Nakai & Nakai (No 2) - [2024] FedCFamC1F 536

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Nakai & Nakai (No 2) [2024] FedCFamC1F 536

File number(s): BRC 7998 of 2023

Judgment of: CAREW J

Date of judgment: 16 August 2024

Catchwords: FAMILY LAW – CHILDREN – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk because of sexual abuse – Where the mother nevertheless seeks indefinite supervision of the father’s time with the children by reason of an alleged unacceptable risk of exposure to family violence – Where the father seeks that the children live with him and there be a three-month moratorium on them spending any time with the mother – Where the allegations by the mother that the father has sexually abused the youngest child are groundless – Where the mother’s conduct in repeatedly questioning the child amounts to emotional abuse – Where the father does not pose an unacceptable risk of harm to the children by exposure to family violence – Where the children will remain in the mother’s primary care for various reasons, including that a change of residence would likely cause emotional distress to the children – Where the children will spend gradually increasing unsupervised time with the father and ultimately alternate weekends and half school holidays – Where neither parent considers that they are able to make joint decisions – Where the mother will have sole decision making responsibility with an obligation to seek input from the father.

Legislation: Family Law Act 1975 (Cth) s 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65DA

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley (2022) FLC 94-094

Isles and Nelissen (2022) FLC 94-092

Johnson & Page (2007) FLC 93–344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Number of paragraphs: 287

Date of hearing: 8-12 July, 15 July 2024

Place: Brisbane

Counsel for the Applicant: Mr Bunning

Solicitor for the Applicant: DA Family Law

Counsel for the Respondent: Ms Oakley

Solicitor for the Respondent: Michael Lynch Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Todman

Solicitor for the Independent Children’s Lawyer: Queensland Legal Practice
ORDER

BRC 7998 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR NAKAI

Applicant

AND:
MS NAKAI

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

16 AUGUST 2024

THE COURT ORDERS THAT:
Parental decision making
1.Subject to paragraph 2 of this Order, Ms Nakai (“the mother”) have sole decision making responsibility for major long term issues (as defined in s 4(1) of the Family Law Act 1975 (Cth) ("the Act”)) for the children, X born 2012, Y born 2014, and Z born 2019.
2.Prior to making any major long term decision that is not made in circumstances of urgency, the mother provide no less than 14 days’ notice in writing to Mr Nakai (“the father”) of the decision to be made and consider any response received by the father in writing and advise the father within 48 hours of the decision being made.

Live arrangements
3.The children live with the mother.
4.The children spend time with the father at all such times as may be agreed by the parents in writing but failing agreement, during school term, as follows:
(a)On the first available two appointments after the date of this Order, the mother is to deliver the children to Mr B, therapist, from C Counselling (or such other person as agreed by the parents) for the purposes of his facilitating the children spending time with the father and to have this Order explained to the children, and, for this purpose, the father shall forthwith provide to Mr B (or such other therapist as agreed if appointments with Mr B cannot be immediately scheduled) a copy of this Order and the reasons for judgment dated 16 August 2024;
(b)Thereafter, for a period of three months, from 9.00am to 1.00pm each Saturday;
(c)Thereafter, for a period of six months, from 9.00am Saturday to 5.00pm Sunday each alternate weekend;
(d)Thereafter, from after school or 3.00pm Friday to before school or 9.00am Monday or 9.00am Tuesday if Monday is a public holiday or pupil free day each alternate weekend;
(e)From the commencement of the time in accordance with subparagraph 4(c) of this Order, the children spend time with the father on school holidays and special days as follows:
(i)For term 1, 2 and 3 school holiday periods, for the first half in each even numbered year and for the second half in each odd numbered year;
(ii)For the term 4 school holiday period in weeks 1, 3, 5, and 7 in each even numbered year and weeks 2, 4, and 6 in each odd numbered year with changeover to occur each Friday at 3.00pm;

Christmas
In even numbered years:
(iii)With the mother from 9.00am Christmas Eve to midday Christmas Day; and
(iv)With the father from midday Christmas Day to 5.00pm Boxing Day;
In odd numbered years:
(v)With the father from 9.00am Christmas Eve to midday Christmas Day; and
(vi)With the mother from midday Christmas Day to 5.00pm Boxing Day.

Easter
In even numbered years:
(vii)With the mother from 9.00am Good Friday to midday Easter Saturday; and
(viii)With the father from midday Easter Saturday to 5.00pm Easter Sunday.

In odd numbered years:
(ix)With the father from 9.00am Good Friday to midday Easter Saturday; and
(x)With the mother from midday Easter Saturday to 5.00pm Easter Sunday.

Mother’s Day
(xi)With the mother from 5.00pm the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day.

Father’s Day
(xii)With the father from 5.00pm the Saturday prior to Father’s Day until 5.00pm on Father’s Day.

The children’s birthdays
(xiii)With the parent they are not otherwise living with as follows:
A.If a school day, from after school until 7pm; and
B.If a non-school day, from 1pm until 7pm.

The parents’ birthdays
(xiv)If the children are not already spending time with the parent whose birthday it is:
A.On a school day from after school until 7pm; and
B.If a non-school day, from 9am until 7pm.

5.In relation to determining each parent’s time with the children during the holiday periods:
(a)the first half of the holiday period shall commence at the conclusion of the school day on the last day of the school term;
(b)the second half of the holiday period is to commence at 5.00pm on the day calculated to represent the half-way point of the holiday period and conclude at 5.00pm on the last day of the school holiday period; and
(c)for the purpose of calculating the halfway point in the holiday period, the nights shall be counted from the last day of the school term and conclude at 5.00pm the Sunday prior to the new school term commencing and if there is an uneven number of nights, the mother shall retain the additional night.

Changeovers
6.Unless otherwise agreed between the parents in writing, until the father’s time with the children increases to alternate weekends from after school Friday until before school Monday pursuant to paragraph 4(d) of this Order, all changeovers shall occur at D Family Services, with any costs associated therewith to be paid equally by the parents and each parent is authorised to nominate a person known to the children to attend the changeover in their stead.
7.Upon the father’s time with the children commencing pursuant to paragraph 4(d) of this Order, changeover shall occur at the children’s school/daycare and if that is not possible for any reason, the parent who is commencing their time with the children will collect the children from the other parent’s residence.

Communication
8.The children have telephone/FaceTime communication with either parent at all reasonable times as may be requested by the children and the parent having care of the children at the time of the request shall facilitate such communication.
9.The children have telephone/FaceTime communication with the father each Tuesday between 6:30pm and 7.00pm and, for that purpose, the father is to initiate the call to the mother’s phone at the commencement of the call and the mother is to facilitate the call.
10.The parent who has the children in their care at the time the telephone/FaceTime communication occurs with the other parent shall ensure the children are able to speak privately.
11.The parents ensure that all communication between them is respectful and with a focus on the best interests of the children.
12.The parents keep the other informed as to their current residential address, email address, and mobile phone number and inform the other party of any changes to any of these details within 24 hours of such change occurring.
13.With the exception of an emergency or time sensitive issues, each parent communicate about the care, welfare, and development of the children with the other via a parenting communication app or via an alternate method as may be agreed between the parents.
14.Within seven days of the date of this Order, the parents download, register, and commence utilising a parenting communication app or other agreed method of communication.
15.The parents pay their own costs of utilising the parenting communication app.

Therapy
16.The father continue to engage with Mr E at times and dates as recommended by Mr E, for such period as reasonably recommended by Mr E, and such sessions are to include therapeutic support in relation to the following:
(a)The findings contained in the reasons for judgment dated 16 August 2024 and for this purpose, the father provide a copy of the reasons to Mr E;
(b)Co-parenting strategies; and
(c)Any other matters as guided by Mr E, including reconnecting with the children, reflecting on the father’s own behaviour and its impact on the mother and the children, and providing for the children’s developmental, psychological, and emotional needs.

17.The mother continue to engage with Dr F at times and dates as recommended by Dr F for such period as reasonably recommended by Dr F, and such sessions are to include therapeutic support in relation to the following:
(a)The findings contained in the reasons for judgment dated 16 August 2024 and for this purpose, the mother provide a copy of the reasons to Dr F;
(b)Co-parenting strategies; and
(c)Any other matters as guided by Dr F including providing for the children’s developmental, psychological, and emotional needs.

18.Within 48 hours of the date of this Order, the mother provide the children’s treating mental health practitioners, namely, Ms G, Ms H, and Ms J, with a copy of the following:
(a)The reasons for judgement dated 16 August 2024; and
(b)This Order.

19.The children continue to attend upon their mental health practitioners at times and dates as recommended by the treating practitioner for such duration as reasonably recommended by them with the costs of the children’s engagement in therapy to be paid equally by the parents.
20.In the event that any of the children’s respective therapists consider it would be of benefit to the child, a parent requested to attend therapy with the child shall do so as requested by that therapist and shall be solely responsible for any fees incurred for any such therapy sessions.

Restraints
21.The parents are restrained from:
(a)Denigrating one another, or the other parent’s family members, to or in the presence of the children; and
(b)Talking to the children or in the children’s presence about any areas of dispute the parents may have with one another from time to time including but not limited to these Court proceedings.

22.The mother is restrained from asking the children any questions relating to the allegations made against the father in these proceedings.

Overseas travel
23.After the commencement of subparagraph 4(c) of this Order, and noting s 65Y of the Act, each parent be permitted to take the children out of the Commonwealth of Australia for the purpose of a holiday, with the other parent’s prior written consent, during any period when the children are spending time with that parent provided that:
(a)The travelling parent provides the other parent with 30 days written notice of their intention to travel with the children;
(b)The travelling parent provides to the other parent, 14 days prior to the children’s departure date: a general itinerary and telephone numbers at which the children may be contacted while outside of Australia;
(c)Copies of the pre-paid return tickets for the children’s travel; and
(d)In the event that there is a material change in that itinerary or telephone numbers, the party shall forthwith notify the other parent of that change.

24.Subject to paragraph 23 of this Order, the parents be at liberty to travel overseas with the children, or arrange for the children to travel, only to such countries:
(a)that are signatories to the Hague Convention on the Civil Aspects of International Child Abduction (“Hague Convention”), and in relation to which the Hague Convention is in force between Australia and that country; and
(b)in relation to which the advice provided by the Commonwealth Government’s Department of Foreign Affairs and Trade (presently available on the website smarttraveller.gov.au) is such that the country is not categorised as being either Level 3 (“Reconsider your need to travel”) or Level 4 (“Do not travel”).

25.The restrictions contained in paragraph 24 of this Order do not apply to countries that the children are visiting only for the purpose of a stopover en route to a country which is compliant with paragraph 24.
26.The other parent provide to the travelling parent, not less than 14 days prior to departure, the children’s passport/s in their possession, or earlier if required for the purposes of obtaining visa or other necessary travelling documentation.
27.Within 14 days of a written request, each party will do all such acts and sign all such documents as may be required to apply for or renew a passport/s or any other documents deemed necessary for the purpose of the children’s travel including but not limited to visas. The children’s passports shall be held by the mother and released to the father within 14 days of any request, in addition to the above, and the passports shall be returned to the mother at the first changeover following the children’s return to the Commonwealth of Australia.

Other matters
28.The mother shall keep the father informed of the following:
(a)Any changes to Z’s allergy plan;
(b)Any changes to Y’s medication, treatment plans, or symptoms relating to her medical condition.

29.The parents shall:
(a)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue, or illness suffered by the children; and
(b)Keep the other parent informed of the names and addresses of any medical practitioners who are involved in treating or caring for the children.

30.This Order authorises the parents to obtain from the children’s treating medical and any allied health practitioners any information relating to the children’s health and treatment the practitioner is otherwise authorised at law to provide.
31.This Order authorises the parents to obtain from the children’s day care centres, schools, or other educational facility information in relation to the children, including copies of school reports, school photographs, and any other document regarding their academic progress or achievements and notification of events such as parent/teacher events, sports days, and concerts.
32.Both parents are entitled to attend any school/kindergarten/day care, social, sporting, or educational event involving the children, including but not limited to parent/teacher interviews, assemblies, theatre performances, sporting events, school activities and functions, Christmas parties, and special occasions.
33.Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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
Carew J:

X, Y, and Z are three children who live with their mother, Ms Nakai, and currently spend supervised time with their father, Mr Nakai, for four hours a fortnight.
Until the end of what became a six-day trial, the mother opposed the children spending any time or having any communication with the father. By the end of the trial, the mother proposed that the children continue to spend time with the father fortnightly for four hours supervised by a contact centre.
When the father commenced these proceedings, he was not seeking a change in the children’s primary residence. In April this year, he amended his Initiating Application to seek an order that the children live with him and for a three-month moratorium on them spending any time with the mother.
For the reasons set out below, the children will continue to live with their mother and after the parenting order has been explained to the children by Mr B, (being a therapist agreed to by the parents and the independent children’s lawyer (“ICL”)), or such other therapist in the event that an immediate appointment cannot be obtained with Mr B, as agreed to by the parents and failing agreement as recommended by the ICL, and the children have spent time with the father initially in the presence of Mr B for two sessions, they will commence to spend unsupervised time with the father, gradually increasing to alternate weekends from Friday after school until Monday before school and eventually half school holidays.
Importantly, I have found that the mother’s allegations that the father sexually abused the youngest child are groundless and further that the father does not pose an unacceptable risk of harm to the children.
ISSUES
The significant issues identified by the parties for my determination are as follows:
(1)Are the allegations that the father has sexually abused Z groundless?
(2)If not, does the father present an unacceptable risk of sexual harm to the children? (I note that by the end of the trial it was common ground that the evidence did not support a finding of unacceptable risk)
(3)Does the father present an unacceptable risk of harm to the children by exposing them to family violence or abuse?
(4)Does the mother present an unacceptable risk of emotional or psychological harm to the children?
(5)Does the father have the capacity to provide for the children’s developmental, psychological, and emotional needs?
(6)Can the mother facilitate the children having a relationship with the father in the event the Court is satisfied he does not present an unacceptable risk to the children?
PROPOSALS

By a Further Amended Initiating Application filed 13 June 2024, the father seeks an order for sole decision making responsibility for major long-term parenting issues, that the children live with him, and that there be a three month moratorium of time between the mother and the children followed by a period of supervision and gradually increasing unsupervised time until the children are spending alternate weekends and half school holidays with the mother. The father provided an alternative to his primary proposal, in the event he is unsuccessful in his primary proposal, in a minute of order which will remain with the Court papers.
By an Amended Response filed 26 April 2024, the mother’s primary proposal was for the father to spend no time nor communicate with the children. By the end of the trial, the mother proposed that the children continue to spend supervised time with the father each fortnight at a contact centre indefinitely. The mother seeks sole decision making responsibility for major long-term parenting issues. The mother also seeks that the father be restrained from approaching within 100 metres of the children’s daycare and/or school. The mother’s further alternative to her primary proposal (different to the alternatives contained in her Amended Response) is contained in a minute of order which will remain with the Court papers.
The ICL recommends that the children live with the mother, that an order be made for the mother to have sole decision making responsibility for major long-term parenting issues, and that the children spend unsupervised time with the father after the father has completed a ‘Men’s Behaviour Change Program’. The precise terms of the order recommended by the ICL are set out in exhibit 20.
BACKGROUND
Before turning to consider the issues, it will be helpful to set out some background to the matter.
The mother and father commenced a relationship in 2007. They commenced cohabitation on the date of their marriage, being in 2008. The parties separated on 26 October 2022 and were divorced in early 2024.
The father was born in 1979 and is 45 years of age. He has been employed on a full-time basis since 2009, working Monday to Friday, and earns approximately $130,000 per annum. He is a tradesperson and supervises work teams in his current role. The father also currently engages in casual shift work for another employer several nights per week to assist him to meet his legal costs but contends he will cease that employment at the conclusion of the proceedings. The father contends that his employment is flexible and that he can vary his hours to accommodate his sole care of the children if required.
The father currently lives with his parents and plans to continue to do so following the conclusion of the proceedings, whatever the outcome. His parents live in a large property in Suburb K, a suburb of Brisbane.
The mother was born in 1984 and is 40 years of age. She is a professional and operates her own business. The mother’s work hours fluctuate depending on the schedule and at times she is required to work weekends and travel to a location for work. The work mostly occurs in Brisbane or nearby regions but she has also travelled interstate on one occasion. The mother receives assistance with the care of the children from her parents, other relatives, or a babysitter. During the marriage, the mother worked in her own business or for others, although there were extended periods when she was engaged full time in her parenting and homemaker role. The mother returned to work part-time when Z was approximately eight weeks old, and Z commenced at a day care centre when she was about 18 months old.
The mother currently lives with the children at an undisclosed address in Brisbane.
There are three children of the marriage, namely, X born 2012, Y born 2014, and Z born 2019.
X is 12 years old and is currently in grade six at L School. L School is a Christian school just over one hour’s drive from the father’s residence. He does well socially and academically at school and enjoys playing sports and music. X is in good health.
Y is nine years old and is currently in grade four at L School. Y enjoys reading and performs well academically at school while also enjoying a close group of friends and good relationships with teachers and peers. Y experienced some early health issues and was ultimately diagnosed in 2015 with a medical condition. Y underwent surgery related to her condition in early 2016. She has regular appointments with her paediatrician, Dr M, and undertakes regular tests to monitor the impacts of the medical condition. Her condition can be fatal if untreated and requires daily medication.
Z is five years old and will commence Prep in 2025. She currently attends kindergarten four days per week. Z is in good health.
The mother suffered from a condition during each of her pregnancies and was hospitalised on several occasions. In the first four months of her pregnancy with Z, the mother was bed-ridden.
The mother and father are both devout Christians.
In early 2021, the mother contacted the Department of Child Safety, Seniors, and Disability Services (“Child Safety”) raising a concern that Z had been sexually abused by a carer at her daycare.
Around this time, the mother also made a complaint to the daycare centre and in mid-2021, the parties were advised that an investigation into the daycare centre would be undertaken by the Department of Education.
In mid-2021, the mother also made a complaint to police.
After investigation by all agencies, it was variously concluded: the complaint was unfounded, the child’s behaviours were considered within the ‘green light category’ i.e., normal for a child of Z’s age, and there was no evidence of any offence having been committed.
Following separation on 26 October 2022, the children remained living with the mother in the former matrimonial home and the father temporarily relocated to a property owned by the mother’s parents until they asked him to vacate in or about February 2023. The father then moved into his parents’ residence at Suburb K, where he continues to reside.
From 26 October 2022 until late November 2022, the children spent unsupervised time with the father each week, including overnights. In late November 2022, the mother advised the father by text message that she did not consent to his time with the children being unsupervised going forward.
On the following day, the mother attended the police station and spoke with police about her concern that Z had been sexually abused by the father.
On the following day, the mother notified the father that she had made a complaint to police and had been interviewed the previous day. The mother also made a notification to Child Safety about her concerns that Z had been sexually abused by the father.
Following receipt of the communication from the mother in late 2022, in late November or early December 2022 the father attended upon a police station and was advised that there was no ongoing investigation of the mother’s concerns that he had sexually abused Z.
On 7 December 2022, the father began spending time with the children, supervised by the mother and a member of the mother’s family. This arrangement of informal supervision of the father’s time with the children continued until 11 February 2023.
In early 2023, the mother attended upon police and provided police with a video recording she had made of her questioning Z on 13 January 2023. The mother was contacted by police two weeks later asking her to attend the police station with Z for an interview, which the mother did that same day. No interview was conducted with Z that day as she refused.
In early 2023, a final protection order was made naming the father as the respondent and the mother as the aggrieved, with the children being included as named persons. The father was not present when the order was made. The protection order remains in force until early 2028.
In March 2023, the former matrimonial home was sold, and the mother relocated with the children to Suburb O, a suburb of Brisbane. The two older children changed school and Z commenced at a new daycare.
In mid-2023, Z was interviewed by police from the Child Protection Investigation Unit and the interview was recorded. It is exhibit 3 in the proceedings. The child made no statements suggestive of sexual abuse.
On 14 July 2023, a final property order was made by consent.
In July 2023, the father spent time with Y and X on a supervised basis at D Family Services; an arrangement made by agreement between the mother and father. Other than this occasion, the father did not spend any time or have any communication with the children from 11 February 2023 until 16 March 2024, save at the family report interviews on 19 October 2023.
On 5 March 2024, an interim Order was made by consent for the children to live with the mother and for the parties and the children to continue to engage in individual therapeutic counselling. The mother opposed the father spending any time with the children, but the Order provided for supervised time between the father and the children to commence each weekend at D Family Services. The Order also provided for FaceTime communication between the father and the children each Tuesday and Thursday evening.
Supervised time between the father and the children commenced at D Family Services on 16 March 2024. The father has been communicating with the children twice a week by FaceTime pursuant to the Order of 5 March 2024. The calls have become progressively more difficult and recently, Z has not engaged in these calls, while X and Y are described by the father as “sombre”, though talkative, and polite.
In mid-2024, the mother again contacted Child Safety and police to raise concern her that Z had been sexually abused by the father (historically) and to report comments that the mother said Z made to her on 3 May 2024.
Later that month, the mother was contacted by an officer of the Child Protection Investigation Unit and advised that they would not be taking the matter any further and did not seek to re‑interview Z.
A week later, the mother again contacted Child Safety and made a notification that she was concerned Z had been sexually abused by the father (historically). The mother says she was advised by Child Safety to contact police. Both agencies have indicated they do not intend to take any further action.
The father has incurred legal fees in these proceedings of about $362,500.
The mother has incurred legal fees in these proceedings of about $433,000.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by Part VII of the Family Law Act 1975 (Cth) as amended (“the Act”). Section 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects of Part VII of the Act are set out in s 60B and are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the United Nations Convention on the Rights of the Child.
In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to the matters set out in s 60CC and generally include: arrangements that promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm) of the child and each person who has care of the child; any views expressed by the child; the developmental, psychological, emotional and cultural needs of the child; the capacity of each person who has or will have parental responsibility to provide for the child’s needs; the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so; and in considering those matters, the Court must consider any history of family violence, abuse or neglect involving the child or a person caring for the child, and any family violence order that applies or has applied to the child or a member of the child’s family.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, sexually abusive behaviour, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
Abuse in relation to a child is defined in s 4 of the Act and includes involving a child in a sexual activity in which the child is used directly or indirectly as a sexual object.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M v M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent or other person, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley (2022) FLC 94-094 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen (2022) FLC 94-092 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M v M (fn 3) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61D provides that a parenting order can deal with the allocation of responsibility for decision making about major long-term issues, being joint or sole decision making in relation to all or specified major long-term issues. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Where an order is made for joint decision making about major long-term issues, parents are required to consult each other in relation to each such decision and make a genuine effort to come to a joint decision (s 61DAA). Where a decision is not a major long-term one, there is no such requirement to consult with the other parent (s 61DAB).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
[12] Banks & Banks (2015) FLC 93–637.
ARE THE ALLEGATIONS THAT THE FATHER HAS SEXUALLY ABUSED Z GROUNDLESS?
Although the mother concedes that the father does not pose an unacceptable risk of sexual harm to the children, she maintains that her allegations against him are not groundless. The mother contends that her actions must be seen in the context of a mother wanting to protect her child in circumstances where Z’s behaviour and statements could not be dismissed.
In considering this vexed issue, it is necessary to take a broader view of the circumstances that may have led to the allegations. In this context, I have little doubt that the trial process has been profoundly stressful for both parents, involving as it did the review of many very private intimate matters, by strangers. Unfortunately, this has been a necessary consequence of the issues in dispute.
Background to parent’s unhappy marriage
It is common ground that the parents were sexually inexperienced when they married, and that they are devout Christians. It is also common ground that their sexual experiences with each other brought them profound unhappiness. The mother found sexual intercourse painful and resented the father’s approaches. In one of her emails to the father in April 2022 she vehemently states that she “hates sex”. The mother found the father’s wish to experiment with different sexual positions humiliating. The father found the mother’s rejection of physical contact, including her refusal to engage in sexual intercourse, both hurtful and unreasonable. The father admits he put pressure on the mother at times. The parents did not have sexual intercourse for twelve months after the birth of their youngest child and the mother contends that their last experience of sexual intercourse before that period of abstinence was painful for her and she muffled her cries. The husband contends he was oblivious to the mother’s suffering.
The mother experienced severe morning sickness during each pregnancy and feels she was pressured to have a third child against her wishes. This issue features in their email exchanges in 2022 and the father apologises to the mother for not realising the significant additional stress a third child would bring to the family. This is not to suggest that either parent harbours any resentment towards their third child. On the contrary, they love her dearly.

As would be expected, life with three young children was very demanding and stressful, and both parents struggled at times to meet the expectations of the other in running a household, working outside the home, and fulfilling their respective roles of wife and husband. Each parent resented the other’s outside activities or commitments e.g., the mother found the father’s pursuit of his hobbies to be selfish, and the father resented having to reduce or cease such activities. The father found the mother’s expectations of him to pick the children up from school/daycare, make dinner, and attend to household chores for weeks on end, while she was away (with her job) to be unreasonable. Each accused the other of not carrying their weight in the household.
Accusations against the Day Care Centre
Z attended the N Day Care Centre from early 2021 until the mother cancelled her enrolment a few months later. In early 2021, the mother made a formal complaint about the Centre. An investigation was conducted by the Department of Education. The ‘Reactive Decision Record’ produced by the Department reveals that the mother complained because:
She feels that her daughter … is very unsettled and has been displaying some unexplained behaviours around nappy change time. The mother has also expressed her concerns around some of the words and language her child has been using. She states that these “words” are never been (sic) used at home and alleges that this possibly may have been said at the service by an Educator. She has documented her questions and conversation with her daughter over a few days. This has raised her concern and she has decided to end her enrolment effective immediately.
Ultimately, the investigation did not support the mother’s concerns that any of the day care carers had inappropriately touched the child. The investigators carried out a thorough investigation that included an inspection of the daycare centre and interviews with numerous people. In relation to the nappy change area, it was observed that it was “a very open plan nappy change area that could easily be seen from 2 adjoining rooms”. The investigators concluded that the child’s behaviours “fall under the ‘green light’ category and are normal behaviours for that age and developmental level”. The mother was informed of the outcome in mid-2021.
Notwithstanding the outcome of the investigation, the mother’s diary note dated 18 August 2021 records the following:
… I know in my self without doubt [Ms P] was inappropriate with my poor child, look at the damage it has caused when still out of the blue it will trigger this fear and hurt in [Z] and still she names [Ms P].
The mother had also made a complaint to police about the daycare centre in mid-2021. The police records provide the following relevant information:
[In mid-2021] CPIU received a [redacted] after they have received a complaint from [the mother] of a […] child [Z]. The mother had reported that since the child started attending the child care centre the child has started to exhibit behavioural changes during nappy time and mentioned “snakie” on multiple occasions and on multiple occasions the child has placed items into her vagina. At no time did the child allege to the mother that anything untoward had occurred to her or that something occurred at the child-care centre. The child is [under two years] old and communication skills are at the developmental age for the child. The mother had never observed any injuries or traumas to the genital region or other areas to suggest anything had occurred. The mother of the child had taken the child to a Doctor [redacted] who attempted to examine the child however was unsuccessful due to the child not staying still and being upset. The mother has made an assumption based on the behaviours that something had occurred at the child-care centre. The child-care centre has conducted own investigations and conducted interviews with both of the child care workers who look after the child. Both [redacted] indicate that there were no issues with the child and only at times she would be upset at nappy change time usually due to the fear of missing out on playing with other children. Both of the workers indicated that they play finger songs and at times they would tickle the children on the stomach to make them laugh and giggle. Advice was sought from Department of Child Safety [redacted] by the Child Care Centre in relation to this investigation and were advised that the information provided falls within the “green light” category and considered normal behaviours for the age and developmental level. DOCS are not conducting any further investigations and recorded the matter. Based on the information provided to police there is nil evidence or indications that anything untoward has occurred towards the child and that the behavioural changes are resultant due to anything untoward. The child care centre has conducted adequate investigations, spoken to all persons involved and were not able to substantiate any offences. As there is nil evidence to suggest any offences, all persons spoken to and according to DOCS the behaviours are considered normal for the age and development level there is nil requirement for any further police involvement or investigations. Child has been removed from the child care centre and no longer attends. The matter has been recorded and filed pending further information.
(Emphasis added)
The mother’s allegations against the daycare centre in 2021 are noted in Child Safety records to be unfounded.
The mother now accepts that she was wrong in her belief that the child’s daycare carers inappropriately touched the child.
Evidence relied upon by the mother in relation to sexual abuse
The mother contends that she kept contemporaneous diary notes of “disclosures” made by Z and of her observations relevant to her concern that Z had been sexually abused.
The first entry in the mother’s diary notes is dated 23 April 2021 and is headed “[Z] Snakie talks”. The note for this day is very lengthy but it is important to note that it provides a “background” which pre-dates the first entry. During her oral evidence, the mother confirmed that at times her trial affidavit represented a “summary” of her notes.
The mother contends that “since [Z] was 18 months old she has exhibited sexualised behaviours” including:
(a)Masturbating – (I note that the mother’s email to police dated 18 February 2023 states “about 6-9 months before we separated last year in October, [Z] started to masturbate, and it was increasing she was doing it sometimes multiple times a day”. As the parents separated on 22 October 2022, this would put the commencement of the child’s masturbation in early 2022);
(b)Inserting her fingers into her vagina (the mother clarified in her oral evidence that she was referring to the child’s labia rather than vagina and the behaviour was not a frequent occurrence);
(c)Pressing her fingers into her toys in the genital and anal area and commenting about how it hurts (the mother contends this occurred on several occasions);
(d)Attempting to insert one of her fingers into the mother’s vagina when she was leaning over in the bathroom cabinet putting on mascara (the mother’s diary note clarifies that the child’s finger was “towards my vagina” although it is unclear if the reference to “vagina” is accurate given her clarification in oral evidence that vagina was a term used for labia. This behaviour occurred on one occasion); and
(e)Attempting to insert her fingers into Y’s vagina during a shared bath (the mother clarified that this occurred on one occasion and that the reference to “vagina” is inaccurate. This occurred on 28 April 2021 when Y and Z were sharing a bubble bath).
The mother’s diary notes form part of exhibit 14 and are contained in the body of two emails sent by the mother to an investigating police officer, after further concerns were raised by the mother after the parents separated but this time alleging the father to be the perpetrator.
The first email was sent by the mother on 18 February 2023 and included in the body of the email are what the mother describes as her “diary entry’s (sic) on my phone when I was taking notes when [Z] first started to change and started to press into her vagina and started to say things like “snakey coming”. The date range for her diary entries in the first email is 23 April 2021 to 4 September 2021. The second email was also sent on 18 February 2023 and the date range for her diary entries is 23 November 2022 to 6 February 2023.
In one of the mother’s emails dated 18 February 2023, she informs the investigating police officer, by way of background, the following:
…
As I mentioned I started working long hours and she was put into daycare, [the father] had to be alone with the kids doing baths and bed times etc and [the father’s] parents also moved up so they started helping look after the kids so [Z] was also often cared for by Grandma and Grandad ([the father’s] parents).
When this change happens [Z] was not even 2 year (sic) of age yet. She had very very limited words. I know … I did the wrong thing when questioning by giving names. …
Back then I did not have any proof of [the father] having a problem with pornography. We had a very hard marriage but I didn’t think that he could be the one to do this. My mind immediately thought it had to be the daycare. … It was months after the daycare investigation ([Z] now over 2 year (sic) of age and speaking more) that [Z] called me to wipe her on the toilet and she told me then “mummy, daddy touch my peepee” I questioned her where was she. She said on her bed. I asked if I was home and she said no. … I called him and questioned him and told him what [Z] said and why would she say that. He went off and said I was crazy and she is just confused then [Z] had come next to me and he spoke down at her and said “[Z] don’t lie” to this [Z] said “but you did daddy” he said “[Z] don’t you lie”. … We had gone through the big childcare investigation for months which was a roller coaster, I left it with this conversation because I was doubting everything about myself, maybe [Z] was confused?
Only problem is that about 6-9 months before we separated last year in October, [Z] started to masturbate and it was increasing she was doing it sometimes multiple times a day.
… [Z] now 3 years old with more vocabulary has now spoken to me a couple of times about daddy being the one that touched her, tickled her there or rubbing.
There are several observations I would make about this background information provided by the mother. First, at the time the mother first became concerned about the child’s behaviour, Z had not long before started at daycare and she was not settling in. Second, the mother had started to work long hours and the father was attending to pick-ups, bath times, and dinners for the children. Third, the paternal grandparents had commenced to help in the care of the children in circumstances where they had not previously had much of a role because they lived some distance away. Fourth, Z had “very very limited words” when the mother first became concerned. Fifth, the mother commenced to question the child from the very start and suggested answers. Sixth, the investigation into the daycare centre was a “roller coaster” for the family. Seventh, the parents’ marriage was not a happy one. Last, the words used by the child variously suggested the father had “touched”, “tickled” or “rubb[ed]” her. The words allegedly used by the child do not, of themselves, indicate sexual abuse.
I have no doubt it was a stressful time for all, but particularly for Z who was experiencing many big changes in her life, and she was the focus of much of the stress.
The catalyst for the mother’s initial concern in early 2021 was the child’s use of the word “snakie” around “nappy time & when she was pooing”. The mother records in her diary notes that “[t]his didn’t sit right with me from the very first time I heard it”. It seems the mother interpreted the word “snakie” as possibly referring to a penis because she records in her diary notes – “I started questioning saying what do you mean you don’t have a snakie? There is no snakie? What is snakie?” The child did not respond. The mother’s diary note then records the following:
… One day at home she went to do a poo and she then got a little panicky and said “snakie I scared snakie” this was most alarming. What is she referring to when she says this? I asked her “do you me[an] poo? Are you saying stinky? Are you saying stinky poo? Not snakie?” she only said “I scared snakie”
…
… I’ve been active in trying to get her to talk about it and explain to me what this is but she is very weird when she gets questioned about this.
I observe, as the mother’s diary note makes clear, the mother was not sure what the child was saying. It could have been “stinky” rather than “snakie”. The early reference to “snakie” or “stinky” was made in the context of the child passing a bowel motion. It is also apparent that right from the very start the child has been exposed to her mother’s “alarm”. The mother’s diary note reveals that she was not sleeping due to her worry that something sinister was happening to the child.
For some reason the mother asked the child “who is snakie?” and elicited the name “[Ms Q]”, who was a daycare worker (it is unclear if ‘Ms Q’ is the same person as ‘Ms P’ elsewhere in the mother’s diary notes). On another occasion, the mother elicited the name “[Ms R]” from the child, who was also a daycare worker. The mother also asked the child if it hurt, and perhaps unsurprisingly the child repeated “hurt”. The mere use of the word may have been sufficient for the child to repeat the word. The mother’s diary notes indicate that enquiries with the daycare revealed that the word “snakie” was used at daycare but in the context of playing with play dough.
While I completely understand that if a mother fears her child may have been molested, she will want to find out as much as she can, the questioning of the child, as recorded in the mother’s diary notes, was relentless. The mother’s notes even reveal that the child “always gets upset when talking about it”, yet the questioning persisted. It seems the mother interpreted the child becoming upset as confirmation that something sinister was occurring rather than the child perhaps becoming upset by the constant questioning and exposure to the mother’s worry and alarm.
It is also apparent from the mother’s diary notes, that the child was aware that if she touched her genitals, it would elicit a reaction from the mother. For example, on 28 April 2021, while Y and Z were in the bath, Z “press[ed] her finger into her own vagina area” and when the mother told her not to, she did it again and Y then told Z not to do it but “thinks it’s a bit funny”. The mother’s diary notes record her view that “she has no idea obviously in her innocence”. The mother records how scared she is and adds “[t]his is out there”. I note that during her oral evidence the mother clarified that when she refers to “vagina” she is referring to the labia or external genitalia.
I note that during one of the interrogations of the child by the mother, the mother started to list names of who “snakie” was, and when the child was asked if the father was “snakie” she said “no”. In the context of the later allegations against the father, the mother appears to disregard statements by the child that exonerate the father yet rely upon statements that implicate him.
I also observe that the mother’s trial affidavit omits important evidence from her diary entries that may provide an alternative explanation to the sexual abuse conclusion she settled upon.
By way of example, the mother omits any reference to her entry on 21 May 2021 which is set out below:
It's the evening and [Z] goes to do a poo and she starts to have to push and then gets panicky and says "I scared snakie" and covers her eyes.
I've noticed it's when her poo is bigger or more solid and she obviously gets more discomfort there that she panics and thinks of Snakie and says this. She doesn't say snakie for most poos just the harder ones for her.
It also seems to me that the mother engaged in some manipulation of the evidence. I am not necessarily suggesting that she did so intentionally. By way of example, I note that in her trial affidavit she gave the following evidence:
119.     On 25 April 2021, just before sleep time, I lay [Z] down for her nappy change. She turned her head away and put her hands over her eyes.
120.     I recall asking [Z] if she "was scared." To which she replied "yeah."
121.     I then asked if she was "scared of snakie." [Z] nodded. I asked if "snakie hurts." [Z] said, "yeah inside" and she put her hand on her vagina.
122.     [Z] then proceeded to grab her dummy out her mouth and pressed it in her vagina and said "dummy snakie?"
(Emphasis added)
By contrast, her diary note for 25 April 2021, which is set out below, evidences the mother’s persistent questioning of the child and notably that the child said “yeah inside bottom” rather than simply “yeah inside”, the former being significant in the context of the child having difficulty passing hard bowel motions but it did not fit with the mother’s sexual abuse narrative.
At day time nap time I took [Z] up for sleep time. When I lay her down she had her dummy and lay her head to the side her eyes closing but not completely closed and she covered her eyes with her hands. This is one of the strange things she has been doing at change time.
I asked are you sleeping she shook her head and said no under her dummy. I then said [Z] are you scared? She says yeah, I ask scared of "snakie" she nods, I say [Z] there is no snakie here. I start to question her more as she is talking to me about it.
I ask her [Z] does snakie hurt? She says yeah inside bottom.
I say inside bottom or inside peepee? And she said "inside". I try point to the outside side and say here where peepee is or lower here where bottom is. She says peepee bottom. I don't think her communication is at a level to explain exactly where. But she herself goes on to say "inside"
I ask her again where does snakie happen? Does it happen at school? She says "yeah" I continue to try narrow down, she has said before that both snakie happens with [Ms Q] and [Ms R], I ask who has snakie [Ms Q] or [Ms R]? She has said "inside a few times" I ask again [Z] who does snakie does [Ms Q] do snakie? She responds "yeah [Ms Q]" I ask does [Ms R] do snakie? She said "[Ms Q Ms R]" I ask does snakie happen with both [Ms Q] and [Ms R]or Just [Ms Q] it just [Ms R]? She turns and covers her eyes. I then ask her [Z] is snakie inside or outside. [Z] then points and touched her private and says "inside"
(Emphasis added)
I set out below some further examples of the inconsistencies between the mother’s trial affidavit and her alleged contemporaneous diary note:
(1)
107. In mid-April 2021, [Z] started to become distressed around the time of changing her nappy and would refer to "snakie" and "I scared of snakie." I was confused and did not think much of it at the time. I asked [Z], "do you mean your poo?" to which she replied "no" and repeated that she was "scared of snakie."
(Emphasis added)
cf
[mother’s notes] Background
We have been questioning what she means when she says Snakie. [Z] has had a hard time settling into daycare. She was such a social and confident baby we thought she would love daycare but she has been very anxious and very different since being there. One thing that has been most strange is she had started to say 'snakie' around nappy time & when she was pooing or says snakie and pointing down to her privates. This didn't sit right with me from the very first time I heard it. I started questioning saying what do you mean you don't have a snakie? There is no snakie? What is snakie? she wouldn't really respond. One day at home she went to do a poo and she then got a little panicky and said "snakie I scared snakie" this was most alarming. What is she referring to when she says this? I asked her "do you me[an] poo? Are you saying stinky? Are you saying stinky poo? Not snakie?" she only said "I scared snakie"
(Emphasis added)
_______
(2)
137. An examination did not proceed due to [Z’s] heightened distress. [Dr S] explained to keep an eye on her nappies and prompted me to think about whether we had noticed any blood. She advised that if [Z] had been interfered with, there would be blood. I did not recall seeing any blood. I did recall seeing some brownish marks on her nappy, but believed it was faeces at the time so did not think much of it.
cf
[mother’s notes]
… Now that I think there was one nappy that she came home in months ago that there was dry brown marks in. Like brownish lines skids from vagina to bottom area on the nappy I thought she did a poo at daycare and it was not wiped properly like brownish skid dies but not overly poo the brownish residue was a little on her skin and I remember giving her a quick wipe and wondering why they didn't clean her properly but I though poo and they simply just didn't do an ok job at wiping.
cf
[mother reported to [Dr T] [in] October 2023]
[The mother] noticed a small streak of what appeared to be old blood in [Z’s] nappy on one occasion, …
cf
[[Dr S’s] notes [in] May 2021][The mother] has been checking genital and anal area carefully and continuously and never noticed any change – bleeding, redness, d/c
(Emphasis added)
______
(3)
196. At this point, [Z] was three (3) […] years of age. She was out of day-time nappies and would only wear a pull up at night-time in the event of an accident. She did not require cream on her vagina or bottom by this point.
…
223. On 6 January 2023, when I was putting [Z’s] nappy on in preparation for bedtime, …
224. On 13 January 2023, when I was putting [Z’s] nappy on in preparation for bedtime, … cf
[mother’s diary notes]
20/12[/2022]
8:10pm after bath time we are at my mums and I have her in the spare room on the bed dried her and am dressing her I pull her shirt on and [Z] says
"Mum can you see my boobies? "
I say "well yes I'm your mummy but I don't touch them. I don't rub or tickle your boobies or your privates at all do I?" And she says "no" I go on and say "Mummy washes you and dries you" and sometimes we look after your skin and put cream on but even if I put cream on I don't rub you or tickle your privates does that make sense?"
[Z] says "yeah and I don't listen to silly grandma and grandad"
I'm not sure what she means I know she is hiding something with them because she has told me a number of times she can't tell me. I'm not sure what they have told her.
Saturday 14 Jan [2023]
[Z] wakes up so sweet and Cherpie she tells me she had the best dream and tells me sweet and happy about the Christmas tree and raindeers in her dream. Then as she sits up telling me she stops and says ow I'm doing a wee and giggles she has a nappy on as she still sleeps in nappies. I say "that's ok you have a nappy" on she giggles. She then says mum yesterday my peepee was so red because I rubbed it. I told her it could be because you had to be in a nappy a bit yesterday (we were in the car a bit and then did a big walk so she had been put in a nappy each of these times just in case there were no toilets) I said to her the wee on your skin and make your shin uncomfortable and also yes if you rub it than can hurt it. …
(Emphasis added)

In relation to (1) above: the mother omits from her trial affidavit that the first time the child referenced “snakie”, occurred not only at nappy time but also “when she was pooing”. The mother omits her own confusion about whether the child was saying “snakie” or “stinky”. It seems these details did not fit with the mother’s narrative of sexual abuse. The child had some history of having trouble defecating as evidenced by a medical record dated 5 October 2021. The mother made no mention of this in her trial affidavit.
In relation to (2) above: the mother’s evidence is that she had seen some brownish marks on the child’s nappy and/or bottom on one occasion that she, in hindsight, contends could have been dried blood. During cross-examination, the mother firmed up her evidence that what she had observed may well have been dried blood. By contrast, Dr S’s notes record that the mother had “been checking genital and anal area carefully and continuously and never noticed any change – bleeding, redness, d/c”. I assume the abbreviation d/c means “discharge”. It beggars belief that despite her vigilance, the mother only later realised that what she saw was dried blood rather than dried faeces. Dr S’s notes are also instructive from the perspective of the intense focus the child was subjected to throughout this entire period, which included not only persistent suggestive questioning but also repeated genital inspection.
In relation to (3) above: the mother was at pains in her oral evidence to rule out the possibility that the father had cause to apply cream to the child’s bottom after 2021. The father’s evidence is that as the child continued to wear nappies at night, he would apply cream to her bottom as a barrier against urine. I accept his evidence. The mother’s own diary notes corroborate the use of nappies during the day on occasions up to at least January 2023, and the use of cream on the child’s bottom at least until December 2022. The child was known to wet herself during the night, hence her continued use of nappies at night. She was still in nappies on 13 January 2023 when the mother video recorded her questioning of the child after she allegedly made a spontaneous “disclosure” of sexual abuse implicating the father.
The emails
In August 2022, the father sent the mother several emails, some of which he had composed earlier in the year but had not sent. The mother contends that the August 2022 emails were not the only ones sent and that the father had been sending her sexually explicit emails for about 18 months prior to their separation and that he persisted with them despite her requests that he stop. The mother contends that she found the emails overwhelming. The father denies he sent emails of this type over an extended period. The mother contends that she has been unable to access the earlier emails.
The father admits that some of the content of the emails sent to the mother was inappropriate and hurtful and, during cross-examination, expressed regret about sending them, although that regret was not expressed in his trial affidavit.
The mother contends the emails demonstrate, along with other behaviour, the coercive and controlling nature of the father’s behaviour towards her.
I have reviewed the emails and reject the mother’s contention that they evidence the father’s coercive and controlling behaviour. Later in these reasons, I refer in greater detail to the allegations against the father of coercive and controlling behaviour and it is in the broader context of all alleged behaviour that I reject the mother’s contention in relation to the emails.
The following is a list of the emails relevantly exchanged (part of exhibit 16):
(a)8 April 2022, 06:40 email father to mother;
(b)8 April 2022, 10:07 email father to mother;
(c)8 April 2022, 15:56 email mother to father;
(d)9 August 2022, 09:39 email father to mother;
(e)9 August 2022, 13:26 email mother to father;
(f)10 August 2022, 05:08 email father to mother;
(g)10 August 2022, 05:11 email father to mother forwarding email written by the father to mother in May;
(h)10 August 2022, 05:13 email father to mother forwarding email written by the father to mother in April 2022;
(i)10 August 2022, 05:15 email father to mother forwarding second email written by the father to mother in April 2022;
(j)10 August 2022, 05:18 email father to mother and forwarding a second email written by the father to mother in May 2022;
(k)10 August 2022, 05:21 email father to mother forwarding an email written by the father to mother a few weeks earlier;
(l)12 August 2022, 09:44 email father to mother.
The emails evidence a failing and very unhappy marriage. There are several recurring themes in the father’s emails:
(a)His disappointment and frustration about the lack of a sexual relationship in their marriage;
(b)His disappointment and frustration about the lack of any affection shown by the mother to him;
(c)His observations that the mother does not seem to have any difficulty flirting and complimenting other men;
(d)His complaints about the mother’s constant criticisms and belittling of him, including telling their daughters that she hopes they do not marry someone like him;
(e)His complaints about doing so many of the household chores and caring for the children as well as working full time, in order to assist the mother to meet her work schedule;
(f)His feelings of worthlessness and of never being good enough;
(g)His feelings of being hated and rejected by the mother;
(h)His wish for the marriage to continue; and
(i)His concern that their marriage is setting a bad example for the children.
The emails are very personal and clearly not intended for other than private consumption. It is regrettable that the emails have been shared with strangers to their marriage. Parts of some of the emails contain sexually explicit references. There are a couple of insulting references directed at the mother as to why she has no interest in sex with him. The father’s email sent on 9 August 2022, twice references suicide but not in my view to manipulate the mother but rather reflecting on the depths of his unhappiness. Indeed, the mother’s email sent in response on 9 August 2022, thanks the father for his email and adds – “Less angry and explaining helps”. At times the father expresses his admiration and love for the mother and praises her for her many talents. The father acknowledges he has behaved inappropriately, lashed out, and displayed anger at the mother. He apologises for insisting on a third child and acknowledges the additional stress a third child brought to the family. The father contends that if the marriage is over, he deserves explanations as to where he has gone wrong. The emails from the father are not entirely negative but would not have assisted in forestalling the decline of the marriage.
I have no doubt that the mother felt overwhelmed by the barrage of emails received on 9 to 12 August 2022 and I have no doubt that she found some of the content confronting, upsetting, and insulting. The mother contends that the father threatened suicide on many occasions other than in the email sent on 9 August 2022. The father denies doing so. There were occasions when the father referenced suicide, but I am not persuaded that the father was conveying an intention to take his own life. The mother did not take such references seriously because in the immediate aftermath of their separation, she actively and repeatedly sought his assistance in caring for the children including overnight and for consecutive nights. The mother would not have done so had she held a belief that the father was suicidal.
In the lead up to their separation, the parents had been attending counselling for several months.
The father acquiesced in the mother’s request to move out of the matrimonial home on 26 October 2022. The father contends he did so because the mother would otherwise have moved out with the children. The father proposed to move to his sister’s place. The mother objected because his sister was known (according to the mother) to drink to excess. The mother arranged with her mother and stepfather for the father to move into a rental property owned by them at Suburb U. The fact that the father acquiesced both with the request to vacate the matrimonial home and not to move in with his sister is inconsistent with the portrayal of him as coercive and controlling.
The mother contends that she was scared of the father at the time of separation and worried about his mental state. I do not accept that the mother feared the father nor that she feared for his mental state. The mother’s communication with the father and actions at the time are not consistent with her being in fear. In so concluding, I am conscious that a mother in fear may seek to appease the other parent by agreeing to things to keep the peace or indeed to protect the children. That was not the case here.
The text messages
In the period 26 October to late November 2022, the parents were in frequent contact as demonstrated by the text messages exchanged during that period (exhibit 8) and the internal reference to additional communication by telephone. They also saw each other when the children were spending time with the father, or he came to the matrimonial home at the mother’s invitation.
The text message exchanges demonstrate the attempts made by both parents to establish a comfortable alternative home for the children with the father at Suburb U and to make life as normal as possible for the children.
The parents exchanged text messages in October 2022 and November 2022.
The mother missed a call from the father on two days in November 2022 and the father missed a call from the mother on the second day.
The text messages demonstrate two parents doing their utmost in difficult circumstances to be polite to each other and to assist each other in making life as smooth as possible for the children. There are a number of exchanges which even portray the mother as more than comfortable in sharing her mundane frustrations about minor matters with the father e.g., about not being able to get the grocery online app to work, and the father’s response by offering to deliver the groceries, which the mother accepts. The exchanges demonstrate the parents negotiating and working together to find outcomes that would best meet their children’s immediate needs.
The mother requested the father on several occasions to have the children overnight because of her work commitments and he obliged. On 29 October 2022, the mother stressed that “[t]he kids need to have a good place so they don’t miss out on you”. On 9 November 2022, the mother asked if the father could collect Z who was unwell. When changes to arrangements were necessary, the parents worked those out. There was one occasion when the mother sent a text to the father on 13 November 2022 at 07:08pm stating that the kids have been trying to call him and asking him what is happening. The father responded at 09:03pm - “Na sometimes I can’t. It wrecks me too much”. The mother responded that he should get help with the issues because it not only affects him but the children and her as well. In the early afternoon on 14 November 2022, the mother sent a text to say she could not reach the father and he responded asking if she could send a text. The mother did so and asked if the father could have the children from the Wednesday night to Friday.
The text messages demonstrate the mother’s support for the children’s ongoing relationship with the father and her confidence in him to care for the children and attend to their needs.
The sex video and “porn” – late November 2022
In late November 2022, the parents arranged to attend Y’s recital together. After the recital, the father returned with the mother and the children to the matrimonial home. The father had taken a video of Y’s performance and the mother asked to transfer it to her phone. In the process of doing so, the mother accessed a video recording of herself and the father engaging in sexual intercourse and what she described as “porn”. The mother conceded that what she saw on the phone comprised the video, “a lot of photos of him in multiple poses; all oiled up; different poses set up; all erect” and a few photos of herself nude or in lingerie which she had posed for and sent to the father some years earlier.
The mother was horrified. Her disgust was palpable as she described her discovery in the witness box. The mother was deeply distressed and described what she saw as “disgusting filth”. It is common ground that the video had been made without the mother’s consent in a hotel room in mid-2021. The mother deleted the video from the father’s phone. When asked by the mother who had seen the video, he insisted that it had only been him and that he recorded it so that he did not look at other women.
The father’s very serious breach of trust had significant consequences.
Apart from a few supervised visits between November 2022 and February 2023, the father did not spend time with Z again until 16 March 2024 when supervised visits at a contact centre commenced. The father spent one supervised visit with Y and X in July 2023 and saw Y and X at the family report interviews on 19 October 2023 but did not see them again until 16 March 2024.
It is apparent that the mother’s allegation that the father sexually abused Z was inextricably linked to her discovery of the video and the photographs of him on his phone in late November 2022. The mother said as much to the investigating police officer in her email dated 18 February 2023:
Back then I did not have any proof of [the father] having a problem with pornography.
The mother also refers to the significance of her discovery in her trial affidavit where she deposed:
198. It was not until I sighted the video and photographs on [the father’s] phone that I knew I was not “crazy”.
Allegations of sexual abuse against the father – late November 2022
I should record at the outset that although the mother now concedes that the evidence does not support a finding that the father poses and unacceptable risk of sexual harm to the children, she maintained during her oral evidence a belief that he has sexually abused Z. Of course, the two positions are not necessarily inconsistent because the concept of whether a risk is unacceptable is a legal construct.
It is also of some significance that despite previously holding a strong conviction that Z had been sexually abused by carers at the daycare centre, the mother eventually accepted she was wrong. The mother also stated during her oral evidence that she will accept the findings of the Court and comply with Court orders.
The mother contends that on the day following her discovery of the video and “porn”, she walked into the loungeroom at her home and observed the following in late November 2022:
193. …. I … saw [Z] lay belly down on the lounge. Her bum was slightly in the air and her hands in her genital area on the outside of her clothes. She was rubbing herself. Her head was turned sideways so I could see her face. She was red and sweaty.
194. I said to her "[Z], why are you doing this? Please tell me. Please."
195. I did not prompt for anything further. [Z] responded that "daddy put cream on his finger and rubs down there and it tickles."
(Emphasis added)
I note that Ms V, the family report writer, quotes the mother in relation to this incident as follows:
75. …[late] November 2022, [the mother] said [Z] was rubbing her genitals … and when she questioned her about it, she replied with words to the effect, “daddy put cream on my finger and rubs down there and it tickles”.
(Emphasis added)
The mother did not address the inconsistency between “his finger” and “my finger” in her evidence.
The mother also told the family report writer that as Z was three years of age at the time of this statement, there was no reason for the father to be touching her private parts because she was not using nappies. The mother also claimed in her trial affidavit at paragraph 196 that the child did not require cream “on her vagina or bottom by this point”.
Contrary to the mother’s evidence, the child was still wearing a nappy in the video taken by the mother on 13 January 2023 and as earlier noted in these reasons at [93], the mother’s diary notes confirm the use of cream on the child’s “privates” even by herself at least until December 2022. The father describes applying cream as a “barrier” at night under the child’s nappy to protect the skin against urine. The child’s statement, if made, is consistent with what the father says he did, and I can well imagine the child could experience it as ‘rubbing’, ‘touching’, or ‘tickling’.
The mother confronted the father about the child’s comments in late November 2022 and contends that he called her “crazy”, and the mother in hindsight connects that response to the same accusation made by the father in September 2021 when she confronted the father about Z allegedly saying, “daddy touched my pee pee”. The mother contends the father also called her crazy when she asked him if Z was ever left alone with the paternal grandfather.
The mother’s trial affidavit sets out her account of the September 2021 incident as follows:
164.     In or about September 2021, [Z] called me into the bathroom to wipe her after she had been to the toilet. She told me words to the effect of "mummy, daddy touched my peepee." I said "where? Where did daddy touch your peepee?" she said, "on my bed'. I asked, "where was mummy." She said, "not home."
165.     I started to feel overcome with anxiety. I felt like we had already been on a rollercoaster with what I had assumed was an issue with the daycare and told that there was nothing that had happened in that environment, but I did not want to jump to conclusions.
166.     I was already having nightmares about my daughter being harmed and I could feel myself starting to panic.
167.     I called [Mr Nakai] into the formal lounge room and factually told him what [Z] had just said. [Mr Nakai] was infuriated. He yelled at me and called me "crazy'' over and over. I said to him calmly, "but why would she say that."
168.     [Mr Nakai] continued to yell at me and continued in front of [Z] when she walked over to us.
169. I regret that I did not speak to [Mr Nakai] about it more privately, particularly because he turned on [Z].
170.     [Mr Nakai] said to [Z] firmly "[Z] don't lie." He stood over her and said it in an angry tone resulting in [Z] retreating and turning away from him. [Z] nevertheless said, albeit quietly, "but you did daddy."
171.     [Mr Nakai] again angrily said, "[Z] don't lie." I asked [Mr Nakai] several times, "why would she be saying this?"
172.     [Mr Nakai] continued to get angrier and angrier and stated "you are crazy. You are being crazy. She is obviously just confused."
173.     When [Z] first said it, I thought that maybe she was just referring to him changing her nappy or wiping her after she went to the toilet. But [Mr Nakai] did not give me any reasonable explanation. The angrier and more defensive he became, the more confused and anxious I became.
174. After days, weeks and even months of rumination, I convinced myself that maybe I was "crazy'' and that surely this could not be happening in our home.
The mother’s evidence about the incident in or about September 2021, when the child said “daddy touched my pee pee”, has a few inconsistencies. In her trial affidavit, the mother describes the child making that statement after the child had been to the toilet. In her oral evidence, the mother said the child made the statement when the child was on the toilet. In her oral evidence, the mother said she recalled that the child called out “Mummy, Mummy”, which the mother assumed was indicating the child’s need for assistance. The father was at home at the time. The mother said that the father offered to assist the child but the child “was like, No. Mummy, Mummy”. It is not clear whether the mother heard the father’s offer to assist the child and the child’s rejection or whether this was an assumption. The mother does not know if the father went into the toilet to assist the child before she did. The mother did not think it would have been possible for the father to have gone into the toilet without their paths crossing. The mother explained that after the child said, “daddy touched my pee pee”, her (the mother’s) “tummy dropp[ed]” and she immediately thought something inappropriate had occurred. (I note that her oral evidence conflicts with her trial affidavit at paragraph 173 set out above where she contends, she initially “thought that maybe she was just referring to him changing her nappy or wiping her after she went to the toilet”). The mother asked the child “where did daddy touch your pee pee?” The child responded, “on my bed”. During her oral evidence, the mother dismissed the possibility that the child was recounting that the father had wiped her before the mother entered the toilet “because [the father] was not there”. The mother confirmed that she then asked the child, “Where was mummy?” and that the child responded, “not home”. The mother said that she had made a contemporaneous diary note of this incident and it was on that basis she could be confident she had quoted the child correctly. There is no diary note of this alleged incident in September or on any other date.

Y referred to her parents arguing all the time prior to separation and said that once the father had thrown some batteries on the floor and they smashed everywhere. She added that the mother had told her that the father had thrown a water bottle at her, and it broke. Y said, “Mummy’s happy that Dad is gone, but she is sad that she has lost so much money”.
Y spoke enthusiastically about spending special time with her father, which she said he mostly did with her rather than her siblings, and she added that he picked on X. Y added that she now sees her father’s behaviour as unfair and that “I only saw the good side of him” but since her parents’ separation, “Mum’s being telling me all about the other side”. When asked why she thought only she and X were seeing the father for the family report interviews, Y said, “mum told me that it is because [Z] is too young to be with Dad by herself … [Z] does not understand that Dad has done really bad things”. Y added that she did not really want to see the father apart from perhaps once a year because “I’m not sure I would be safe and because Mum would be worried”. Y said she was worried that her father would be upset when he reads what she has said about him, and added, “I still want to be his favourite child”.
X appeared worried on the day of the interview and presented in a very serious manner. He spoke willingly to the report writer but “for much of the time he was in tears”. When asked whether he understood the purpose of the interview, X said, “because of everything that’s happened in our family … I’m really happy that they have split … I don’t like Dad for lots of reasons”. X spoke about the father being mean and critical of him and making fun of him because he is very skinny, by referring to him as “feather stick”. He said the father would poke him in the back when he was reprimanding him but that his mother would always stick up for him.
The family report includes the following:
179. [X] was tearful as he volunteered some information that he told his mother, and said, 'It crushed my heart'. He said when [Z] was about 1 ½ or 2 years of age he walked into the room and found her sucking on his father's nipple. He said that he asked his father, 'What are you doing Dad?' and he did not even answer him or look at him. [X] said, 'From that day on I have not been comfortable with my sisters being alone with him.'
…
181. [X] said that his mother had told him that his father has 'done something wrong, so bad that she can't tell us until we are teenagers'. [X] said that he totally believes his mother, and is not at all surprised and said, 'I wish I had a better Dad-I'd rather have no Dad than have him as a Dad'.
When asked what he thought the father may have done, X replied:
182. … 'I saw him doing this disgusting stuff with [Z] .... he was probably doing something inappropriate stuff to Mum or, maybe he has done something to [Z] .... Mum knows but she can't tell us, and I wouldn't like to hear it until I'm older anyway. I completely believe Mum .... I don't want to see his face ever again .... I'm happy Mum is not letting us see him'.
When cross-examined about Z allegedly sucking his nipple as a baby, the father gave an entirely plausible alternative explanation to it being “disgusting” act with sexual connotations. Namely, that on occasions in summer when he was nursing Z prior to her midday sleep he had been shirtless, and she snuggled into his chest. X’s sense of it being inappropriate was said to be heightened by the fact that the father did not respond to him when he asked his father what he was doing. The father explained that it was likely that he did not respond because he did not want to encourage conversation when he was trying to get Z to sleep.
Despite X and Y being almost entirely negative about the father in conversation, they agreed to see him, and Ms V records that X agreed to participate in the session “quite readily”.
The children’s reactions to the father as he entered the playroom where they were waiting were initially reserved although they both greeted him. X remained distant and withdrawn for most of the session but within a short period of time, Y appeared quite relaxed. Y was immediately receptive to the father’s invitation to play cards and happily ate the food the father had brought along. After a while, X joined in the card game and after a few minutes gradually relaxed. Ms V opined:
190. … It was evident from [Y’s] expressions and conduct that she very much enjoyed the interaction with her father…
The father was observed to be entirely appropriate during the session, taking his cue from the children. Y asked about tattoos that the father had. X was heard to mutter, “disgraceful”. If the father heard it, he did not react.
Ms V spoke to the children after the session and Y appeared quite relaxed and said it had been fun although she said she “really really hates” his tattoos. Ms V opined that “[Y’s] conduct during the observation session was inconsistent with a child who does not feel comfortable with her father or does not want to see him”. I accept Ms V’s evidence. X appeared upset and said he had not wanted to talk to his father. He said, “I just want all this to be done” and said his father “acts a lot in front of other people” but is different in private. X said he did not like having meetings with his father but added, “It was better than the last one”. X said, “The main thing I want is not to be around him because he has issues, he’s got anger issues and throws things and gets angry and he’s weird”. X again recounted negative memories of his father, saying he grabbed him by the shirt and dragged him upstairs because he was angry about his homework. X said he had been rude to his father, but that the did not like being treated that way.
Ms V quite properly noted that the determination of risk is a matter for the Court. However, she opined that it was evident from the children’s comments that the mother has shared her negative views and concerns about the father with them, at least to some extent, and “this has already damaged their relationship with the father”. I am in no doubt that this is the case. Ms V opined as follows:
213. The children's comments indicated that their view of their father has changed significantly since the separation, and that this is largely due to information provided by their mother. [X] is the exception, and he appears to have already had a difficult relationship with his father. Both [Y] and [Z] described having a close and loving relationship with their father during their parent's marriage.
Ms V opined that X is “strongly aligned with his mother, and to some extent his attitude towards his father has been shaped by the negative information he has been provided, including her own fears and suspicions”. X has a heightened fear about what his father may have done which his mother cannot tell them about until they are teenagers. While Ms V opines that the comments made by X and Y suggest pre-existing problems between the father and X in their father/son relationship and a concern that this had not been recognised by the father, I consider it more likely that the mother has encouraged X’s negative recollections of his relationship with his father and encouraged X to believe he was treated differently and unfairly. For example, during her oral evidence, the mother recounted an occasion when X referred to the father stopping at a shop to buy a drink for Y but not one for him. If such an occasion occurred there may have been many reasonable explanations for it. The mother chose to tell the children that it was an example of the father favouring Y over X and told the children that it was not right. In my view, the mother has encouraged X to feel he was not loved by his father and Y has been encouraged to feel guilty about her perception of having a favoured relationship with the father.
Ms V shares the views of Ms G, Dr T, Child Safety, and others that children of Z’s age naturally engage in some degree of sexualised behaviour as they explore their own bodies and are curious about the body of others, and that such behaviour is developmentally normal. Ms V also agrees that any secretiveness in Z’s sexualised behaviour might indicate she has been told by an adult not to tell others, but that it is also possible that any secrecy “is due to her mother’s constant questioning of her about the issue, as this is also likely to create an anxious and shameful reaction”. I consider the latter to be more probable.
Ms V considers it likely that the comments Z has made to the mother may have been made because the mother “has allowed her own fears to contaminate her approach to managing the situation”. Assuming the mother’s fears are genuine (and that is not a finding that I necessarily make), I agree with this assessment.
Ms V expressed concern about the willingness of the mother to support the children’s relationship with the father, if an order is made for them to spend time with the father. I share that concern.
The mother was assessed by Ms V to exhibit considerable resentment and mistrust towards the father because of his behaviour during the relationship and noted that the mother described the father as being insensitive, unsupportive, and lacking in empathy. I accept Ms V’s assessment.
As to the video made by the father without the mother’s consent, Ms V opined:
242. Inappropriate as it was that [the father] made a sex video without [the mother’s] consent, in my view this does not indicate that he necessarily poses an added risk to the children's safety.
I accept Ms V’s opinion. I would add that the same may be said about the other photos seen by the mother on the father’s phone.
During the marriage, the mother appeared to be excessively vigilant about issues of safety in respect to the children. For example, the mother would not leave the children alone with her step-father, (who has been married to her mother for 22 years), or with any of the children’s uncles, or even aunties. In relation to this behaviour, Ms V opined:
244. In my view, [the mother] being a cautious and protective mother is not necessarily a negative characteristic, however, combined with other factors it may have contributed to her developing a more controlling and vigilant style of parenting.
The family report was released on 24 January 2024, and while recommending the immediate resumption of the children spending time with the children, the family report writer did not feel able to offer long-term recommendations, suggesting that if the children’s relationship with the father was not being supported, the Court “might need to consider other options”. Ms V clarified during her oral evidence, that a change in living arrangements for the children might be required in circumstances where the mother does not facilitate the children spending time with the father. However, Ms V made it clear she had significant reservations about such a change and the emotional impact it would have on the children, particularly X, if it is accepted that historically he and the father’s relationship was problematic.
From the information she had available, Ms V made a series of recommendations for the father’s time with the children including:
(a)One supervised visit with a psychologist for two hours;
(b)Then progressing with a gradually increasing schedule of time to allow the children to adjust and re-build their confidence in the relationship, after a long period of no contact;
(c)Changeovers initially occur at a contact centre;
(d)Initially the visits occur during the daytime only, for example, from 9:00am to 5:00pm on one occasion each week and that to continue for around three months before increasing to an overnight each alternate weekend for a further three months before increasing to two nights a weekend;
(e)Continuation of counselling for the children and the parents.
Conclusion – whether the allegations against the father of sexual abuse of Z are groundless
Having extensively reviewed the evidence, I conclude that the mother’s allegations that the child, Z, was sexually abused by the father are groundless.
The following findings inform my conclusion:
(a)The mother has a history of making unfounded sexual abuse allegations e.g., the allegations against the childcare workers in 2021 were completely unfounded and baseless;
(b)The 2021 allegations should nevertheless be seen in the context of a possibly highly anxious mother who overreacted to innocent comments and behaviour of a very young child that was determined to be developmentally normal;
(c)The catalyst for the unfounded allegations against the father in November 2022, was the discovery by the mother of a video the father had taken without her consent showing them engaging in sexual intercourse, and photos of the father naked and in various sexual poses, which the mother described as “disgusting filth”;
(d)Any trust the mother had in the father completely dissipated and, thereafter, their entire life together was viewed through a prism of the father’s perceived depravity;
(e)Any statements attributed to the child, Z, which might have suggested inappropriate touching by the father, must be considered in the context of the mother’s relentless suggestive questioning of the child until she elicited statements she felt she could use against the father;
(f)Further, the child was subjected to ‘therapy’ over an extended period where there was an undue focus on sexual matters, secrets, suggestions of the father being unsafe, and encouragement for the child to make ‘disclosures’;
(g)The mother’s conduct went well beyond reasonable enquiry by a concerned mother;
(h)Any apparent support for the mother’s allegations gleaned from what the mother contends Dr S said to her or from Dr T must be significantly discounted given the mother was their sole source of information;
(i)The allegations against the father must nevertheless be considered in the context of a history of a very unhappy marriage between two people who had very different attitudes about their sexual relationship and in a background of devout Christianity;
(j)Driven by her groundless stated beliefs that the father had sexually abused Z, the mother has engaged in behaviour that has undermined the previously close relationship between the children and the father and while I accept that X may have had some cause to complain about the father’s treatment of him historically, the mother has magnified any perceived behaviour and encouraged X to view the father’s treatment of him as unfair and unreasonable;
(k)At the supervised visit in July 2023, X was noted to lean into a hug from the father, enthusiastically engaged with the father, and there was noted to be natural interaction and conversation with the father;
(l)Despite complaints made about the father to the family report writer on 19 October 2023, X was eager to see the father and Y was relaxed in his company;
(m)Although X and Y present as bored during the supervised visits which commenced in March 2024, they have continued to attend and on occasions have engaged with the father;
(n)Although not determinative, Z’s relationship with the father during their face to face contact has continued to be relaxed and happy despite the significant period she was denied contact with him, and the child repeatedly stated how she missed her father throughout 2023;
(o)No criminal charges were brought against the father (although it must be acknowledged the threshold for criminal proceedings is a much higher than the assessment of unacceptable risk); and
(p)Child Safety’s conclusion that the allegations were unsubstantiated.
My rejection of the mother’s allegations that the father engaged in coercive and controlling family violence for the reasons set out below also informs my conclusion.
DOES THE FATHER PRESENT AN UNACCEPTABLE RISK OF SEXUAL HARM TO THE CHILDREN?
I have found that the allegations that the father sexually abused the child, Z, are groundless.
I record the mother’s concession that the evidence does not support a finding that the father poses an unacceptable risk of sexual harm to the children. The concession is properly made but comes only after the children’s relationship with the father has been compromised.
DOES THE FATHER PRESENT AN UNACCEPTABLE RISK TO THE CHILDREN BY EXPOSING THEM TO FAMILY VIOLENCE OR ABUSE?
The mother submits that the risk to the children of being exposed to family violence, namely coercive and controlling behaviour, and the likelihood of that resuming, is the risk that is unacceptable. The risk is submitted to be greater because of the father’s lack of insight that his behaviour towards the mother needs to be addressed in therapy, not simply acknowledged as inappropriate.
It is trite to observe that relationships are complex. Perceptions can understandably differ in the context of separation and with hindsight. It becomes necessary to forensically examine the evidence said by the mother to support her contention that the risk posed by the father of exposure to family violence is unacceptable in the M v M[13] sense. The task for the Court is firstly to identify the nature of the risk and secondly to assess its magnitude. An unacceptable risk is one that is at the most serious end of the spectrum.
[13] M v M (fn 3).
There can be little doubt that during the relationship the children were exposed on occasion to family violence in the nature of behaviour that caused them to be fearful. It is common ground that the parents frequently argued, and, in that context, voices were raised. The mother told Ms G in January 2023, that the children witnessed the parents fighting and told them to stop. Y complained to the family report writer during her interview on 19 October 2023, about her parents frequently arguing.
It is also common ground that on one occasion in or about October 2021, during an argument when Z was in her mother’s arms, the father threw a plastic bottle which hit a wall. The mother told the family report writer that the father threw the bottle in her direction. The father contends that the bottle hit the wall some two metres from the mother. The mother contends the lid broke off the bottle. The father contends the bottle was a 250ml plastic baby’s milk bottle without the lid. The mother contends that all three children were present. The father contends that only Z was present. I note that Y told the family report writer that the mother told her that the father had thrown a water bottle at her, and it broke.
Whatever the precise details of this incident, the father was wrong to throw any item at or in the direction of the mother. He did so in anger. It was an incident of family violence and I accept the mother’s evidence that she delayed her departure from the home on that day until the father’s parents arrived because she was concerned about the father’s emotional dysregulation. The mother was due to go to work.
The mother contends that on another occasion in mid-2022, the father, in a fit of rage, threw a packet of batteries and they “exploded” on the floor leaving Y and the mother to clean them up. The father denies doing so. I am not entirely sure what the mother means when she said the packet of batteries exploded. The mother contends all three children were present. Y told the family report writer about the incident involving the batteries which she says her father threw and they “smashed” on the floor and that she helped clean up. The father denies the incident. It seems more likely than not, given the history of arguments and the father’s concession that on at least one occasion he threw something during an argument, i.e., the bottle, that some incident occurred which resulted in Y helping to clean up. I find that this was an incident of family violence to which Y was exposed.

The mother contends that on occasions, the father “prodded” X to get him to comply with a direction and that on one occasion he dragged him up the stairs after he was rude to him. I reject the mother’s contention these were incidents of family violence. I find it more likely that X has been encouraged with hindsight to view the incidents as more serious than they were and to view such incidents as examples of the father’s lack of affection for him.
The mother told Ms G in January 2023, that the father had hidden cameras in the house. There is no evidence to support that assertion. The mother remained in the matrimonial home for some months after the father left and had ample opportunity to check for cameras. The mother admits there is no evidence to support her assertion. The mother’s allegation of hidden cameras was made after she found the video on the father’s phone which had been taken without the mother’s consent. It is common ground that the video was taken in a hotel room in mid-2021 on the father’s phone. The mother also told Ms G that there were “pornographic videos” of the father and the mother. There is no evidence of there being more than one video.
The mother contends that the nature of the risk of future harm to the children is that they will be exposed to the father’s coercive and controlling behaviour towards her which was a feature, on her case, of their relationship. While the mother contends there were isolated incidents of other forms of family violence, it is the coercive and controlling behaviour that she contends poses an unacceptable risk of future harm to the children.
Coercive and controlling behaviour is a most insidious form of family violence. When present, the perpetrator not only seeks to control the other person but to undermine them such that they lose self-esteem, and it often coincides with attempts to isolate the victim from family and friends.
In assessing an allegation of such behaviour, it is necessary to determine whether there is a pattern of behaviour rather than isolated incidents which may or may not fall into that category. It is in the context of assessing a pattern of behaviour that the isolated incidents, e.g., throwing items during an argument, may nevertheless be relevant. If a victim is worried about the reaction of their partner, they may feel coerced into compliance. A powerful factor in coercive and controlling family violence can be the manipulation of a victim by threats towards children.
The mother contends that the following behaviour by the father during the relationship was coercive and controlling of her:
(a)Instructing her to turn off light switches or not to use certain light switches;
(b)Instructing her not to flush the toilet if a member of the family only urinated;
(c)Instructing her not to plug in the microwave unless in use;
(d)Making unreasonable and persistent demands for sexual intercourse despite her repeated refusal;
(e)Subjecting her to the “silent treatment” if she did not agree to his sexual demands;
(f)Frequently “disappearing” for days at a time if she did not agree to his demands for sexual intercourse;
(g)Sending her sexually explicit emails contrary to her requests to desist;
(h)Demeaning her in those same emails and seeking to use her religious beliefs to manipulate her into remaining in the relationship and submitting to his sexual demands; and
(i)Threatening to commit suicide if she ended the relationship.
With that alleged background, the mother contends that the father’s application for the children to live with him is but a further example of coercive and controlling behaviour that is intended to bring about their reconciliation because he knows that being separated from her children would place enormous pressure on her to reconcile.
The history of arguments and two occasions of the father throwing items are not of themselves relied upon by the mother as evidence the father poses an unacceptable risk of future harm to the children. It was submitted on behalf of the mother that such incidents “go to the father’s inability to regulate himself around the children – no higher than that”. Certainly, if the children were living with the father, the mother contends that his emotional dysregulation on occasions is a risk but does not submit it is unacceptable.
The father contends that the allegations concerning the use of light switches, the microwave, and not flushing the toilet must be seen in the context of a time when he was solely financially supporting the family and, in an effort to minimise their energy bills. While I accept the mother no doubt found this father’s seeming obsession with frugality to be oppressive, I accept the father’s explanation.
The unhappy marriage due in some significant part to the parties’ different experiences and expectations of their sexual relationship is no doubt a source for legitimate complaint by the mother. The mother endured very difficult pregnancies and found sexual intercourse painful. The father was insensitive and lacking in empathy, and he would do well to reflect on his behaviour, including the content of the emails and the video recording made without the mother’s consent, with the assistance of his therapist, Mr E.
The emails have already been discussed earlier in these reasons at [94] to [104].
The mother reported to Ms AA from D Family Services (who provided the supervised visit between the father and the older two children in July 2023) that the father disappeared for the week leading up to Y’s recital in late November 2022. He did not. Earlier in these reasons I have reviewed the frequent contact the parents had during that week.
In my view, the mother’s allegations must be considered in the context of this very unhappy marriage where all trust was lost upon the discovery of the video and photos on the father’s phone on 19 November 2022.
In rejecting the mother’s characterisation of the father’s behaviour as coercive and controlling family violence, I also take into account the following matters:
(a)The history of the mother maintaining close relationships with family members, friends, and work colleagues;
(b)The mother operated a seemingly successful business which took her away from home for extended periods;
(c)When the mother requested a separation, the father eventually acceded to the mother’s request that he leave the former matrimonial home;
(d)The father also acceded to the mother’s request that he live at a place of her choosing rather than with his sister, which he preferred;
(e)The father complied with the mother’s imposition of supervision of his time with the children after November 2022 and proceeded with an appropriate court process to achieve a resumption of his relationship with the children; and
(f)The father has at all times presented calmly and appropriately during supervised visits with the children.
In any event, I reject the mother’s contention that the father’s behaviour in the past poses an unacceptable risk of the children being exposed in the future to coercive and controlling behaviour by the father against her. I reject the mother’s characterisation of the father’s application to reverse the living arrangements for the children as coercive and controlling and designed to manipulate a reconciliation. I see nothing sinister in the father’s stated wish for reconciliation despite what has occurred, having regard to his religious views. The father did not amend his application until April this year. I formed the distinct impression that a change of the children’s living arrangements was seen by him as a last resort to ensure the children and he have a relationship going forward.
DOES THE MOTHER PRESENT AN UNACCEPTABLE RISK OF EMOTIONAL OR PSYCHOLOGICAL HARM TO THE CHILDREN?
The father contends that the mother has deliberately undermined the children’s relationship with him by falsely accusing him of sexually interfering with Z, and by wrongly portraying him to the children as a person to be feared and that her conduct poses a future unacceptable risk of emotional or psychological harm to the children. The father contends that in such circumstances the primary living arrangements for the children should change as it is the only way the children will be able to exercise their rights to have a meaningful relationship with both parents.
While the findings set out earlier in these reasons, in particular at [252], do give rise to a risk of future emotional or psychological harm to the children by the mother, I do not find that the risk is unacceptable for various reasons, including the following:
(a)Despite holding a firm view that the childcare workers had sexually molested Z in 2021, the mother eventually accepted that she was wrong;
(b)Although stating during her evidence that she held a belief the father had sexually abused Z, the mother accepted that the evidence does not establish that any risk posed by him is unacceptable;
(c)The mother committed to accepting the findings made by this Court;
(d)The mother committed to adhering to Court orders; and
(e)Despite the mother’s historically poor opinion of the father, the mother has complied with the order made on 5 March 2024 that the children spend supervised time with the father by ensuring the children attend all visits.
DOES THE FATHER HAVE THE CAPACITY TO PROVIDE FOR THE CHILDREN’S DEVELOPMENTAL, PSYCHOLOGICAL AND EMOTIONAL NEEDS?
The father’s presentation during his evidence did not give cause for confidence that he had the emotional capacity to respond appropriately to the children if they were living with him, particularly in what would be an extremely distressing transition from their mother’s care to his care. The father seemed more focussed on correcting the record about himself than responding in a child focussed way. To some extent this is understandable, given his evidence that historically he had a close and loving relationship with the children and the abhorrence of being wrongly accused of sexual abuse of one of his children. It must also be acknowledged that assessing demeanour is fraught and often unreliable as there may be many reasons, including the stress of being involved in a trial, that explain a person’s presentation.
The mother had sufficient confidence in the father’s parenting capacity to frequently leave the father to attend to the children’s needs while she worked long hours. Even after the parents’ separated, the mother sought out the father to care for the children on numerous occasions. The mother now contends that the father would not cope in attending to any emergency that might arise in relation to Y, a concern echoed by Y to the family report writer. While the mother may well have had a greater role in addressing Y’s medical issues, I reject the contention that the father would be unable to meet her needs.
Overall, I find that the father does have the capacity to provide for the children’s developmental, psychological, and emotional needs but he would be well advised to seek ongoing assistance from Mr E in how best to deal with any issues that are likely to arise in reconnecting with the children after this trial.
CAN THE MOTHER FACILITATE THE CHILDREN HAVING A RELATIONSHIP WITH THE FATHER IN THE EVENT THE COURT IS SATISFIED HE DOES NOT PRESENT AN UNACCEPTABLE RISK TO THE CHILDREN?
The mother has expressed confidence in her therapist, Dr F, and committed to working with her to address issues that arise. Dr F is a very experienced therapist and demonstrated a capacity to challenge a client about their expressed beliefs. Although I have some misgivings about the mother’s future commitment to encouraging the children’s relationship with the father, I am prepared to take her at her word, namely, that she will accept the findings of this Court and will comply with Court orders. Of course, if the mother is to address the damage already caused to the children, she will need to work hard with Dr F to gain an understanding of the consequences of her conduct and the importance of supporting the children’s relationship with the father going forward. If the mother fails to do so, it may lead to further proceedings which would certainly not be in the children’s best interests.
WHAT PARENTING ORDER WILL BEST MEET THE CHILDREN’S NEEDS?
I have given serious consideration to changing the primary residence of the children, however, on balance I consider that the children should remain in the primary care of the mother for various reasons, including the following:
(a)The children have a close and loving relationship with the mother;
(b)X and Y are well settled at school and in their community and have established friendships;
(c)A change of primary care would in all likelihood involve another change in schooling and another change in daycare for Z;
(d)X and Y do not want to live with the father and Y expressed a concern on several occasions during various interviews to being removed from her mother;
(e)Although unjustified, the relationship between X, Y and the father has suffered considerable damage and will need time to heal;
(f)The family report writer expressed considerable concern about the emotional impact on the children of a change in primary care;
(g)The mother has historically had a greater role in attending to Y’s medical needs;
(h)The father is really a reluctant applicant for primary care; he would be content to have an ongoing meaningful relationship with the children; and
(i)The only reason that would justify a change in primary care would be if the mother did not facilitate and support the children’s future relationship with the father.
The father’s time with the children will initially occur in the presence of a counsellor and so that the parenting order can be explained to the children. The father’s time with the children will thereafter be unsupervised.
Each parent seeks sole decision making power in relation to major long-term parenting issues. That is an indication that neither of them considers they could make joint decisions. Given the history, that is understandable. While it would be preferable for the parents to make joint decisions about such matters, the rebuilding of a relationship between them sufficient to make such decisions will no doubt take time. Ultimately, I consider the mother should have sole decision making power, but she will be required to afford the father an opportunity for input and consider his views before making a decision.
There is a final protection order in place. The mother seeks a personal injunction against the father to restrain him from attending within 100 metres of her home and the children’s school. There is no suggestion the father had breached the protection order and I was not taken to any evidence that would support the making of the injunction.
Each party was given the opportunity to make submissions about the minute of order proposed by the other parties, including the alternative orders. The parenting order I propose to make has been assessed to meet the best interests of the children in the circumstances of this case.

I certify that the preceding two hundred and eighty-seven (287) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 16 August 2024

File number(s):	BRC 7998 of 2023
Judgment of:	CAREW J
Date of judgment:	16 August 2024
Catchwords:	FAMILY LAW – CHILDREN – Where the mother, at the conclusion of the trial, concedes that the evidence does not support a finding that the father poses an unacceptable risk because of sexual abuse – Where the mother nevertheless seeks indefinite supervision of the father’s time with the children by reason of an alleged unacceptable risk of exposure to family violence – Where the father seeks that the children live with him and there be a three-month moratorium on them spending any time with the mother – Where the allegations by the mother that the father has sexually abused the youngest child are groundless – Where the mother’s conduct in repeatedly questioning the child amounts to emotional abuse – Where the father does not pose an unacceptable risk of harm to the children by exposure to family violence – Where the children will remain in the mother’s primary care for various reasons, including that a change of residence would likely cause emotional distress to the children – Where the children will spend gradually increasing unsupervised time with the father and ultimately alternate weekends and half school holidays – Where neither parent considers that they are able to make joint decisions – Where the mother will have sole decision making responsibility with an obligation to seek input from the father.
Legislation:	Family Law Act 1975 (Cth) s 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61D, 61DAA, 61DAB, 64B, 65D, 65DA
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Eastley & Eastley (2022) FLC 94-094 Isles and Nelissen (2022) FLC 94-092 Johnson & Page (2007) FLC 93–344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92–655
Number of paragraphs:	287
Date of hearing:	8-12 July, 15 July 2024
Place:	Brisbane
Counsel for the Applicant:	Mr Bunning
Solicitor for the Applicant:	DA Family Law
Counsel for the Respondent:	Ms Oakley
Solicitor for the Respondent:	Michael Lynch Family Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Todman
Solicitor for the Independent Children’s Lawyer:	Queensland Legal Practice

BRC 7998 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR NAKAI Applicant
AND:	MS NAKAI Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CAREW J
DATE OF ORDER:	16 AUGUST 2024