ORMANDY & MONTEITH - [2019] FamCA 728

FAMILY COURT OF AUSTRALIA

ORMANDY & MONTEITH

[2019] FamCA 728

FAMILY LAW – CHILD ABUSE – Sexual abuse – Where a child alleges that the father has sexually abused her – Where the father denies the allegations – Where the father has spent limited supervised time with the children following the allegations and no time with the child who made the allegations – Where the mother seeks a finding that sexual abuse occurred – Where the evidence does not meet the standard for a finding.

FAMILY LAW – CHILDREN – Parental responsibility – Presumption of equal shared parental responsibility – Where the mother seeks an order for sole parental responsibility – Where the father seeks equal shared parental responsibility – Where the relationship between the parties is one of mistrust and obvious dislike – Where the parties are not able to communicate – Orders.

FAMILY LAW – CHILDREN – With whom a child lives and spends time – Where the mother promotes that there should be no contact between the father and the child who makes the sexual abuse allegation – Where the mother promotes that any time between the father and the other child should be limited to one weekend per month and that it should be supervised and subject to the wishes of that child – Where the father’s adult daughter is prepared to supervise contact and has the confidence of the mother – Where the father seeks time spending on each alternate weekend – Where the father presents as a risk to the children in his entrenched inability to compartmentalise his dislike and mistrust of the mother – Orders.

Family Law Act 1975 (Cth) ss 60B, 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 61DA(2), 61DA(4)

Baglio & Baglio [2013] FamCA 105
Beckham v Desprez [2015] FamCAFC 247
Blanding v Blanding [2016] FamCAFC 21
Briginshaw v. Briginshaw (1938) 60 CLR 336
Champness & Hanson (2009) FLC 93-407
Cotton & Cotton (1983) FLC 91-330 Nygh
Harridge & Harridge [2010] FamCA 445
Hunter & Berg [2017] FamCA 1051
M v M (1988) 166 CLR 69
Mazorski & Albright [2007] FamCA 520
N & S & The Separate Representative (1996) FLC 92-655
Sigley & Evor [2011] FamCAFC 22
Vasser & J-Black (2007) FLC 93-329

APPLICANT:

Ms Ormandy

RESPONDENT:

Mr Monteith

FILE NUMBER:

ADC

170

2014

DATE DELIVERED:

11 October 2019

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

29 July 2019 to 2 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Read

SOLICITOR FOR THE APPLICANT:

Adelaide Family Law

COUNSEL FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

Orders

That orders made on 10 April 2017 be discharged.
That the mother have sole parental responsibility for X born … 2007 and Y born … 2010 (collectively “the children”).
That the children live with the mother.
That X shall spend time with the father on one (1) occasion in each four (4) week period as may be agreed between the parties in writing but in default of agreement between the hours of 10.00 am and 4.00 pm on the fourth Saturday in each calendar month commencing 26 October 2019 up until X turns 13 years of age with such time to be supervised by Ms B or such other person as may be agreed between the parties in writing.
Such other time as X may wish NOTING that the father’s time with X shall be supervised by Ms B or such other person as may be agreed between the parties in writing.
When X turns 13 years of age she shall spend time with the father subject to her wishes with such time to be unsupervised.
That Y shall spend time with the father subject to her wishes.
That the mother shall cause the children’s school reports to be forwarded to the father and at his expense, school photographs and other information pertaining to the children’s education.
That the father be permitted to forward presents, gifts, cards and letters (subject to the right of the mother to veto same) in respect of the children’s birthdays, Christmas and appropriate academic achievement.
The mother will forthwith advise the father of any serious medical or dental emergency pertaining to the children.

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

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

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 170 of 2014

Ms Ormandy

Applicant

And

Mr Monteith

Respondent

REASONS FOR JUDGMENT

Introduction and background

The proceedings between Ms Ormandy (“the mother”) and Mr Monteith (“the father”) are with respect to the future parenting arrangements for X born in 2007 and Y born in 2010 (collectively “the children”).
The mother was born in 1980 and is 39 years old. She is a student and holds employment as an administration officer.
The father was born in 1966 and is 53 years old. He previously worked in Town P but is not presently able to work following an accident. He engages in photography on a part-time basis and has had some success in this pursuit.
The parties met in 2004 and commenced cohabitation in 2005. The parties separated in September 2012.
The mother says that the father was a heavy user of cannabis and abused prescription medication such as Valium and Endone. She considered that he was displaying paranoid thinking.
The mother says that the father was possessive and controlling and that there was significant family violence during and following the relationship.
The father asserts that the mother was unfaithful during the relationship, drank and consumed cannabis heavily and asserts that he was the victim of family violence perpetrated by the mother.
The litigation between the parties began on 20 January 2014 by the mother’s application following a refusal by the father to return X to the mother’s care. The parties were able to agree on final orders at mediation and orders were made by Judge Simpson on 30 June 2014. The father was to spend time with the children on each alternate weekend and on one occasion in the intervening week.
The proceedings recommenced on 20 April 2016 by the father’s Initiating Application asserting that the mother was not complying with the orders. Attempts were made to mediate but were unsuccessful. Final orders were made by consent on 10 April 2017 which were “largely based on the recommendations of the Family Assessment Report dated 1 December 2016”.
The children last spent time with the father on 22 May 2017.
On 23 May 2017 the mother says that Y alleged that the father had touched her genitals. The mother asked Y if she wanted to speak to the police and Y agreed.
Y was initially interviewed by the police on 23 May 2017 and following a police request she participated in a videotaped record of interview with a police officer on 30 May 2017.
X was also interviewed by police on or around 1 June 2017. X did not make any allegations of an indecent nature.
The father was arrested in June 2017 and charged with two counts of indecent assault.
In December 2017 the mother was advised that the charges against the father would not proceed. On 7 December 2017 the bail conditions were lifted, meaning that the orders made 10 April 2017 could resume their operation.
The mother advised the father on 8 December 2017 that she would not hand the children over due to her “concerns for their safety”.
X now spends supervised time with the father. Y does not.
The mother asks the Court to make a finding on the balance of probabilities with respect to the alleged sexual abuse. The rules of evidence pursuant to the Evidence Act 1995 (Cth) were determined to be applicable to the proceedings despite the usual operation of div 12A of pt VII of the Family Law Act 1975 (Cth) (“the Act”) in child related proceedings.
Following the trial judgment was reserved.

Orders sought

The mother seeks that she have sole parental responsibility for the children and that there be no orders for time between the children and the father. She seeks a no contact order between the father and Y. With respect to X the mother considers that any time X spends with the father should be subject to X’s wishes on the proviso that time occur not more than once a month and under the supervision of the father’s eldest daughter, Ms B.
The father opposes the mother’s application and by his Response filed 7 March 2018 seeks orders that the parties have equal shared parental responsibility for the children and that the children spend time with him on each alternate weekend and half of school holidays.
The father handed up a Case Outline Document on the first day of trial seeking to clarify the orders he seeks. He seeks the reinstatement of the orders made by consent on 10 April 2017.
The father concedes that at least initially any time with Y should be supervised. He seeks that Y attend upon a psychologist for the purpose of “anger behavioural management and talk of suicide” and further seeks that he engage in reunification therapy with Y.
With respect to X he concedes that any time should be subject to her wishes but that this should not be determined by the mother. He wishes to take X on an interstate trip during school holidays and on an international trip in 2022.

Documents relied upon

The mother relies upon the following materials:
·Initiating Application filed 22 December 2017;
·Mother’s Trial Affidavit filed 20 April 2018;
·Mother’s Trial Affidavit filed 20 March 2019;
·Affidavit of Ms C Ormandy filed 15 March 2019;
·Affidavit of Mr D filed 15 March 2019;
·Affidavit of Ms E filed 16 May 2019;
·Affidavit of Dr F filed 15 March 2019; and
·Family Report dated 24 May 2019.
The father relies upon the following materials:
·Father’s Trial Affidavit filed 14 June 2019;
·Affidavit of Ms B filed 14 June 2019; and
·Affidavit of Ms E filed 16 May 2019.
The Court was assisted by the completion of two comprehensive family assessment reports by Ms G (“the family consultant”):
·Family Report completed 30 November 2016 (“the first report”); and
·Family Report completed 24 May 2019 (“the second report”).

Evidence

The mother

The mother relied on her trial affidavit filed 20 March 2019.
The father was charged in June 2017 with two counts of indecent assault against Y. The mother’s assertion is that Y was sexually assaulted by the father between 31 March and 30 April and between 19 May and 21 May 2017.
The gravamen of the mother’s case is that the Court should find on the balance of probabilities that the sexual assaults as alleged took place. The mother’s counsel concedes that the evidence is unlikely to satisfy the required standard of proof and in those circumstances, the Court should find that the father presents as an unacceptable risk.
The mother’s presentation is complicated by a concession that should either or both of the children seek to resume a relationship with the father, the mother will facilitate that outcome subject to supervision and in respect of Y, therapeutic intervention as a precursor to time resuming.
As discussed, final orders were made on 10 April 2017. The mother concedes that they worked “reasonably well” and for a short period of time, the parenting arrangement was workable.
Paragraph 96 of the mother’s trial affidavit provides some background to the current proceedings. By orders made 13 December 2016 the father took the children to Town H from 16 to 20 March 2017. The children were returned to the maternal grandmother and when the mother attended the maternal grandmother informed her that she had given the children a bath and had noticed that the children’s vaginas were “quite red and appeared sore”.
The children continued to complain of sore genitals. The mother applied a topical ointment and the redness subsided with a reduction in pain such that the mother did not consider medical attention was necessary.
The mother then spoke to the children and for reasons that are not immediately obvious, but perhaps because the maternal grandmother had sowed the seed of doubt, she decided to discuss with the children that nobody should touch their genitals other than in certain circumstances such as a doctor or where the touching was necessary for the children’s health.
The mother raised directly with X on 25 March 2017 whether anybody had touched her in a way that made her feel uncomfortable, frightened or scared. X reassured the mother that nobody had touched her.
The mother then had the same conversation with Y and at [107] reports what she considered to be an equivocal statement:-
I don’t know, I have to think about that mum.
The mother remained concerned at the equivocation in Y’s answer and revisited the issue of protective behaviour after the children had spent time with the father from 19 to 22 May 2017.
Y told her mother that she did not know whether she was scared to go to the toilet. After some consideration the mother sets out Y’s response as follows:-
118.Y then replied “what do you mean hurt you? You mean if someone does this to you”. At this point Y then put her hands on her knickers and grabbed her vagina with her hands. She wriggled her fingers then withdrew her hands.
119.I then said “that wouldn’t be good. Has someone done this to you?” Y replied “yeah, Dad has done this to me”.
120.I asked Y when this happened and she replied “last time I was at Dad’s house”.
121.I then asked Y where it occurred and she mentioned that it was “in Dad’s bed”.
122.I also asked “he didn’t put anything in you did he?” Y’s reply was “no, I don’t think so”.
123.I then said, “did he put his hands in your knickers?” Y’s reply was “yes”.
124.Y, then put her hands down her knickers and lifted her pelvis up. She then made a gesture with her hands around her vagina which I perceived to be a “playing motion” in a sexually explicit manner.
The immediate observation is that some considerable uncertainty arises as to whether Y was alleging that the inappropriate touching had occurred in the period 16 to 20 March 2017 and/or during the period 19 to 22 May 2017. The initial period is some days prior to the period that the mother alleges abuse occurred and which was the foundation for Count 1 of the criminal proceedings brought against the father.
The father was charged on 16 June 2017. Thereafter the mother did not allow the children to spend time with him.
The mother concedes that both children are aware of the allegations and at [164] of the mother’s trial affidavit the following appears:-
After the arrest of the Father, on or just after 16 June 2017 I had a conversation with X about what happened to Y but of course in a way that a 10-year-old child would understand.
The mother sought to rely upon the records of interview of the father and Y which were transcribed. Whilst the video record of interviews were admitted, the mother did not call Mr J or Ms K who were the investigating police officers.
The mother relies upon the records of interview but concedes that after a detailed review of Y’s interview she considered that the transcription “contains inaccuracies as to what Y had said during that interview”. The mother then considers that because of her knowledge of Y and the child’s speech patterns, she is able to correct inaccuracies and complete answers that were unintelligible.
The mother alleges that during the interview Y spoke of three specific occasions of inappropriate touching resulting in sexual assault.
An example of the mother’s intervention appears at [198] of her affidavit:-
Ms K (Q89):- mmm
Y (A89):- of the movie. And then Dad… he went to… he went into the bathroom and he slept with us because he was doing the dishes. And because he saw us asleep I hear him talking to X /// but he put it inside my pants /// and he opened it like this so you can’t hear a thing but before that he went straight back down so you couldn’t hear a thing and then, but before he scrubbed it like /// he put his hand down the back side /// hand down the /// like touching /// like rubbing it all around. I said I have to go to the toilet and wash it off and he did the same thing again /// he just kept doing it with his hands. And in the morning he said I /// washed it off because he still remembered.
My Correction/Comment (A89):- …I heard him talking to X… and he went in like… he went like inside my pants… and I didn’t really notice… and he opened it like this (gestures opening her pants)… but before that he scrubbed it, like (lots of hand gestures – wriggling of fingers and washing hands motion) and he put his other hand down the backside and went like this (hand gesture – hands together)… like rubbing it all around… and said I have to go to the toilet and washed it off… and he didn’t like that and he just kept it on his hands. And in the morning he said I need to go to the toilet and washed it off because he still remembered.
It is difficult to reconcile Y’s response as transcribed by the police with that as interpreted by the mother.
Under the heading of “Clarification by Y in relation to how many times the alleged indecent assault has occurred” the child answered as follows:-
Ms K (Q108):- okay. And how many times do you think its happened.
Y (A108): I think about 13… 14… or 12 times.
The child alleged that the first time that something had occurred was “fourteen”. However, the mother’s interpretation is that “the first time he did it was 2014”.
The mother was resolute in her belief that the father had sexually assaulted Y which provides an explanation for the pessimistic gloss that she places on critical answers given by Y that are unclear or make little or no sense.
The mother seeks to reinforce her belief that the father has sexually assaulted Y by referring to the child’s bed wetting following the abuse allegations in May 2017 and her violent and aggressive conduct towards X demonstrated by “violent outbursts and tantrums” and offensive language such as “I fucking hate you! You’re a fucking bitch! And you’re a dickhead!”.
During the December 2017 school holidays the mother observed X having nightmares and difficulty in sleeping.
At [274] of the mother’s affidavit she sets out her recollection of the child disclosing her nightmare which had the father abducting the children, but then their escape.
No evidence was presented which would persuade the Court that the mother’s observations of unusual and perhaps distressing behaviour by X and Y were corroborative of allegations that the father sexually assaulted Y.
Orders made on 26 April 2018 provided for the parties to attend a children’s contact service to enable the father to spend time with the children. Y attended on the first supervised visit on 19 August 2018 but thereafter refused to attend. X attended for five visits.
X subsequently spent about 14 periods of between two and six hours with the father supervised by Ms B.
Notwithstanding the mother’s apprehension in respect of the father spending time with X, the mother concedes that she holds no concern as to Ms B’s involvement and that she has behaved appropriately in her supervisory role.
Under cross examination the mother agreed that the father had assisted her in the repair of her car in April 2017.
She agreed that she had received a text message from the father in which he alleged that she was denigrating him to the children.
The mother agreed that the father did have a good relationship with the children leading up to the allegations of sexual assault. The text messaging between the parties and the children suggest that the children were not fearful of the father and that their interaction was pleasant and enjoyable.

The relationship between the parties deteriorated to the point where neither party was able to restrain themselves in terms of the denigration of the other.
Exhibit “9” comprises a text message exchange on 3 September 2018. The remarks by the parties are distressing and provide little scope for improvement or consensus regarding the issues likely to impact upon the children.
The relationship between the parties further deteriorated by the father telling the mother that he had sexual relations with the mother’s best friend resulting in her becoming pregnant.
I find that the mother’s evidence was coloured by her obvious dislike for the father. She generally was a reliable witness, but I am not able to place any significant weight on her evidence where it involves her opinion, view or interpretation of utterances by the children or their behaviour.
I do accept that the mother has some confidence in Ms B and is likely to promote the children’s relationship with her.
Exhibit “11” is a text message forwarded by the mother to Ms B on 26 July 2018 in the following terms:-
Hi [Ms B], believe me I wish things were different as well… I need for you to understand that this situation is not just tricky but impossible. I cannot see anyway around this & im truly sorry. The girls love you very much, but I can-not put Y thru seeing him, she’s been thru hell already. It will not be good for her in these circumstances & if Y can’t go, but her sister can… well you can see how badly this will impact on their relationship. Actually, I worry about you because u only see what he wants u to see & get told what he wants your ears to hear. Y is adomant that he interfered with her on many occasions & he’s lying about his innocence. She is terrified of seeing him again now. You need to consider the fact that Y isn’t lying. I hope you can forgive me for making this decision. I feel my hands are tied here, & i am sorry. It is a sad situation but they will miss your wedding.. it’s not your fault or mine or hers. We wish you the very best and r very glad you have a good man (…) in your life.
(Errors in original)

Ms C Ormandy

Ms C Ormandy (“the maternal grandmother”) assists the mother on occasion with the care of the children.
In March 2017 the maternal grandmother collected the children from the paternal grandmother following the children attending a wedding with the father in Town H.
The crux of her evidence was with respect to her observation that the children returned from the Town H trip with “very red” genitals. She applied nappy rash cream and told the mother that the children had protested about bathing. She told the mother that the children may have been coming down with “thrush or something like that” and to keep an eye on it.
The father chose to question the maternal grandmother about their “friendship” and as to whether she hated him. She considered that they did not have a friendship but were acquaintances and denied that she “hated” him. She denied that she would be happier if he was not in the children’s lives.
The father chose to ask the maternal grandmother if “[she was] ever jealous that [the children] would kiss [him] on the lips, but not [her]”. She denied that she felt any jealousy.
The content of [33] – [34] of the maternal grandmother’s affidavit with respect to the presentation of the children following the Town H trip is as follows:
33.X refused to change and get into the bath but I was able to convince her otherwise. When she got into the bath she cried saying she couldn’t sit down because it stung her. I noticed that her vagina area was very red, so I found some nappy rash cream for her to apply.
34. Y also complained about her vagina and I noticed that it was also very red so I gave her some nappy rash cream as well.
When asked why this appears in her affidavit her response was that a suggestion had been made that she was “pre-empting something” and she intended to show that she was not suggesting at the time that something untoward had happened. She noted that later there was concern about the children and their presentation after returning from the father’s care and the maternal grandmother considered her initial observation that the girls were experiencing thrush or some similar type of condition may have been incorrect.
The following exchange then occurred:
Father:[Maternal grandmother], you were not aware that [the children] would get red vaginas after they would drink soft drinks and cakes?
Maternal grandmother:        Umm, I am not aware of that.
His Honour:  Have you ever heard of that assertion? … either from [the father] or [the mother] that the children reacted to … sugar based drinks? …
Maternal grandmother:        No, I haven’t. I know it does affect them and they get a little hyper …
The maternal grandmother is a person who is supportive of the mother and the children.

Mr D

Mr D is the mother’s partner. He has a 9 year old child from a previous relationship.
Mr D commenced a relationship with the mother in late 2015. He commenced living full-time with the mother in March 2016. In October 2018 the mother and the children moved out. The Court proceedings were placing strain on the relationship. He remains in a relationship with the mother but they do not cohabitate.
He has a high level of involvement in the care of the children. He collects them from school.
Mr D says that the father’s behaviour was hostile and aggressive on many occasions. He is fearful of the father and considers that the father conducts himself in a way that is intimidating.
The following exchange occurred:
Father:  Have you ever touched the vagina of my child, Y?
Mr D: Never.
Father:  Have you ever touched any part of my girls---
His Honour:             Why are you asking?
Father:   ---indecently?
His Honour:             Why are you asking these questions?
Father:  Because I’m a father, your Honour---
His Honour              No?
Father  ---and someone has.
The father was reminded that he had not made any allegation in his trial material about Mr D.
Mr D denied that he was jealous of the father and the mother spending time together.
On 26 September 2016 an incident occurred during handover at Town L Police Station. Mr D recalls the incident commencing at [21] of his affidavit as follows:
21. I recall that on X’s birthday in 2016, the Father dropped the children off for hand over the Town L Police Station. We waited for the Father to leave and after a few minutes I went out the front of the Police Station and noticed that the Father was still driving around and so I went back into the Police Station and noticed that the Father was still driving around and so I went back into the Police Station and advised the Mother that we needed to wait a bit longer for him to give up and leave.
22.I went back out to the front of the Police Station and whilst I was standing there I spat in the front garden and as I did this I noticed that the Father walking up the path towards me and I turned and walked back into the Police Station.
23. The Father entered the Police Station and yelled at me saying that he was going to have me charged for spitting. He then approached the police officer at the counter and requested that they charge me for spitting in the garden. The police officer replied that they weren’t going to charge me and the officer asked the Father what he was still doing at the Police Station because it had now been over 20 minutes since handover had occurred.
…
Mr D maintained that he did not spit at the father; rather he spat into the garden. He agreed that the father may have misinterpreted or mistakenly believed that the spitting was directed at him.
It is likely that Mr D will remain as a significant adult in the children’s lives. His evidence did not impress as to the current state of the relationship with the mother. I am also able to find Mr D does not hold the father in high regard. Nonetheless, he has a good relationship with the children and does not present as a risk. I reject any assertion by the father that Mr D either has sexually assaulted the children or either of them or that he presents as a risk to them.
He remains protective of the mother and there exists the distinct probability of he and the mother resuming cohabitation.
The evidence supports a finding that if the children regard him or refer to him as their father, neither he nor the mother are likely to dissuade them otherwise.

The father

Given that the father was charged with two counts of sexual assault on Y and that the father’s alleged conduct is the basis of Y’s fear of him and her refusal to spend time with or to communicate with him, the father considered a variety of reasons why Y might have made a sexual abuse allegation:-
·That he told Y he was going to take her to an anger management specialist and she made the allegation to get back at him.
·That the mother coached the child to fabricate an allegation.
·That the child was the subject of sexual abuse either by Mr D or another of the mother’s associates.
He suffered an accident in August 2017. As a result he has a “mild brain injury” and attends upon a psychologist for nightmares relating to the accident. He has attended upon neuro professionals and says he does not suffer any cognitive impairment, nor any impulse control or behavioural changes as a result.
The father conceded that any time he would spend with Y would have to be subject to Y’s wishes. He considered that he could not trust Y and as such there could not be unsupervised time.
The father considers that Y is an aggressive child who attacks X and causes X to bleed from her gums and nose.
The father was determined to capture by video Y’s aggressive conduct. Accordingly, he took a video from outside of the girl’s bedroom and waited for a fight between the children to escalate. His cue to enter into the room and commenced filming occurred when he heard Y screaming her own name. He threatened the children that he would show the video to whoever he wants.
The father also tendered a USB containing a video of the children talking of Mr D kicking and poking Y.
The content of the video is important and as will be discussed, the process by which the father videoed the children and attempted to elicit allegations against Mr D was at best inappropriate, but more likely highly damaging to the children, demonstrating considerable lack of insight on the part of the father and providing some corroboration for the children’s complaint concerning the father persistent questioning of them as to the activities of the mother and those in her home.
The father also tendered bundles of photographs of the father and the children purportedly enjoying happy times together prior to 21 May 2017.
The father requested that he provide further evidence to a portion of the SMS text messages contained in Exhibit “9” which apparently were not accurately copied.
The level of conflict between the parties is evident from the complete text message sent by the father to the mother as follows:-
You knew exactly what you were doing cohersing Y into going to police with pedophilia charge and i will and can prove it everything youve just stated is total lies and proves you mental unstability. Fortunately your plan to label me as a pedo and have me killed didnt work and the police saw you for the liar you are as was the verdict on the 7tg December 2017. Not only have ypu ruined your carrear as a lawyer but youve also put both the girls through hell. I will not ever text you again and im not sure what your motif for vringing X to see me was but im glad you did and so was X. The only people ypuve fooled is people close to you and martin smidt who you vrought back into my girls lifes even after i told you the multiple charges of grievously body harm he had, you still let my children see him. Stop this deluded crucifixion of me the truth is now known by most and they know how you lied and manipulated the system to try and charge me, you should be ashamed, the truth will come out and will be recognised in a further court of law this is a promise.
(Errors in original)
The mother’s response was to seek that the father drop his vendetta against the mother given that it is likely to be toxic to the children.
The text messages between the parties are distressing in their content and provide little hope of the parties being able to communicate in a civil manner.
The father recorded the last occasion that the children spent time with him in April/May 2017. Exhibit “18” is the father’s USB containing videos and pictures of the children.
The father placed significant emphasis on the videos and photographs as evidence of the children being happy in his care and not depicting children as victims of sexual abuse or showing any discomfort or fear of the father.
I accept that the videos and pictures do not show the children to be upset or distressed.
Exhibit “19” is the USB containing a video of Y making allegations about Mr D.
The importance of the video as considered by the father is apparent from his response:-
That was it. I just wanted to say that – I don’t know if I’m supposed to say it or not. I’m sorry I’m so confused but I tried to get the mother to watch that DVD or that video for over a year and she only watched it in April 2017. She went to the police about it. Well, as [Mr D] said she went to the police about it but it was actually only in April 2017 that the mother actually watched it.[1]
[1] Transcript of proceedings 31 July 2019 line 22 page 51.
The father also explained why he took the video fighting in their bedroom:-
…and they would go into the room and it was getting to the point they were just like – I could hear them and I’m banging on the door, “What’s going on”, you know, like, “What are you doing in there? Stop fighting. Just hurry up”, and on the very last day, on that – when that video was taken, anyway, it escalated that badly that they were in that room for over 15 minutes getting changed and I thought, no, I can’t put up with this. I need to have [Y] see an anger management – because as you can see [X] was so fragile.[2]
[2] Transcript of proceedings 31 July 2019 line 1 page 55.
It was put to the father that Y knew he was taking the video and she became angry as a result. Y was asked during her police interview what she was angry about. Her response was put to the father:-
Because he photo’d [sic] us in our bedroom because we just had a little argument. We were going to sort it out and he’s, like, “I’m not having them in the lounge room any more”.[3]
[3] Transcript of proceedings 31 July 2019 line 16 page 59.
The father agreed that he said the words “I’ve got it on film now. I will show whoever I want”. He had threatened that he would take Y to a child psychologist specialising in anger management.
The father was also questioned concerning Y’s allegation that he had placed his hand underneath her underwear. The following exchange occurs:-[4]
[4] Transcript of proceedings 31 July 2019 line 36 page 62.
Counsel:        So at question 75 she’s asked her:
What did you come to tell me about today, [Y]?
The answer was:
That was one of the things.
And then she has gone to say that she felt:
…a big furry hand underneath her pants and do the stuff with her.
Father:  Disgusting.
Counsel:        She has gone on to say:
That would have been about six weeks ago because that would be three weeks ago but we had dad because we have two weeks and then we can’t see dad.
At question 80 she has answered:
We were in dad’s room and the last year before that we had a rule if one of you sleeps in my bed the other has to sleep in the other.
Did you have any rule such as that?
Father:It’s ridiculous, and I refuse to answer any questions that a child has obviously lied to the police because she fears that I was taking her to a psychologist or a doctor. It’s ridiculous. It’s so obvious to anybody that’s witnessed, and I’m sure you all have videos of a child that has been abused and then you look at that video, it’s just – I’m sorry, your Honour, but the whole thing is ridiculous.
The father denied that there was any rule of sleeping equally in the beds of either children.
The child’s specific allegation of abuse and the father’s response appears at line 24 page 65:[5]-
[5] Transcript of proceedings 31 July 2019.
Counsel: She was then asked:
So you watched the movie and what happened then?
She said:
I feel under – I fell asleep, like in the middle of it – of the movie and then dad went – he went into the bedroom and he slept with us because he was doing the dishes. Because he saw us asleep, I heard him talking to X, but he put it inside my pants and he opened it like this, so you can’t hear anything. But before that, he went straight back down so I couldn’t hear a thing. And then before he scrubbed it, like, he put his hand down the backside – hand down – like touching, like rubbing it all around, I said I have to go to the toilet and washed it off. And he did the same thing again. He just kept doing it with his hands. And in the morning, he said, “I washed it off”, because he still remembered.
Counsel: Anything like that happen?
Father:Absolutely disgusting and absolutely not. I refute that to the utmost. And, in fact, I will add to that. The movie we’re talking about was actually a movie – it – we – it was on the video. We went and saw it at the picture theatres. That’s Pets. And you can collaborate that by the date it was played at Suburb M Cinema. Sorry, your Honour, I’ll…
The father denied that he had kissed Y inappropriately or that there had been any sexual abuse or assault of the child. He denied that he washed his hands in the manner as alleged.
The father became highly distressed at the questions put by counsel. I did not consider his distress to be confected.
The father denied any inappropriate touching but considered that the children understood protective behaviours.
The allegation by counsel that the father had touched the children’s vaginas inappropriately elicited the following response at line 40 page 71:-
Father:All I know is that I’ve never touched any child. Never would. It’s the most sick, horrific allegation that any man could be faced with, and unfortunately, women throw this at the men.
The father was challenged as to why he elected to take a video of the girls fighting rather than to stop any escalation of the aggression by Y towards X. He was not able to be fully responsive to the questioning.
Counsel put to the father the following exchange by Y from her record of interview:-
Counsel: So you told me you were watching Pets.
Y’s answer was:
No. Deadly 60.
Question 155:
You were watching Deadly 60 and then you woke up?...Mmm.
Question 156:
And then he finished washing dishes?...Mmm.
Question 157:
And then he came over to where you were?
And she said:
I was on the couch.
And then she says:
He put his hand and sat next to me.
And then she said further:
He just sat next to me and he put his hand – and I said “What are you doing?” He said, “Nothing really, just putting my hand over your knee”, and that’s when I screamed.[6]
[6] Transcript of proceedings 31 July 2019 commencing line 36 page 83.
Counsel put the following proposition to the father:-[7]
Counsel:I’m just going to put this to you, [the father]. Is it possible that [Y] is so afraid that you were going to take her to the police because of that scream, because of the video, that she’s actually now putting into her record of interview an explanation for why she has screamed on the video?
Father:No, I don’t know what happened. But she – like I said to you, she was coming on the weekends. After – as soon as the court finished – as soon as the court finished, her demeanour changed altogether. It was, like, I could tell the mum was poisoning them. That’s why I put in the text, “How have you been denigrating them? What’s going on? Why is she calling me weird all of sudden”. I thought maybe it was after I’ve come back from Asia. Because my mate’s dad, he was, like, dying of cancer and I wanted to go and see him. I’ve been telling them for years and years I will come and see him and his missus. He was dying of cancer, and it was 50^th, so I thought I would go and see him. So I don’t know what the mother might of even told the kids, “He’s gone to Asia”, or what, but when I’ve come back, everything was, “Dad, your weird”, “You’re this, you’re that”, “You don’t love me”, “You don’t love me”, “You don’t care”.
[7] Transcript of proceedings 31 July 2019 line 29 page 84.

The father was asked to speculate on why Y remained angry with him and whether he would seek a further attempt at reunification therapy. His answer follows:-[8]
Father:…I mean, I don’t know what’s – why she has this anger thing, or whatever. She still does. I suspect she does, because the mother was heard yelling at the kids when the drop – when the order was dropped off, about the breach order. So there’s obviously still something going on. But I – look, the only way I looked at it is if I can help pay some sort of psychologist or something to – to speak to my child, work out what on earth is going on, not so much why she has made all this allegation but more so why the anger thing, why the tanties, you know. According to [Ms Ormandy] the – they – they’re putting them through hell as well, you know, in her affidavit, that she’s running amok and telling her she wants to kill herself, and they’re talking about guns…
[8] Transcript of proceedings 31 July 2019 line 9 page 95.
Counsel focused on the video of Y alleging that she had been assaulted by Mr D. The father agreed that he had taken the video to the police but denied that it was specifically to have Mr D charged but rather that it was important the police knew the truth of what had been happening. That contention should be considered in contrast to the father’s ready acceptance of Mr D as an appropriate adult in April 2017 as contained in the report of the family consultant.
He agreed that whilst he might not have been 100 per cent satisfied with Mr D he had a high level of confidence that he did not present as a risk to the children.
The father agreed that he had represented to the family consultant that:-
[Mr D] had threatened to backhand [Y] on an occasion that [Y] had told [the father] about this but having said this, however, [the father] said he knew [Mr D] was good with the kids.
As part of the family assessment, the family consultant reported X’s attitude towards the father as follows:-
[S]he was “happy for less time with dad” because she was experiencing increased questioning from him. X explained that [the father] did not ask questions at the Police station but rather waited until they were in the car and the “windows were up”. [X] said he would question her about when Mr D was going to leave or if Mr D was still living with them. [9]
[9] Family Report 30 November 2016 [73].
The father denied that he sought information from the children as to the mother’s arrangements within her home and in particular her ongoing relationship with Mr D. The family consultant recorded a persistent theme by the children that the father appeared unrelenting in his questioning of them.
The father initially denied that the children had made the statements to the family consultant, but when he finally conceded that the family consultant had accurately recorded statements made by the children and then was asked to consider whether they presented an accurate picture of the children’s interaction with the father.
The father’s response was that he would ask the children from time to time as to the circumstances in the mother’s home, but that the questions were benign and not at any stage were they intended to make the children uncomfortable or upset.
The father was reminded of a statement made to X at [76] on page 21 of the family report in the following terms:-
[S]he felt sad when [the father] tried to obtain information from Y because she had not answered his questions. X said she was not sad that Y had actually answered the question, but that [the father] had asked her. X said when she was younger she had not understood the situation and she thought this was the case for Y. X reported feeling confused by [the father’s] asking of questions and said the observation session was “different”, as [the father] had not asked them questions, but at the same time she understood he wouldn’t given the nature of the assessment.
Ultimately, whilst the father did not completely accept the accuracy of X’s statement, he conceded that she was not fabricating the circumstances.
The father’s response was to express his ongoing love for the children and that he was a good and caring father. He would not wish to put the children through unnecessary distress and upset as has clearly occurred arising from the ongoing litigation.
It is likely that the father had adopted an inquisitorial approach with the children when he had an opportunity to do so. His mistrust and dislike of the mother and Mr D was a prime factor in his conduct.
The children’s response to the family consultant should be considered as an accurate reflection of their reaction to the father’s unrelenting inquiry of them. The family consultant explored the background to allegations that Mr D had assaulted Y. By reference to the first family report the following appears:-
When asked about “mum’s house” Y began by drawing a picture of their two dogs. Y then drew pictures of Mr D and, when asked about this she said they would play together.[10]
[10] Family Report 30 November 2016 [82].
And in referring to herself and Mr D she said:-
Y then reported she had been hurt while they had been play fighting and this had occurred at their old house. When asked if she had told [the mother] about this incident, Y said she did not need to, as she witnessed the incident and again described it as “play fighting” before adding that she had told [the father]. When asked further about this she said she had advised [the father] she had been kicked while play fighting with Mr D, to which [the father] had asked her if she wanted to “video record it”, referring to her statements.
Y did not know why the father would want to record the statement given that the circumstances of any hurt experienced by the child were benign.
The father’s response was to take the videorecording to the police.
The father was asked about his reaction to X referring to a gun and a flick knife during time with the father and Ms B. He contends that he was shocked when he heard X’s request and considered that it was a matter of concern.
I challenged the father on the gloss that he put on the child’s remarks and asked whether it could be nothing more than X talking nonsense.
Whilst the Court is entitled to find that neither of the parties genuinely considered X’s request for a flick knife and a gun to be anything other than fanciful, the manner in which it was dealt with by the parties is a reflection of their hypervigilance and deep mistrust.
An unfortunate consequence of the incident is the potential to cast Ms B in a poor light.
The mother has confidence in Ms B as a supervisor. The following exchange highlights the conundrum:-[11]
His Honour: … where I’m thinking and what I’m talking about and – and I say that because I’m conscious that, at least as part of the orders your client sought, it was the retention of [Ms B] in a role which had a dual advantage, as I understood it, but I may have misunderstood your client’s case. One is that she considered the children would be safe in the presence of the father, providing [Ms B] was present. And, (2) – or, at least X, I should say – and, (2), that your client considered that the relationship between the children and [Ms B] was an important one. I may be wrong on both of those levels.
Counsel:No, you’re not.
[11] Transcript of proceedings 1 August 2019 line 11 page 69.
The father was asked to consider his interaction with the family consultant which was described as having a focus on the mother and her circumstances.
The father denied that he was fixated, however he considered that the obvious explanation for the strategy that he considers the mother has adopted in alienating him from the children indicates that she suffers from “malicious mother’s syndrome” which he attributes to an internet search.
The father was asked to reflect upon remarks made by Y to the family consultant to the effect that she would wish to live with the mother and not spend any time with the father. He was asked whether he would respect Y’s stated position and his response was immediate and unequivocal. He conceded that at this stage he would not seek that Y spend time with him and if that were to happen then he saw the benefit of any time being supervised.
The father denied that the children had witnessed family violence perpetrated by him. Y had raised an incident with the family consultant involving a threat by the father to drop one of the dogs. The father’s denial was clear and on the topic of whether the children had been exposed to anger and violence the following response appears at line 10 page 84:-[12]
Counsel:…with your anger, that they are rebelling against seeing you?
Father:No. No, absolutely not. The children have witnessed the mother going completely bunta smashing the house up drunk as a skunk, and then she goes to the police and reports that I pick her up and slam her on the ground. The children witnessed that. [Y] has taken on the mother’s version of everything. That’s why she says I picked her up and threw her, because that’s what she really believes happened to [the mother]. That night [the mother] was out of control – sorry, I beg your pardon, [the mother] was so out of control those kids were terrified, and then she picks the kids up and takes off again.
[12] Transcript of proceedings 1 August 2019 line 10 page 84.
The father’s presentation throughout his evidence was of indignation at the allegations of sexual abuse and denial of the children’s observations of aggressive interaction between the parties other than his assertion that the mother was the aggressor.
The father was self-represented and I bring to account that he presented with a high level of emotion. He has not seen Y for more than two years and his time with X is limited and conditional.
Moreover, he has faced criminal charges and an investigation alleging he had sexually assaulted Y.
In addition, the father did not have the benefit of legal representation and his circumstance highlights the very real difficulty experienced by self-represented litigants. I bring those factors to account. However, the father was barely able to restrain his anger and it was not hard to discern the undercurrent of dislike and mistrust for the mother.
The father was not an impressive witness, but that is not to suggest that he should be considered as unreliable in respect of all aspects of the evidence.
He was unequivocal in his denial of any allegation of sexual assault or abuse of Y, but he was less impressive regarding his denials of persistent and unrelenting questioning of the children as to the circumstances of the mother and the activities in her home.
His explanation and justification for the home videos depicting the children fighting in their bedroom and the children making allegations concerning Mr D was misguided and demonstrated a complete lack of insight on his part.
To the father’s credit, although for different reasons, he concedes that Y’s time with him should be subject to her wishes and supervised. His considered need for supervision was to protect him from false allegation rather than recognising that supervision is required because of the father’s perceived inability to cease questioning them about the mother. He was less certain as to the way forward with X.

Ms B

The father relies upon the evidence of his daughter Ms B arising from her relationship with X and Y and in her capacity as a supervisor of X’s visits with the father commencing 29 April 2018.
Ms B holds a unique position in the proceedings. She has the confidence of the mother and the high praise of the father. The family consultant also considers her relationship with the children to be of benefit.
Her observation of X and the father is one of mutual enjoyment. She considers that X is relaxed and happy and has observed spontaneous demonstrations of affection between X and the father.
She was firm in her stated position that she would continue to speak to the children about issues that worry them.
While it may be open to observe that she is naïve in her interaction with the children given the litigation and allegations, the converse may be true and Ms B is simply being protective of the children in her capacity as their older sister. I am satisfied that Ms B has a genuine interest in the children and is entirely reliable in her capacity as a supervisor.
It was apparent from her evidence that she did not accept that there could be any substance to the allegation that the father sexually assaulted Y. Nonetheless, that does diminish the Court’s confidence in her as a person protective of the children.
She was an impressive witness and is likely to be both influential and of constructive assistance in terms of maintaining a beneficial link between the children and their paternal family.

Family Consultant

Ms G (“the family consultant”) commenced her involvement with the children by order made 29 August 2016 for the preparation of a family report dated 30 November 2016 (“the first report”) and following an order made on 9 November 2018 a further family report dated 24 May 2019 (“the second report”).
Final orders were made on 10 April 2017 by consent. The parties had shared parental responsibility. The children lived with the mother and spent time with the father each alternate weekend from the conclusion of school on Friday to the commencing of school on the following Monday.
It is likely that the first report was influential in the 2017 consent orders.
The observations between X, Y and the father in preparation for the report are set out at [90] of the first report as follows:-
X and Y agreed to accompany the report writer into the observation session to see [the father]. They hugged him in greeting and began exploring the craft activities available to them. [The father] provided the children with Kinder Surprise eggs, which they both put aside and continued to play. During the session the children were observed to interact comfortably with [the father]. Y was observed to be more vocal, while X was reserved. At the conclusion of the session both children kissed [the father] goodbye, before he offered to give them both their pocket money for the week.
The children were also observed with the mother and Mr D as set out at [91] of the first report:-
The children happily greeted [the mother] and Mr D when they entered the observation session and quickly engaged them in their craft. [The mother] and Mr D spent the duration of the session engaging with X and Y. They were observed to laugh and appeared relaxed in their interactions with one another. At the conclusion of the session, the children happily left with Mr D so that [the mother] could participate in her interview.
The family consultant sought information from the children’s school principal and received a favourable report. The principal had not observed or experienced any difficulty in his interaction with either the mother or the father.
A significant aspect of the parties’ presentation to the family consultant concerned allegations of violence. The mother alleged that the father “acted erratically and his interactions (via text message) with her could vacillate between amicable and abusive in a short period of time”.
The father denied that he had ever acted violently and whilst the family consultant was not able to determine the accuracy of the parties’ differing reports, she did record that “[the mother] considered them [the children] to be safe in [the father’s] care”.
The observations of the family consultant was that the children “were delightful young girls who managed the assessment process well”.
X and Y both were troubled at the father’s persistent questioning about the mother and had an awareness of the content of text messages that the father had forwarded.
The family consultant crafted her recommendations on the basis that the children would benefit from the continuation of a relationship with the father. She considered that the parties should share parental responsibility, that the children live with the mother and spend time with the father each alternate weekend.
The recommendations of the family consultant are similar to the final orders made in 2017.
In the preparation of the second report, the family consultant properly noted the more recent history and in particular the mother’s allegations that the father had sexually abused Y in May 2017. The issue of domestic violence and the father’s persistent questioning of the children was also the subject of comment.
As discussed, the family consultant recorded the mother’s support for the continued involvement of Ms B and an acknowledgment by her that X “always appeared happy to go and given this she had been surprised that X had refused to participate in the observation session with [the father]”.
The family consultant recorded the mother’s principal concern that whilst Y was not spending time with the father, her concern centred upon the possibility of X spending overnight time.
The continued involvement of Ms B or someone else that has X’s confidence would likely promote her continued involvement with the father.
Not dissimilar to the father’s presentation in Court, he was keen to present photographs and videos of his involvement with the children to the family consultant to demonstrate what he considered to be the children’s obvious enjoyment.
He did not accept any truth to the allegations made by Y but acknowledged that the children were in a “tough” situation. He had contemplated walking away from Y in the hope that in the future she would come to realise that she held a false belief that he had sexually abused her.
The family consultant sought information from the children’s school principal. The advice provided indicated that whilst there were no significant concerns the children demonstrated some deficiencies. In particular, X was noted to present “as a saddened and burdened young girl”. Her academic progress had been “up and down” although she did not present with any overt behavioural difficulties.
Neither of the parties appear to have had much recent contact with the children’s school.
The family consultant did not make any observations of interaction between the children and the father. Predictably, Y did not seek to see the father. However, the mother was surprised at X’s refusal.
Consistent with the observations of the family consultant in the first report, she observed that the father presented as “preoccupied” throughout the interview with his negative view about the mother. The father’s current attitude towards the mother was recorded at [106] as follows:-
As noted, he often required redirection to the topic of discussion. Much of [the father’s] focus during the assessment was his view [the mother] was dishonest and his plans to seek legal retribution regarding this. [The father] appeared unable to countenance any issue in his relationship with X or Y, expressing his view [the mother] was responsible for the decline in his relationship with the children. [The father] frequently referred to the views of others as support to his own views. …
The family consultant was troubled by the father’s approach to Y in wanting to “have it out with her”. The family consultant considered such an approach to be abusive and unlikely to assist Y in resuming a confident relationship with her father.
The evidence of the family consultant was measured and entirely reliable. She had the advantage of being able to contrast the presentation of the parties and the children in 2019 with her observations in preparation for the first report in 2016.
It is reasonable that significant weight be given to her evidence.

Principles relating to parenting

The children currently reside with the mother and spend no time with the father.
The mother seeks that she has have sole parental responsibility for the children.
Following the remarks of Finn J in Blanding v Blanding [2016] FamCAFC 21 where her Honour considered the Full Court decision in Beckham v Desprez [2015] FamCAFC 247 there is now a focus on the practical reality of each party’s proposal and the consideration of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each

Section 60CA of the Act requires that I have the best interests of the children as the paramount consideration. The best interests are to be considered by the application of the objects of s 60B(1) and the underlying principles of s 60B(2).
I am cognizant of the primary and additional considerations in respect of the matters as set out in s 60CC(2) and (3).
I am mindful of the directions contained in s 60CC(2A) and have regard to the allegations that the father has sexually abused Y.
I propose to adopt the following approach:-
a)Give consideration to the separate proposals put forward by the parties;
b)Have regard to the objects expressed in s 60B(1) and the underlying principles in s 60B(2);
c)Have regard to the provisions of s 60CC in order to determine in each case what is in the children’s best interests;
d)Have regard to the primary considerations under s 60CC(2), namely the benefit of the child having a meaningful relationship with both of the children’s parents and the need to protect the child from physical or psychological harm;
e)Have regard to the additional considerations under s 60CC(3); and
f)The evidence adduced in respect of the particular considerations pursuant to s 60CC(2) and (3) are to be considered and if more weight is to be given to one or more of the matters raised then this must be the subject of diminution and comment.

Meaningful relationship

It is fundamental to the Act that I regard the best interests of the children as the paramount consideration.
The aims and objects of the Act are to ensure that the best interests of a child or children are met by:-
g)Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
h)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
i)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
j)Ensuring that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
In Mazorski & Albright [2007] FamCA 520, Brown J considered the definition of “meaningful” and observed:-
26.What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. …
In Cotton & Cotton (1983) FLC 91-330 Nygh J considered that while it was both generally desirable for a child to maintain a meaningful relationship with both parents, there must be a possibility first of the existence of a meaningful relationship. His Honour said at page 78,252:
… that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child. It is not, in other words, a question of contact for contact’s sake. If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.
In Sigley & Evor [2011] FamCAFC 22 the Court at [136] cited the observations of the Full Court in Champness & Hanson (2009) FLC 93-407 at page 83,513: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’”
As Murphy J said in Baglio & Baglio [2013] FamCA 105 at [111] “a chance of a meaningful relationship…which is beneficial to” the child was likely to be to the child’s advantage and that the absence of such a relationship had “the potential to cause [the child] harm in the long term”.
Turning to the primary considerations under s 60CC(2) of the Act, I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.

Child’s wishes

Y does not wish to see the father.
X has been spending time with the father, supervised by Ms B.

Allegations of sexual abuse

The mother seeks a finding that the father sexually abused Y.
The father believes that Y has been the victim of sexual abuse, but denies that he is the perpetrator. He considers that Mr D or another of the mother’s associates may be responsible.
The issues that confront the Court are:
a)Can a finding be made that Y was the victim of sexual abuse; and if so
b)Can a finding be made that the sexual abuse was perpetrated upon her by the father?
c)In the absence of a finding either way, does the father pose an unacceptable risk to the children?
In M v M (1988) 166 CLR 69 the High Court gave consideration to the treatment of allegations of sexual abuse. The High Court considered at [19] that treating an allegation of sexual abuse as the paramount consideration was an error and considered the circumstances in which a trial judge should make a finding of sexual abuse as follows:-
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter partes in the ordinary sense of that expression: Reynolds v. Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v. McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents: cf. J. v. Lieschke (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court's determination of what is in the best interests of the child. The Family Court's consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court's wide-ranging discretion to decide what is in the child's best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v. Briginshaw (1938) 60 CLR 336, at p 362. There Dixon J. said:
"The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences." His Honour's remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
The High Court’s unambiguous position arising from M v M (supra) is that a trial judge should not make a positive finding of sexual abuse unless the high standard of certainty as referred to in Briginshaw (and now s 140 of the Evidence Act 1995 (Cth)) is discharged.[13]
[13]W v W (abuse allegations: unacceptable risk) (2005) FLC 93-235 [92].
The provisions of s 69ZT do not apply to the proceedings. The Evidence Act determines the admissibility of evidence.
There is no evidence capable of supporting a finding that on the balance of probabilities the father sexually assaulted Y in March and May 2017 from any person other than what was reported by Y in the police record of interview.
I approach that exercise with caution.
Whilst the evidence of something a child has said is always admissible, the Court is obliged to consider the weight that should attach to the evidence.
The child is properly not able to be the subject of examination and cross examination as would occur in a criminal proceeding. Whilst it should not be seen as in any way altering the burden of proof to the father, he made credible and consistent denials.
It is the mother’s case that she sought a finding that Y was the victim of sexual abuse. I note that the father considered the possibility that somebody else may have sexually abused Y with the implication of suspicion falling on Mr D.
There is no evidence which could in any way implicate Mr D. The allegations made by Y are vague and uncertain. I do not suggest the allegations have been fabricated or concocted by the child. It maybe that there exists uncertainty as to what it was that Y was actually asserting occurred. The children were observed by the family consultant in 2016 to have a warm relationship with the father. In 2019 the mother expressed surprise at Y’s allegations.
I do not consider that the evidence as presented enables the Court to find that Y was the victim of sexual abuse.

Unacceptable risk

In the absence of a finding with respect to sexual abuse consideration must then be given to any risk posed to the children, or either of them.
In Vasser & J-Black (2007) FLC 93-329 the Full Court considered that the High Court decision in M v M (supra) had become the “touch stone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
The decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, assists at 82,713-4, where Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
In Harridge & Harridge [2010] FamCA 445 Murphy J, referred to N & S & The Separate Representative (supra), and proceeded to adopt the following list of inquiries with respect to risk assessment and analysis:[14]
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
[14] As taken from B Mahendra “Psychiatric Risk Assessment in Family and Child Law” (2008) 38 Family Law 569.
I adopt that passage as helpful in cases such as these in analysing the asserted risk.

“No contact” orders

It is a serious matter to order that a child neither spend time with nor communicate with a parent. In Hunter & Berg [2017] FamCA 1051 Tree J said at [39]:-
Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew (1996) FLC 92-692.
I do not consider that the father presents as an unacceptable risk by reason of concern that the children could be the subject of sexual abuse.
The risk that the father presents to the children is his inability to compartmentalise his dislike and mistrust of the mother.
The assertion of the propensity of the father to inappropriately question the children is not raised by the mother but rather, raised by the children. Both X and Y remain troubled by the father’s presentation and his persistent questioning of them. Of more recent date, X has felt sufficiently uncomfortable with the father’s conduct that even with the assistance of Ms B, she is now reluctant to spend time with the father.
His conduct in videoing the children and in particular the distressing videorecording forming Exhibit “19” titled “Allegations of [Mr D]” highlights the issues.
The children, but in particular Y, are demonstrably uncomfortable with the father’s persistent interrogation about the mother and Mr D. The video taken by the father intending to show Y’s aggressive conduct towards X was difficult to understand. The father conceded that he allowed Y’s aggression to boil over because he intended to video her behaviour as support for his contention that she needed specialist intervention in the area of anger management.
The children demonstrated a higher level of insight than their father. They understood that his conduct was precipitous and aggressive and they were rightfully troubled. For his part, the father considered that the video recordings were important and he was concerned that the mother and the police were either reluctant to view them, but if viewed, did nothing about the contents.
The father concedes that Y is unlikely to be persuaded to spend time with him even if supervised. He does not seek an order in respect of Y other than if she wishes to spend time with him it be facilitated by the mother.
In respect of X, the father accepts that her time with him should be subject to supervision.
X finds herself in a difficult predicament. She is not totally opposed to spending time with the father, but feels deeply a divided loyalty. She has not had any direct experience of inappropriate behaviour by the father and the reports of Ms B are that X and the father appear to enjoy their time together. I accept the observations of Ms B that she has not observed any inappropriate behaviour by the father during her supervision of his time with X.
X is supportive of Y. There is clear sibling loyalty and X is placed in the invidious position of potentially enjoying her time with her father but knowing that Y remains concerned for her safety.
I do not consider that it is in the best interests of the children that the entirety of their relationship with the father and the paternal family be severed.
X should continue to have a relationship with the father, but her time with him should initially be supervised. The only viable supervisor is Ms B and I accept that it is an onerous consideration for her to be nominated as a long-term supervisor.
I propose to order that X continue to spend time with the father each month between now and her 13^th birthday whereupon her time with the father will be subject to her wishes but not requiring supervision.
I consider that reducing the frequency of time may assist Ms B’s availability to supervise.
I will fall in with the father’s concession in respect of Y that his time with her will be subject to her wishes noting that it is unlikely to occur in the short to medium term.

Parental responsibility

The mother seeks an order for sole parental responsibility. The father seeks equal shared parental responsibility. The determination of parental responsibility is to be considered by reference to s 60CC factors to determine what is in a child’s best interests.
Section 61DA of the Act provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
There is no relationship between the parties.
The mother has had the primary care of the children since May 2017 and has been the sole decision maker.
The level of dislike and mistrust between the parties is palpable and there is no relationship between them.
The children require stability and certainty. That is only likely to be achieved with the mother having sole parental responsibility. To do otherwise would expose the children to the risk that their needs would at times be subsumed by the conflict between the parties.

Conclusion

I make orders as appear at the commencement of these reasons.

I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 11 October 2019

Associate:

Date: 11 October 2019