mother shall keep the father informed of any change to her mother’s postal address.
16.The mother shall provide the children’s school reports to the father and she can ensure that her contact details are redacted before doing so.
17.The father may contact the children’s school/s to enable him to access information available to parents through the school website or portal.
18.The father pay to the Legal Aid Commission of NSW one half of the costs of the Independent Children’s Lawyer being $8,500.25.
19.The Independent Children’s Lawyer’s application for the mother to meet one half of the Independent Children’s Lawyer’s costs, being $8,500.25, is dismissed.
20.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are parenting proceedings in relation to the two children of the parties, X aged 10 and Y aged 6.
The children presently live with the mother and have spent no time with the father since 4 June 2023. Time ceased after X made disclosures of sexual abuse by the father towards Y.
As I will explain in these reasons, I have found that there is an unacceptable risk to the children from the father with respect to both sexual abuse and family violence. The orders do not allow for time or communication between the father and the children, save for the father being permitted to send the children cards and gifts on special occasions.
BACKGROUND
In 1992, the mother was diagnosed with an eating disorder.
The parties met in 1997 and commenced cohabitation in 1998. They separated for a period, then married in early 2010.
In May 2021, the parties separated under the one roof. Later that year in October - December 2021, the father moved out of the home.
In 2022, the parties sold their Suburb C property.
Time between the children and their father ceased from 4 June 2023 after X told her mother about things that happened during time with her father. The matter was reported to the police, who interviewed the children in mid-2023. The Police obtained a provisional AVO to protect the children from the father. After a hearing at the Local Court where X was cross-examined, the final AVO was dismissed in late 2023.
Parenting proceedings were commenced by the father on 7 July 2023. On 9 August 2023, the mother filed a Response seeking property orders in addition to parenting orders. The property proceedings were finalised by consent on 30 October 2023.
On 16 February 2024, interim consent orders were made for the children to live with the mother, and for the father to communicate with the children by forwarding them cards and gifts on special occasions.
DOCUMENTS RELIED UPON
The parties relied on the documents set out in the Case Outline Documents.
The parties were cross-examined, as were Ms E, Dr D, and Ms F, and the paternal grandmother, Ms G.
A number of documents, including videos and recorded information, were tendered during the course of the proceedings. I have had regard to that material, as well as the documents relied upon by the parties.
COMPETING PROPOSALS
There is agreement that the children live with their mother.
The father sought orders in his Amended Application for therapeutic support for the children to resume time with him, and the parties to equally share the costs. The orders specify a minimum of four individual sessions for the children, then four joint sessions with the father on a weekly basis. At the conclusion of those therapy sessions, he seeks that time occur 10 am to 3 pm each Saturday for eight weeks. Thereafter, he seeks time on 10 am Saturday to 10 am Sunday for eight weeks, then after school alternate Friday to Sunday for four occasions, increasing gradually by adding one night. The father’s proposal culminates in equal time, week about. None of the time is to be supervised.
Before submissions, senior counsel for the father provided an Alternative Proposed Minute for time each alternate Saturday from 12 pm until 4 pm, supervised by H Family Services, to commence six weeks after the start of the therapeutic intervention. He conceded the mother have sole decision-making responsibility for the children, subject to an order prohibiting her from changing the children’s names and requiring her to provide written notice of any decision she intends to make. That concession is made in both his primary and secondary applications. Otherwise, he maintained the order for therapeutic support for the children, and the father solely meet the costs.
The mother consented to the order proposed by the Independent Children’s Lawyer (“ICL”) that she have sole parental responsibility subject to an order that she not be permitted to change the children’s names. She seeks that the children live with her and spend no time with and have no communication with the father. She seeks that the father be restrained from approaching within 200m of any school, place of residence or other place occupied by the children. The mother and ICL seek that the father be permitted to send cards and gifts on special occasions to the maternal grandmother’s home.
The mother seeks that the father receive school reports without photographs of the children. She proposes notifying the father of any change to the maternal grandmother’s address, and the father to keep her advised of any change to his address. The mother seeks to be at liberty to obtain passports for the children.
The ICL seeks in addition to the orders referred to above, that the children spend supervised time with the father on three occasions each year for what was described as identity contact.
DR D'S REPORT
The Report of Dr D (“Dr D”) was prepared pursuant to an order of 18 November 2024. There was argument at the time of the orders about the appropriateness of an order for the Report. Counsel for the mother objected to the Report during these proceedings. The objection was to the Report as a whole, and paragraphs of the Report if the initial objection was unsuccessful. Counsel for the father did not read the last sentence of the Report. I indicated that the Report would be admitted subject to weight, and reasons provided within this judgment.
In the Report, Dr D reviews the evidence around the sexual abuse allegations. This includes the documents, police video interviews, and the mother’s recording of Y. He considers the nature of the disclosures by focusing on the style and content of the disclosures and the context. He did not meet with either party nor the children. I accept this may limit my reliance on the Report. That care needs to be taken about reliance on a report does not render it inadmissible.
The objection was initially formulated under s 135 of the Evidence Act 1995 (Cth). That is, that the probative value of the report is substantially outweighed by the danger it might be unfairly prejudicial to a party, or misleading or confusing, or cause an undue waste of time.
Determining the risk of sexual abuse of a child by a parent is a serious matter. The possibility that the evidence of Dr D may assist that process was in my view worth exploring by permitting the Report, hearing the evidence, then evaluating that evidence.
Dr D’s qualifications to make the assessment was the next issue taken. His extensive curriculum vitae was annexed to the affidavit. Dr D is a clinical and forensic psychologist. He has worked extensively in providing, relevantly, family law assessments, care and protection assessments, and worked with juvenile offenders. He has presented papers on various aspects of child sexual abuse. I accept that Dr D is appropriately qualified due to his specialised knowledge from his training, study and experience.
Objection was taken to specific paragraphs on the basis of aspects of his conclusions being without foundation, or outside the scope of the Report, or too broad as to have no weight. I accept there is some poor use of language, such as referring to the mother “interviewing” X, when the evidence is that X initiated the conversation with her mother. There are also factual issues, such as X having bowel problems and being on a FODMAP diet when that is relevant to Y. In my view the complaints by counsel for the mother were all matters capable of being dealt with by cross-examination and submissions.
For these reasons the affidavit of Dr D was admitted. He was cross-examined.
MS F'S REPORT
At the beginning of the hearing senior counsel for the father raised an issue with the affidavit of the mother’s treating psychologist, Ms F (“Ms F”). The affidavit was filed on 20 December 2024 at the date affidavits were required. Ms F was not named as a witness for the mother at the time the directions were made. The ICL supported the mother’s application that the Report should be admitted in its entirety.
Ms F’s affidavit refers to the letter from the mother’s instructing solicitors, and states that she has read and understood Part 7.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and used her best endeavours to comply with the Rules. The format of the affidavit suggests the Report is from an independent expert.
Although objection was taken to the affidavit as a whole, specific issue was raised with the paragraphs under the heading “K), L) and M). The impact of future contact between the girls and their father on [Ms Mustonen]”.
The Report at “K), L) and M)” is largely contained below:
I am worried that if the court forces [Ms Mustonen] to force the girls to have contact with their father this will break [Ms Mustonen] and could result in her death. I do not see that she will have the strength to continue her recovery from [an eating disorder] and that it will be nearly impossible for her to manage her extreme distress. … I fear a severe relapse if the court orders contact between [Ms Mustonen] and [Mr Mustonen] or the girls and their father. Beyond the [eating disorder], it will be very difficult for [Ms Mustonen] to function and not live in a state of fear, anxiety and depression. How could any mother be ok if they are forced to expose their children to potential sexual grooming and abuse and manipulative controlling behaviours?
I do not see that supervised contact would be any different from the above for [Ms Mustonen].
It would be completely inappropriate for the court to expect that [Ms Mustonen] co-parents with [Mr Mustonen] given the history of the coercively controlling relationship. … Any forced contact or communication with [Mr Mustonen] puts [Ms Mustonen] at risk.”
The Single Expert, Ms E (“Ms E”), spoke with Ms F in November 2023, and noted in her Report as follows:
305. [Ms F] was clear to say that although the mother has experienced a few setbacks in recent times arising out of her current situation, she is committed to recovery and has good insight into her condition. She said that the mother has a good support team in herself and her GP and is compliant with treatment.
306. [Ms F] said that she has had a therapeutic relationship with the mother for over 10 years and has formed the view that [Ms Mustonen] always puts the children’s needs first and is a loving and competent parent. She said, “I have absolute faith in [Ms Mustonen’s] parenting, without a doubt.”
307. [Ms F] described the mother as “very resilient”, saying that she believes that given the chance, the mother will begin to flourish once this matter has been resolved.
Counsel for the father argued that Ms F’s affidavit provides no explanation of what occurred that has changed her view since speaking with Ms E. Ms F does not set out how she reached the conclusion she has formed in the Report, and that these were not matters that could simply be dealt with by cross-examination. It was submitted that the appropriate way to deal with this issue would be to adjourn the matter to obtain an Expert Report from a psychiatrist dealing with the risks to the mother’s health as referred to by Ms F.
I accept the submission of counsel for the mother that it is clear from the correspondence and Ms F's Report that Ms F is the mother’s treating psychologist. Her evidence is not relied on as that of an independent expert. There is an error in the way the solicitors referred to the Report. Ms F in her Report is clear:
I do not feel comfortable with the language of “expert witness”. I have worked collaboratively with [Ms Mustonen] and supported her in her healing journey for more than a decade. …
Rule 7.01 of the Rules excludes treating practitioners from the requirement generally to comply with Rule 7, dealing with expert witnesses. As Ms F's Report makes clear, she first met the mother in 2013 when facilitating a stillbirth support group for parents. She commenced individual counselling with the mother when X was a toddler. There was a gap in their engagement from 2019 to May 2021. From May 2021 to the date of the Report, she has had more than 70 appointments with the mother. The evidence Ms F gives under “K), L) and M)” is about her prognosis as a person treating the mother.
The cases relied on by the father do not compel the court to reject the evidence, as was submitted. In Fairfield & Hoffman [2021] FamCAFC 151, the expert acknowledged they were not a treating practitioner, and had previously been jointly retained by both parties. Those features are not present in this matter. I accept the submissions of counsel for the mother that Sieger & Department of Communities and Justice [2020 FamCAFC 172 and Biggs & Biggs [2014] FamCA 1033 merely confirm the role of the treater in providing evidence and have no particular relevance to this case.
The affidavit was filed in accordance with filing directions, although it was conceded an affidavit from Ms F was not anticipated at the time of the directions. Ms F will be available for cross-examination, and her evidence can be put to Ms E.
Ms F has treated the mother for 10 years. I accept it would be prejudicial to the mother to exclude her evidence. The issue of the mother’s mental state is not new. The affidavit was available from 20 December 2024. No application was made by the father until the first day of the hearing. Ms F’s notes have been available under subpoena since October 2023, which was updated in January 2025. I accept that the records and correspondence with the mother’s general practitioner support serious concerns about risks to the mother’s life from her condition, and that she may require hospitalisation.
Following Ms F’s evidence there was an issue about her affidavit going to Ms E without the context of her oral evidence. In circumstances where the transcript would not be available, the father sought that the final paragraph of Ms F's Report be redacted. That was opposed by the mother. I acceded to the request that it be removed from the copy of the material forwarded to Ms E on the basis that it would be unfairly prejudicial and without the context of her oral evidence. That occurred and the affidavit was provided.
By consent a transcript of Ms F’s oral evidence was prepared quickly from the audio recording. It was agreed by the parties to be accurate, and by consent Ms E was provided Ms F’s oral evidence as transcribed and an unredacted copy of the Report.
THE LAW
Part VII of the Act deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC(2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.[1]
[1] Family Law Act s 60CC(2)(f).
In considering what orders would promote the safety of the child, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68 and Isles & Nelissen (2022) FLC 94-042 are relevant to any assessment of risk to the child. In a matter where there are allegations of risk such as in this instance, the analysis requires consideration of past conduct to assess whether there is a risk to the child, and the magnitude of that risk. The assessment of risk is an “evidence-based conclusion” (Isles & Nelissen (2022) FLC 94-042 at [85]). The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions.
I will have regard to relevant matters set out under s 60CC of the Act as they arise in these reasons.
ISSUES
The issues in this matter are:
(a)Does spending time with the father put the children at risk of:
i)Sexual abuse;
ii)Family violence; and/or
iii)The mother’s health.
(b)If any risks exist, can the risks be ameliorated?
(c)What spend time with orders will best promote the children’s safety?
Risks of sexual abuse
Y has been observed by both parties engaging in behaviour they describe as “self-stimulating” from late 2020, when she was about two years old. Her behaviour has included rubbing her genital area on toys, furniture and pillows. The mother refers to this as “riding the horse” when speaking with Y. The father has referred to her behaviour as “grinding”; he maintains that both parents have done so. He accepts the mother asked him to stop using that term after a few months, which he did.
The mother complains that Y has rubbed her genital area on her father. X told the mother this occurred after separation.
The parties have sought to deal with Y’s behaviour. In September 2021, in a text exchange between the parties the mother noted, “… it’s normal to a certain extent, until it starts to interfere with normal play and learning. I think we are now at that point.” The father responded, “why do kids do it? Boredom?” The mother forwarded to him a link to an article.
The mother sought advice from the local Community Health Centre in mid-2022. It was suggested that she redirect Y to another activity or give her an alternate form of comfort like a cuddle. She was advised that such behaviours were normal and age appropriate.
The mother’s evidence is that following separation she was concerned that the father was not addressing the issue with Y. The mother sent a text on 3 October 2022: “it is clear that [Y] is self stimulating at your place. Can you please distract her from doing so.” The text dealt with various issues; the father did not respond. She raised it again on 21 November 2022, prompted by Y trying to self-stimulate on top of another child at a play date. The mother told the father the behaviour was no longer an issue at her home, but that it still is with him. She refers to advice provided, and asks that he follow it.
On 20 April 2023, the matter was raised again by the mother:
I have asked you repeatedly to work with me to help [Y] stop self stimulating. Once again you have ignored me and allowed her to do it, as well as using sexual language to describe the behaviour. I now have to try and break that habit again before a birthday party on Saturday and preschool resumes next week. …
The father responded, “what are you talking about. I did no such thing, and your insinuation about ‘sexual language’ is incomprehensible and disturbing. What precisely are you insinuating.” The mother referred to the father’s use of “grinding”, and that the early childhood worker and GP agree it is an inappropriate term for Y, and for X to hear. The father denies that he still uses the term. He referred to it being a common term for both of them initially, which the mother denies.
The parties’ dispute over time arrangements is apparent from their text communication. The father is seeking additional time with both girls. On 20 April 2023, he texted:
[Y] jumped all over me yesterday, because she sees me so rarely. That is what you need to consider. If her lack of access to me triggers a regression to certain behaviour, that’s unfortunate, but it’s not a deliberate ignoring of the situation. And it’s on you, as the denier of access. …
From 2023, the mother sought assistance from Ms B, psychologist, for other behaviour of Y. Y appeared scared of children and adults. She became extremely distressed when her parents were speaking with other people and could not tolerate it. She hit out at her mother at times.
The mother spoke with Y’s psychologist and GP in May 2023. The mother asked the psychologist to raise Y’s behaviour with the father. She was concerned that he should not allow Y to do this on his stomach when he is lying down. The father told Ms B he tries to distract Y, and it is not occurring as often as it was.
It is clear from the communication between the parties that Y’s behaviour was not raised by the mother to suggest sexually inappropriate conduct by the father. Rather, it was raised as an issue with Y’s behaviour which they needed to resolve. The evidence supports that Y’s behaviour became linked to sexual abuse in the mother’s mind, following X’s disclosures.
In her Report, Ms E noted:
236. … The mother reports that [X] has told her that the father either actively encourages or passively allows [Y] [sic] to rub herself on his leg or on his body whilst lying on top of him on the bed.
237. If this is indeed the case, this would be of some concern to the report writer, as it would be considered evidence of poor judgment and a lack of boundaries. It may even be considered indicative of sexual grooming practices. …
The evidence does not support a finding about the cause of Y’s self-stimulating behaviour.
On 4 June 2023, the children returned to the mother after time with the father. The mother and X were having a cuddle in her bed that evening. Unprompted, X initiated the following conversation:
[X]:Can I tell you some funny things that I saw Dada do on the weekend?
The mother: Yes, sure.
[X]:When Dada was in the bedroom with [Y] on Saturday afternoon he got undressed and asked [Y] to come and touch his penis and testicles and to pull them.
The mother: Did she?
[X]:Yes.
The mother: What are the funny things happened?
[X]:On Sunday Dada was doing peeps [wees] in the bathroom and he asked [Y] to touch the peeps and then put her finger in her mouth.
The mother: Did she do this?
[X]:No, she didn't.
The mother: What are the funny things happened?
[X]:Dad calls his testicles “Deez Nuts”. He asks [Y] to come over and touch “Deez Nuts”. Another funny thing that Dada does is spreads his bottom and asks [Y] about to come and put her finger up his bottom.
The mother: What were Dada and [Y] doing in the bedroom before he got undressed?
[X]:They were cuddling in bed together.
The mother: What were you doing?
[X]:I was in the lounge room watching TV.
The mother: How did you see what they were doing?
[X]:I was pretending to be a secret agent to now go and spy on them in the bedroom.
The mother: Does Dada know that you saw?
[X]:No.
The mother: Has this happened before?
[X]:Dada only started being naked around [Y] when he moved to [Suburb J].
The mother was distressed by what X told her. She emailed her counsellor, Ms F, seeking advice. They arranged to speak the following day. On 5 June 2023, the mother made a video of a conversation with Y, which only records the audio. During the conversation the mother asks Y about touching the father: “his front bottom”, “deez nuts” and “Dada’s penis”. Y replies yes. She says, “yeah I put my wee into his deez nuts”. She agrees to, “Dada put his wee wee on your tummy?”
The mother made an appointment for X to see Ms B in June 2023. She told her that X had disclosed something she was very worried about. The records of Ms B note X making very similar statements as she had to her mother. Ms B made a report to the Department of Communities and Justice (“DCJ”) as a mandatory reporter. The mother also made a report, as advised by Ms F.
The next day, both children were interviewed by Officer K from the Child Abuse Squad. The videos of the interviews are in evidence. Again, X’s report was in substantially similar terms to what she told her mother and Ms B.
Towards the end of X’s interview, the police officer left the room for a period of about three minutes. The video continued to run. I accept the description by counsel for the mother of X becoming visibly bored and restless. X whispers, “Oh, oh, oh, hello, voice recorder. Tuh, uh, I need an ambulance, quick, to … 55 … 55 [Suburb J], number 1, [Suburb J] in ground floor, 22. Call, call, call ambulance, my dad’s dead. Thank you … Thank you. Bye.”
Y was four years old at the time. She barely speaks during the police interview. I accept Ms E’s evidence that this is not significant in assessing whether sexual abuse occurred because it is common for children under seven to not provide much detail when questioned about sexual abuse.
It is not suggested that the mother caused or encouraged X to make the report about her father’s behaviour with Y. The mother believes what X told her: that she saw her father sexually abuse her little sister.
The father’s view is that X is a child with a rich imagination, who makes up complex imaginary stories. He gave an example that she had an elaborate story or game over a long period involving imaginary dogs. The mother agrees that X has engaged in telling complex stories. However, she regards X’s demeanour as different when she is storytelling, to when she told her about the father and Y. It was suggested to the mother in cross-examination that X used the word “funny” to her mother to mean a joke or something amusing. The mother rejected that. Her evidence is that when X used “funny” on this occasion, it was clear she did not mean it as a joke or something amusing.
The father referred to X telling him that a boy at school pulled his pants down. He did not follow that up with the school but spoke to the mother about it. During the police interview, X was asked about whether she had seen a boy’s penis at school, and she said she had not. She also denied that during cross-examination at the Local Court. The father believes X’s use of expressions like “deez nuts” comes from children at school.
I accept that in the video of the interview with the Child Abuse Squad X does not appear to be joking with the police officer, nor making up what she is saying. The outcome of the investigation of the Joint Child Protection Response Program was a finding of suspicious indicators consistent with sexual abuse, leading to a substantiated risk of harm for Y.
When X is left alone in the interview room, she appears bored. She moves her arms and legs around restlessly. She plays with her watch. Dr D opines that X’s story about calling an ambulance supports his view that she is telling a story or playing a game during the whole interview. I accept that her demeanour is different when the police officer leaves the room, from during the interview. I accept that X being bored and making something up does not mean she is not telling the truth about other matters.
The father was not charged with any offence by New South Wales Police. I accept that there would be difficulties in relying on X’s statement to satisfy a jury beyond reasonable doubt that her sister was sexually abused by her father. That is not the applicable test in these proceedings.
The paternal grandmother gave evidence about her relationship with the children. She noted, as the mother had described, that Y was “a fairly quiet little thing and was very connected to [her mother] who would rarely leave her sight.” She described X as having a big imagination, and imaginative games they would play when she visited. X spoke to her about expressions the kids at school were saying, like “fuck”, “butt cheeks” and “deez nuts”. In her view X made these comments to see how she and her father would react. They did not engage but said things like “that’s enough” or “it’s not funny”.
The paternal grandmother and the father describe a visit to the paternal grandmother’s home at Easter 2023. X came out of the bathroom naked from a bath and was running around. According to the paternal grandmother, X came up in front of the father and her, “turned around, put both of her hands on her backside, pulled her butt cheeks open and said something like ‘put your finger up here’”. She thought X appeared happy when she did this, as if it was “funny and exciting”. The father told X to stop it and put her pyjamas on.
X denied that this occurred when cross-examined at the Local Court during the AVO hearing. Neither the grandmother nor the father told the mother about this.
The mother’s evidence is that on 13 June 2023, X told her that Y stuck her finger in X’s bottom when they were getting ready for school. The mother told Y, “We do not touch other people’s bottoms” and Y replied, “Dada asked me to put my finger in his bottom and I didn’t want to do it”. The mother made a note of this on her phone. She did not raise this with anyone at the time. I accept that statement did not cause her to become concerned about sexual abuse. She later referred to it in her police statement.
In mid-2023, Y’s preschool advised the mother that Y had pulled down her pants and underwear and bent down, exposing her bottom. A report was made to DCJ. At times, Y has raised with her mother her father asking her to touch his bottom. Senior counsel for the father submitted that the mother not reporting each occasion Y said or did something she now refers to as suggestive of abuse is significant because it supports her making it up. The police and DCJ were advised of Y’s behaviour by the mother. An investigation happened. The mother not telling others about occasions Y said something does not support a submission that it did not happen. Y’s conduct at preschool was consistent with, and independent of, the mother’s evidence.
The mother read a book titled ‘Everyone’s Got a Bottom’ with Y. I accept that she sought to deal with the issue for Y in a low-key manner.
Considering the evidence about X’s statements, I accept that the mother did not seek a disclosure from X, nor say anything to X to prompt her at the beginning of their conversation. The mother was taken by surprise by what X said. I accept she had been supportive of time occurring with the father prior to that happening.
The Magistrate in the AVO hearing was considering only X’s statement about the events. He did not have the benefit of context to X’s statement. Evidence of Y’s self-stimulating behaviour was excluded. The thrust of cross-examination of X was whether she was lying. That does not go to any assessment of risk for these children, which is my task. Counsel for the father in those proceedings referred to the lack of a psychological assessment. That evidence is available in this hearing. The Single Expert, Ms E, formed the view that X was telling the truth of her impression of what happened between Y and her father.
X has maintained that what she said is the truth. The Joint Child Protection Response Program, a group charged with investigating child abuse in NSW, substantiated a risk of harm to Y.
Dr D reviewed the documents available and prepared a report. He did not have the benefit of a face-to-face meeting with the children or parents. His comment at paragraph 30 on X’s description is that, at worst, it would reflect on the father “poor boundaries and a somewhat immature personality structure with a slight possibility of grooming”. At paragraph 43 he noted X’s statements to her father reported by Ms E, about “bad lawyers” and “evil Judges”, as indicative of her exposure to adult concepts. He does not refer to her cross-examination in the Local Court in this context. It is reasonable to consider that her experience in the Local Court may be a source of X’s concerns. It would be impossible for X to be unaware that she was not believed in the Local Court. She was cross-examined about that.
Dr D agreed that the hierarchy of data in assessing sexual abuse matters is face-to-face, then video, then transcript. He regarded it as more likely that X was telling a story. He did not meet with X. Ms E had the benefit of meeting with both children and their parents. She believed X was telling the truth as she perceived it. I prefer the evidence of Ms E. She was in a superior position to make an assessment to Dr D. Her evidence is consistent with other professionals such as the police and DCJ task force and Ms B, who have also interviewed X.
These are very serious allegations, with serious consequences for the parties and children. The assessment of risk is a predictive exercise. In assessing risk to a child’s safety, “a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not” (Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28]. I am satisfied on the balance of probabilities, taking into account the gravity of the matter, that on the evidence available there is an unacceptable risk to the children of sexual abuse by the father.
Risks of family violence
To assess the allegations of family violence it is necessary to look at the alleged events in context, rather than incident specific. This requires a stepping back to consider behaviour over time, and to observe patterns of conduct that may coerce or control a person or cause them to feel fear.
The age difference between the parties is six years. Aged almost 51 years and 45 years, as they are now, the difference is insignificant. At 23 years and 17 years the difference is potentially significant. Those were the ages of the father and the mother respectively when they met while studying for the Higher School Certificate. The father’s earlier education was interrupted by other pursuits. The mother’s by [an eating disorder] after child sexual abuse. The father was the mother’s first relationship. At 18 years old, she was living with him.
When cross-examined, the father’s evidence initially was that the mother was 18 years old when they met. Once he was directed to her birth date in 1980, and that they met in 1997, he conceded she was 17 years old. He agreed they celebrated her 18th birthday together. I accept that the father was aware of the mother’s age when they met and chose not to be direct about that when giving evidence.
The father was cross-examined about a woman he dated after separation, Ms M. He described her in his affidavit as a friend of his mother’s. Ms E asked the father about ‘re-partnering’, which he denied. He told Ms E, “I had an acquaintance a little while ago – I kind of hung out with her. Her name is [Ms M], she hung out with [X]. [Ms M] is mid-twenties to late-twenties”.
Ms E raised with him that X told her mother they celebrated her 21st birthday. He then referred to Ms M as being at university. He was not explicit with Ms E about her age. He told Ms E, “We have even been to her parents’ house in the country”. When asked by Ms E about her parent’s view of the relationship, he said he did not know if they were supportive. They were not at home when he and X had stayed there. It was not clear what, if any, knowledge they have of their daughter’s relationship with the father.
The father denied telling Ms E that Ms M was mid to late- twenties. In particular, he said she was not late twenties, and he would not have said that. He suggested a miscommunication with Ms E. I accept he was not straightforward with Ms E, nor this Court, about Ms M’s age nor the status of their relationship. It is similar to his lack of transparency about the mother’s age when they met and commenced a relationship.
Why the father was not straightforward about these comparatively small matters is worth considering. In my view, he was attempting to minimise any perception that he chooses to have relationships with women who are less experienced in life than him. His manner of giving evidence about these matters underscored, rather than minimised, that perception. I accept that he was not honest with this Court in this area.
The mother refers to the father dictating what she wore, what course she should study, and describing her faith as “silly”. The father conceded the latter and denied the other propositions.
The father denies criticising or denigrating the mother or her family during the course of their relationship. His evidence is that it was the mother’s perception her family did not support her. He was supportive of her view of her family and took his tone from her.
The mother’s evidence is that by 2000, the father had told her that her mother was not a good person. Prior to that, she and her mother had a close relationship.
The mother gave evidence that she took their washing to her mother’s in the early part of the relationship, because they did not have a washing machine. This would suggest at least a reasonable relationship between mother and daughter at that point. The father said he could not recall the mother doing that. There is no reason not to accept the mother’s evidence. It is consistent with the father’s evidence they had traditional roles that she would take responsibility for their washing. The mother and children stayed with the maternal grandmother in 2023. There were difficulties between the mother and her mother, and they moved out.
There was a text exchange between the parties on 1 June 2021, after separation:
The father:I object to your mother visiting our children at […]. She can meet them in a park, at the beach, or in a café. She is a toxic presence and not welcome as a presence in their house. I’m staggered that you would allow this, given her impact on your life and mental health (you warn against ‘damaging comments’, then invite this person into their lives. You chose to permanently exclude this person from your life, rightly). I also know that, but for a random comment from [X], you would not have told me of this visit. You need to start communicating with me in good faith.
The mother: For the record, I was not keeping […] visit from you and knew that [X] would tell you about it. I would never ask her not to tell you something. Due to your strong objection, I will meet her at […] instead. You should recognise that this will make the morning much more difficult and less enjoyable for [X]. That was the main reason why I invited her here.
The father:Keep the […] date tomorrow, but just don’t make it a habit. I recognise that it will be easier for you three, so do that tomorrow. …
I accept the father was highly critical of the maternal grandmother. He dictated to the mother where she and children could see her mother, and the mother’s conduct after separation: “just don’t make it a habit”. The evidence is consistent with the mother’s position that the father discouraged and controlled her relationship with her family and isolated her from her mother.
The mother’s evidence is that the father was insistent that one of them watch over X after her birth, because of Z’s stillbirth. The father’s evidence is both of them were worried for X’s wellbeing, and it was an agreement. The mother had the ‘overnight shift’, as the father needed sleep so he could work. This continued through to Y’s birth and beyond. Y was born by caesarean. It was planned. When it was suggested to the father that his mother could have travelled down to be with X for the birth, so he could be at the hospital to support the mother, he said it was not discussed. He agreed he cared for X while Y was born, which limited his attendance for Y’s birth and after.
The father was taken to an email exchange with the mother dated 26 October 2021. She forwarded him notice that a restaurant had re-opened. He replied he would love to go there again with her. She suggested that if he could get to the stage where he could leave the kids with a babysitter, she would go with him. When questioned, he said he never considered the email as her saying: if you do something you find difficult (leaving the children), I’ll do something I find difficult (going out to dinner). The evidence is that the mother finds being in places where people eat, like restaurants and cafes, extremely challenging because of her [eating disorder]. It is difficult to understand what else the email from the mother could mean. It supports the mother’s contention of the father’s insistence at watching over X.
I accept keeping watch over X was a regime imposed by the father. It is likely it was driven by his anxiety. I note that the mother sought psychological support after their baby’s stillbirth. The father made one attempt to receive counselling which did not work out and made no further effort. The effect on the mother of the father’s regime was that she was exhausted. She had the care of X during the day. The father’s ‘shift’ did not require him to be awake through the night. The mother regards this with hindsight as being an element of the father’s controlling behaviour. Whilst anxiety over X’s wellbeing is understandable, the father’s manner of dealing with that was to put the burden on the mother.
It was the father’s idea that the parties should move to the country. He agreed his vision was they could raise the children in a “beautiful bubble”. He agreed that the mother felt isolated, and looking back it was difficult on her. The COVID-19 pandemic arrived shortly after the parties moved. The mother understood the father would resign from his corporate role in Sydney when they moved and find work locally.
The father’s evidence is that when he raised resigning with his employer, he was offered a role that he could do predominantly from home. He did not discuss that with the mother prior to making the decision to accept. It was clear from his evidence that he regarded the financial benefit to the family as so significant it was too good to refuse. He did not consider there could be another perspective. He was not clear when cross-examined when he told the mother.
Text communication tendered demonstrates that the father was leaving his employment in Sydney. The parties discussed taking up employment in City L. The father also told Ms E it was his intention to resign from the role in Sydney. I accept that the mother did not know until after the move that the father had not resigned.
The mother says after the move she continued to do the majority of the household work. The father said when cross-examined he shared those chores, despite his affidavit stating they had traditional roles. Y was at home in his care whilst he was in full-time work. The mother’s evidence is that she was worried about his care of Y due to his work commitments.
The effect of the father’s decision is that both parties were employed in busy jobs. The father did not concede the mother was working full-time, instead suggesting an 80 per cent role at the workplace. Regardless of whether it was full-time or 80 per cent, on top of working the mother was returning home at lunch time to breastfeed Y. The mother found herself stretched with two small children, one still breastfed, working and doing the majority of the household chores. She knew no one in the area. There were times the father was required in Sydney for work. I accept this was not the plan when she agreed to move to the country. The father made the decisions leading to this situation without her input.
The father found a property to purchase close to his mother’s property. I accept that the father wanted to live in this type of property and drove the purchase. The parties moved close to City L to a property near a prison facility. During COVID-19, the father left the mother and children at home to work from his mother’s because the wi-fi was better. The two properties were about a 10 minutes’ drive apart. The mother was frequently alone at home with the baby, homeschooling X and working remotely. I accept the proximity of the prison made her anxious. For two weeks, the mother was alone with the children without a car while the father was in Sydney. Whilst the father says that occurred briefly, the mother was very clear in the detail of her answers around the two-week period. I accept that it occurred.
The mother knew it was the father’s dream to live in the country. I accept she put his needs ahead of the children’s and her own. I accept that she was accustomed to doing this during the marriage.
When it was put to the father that he was aggressive with the mother in arguments he took issue with what “aggressive” means. He conceded he was blunt. The mother referred to occasions of him throwing a shoe, pushing her out of his way, and damaging the door deliberately. Her evidence when cross-examined was clear and concise – the events she described demonstrate aggression and violence by him. The father was taken to texts during 2020 and 2021 when he apologised to the mother both for his behaviour:
I’m sorry for the production this morning. No excuse for it, other than sometimes work and colleagues gets to me. I know you think I let work shit affect me and you guys too much, but I actually shield you from most of it, and I don’t think [X or Y] are impacted. … my apology is genuine.
I accept that he was aggressive towards the mother as she complained in 2020 and 2021.
The mother raised that early in their relationship physical intimacy was extremely painful. She says the father told her that was her problem, not his. Her evidence about attending the family planning clinic for help is detailed and plausible. The father did not concede this. It was not put to the mother this did not happen. I accept the mother’s version.
Following the sale of the Suburb C property, there was an issue about financial support provided by the father to the mother and children. $1.6 million from the sale was in the joint account. Both parties’ signatures were necessary to access the money. The mother understood erroneously that they needed to agree to the overall property division before any of those funds were available. She did not ask the father for access to any of the proceeds of sale.
Various proposals were put to the father by the mother to resolve the property dispute without success. On 23 May 2023, the father advised the mother that she could access $650 per week from the joint account. At that time her rent was $700 per week. The father’s evidence is that he offered her “hundreds of thousands of dollars”. He left $3,500 in the joint account to cover child support until the periodic child support payments started. He calculated that as being about four weeks of payments. When the mother advised those funds were exhausted, he took no steps to top up the account. He agreed that child support was not to meet accommodation costs, but took the view that the mother was working and had access to funds. She was working part-time as an educator. He was working full-time as a professional.
I accept the father determined what he would pay to support the mother and children prior to the child support assessment. Correspondence from the father to the mother was explicit that he would only provide $650 per week. He could have made other monies available when she, and the children, urgently needed it. When the mother could not pay the rent, she and children were housed through emergency accommodation assistance, and in the maternal grandmother’s garage. It was disruptive for the children at a time they were already experiencing significant upheaval. It was stressful for the mother. The father had always been the major income earner for the family and was earning significant income. I accept that he dictated the mother’s access to funds.
Looking at these matters as a whole I accept that the mother did not have equal power in their relationship. She complied with the father’s requirement for X to be watched over at night. His actions meant she did not have her partner present to support her for Y’s birth. She did not determine where they lived when they moved out of Sydney, and then to a farm property. The father even after separation felt entitled to dictate whether the children and the mother could see the maternal grandmother in their home. The mother was isolated from her family by the father’s conduct.
The mother was young and vulnerable at the start of their relationship. She was sexually abused as a child and had [an eating disorder]. The father was inconsiderate of her in their early intimate relationship. He was aggressive in arguments. She worried about his reaction and tried to manage issues so as not to challenge him. He had charge of the family finances. He decided to continue employment without discussing that with her, when they moved from the city. This meant that the childcare responsibilities fell on her in a manner not anticipated by her when agreeing to the move. He called her names such as “crazy” and “deranged”.
In Pickford & Pickford [2024] FedCFamC1A 249, Alridge and Carew JJ said at [46] – [47]:
In fulfilling the onus of proving an allegation of family violence that involves behaviour that coerces or controls, it is not necessary to prove the alleged perpetrator intended the behaviour to be so. That does not mean that intention is irrelevant, but it is not dispositive. A person who engages in such behaviour may be completely oblivious to the impact of their behaviour or they may believe that they are acting in such a way to protect the other family member. Notwithstanding that subjective belief, the behaviour may nevertheless coerce or control the other family member and fall within the definition of family violence.
The focus of the fact finding process is on the behaviour and the impact of the behaviour. It is the behaviour that coerces or controls. It requires action and reaction. A single act is unlikely to be coercive or controlling but it may be. Behaviour that coerces or controls may be innocuous, subtle, capable of different interpretations, complex, undermining, etc …
I accept that the father perpetrated family violence through the conduct set out above. His behaviour was coercive and controlling. I am not required to be satisfied that the father intended his conduct to be coercive and controlling of the mother. Standing back and looking at the pattern of conduct I accept that it was controlling of the mother, involved intimidation and humiliation, isolated her from family, and corroded her sense of personal autonomy. Much of this behaviour was intended by him to control the mother, particularly around where they lived and household finances.
The children were exposed to the dynamics of their parent’s relationship. This includes the impact on their mother of their father’s coercive and controlling behaviour. They were also present for arguments between the parents. The mother’s experience of family violence adds to the difficulties for her, were she required to communicate with him about the children. Stress and anxiety exacerbate the symptoms of [an eating disorder]. I do not propose making orders that require her to communicate with the father for these reasons.
The mother’s mental health
The mother was sexually assaulted as a child by a neighbour and from the age of 14 years she has had an eating disorder.
Ms F gave evidence as the mother’s treating psychologist of more than 10 years. She has worked in the field of family therapy/counselling/psychology over decades. She met the mother through a stillbirth support group for parents. She provided individual therapy to the mother thereafter.
Ms F did not see the mother from 2019 until 2021, when she returned to live in Sydney. When she resumed seeing the mother she notes that the mother’s eating disorder had flared up. They have worked together on her eating disorder recovery. Ms F gave evidence that an eating disorder can be acute, or chronic and enduring. When terms like “relapse” and “recovery” are used, it is in the context of the mother having a chronic, enduring condition that she has to manage.
Ms F’s evidence is the mother has committed to eating three meals and three snacks each day. Ms F referred to weight gain or weight loss as being but one aspect of the mother’s condition. Other aspects include the drain of time spent thinking about consuming food. The mother has to manage her eating disorder: no one else can make her eat. There are periods when, in Ms F’s opinion, the mother manages her condition well. At times of acute stress, Ms F has observed it is extremely difficult for her to manage.
Ms F opined that loss of appetite is a natural stress response. As part of her recovery the mother is required to make herself eat six times each day. When stressed she is battling against the body’s natural stress response of not wanting to eat, and nausea around eating. The mother has to force herself to eat without hunger cues, and when she is struggling to keep the food down. Ms F referred to the mental work required by the mother to convince herself of the need to eat, each and every time she eats when stressed. This occupies a significant amount of her psychological and physical resources.
In March 2023, Ms F became very concerned about the mother’s health. The mother at that time was having a significant relapse in her eating disorder. Her weight fell to 42kg. She ceased menstruating. This is the lowest point of the mother’s health Ms F has seen. Ms F was concerned the mother may need to be admitted to hospital. She emailed the mother’s GP in March 2023 about these concerns. The mother’s evidence is she would never voluntarily go to hospital; she has two children to care for. Ms F and the GP made an agreement with the mother for one of them to see her each week, to provide additional support.
When cross-examined by counsel for the father, Ms F disputed the proposition put by counsel for the father that hospitalisation was rare for people with the mother’s symptoms. She referred to catastrophic heart failure being the cause of death of one third of people in the US with an eating disorder due to the stress and damage it causes the cardiovascular system.
In Ms F’s view, a true recovery from an eating disorder means no negative thoughts about yourself when you eat, that you do not have to worry about forcing yourself to eat, and that you are able to be flexible and spontaneous about food. She referred to people who have recovered from an eating disorder still having to be diligent, as a calorie deficit can re-trigger symptoms. It requires an ongoing commitment.
Ms F’s evidence is that she has absolute faith in the mother’s commitment to her children. Ms F was concerned about the pressure of the current proceedings on the mother’s health. She is worried that if unsupervised time is ordered it will break the mother and could result in her death. She was asked her view about whether supervised time would pose an equal threat to the mother’s health. She accepted that the risk was potentially lessened by a professional service undertaking supervision, and the parents not being required to communicate.
Ms F agreed the support the mother receives is helpful, however, she referred to the internal discipline required to recover from an eating disorder. That is, the mother must eat three meals and three snacks a day, every single day, no matter how stressed or anxious she feels. Other support is helpful, but the work has to be done by the mother.
When considering this evidence about the mother’s condition and what it requires of her, it is important to include she is also parenting two young children. She is their sole carer. X has emotional issues arising from the absence of her father, given their previous close relationship. No doubt Y is also emotionally impacted. The mother has demonstrated her ability to meet these complex needs of the children.
Dr D's Report referred to the mother’s background issues including mental health problems and her own sexual abuse as a child. At paragraph 35 he noted, “once the mother reaches a point of believing the children were sexually-abused, this is likely to become a strong and difficult-to-shake feature of her thinking”. I accept that the mother is convinced Y has been sexually abused by the father, and this is likely to remain part of her thinking.
I accept X has been consistent in her statements to the mother, Ms B and the police. The disclosure by X has caused the mother to rethink Y’s self-stimulating behaviour and become concerned that it is part of Y’s response to sexual abuse by her father.
Considering the extraordinary stressors on the mother, including from an eating disorder and sexual abuse as a child, it would be naïve to say that as a competent and diligent parent who will comply with orders, she will manage whatever time arrangements are ordered. She believes Y has been abused by her father. She believes that X has been exposed to her sister’s abuse. She needs to have the physical, emotional and psychological resources to provide for their needs. I accept that to expect her to manage her anxieties if the children are ordered to spend regular time with their father, supervised or unsupervised, is not realistic.
In R & C [1993] FamCA 62, affirmed by Re Andrew [1996] FamCA 43; (1996) FLC 92-692, it was said at [32] that:
In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.
These children are solely dependent on the mother. It would not promote their safety if their mother’s health deteriorated. Her ongoing struggles with an eating disorder, and the seriousness of that condition, make this risk to the children acute.
Can risks for the children spending time with the father be ameliorated?
The risks for these children are several. There is an unacceptable risk of sexual abuse and exposure to family violence, as referred to above. There is no issue that the children will live with their mother and that she is their primary carer for the children. There is a risk to the children if their mother’s capacity to parent is compromised.
X had a close relationship with her father. They spent a great deal of time together after separation. She perceives him as calling her a liar, as a consequence of the Local Court proceedings. She told Ms E her father had “a bad lawyer” and an “evil judge”. She has had difficulty managing these issues from an emotional and psychological perspective.
I accept that unsupervised time could not be sustained by the mother, nor would it protect the children from the identified risks and promote their safety. The father seeks unsupervised time in his primary application, albeit after a therapeutic intervention. The father’s Amended Minute seeks regular supervised time between the children and the father.
The father’s amended orders specify that supervised time commence six weeks after they commence therapy. It is difficult to know whether this will assist. It is not clear what the availability of the father’s nominated therapist is, given they are in Melbourne. The orders are not specific, for example, on the frequency of therapy appointments. The orders do not suggest this is a well formulated plan.
Ms E, although supportive of therapy generally, was unsure how useful it may be in this instance. I note that the father did not pursue psychological assistance after Z’s death, despite it being recommended. Whether the particular therapist was late or did not turn up, as he contends, he did not make any other arrangement.
There is a notation to the Orders of 23 February 2024 that he would call his psychologist as a witness. He consulted a psychologist on 23 November 2023 for “emotional distress over parenting Family Court proceedings and accusations of child sexual abuse and domestic violence. Also seeking advice on how to reconnect with his children given the accusations and impact of court proceedings”. The notes of the first interview refer to him “experiencing disturbed sleep, low mood, feelings of helplessness, lack of concentration, lack of interest in work and other activities … intense anxiety and worry”. It is noted that his symptoms have impacted all areas of his life. A treatment plan of Cognitive Behavioural therapy and Acceptance and Commitment therapy was noted.
The father did not attend the psychologist again until 29 April 2024. He did not return thereafter. There is no indication he took up the proposals for therapy indicated in the treatment plan. In cross-examination he agreed he would need assistance in managing the children if time were ordered.
The father has not previously engaged in therapy. I am not convinced there would be any benefit from the therapeutic intervention he now seeks. For example, he was aware of X’s sleep disturbance and distress after the Local Court proceedings. He could have had no doubt about X’s upset after receiving Ms E's Report. He could have raised with the psychologist developing strategies to manage that. He could have worked on getting skills to assist her. He could have attended a Circle of Security course. He did none of those things. These matters suggest a lack of insight on his part into the children’s needs. This is entirely separate from any suggestion of the father ‘maintaining his innocence’. This is about him being able to take into account the children’s perspectives, and how he could assist them.
The father was aware that an order could be made in the AVO proceedings on a without admissions basis. It is clear from the transcript the Magistrate made that explicit. He chose not to take that course. He is entitled to do that, but it was at a serious cost to X’s wellbeing and to the mother in providing her with support.
When the father sent gifts to the children, he sent X a forensics kit where the suspect child is called X. He sent a book about a girl whose mother is accused of a crime. Accepting his evidence he did not do this deliberately, these gifts demonstrate a breathtaking thoughtlessness for X’s feelings. He was not spending time with the children. One would expect him to be thoughtful about what was sent to X, particularly after her experience in the Local Court. His evidence is he was devastated at that time and crying in the gift shop. His answer did not suggest that he had developed any insight into X’s position.
The impact of orders for time on the mother are a serious consideration. I have already found she could not sustain unsupervised time. If supervised time were ordered Ms F’s view is the mother could require a year to adjust to that, to assist her cope. Ms E formed the view that if any time were ordered delay would not necessarily assist the mother. I am not satisfied that the mother could sustain the supervised time sought by the father.
The Full Court in Bant & Clayton [2019] FamCAFC 198 has said in relation to orders for indefinite supervision:
53. It is well accepted that an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted, and courts are encouraged to consider crafting orders which might avoid permanent supervision (see Slater v Light (2013) 48 Fam LR 573 at 583-584; Champness & Hanson (2009) FLC 93-407 at [209], [215]; Moose & Moose (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]-[41]; B and B (1993) FLC 92-357 at 79,780).
54. Circumstances may however arise in which the only appropriate response to the identified risk is to make an order, in effect, for indefinite supervision of a child’s time, if it is in the best interests of the child. …
Each case must be decided on its own facts, including whether, in the particular circumstances of a case, an order for supervision is justified even though it could potentially be for an indefinite period (Bielen & Kozma [2022] FedCFamC1A 221).
Long-term supervision of time, in this instance fortnightly, has a number of problems. There is a risk that supervisors are less diligent over time. If there are visits where they do not experience problems, they may come to regard it as unnecessary. This is a matter likely to cause the mother anxiety, given her firmly held belief that Y has been sexually abused by her father. Ms F noted the impact of stress on the mother if she is required to send the children to spend time with a man she believes sexually abused Y.
The mother’s eating disorder and the effect of stress on that condition is a significant consideration. Damage to her health could deprive the children of their sole carer.
There is no issue that the children wish to see their father. Although X’s views have varied, I accept that she would like to see him. Given the complex risks involved, their age and stage of maturity, that could not be said to be a determinative factor. It is a matter I am required to consider. I accept that both children miss their father and want to see him. This desire to see their father can mitigate against their safety. Were things said or done by their father that make them uncomfortable, they may not tell anyone so that they can continue to see him. X, I accept, would be fully aware of the consequences of speaking out.
For these reasons I am not satisfied that fortnightly supervised time as sought by the father would promote the safety of the children.
The ICL proposes supervised time on three occasions each year. This is based on the children’s love for their father and desire for a relationship with him. It allows them to know he loves them, in a supervised setting. X has said to the ICL, “If my dad crosses his heart and hopes to die that he won’t do it again, I would like to see him”. This poignantly makes explicit the problems for X.
The father’s persistent lack of insight, and failure to take steps to address it or build skills to manage the children, is a significant problem in any time arrangement. Ms E referred to the issue of supervisors not being trained to recognise when a situation is becoming psychological dangerous for a child. That requires, I accept, sophisticated skills and training. It is very different to ensuring the other parent is not spoken of poorly, or that there is no opportunity for abuse to occur.
Ms E referred to the session between the children and father in her interviews, and that the situation deteriorated when X started to talk about the criminal proceedings. Ms E intervened quickly. She thought a supervisor would be unlikely to have the skills necessary to see that coming and manage the situation in a way that promotes X’s psychological safety.
X is a bright child. She is likely to want to pursue matters with her father. Managing difficult questions for a parent in the father’s situation would take significant insight and skill. The father has not demonstrated either of those things. The supervisor is unlikely to have the necessary skills. This factor weighs against any level of supervised time. In Ms E’s opinion there is a real risk of psychological and emotional harm. I accept that cannot be ameliorated by orders.
Ancillary matters
The mother seeks the children’s photographs be removed from school reports for the father. No submissions were made in support of this by the mother. The ICL opposed the order. There is no evidence that supports why that would be in the children’s interest, and I do not propose making that order. I will make an order that the mother’s contact details are redacted from any reports sent to the father. I will order that the mother send the reports so that she is certain her contact details do not appear.
The mother seeks an order restraining the father from being within 200 metres of the school, residence or other place occupied by the children. The father will not know where the children are living. The only address he will be provided with is the maternal grandmother’s. This is not a case where he has engaged in conduct that could be described as stalking. On the information he has, the father could be in breach of the order without his knowledge. I do not propose making the order sought.
The father seeks an order that the mother provide notice in writing in relation to any proposed decision regarding the children’s long-term care, welfare and development, and the reasons for her proposed decision. There is no evidence that this would be of benefit to the children. No submissions were made about it. I decline to make the order.
The mother and ICL seek orders that the mother be permitted to solely obtain or renew passports for the children, and to travel overseas with the children. The mother will have sole parental responsibility and decision-making authority, and these will be matters for her to decide in the exercise of that responsibility. Although in my view unnecessary, I will make the orders sought to ensure there are no issues for her dealing with those bureaucracies.
The ICL seeks orders that the mother ensure the children continue to see Ms B for as long as Ms B recommends. It is in the children’s best interest to continue receiving psychological support, and I propose making that order. I do not understand the mother to oppose it.
The ICL seeks orders granting the father liberty to contact Ms B and requesting that Ms B speak with the father. No issue was taken by the mother with Ms B speaking with the father to the extent she is comfortable, within her role as the children’s therapist.
The ICL seeks orders that Ms B be provided a copy of the final Orders and this Judgment. The mother seeks orders that the children’s school be provided a copy of the Orders. It is in the best interests of the children for their school and psychologist to know what is going on for them, and I propose making both orders.
The father seeks that the parties communicate with each other via the Our Family Wizard parenting application. The ICL seeks an order restraining the father from contacting the mother directly and that any communication between the parties shall be through the maternal grandmother. I propose making the ICL’s order. I will order that any communication take place through writing and that each party is to keep the other informed of any change to their postal address, which in the mother’s case is the maternal grandmother’s address.
The father seeks orders that the mother keep him informed of medical matters for the children, and that he be permitted to receive information from the children’s medical practitioners and discuss the children’s health with them. No submission was made about this. I decline to make this order.
COSTS OF THE ICL
The ICL sought an order for costs against each party in the sum of $8,500.25. I note the obligation on the ICL to seek costs.
The father did not wish to be heard in opposition to the order being made against him, and I will make that order.
The mother opposed the order being made against her. The ICL did not make any submissions seeking payment from the mother.
In brief, she is employed as a casual educator working on average two to three times per week. She has the full-time care of the two children and will do on an ongoing basis. She received a level of pro bono assistance from her solicitor, and counsel appeared at a reduced rate.
I have referred to the difficulties she has had in managing her eating disorder which I accept would, coupled with the children’s needs, impact her capacity for longer hours of employment.
I accept that the costs sought by the ICL are modest. The ICL has been of significant assistance in the matter, and the order I make about the costs is not a reflection on the value of the role played by the ICL and the solicitor advocate appearing.
I dismiss the application for the mother to meet one half of the ICL’s costs given her financial circumstances, and the additional stress that may impose on her.
I certify that the preceding one hundred and sixty-seven (167) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 30 April 2025
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