Nakai & Nakai (No 2)

Case [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’…

Continue reading Nakai & Nakai (No 2)

Sign in free to access the full text

Details
AGLC
Nakai & Nakai (No 2) [2024] FedCFamC1F 536
Case
[2024] FedCFamC1F 536
Decision Date

CaseChat Overview and Summary

Nakai & Nakai (No 2) involved a dispute over the care and parenting arrangements for the children of the parties, following their separation and divorce. The mother alleged that the father had sexually abused their youngest child and also posed an unacceptable risk of exposure to family violence. The father denied these allegations and sought to have the children live with him, with a moratorium on contact with the mother. The court was required to determine the veracity of the mother's allegations, assess the risk of harm to the children, and make orders for the children's living arrangements and decision-making responsibilities.

The court concluded that the mother's allegations of sexual abuse against the father were groundless. It found that the mother had a history of making unfounded allegations and that her claims were driven by her distrust of the father following the discovery of explicit material. The court found that the mother's conduct amounted to emotional abuse through her repetitive questioning of the child. It also found that the father did not pose an unacceptable risk of harm to the children due to family violence. The court ordered that the children remain in the mother's primary care, with the father having gradually increasing unsupervised time, culminating in an arrangement of alternating weekends and half school holidays. The court determined that neither parent could make joint decisions and appointed the mother as the sole decision-maker for major long-term issues, with an obligation to seek input from the father.

The final orders included provisions for the children's living arrangements, time-sharing schedules, changeover procedures, communication between the parents, therapy for both parents and the children, restraints on the parents' conduct, overseas travel arrangements, and obligations regarding medical and educational information. The court emphasised the importance of respecting the children's best interests and minimising the impact of the parents' disputes on them.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.