Pidoux & Magnin - [2021] FamCA 481

FAMILY COURT OF AUSTRALIA
Pidoux & Magnin [2021] FamCA 481

File number(s): SYC 4645 of 2011

Judgment of: ALTOBELLI J

Date of judgment: 7 July 2021

Catchwords: FAMILY LAW – PARENTING – where there are allegations of family violence by each parent against the other – where the child has been exposed to alcohol-related violence – where clear views expressed by 14 year old child – consideration of best interest principles – final parenting orders made.

Legislation: Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 102NA

Cases cited:
Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

In the Marriage of Archbold (1984) FLC 91-532; [1984] FamCA 10

M v M (2000) FLC 93-006; [1998] FamCA 1742

McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768

W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892

WK v SR (1997) FLC 92-787; [1997] FamCA 57

Number of paragraphs: 149

Date of last submission/s: 7 April 2021

Date of hearing: 6-7 April 2021

Place: Sydney

Counsel for the Applicant: Ms Spain

Solicitor for the Applicant: Somerville Legal

The Respondent: In Person

Solicitor Advocate for the Independent Children's Lawyer: Ms Callander

Solicitor for the Independent Children's Lawyer: Legal Aid NSW
ORDERS

SYC 4645 of 2011

BETWEEN:
MR PIDOUX

Applicant

AND:
MS MAGNIN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

7 JULY 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the child X born … 2007.
3.Within seven days of making any decision as to the long-term care, welfare and development of X, the father is to inform the mother in writing of such decision.
4.X live with the father.
5.In the event that X expresses a wish to spend time with the mother:
(a)Within seven days or such earlier time, the father shall do all such acts and things and sign all such documents as may be required to register with B contact centre, or such other service as agreed between the parents, or failing agreement, such other service as nominated by the Independent Children’s Lawyer, and invite the mother in writing to undertake registration with that service;
(b)The mother shall meet the cost of such supervision service;
(c)The time will occur in accordance with X’s wishes as to matters such as time, place, and activity undertaken, and otherwise in consultation with any counsellor or therapist X may be attending upon at the time;
(d)For a period of six months from the commencement of X spending time with the mother, such time shall be two hours per fortnight supervised by B contact centre with such visits being supervised in the community; and
(e)Such other times as agreed between X and the mother.

6.X communicate with her mother by telephone, Skype or other electronic means at her request and the father shall facilitate such call taking into account the mother’s work commitments, noting that such call may need to take place prior to 5pm.
7.The mother and extended maternal family be at liberty to send a card and/or present to X only on the occasions of X’s birthday, Naming Day, Christmas and Easter each year by sending the same to X’s home address, to be delivered no later than 7pm on any given day.
8.X communicate with and spend face-to-face time with members of her maternal extended family, excluding Mr C, at her request, and the father is to facilitate such communication and time.
9.X be at liberty to terminate any period of spend time with or any communication with her mother or extended maternal family at her request and in accordance with her wishes.
10.For the purposes of the above orders, the father is to do all things to actively encourage and facilitate such communication and/or spend-time-with arrangements.
11.Unless pre-arranged pursuant to orders 5, 6 and 7 herein, the mother is restrained from approaching or contacting X by any means, including but not limited to electronic and social media communication, attending X’s school, extra-curricular activities, her home, her father and stepmother’s place of work, or any church X may attend.
12.For the purposes of pre-arranged communication or time pursuant to orders 5 and 6 herein, the mother is restrained from communicating with X or attending time with X if she has consumed any alcohol in the 12 hours prior to the commencement of time.
13.Within seven days of the date of these orders, the father do all such acts and things and/or sign all such documents as may be required to register the mother as a parent of X with F School Suburb D which will facilitate the mother being placed on any email list or give authorisation for the mother to join any “App” that the school might use to disseminate information to parents, including providing a copy of any order form for school photos and having the mother’s details included on the schools “Compass” program.
14.In the event that X is hospitalised due to injury or illness, the father shall notify the mother as soon as practically possible, and no later than 24 hours of admission, and will keep the mother updated as to X’s progress in writing until such time as X is discharged.
15.The parents keep each other informed of their current residential address, telephone number and email at all times.
16.“In writing” for the purposes of these orders means by text message or email.
17.Both parents are restrained from discussing these proceedings or exposing X to any third party discussing these proceedings in the presence or hearing of X.
18.Both parents are restrained from making comments of a critical, demeaning or offensive nature about the other parent, their loved ones or members of their extended family in the presence or hearing of X, and are restrained from exposing X to any such comments by a third party.
19.The Independent Children’s Lawyer is given leave to provide a copy of these orders to The Principal, F School, Suburb D.
20.During any time X spends or communicates with the mother, the mother is restrained from bringing X into contact or having any communication with her half-brother Mr C.
21.The Independent Children’s Lawyer remain appointed in the matter for a period of six months from the date of these orders.
22.Within seven days of the date of these orders, the father do all such acts and things to engage a trauma-informed counsellor (hereinafter referred to as “the counsellor”) for X and inform the Independent Children’s Lawyer of the name, address, and contact details for that counsellor.
23.The father give all necessary authorisations to the counsellor for the counsellor to speak with the Independent Children’s Lawyer as to X’s progress.
24.Leave be granted to the Independent Children’s Lawyer to provide the following documents to the counsellor referred to in order 22:
(a)A copy of these orders;
(b)A copy of the reasons for judgement;
(c)A copy of the Family Report of Ms G dated 15 February, 2019; and
(d)A copy of the reports of Mr H dated 1 March and 14 May, 2018.

25.Leave be granted to the Independent Children’s Lawyer to relist this matter on 14 days’ notice in respect of the interpretation, implementation, or enforcement of these orders.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pidoux & Magnin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:

This case concerns a child, X, born in 2007. X is currently 14 years of age. The Court had to decide whether X would live with her father, or mother, and what time she would spend with her other parent.
BACKGROUND
X’s mother is 51 years old and she describes herself as self-employed. She is the Respondent in this case. X’s father is the Applicant. He is 45 years old and describes himself as a social worker.
The parents commenced living together in 2001 and married in 2005. They separated in January 2009. X initially lived with her mother and spent time with her father.
On 2 November 2012 the parents entered into consent orders which provided for equal shared parental responsibility, for X to live with her mother and to spend alternate weekends and alternate Thursday overnights with her father, as well as school holidays and special occasions. It seems that there were problems implementing these orders from time to time. The problems escalated to a point, it would seem, where the father commenced fresh parenting proceedings in February 2017.
At an interim hearing in August 2017 X was again ordered to live with her mother and spend time with her father five nights each fortnight. The mother was ordered to reside with her parents, and attend on J Services.
On 5 October 2017, the matter was relisted, ostensibly because of the mother’s failure to comply with orders.
Finally, on 13 October 2017, again ostensibly because of the mother’s failure to comply with orders as well as concerns about her abuse of alcohol, the Court suspended all previous parenting orders. X was ordered to live with her father and to spend each Sunday with the mother from 10am to 4pm.
On 27 September 2018 further interim orders were made for the mother to have increased time with X including overnight time and block time of seven days.
On 25 January 2019 there was a further interim hearing at which all interim orders for the mother to spend time with X were suspended and the matter was transferred to the Family Court. Throughout this period, and by way of summary, consistent concerns were raised about the mother’s capacity to look after X, primarily based on the mother’s aggression and consumption of alcohol.
By the time of the final hearing before this Court, X had not physically spent time with her mother since 12 January 2019. X and her mother appeared to speak with reasonable regularity by telephone. In August 2020 the mother agreed to the terms of a final ADVO protecting the father from the mother, which will remain in place until August 2022. In February 2021 the mother was charged and convicted with breach of the ADVO and was fined $200. The father’s proposal at the final hearing was that he have sole parental responsibility, and that X lives with him and spend no time with her mother. Moreover, the mother would be restrained from attending X’s school, school events, extracurricular activities, primary residence, and any future place of employment. The orders proposed by the father are reproduced in the first schedule to these reasons. The father was at all relevant time represented by a solicitor and counsel.
The mother represented herself at the final hearing, though she had been previously represented by legal practitioners. When the mother became unrepresented on the last occasion, she was offered an adjournment to enable legal representation pursuant to the provisions of s 102NA of the Family Law Act 1975 (Cth) (‘the Act’), but she declined, wishing to avoid any delay in the scheduled hearing. The mother thus represented herself but was not permitted to cross-examine the father.
The mother’s proposals are contained in two emails dated 3 and 7 April 2021, which together became exhibit R1. Doing the best the Court can to understand her proposal, the mother proposed that she have sole parental responsibility for X, that X live with her and spend time with the father each alternate weekend, Thursday overnight to Friday, half the school holidays and on special occasions. During the hearing the mother amended her proposal so that there would be, in effect, a transitional period during which X would come into her care. Indeed, at one point in closing submissions it appeared that the mother was open to an order for equal shared care of X. The Court’s possible lack of understanding of the precise terms of the mother’s proposal does not hinder its ultimate decision because, for reasons that will be set out below, none of her proposals were in the best interests of X.
The Independent Children’s Lawyer’s proposal is contained in an amended minute that was filed during closing submissions, and which became exhibit ICL1. This minute is reproduced in the second schedule. The Independent Children’s Lawyer proposed that X live with her father, who would have the benefit of sole parental responsibility. However, the father would be obliged within seven days to inform the mother in writing of decisions about long-term care, welfare and development. In the event that X expressed a wish to spend time with her mother, then this would take place, but in the context of a supervised contact service engaged at the mother’s cost. This supervision would continue for a period of six months, on the basis of two hours each fortnight in the community, but after that would revert to unsupervised. The Independent Children’s Lawyer’s proposal contained a number of other detailed provisions, which are set out in the schedule.
This is a particularly difficult decision to make. It is apparent to the Court that X is a 14 year old, strong minded, articulate and intelligent child. The Court accepts that she has expressed strong views that she does not want to live with her mother, but does seem prepared to spend time with her and communicate with her, but on X’s terms and no one else’s. There was general acceptance amongst all parties that the autonomy that X already possesses will only increase as she grows older. Adding to the complexity of this decision is the clear inability of X’s parents to communicate, cooperate, or trust each other. The totality of the evidence leads the Court to conclude that the parental relationship is a toxic one.
As will be seen from the reasons below, the Court has concerns about each parent’s capacity to foster and encourage X’s relationship with the other, each parent’s lack of insight into how their actions and inactions affect their daughter, as well as deep concerns about the mother’s capacity to parent X due to her propensity to be aggressive and to perpetrate what would seem to be alcohol-fuelled violence. The Court observed in closing submissions that it is likely that the shelf life of any order that the Court makes, from X’s perspective, is likely to be a short one. There also seemed to be a growing awareness between the parents that the real judgments about parental behaviour are more likely to be made by X in the fullness of time.
THE EVIDENCE
In support of his case, the father sought to rely on the following documents:
(a)His Initiating Application filed 16 February 2017;
(b)Child Inclusive Memorandum dated 29 May 2017;
(c)Affidavit of Mr K Magnin filed 23 January 2019;
(d)His Affidavit filed 19 March 2021;
(e)Affidavit of Ms L filed 19 March 2021;
(f)His Case Outline document filed 31 March 2021; and
(g)Various documents from his bundle of exhibits to his Trial Affidavit, marked as exhibits A1 to A3.
In support of her case, the mother sought to rely on the following documents:
(a)Her Response to Initiating Application filed 21 July 2017;
(b)Her Affidavit filed 16 March 2021; and
(c)Her proposed orders, tendered and marked as exhibit R1.
In support of her case, the Independent Children’s Lawyer sought to rely on the following documents:
(a)Report of Mr H dated 6 March 2018, marked as part of exhibit ICL3;
(b)Report of Mr H dated 14 May 2018, marked as part of exhibit ICL3;
(c)Family Report of Ms G dated 15 February 2019, marked as ICL2;
(d)Case Outline document filed 1 April 2021;
(e)Proposed Minute of Order, marked as exhibit ICL1; and
(f)Various documents tendered and marked as ICL4 to ICL10.
The mother, father and family consultant were required for cross-examination, but no other witnesses.
OUTLINE OF REASONS FOR JUDGMENT
After stating the applicable law, the Court will firstly consider the expert evidence, which in this case includes the Child Inclusive Conference Memorandum prepared by family consultant M, the Family Report dated 15 February 2019 prepared by family consultant G; the expert drug and alcohol reports prepared by Mr H dated 1 March and 14 May 2019, as well as the report of educational and developmental psychologist, Ms Q. The examination of this expert evidence will not take place in a vacuum. Where appropriate, the Court will consider the evidence of the parents, and indeed, other evidence before the Court, in the context of individual issues covered by the reports. Thus, the evidence before the Court becomes a prism for better understanding the expert reports, and the expert reports become a prism for better understanding the evidence of the parties.
The Court will need to make findings about some specific events and specific issues, such as whether or not the mother in fact has a difficulty with consumption of alcohol and aggression.
Thereafter, the evidence in its totality will be considered by reference to the primary and additional considerations set out in s 60CC of the Act.
THE APPLICABLE LAW
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)       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
(b)       protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)       ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)       ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)      The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)       children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)       children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)       parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)       parents should agree about the future parenting of their children; and
(e)       children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)      For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)       to maintain a connection with that culture; and
(b)       to have the support, opportunity and encouragement necessary:
(i)        to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)       to develop a positive appreciation of that culture.

At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)      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.
(2)      The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)       abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)       family violence.
(3)      When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)      The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)      Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)       consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)       consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)      Subject to subsection (6), if:
(a)       a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)       the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)       consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)       consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)       if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)       the time the child spends with the parent allows the parent to be involved in:
(i)        the child’s daily routine; and
(ii)       occasions and events that are of particular significance to the child; and
(c)       the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)      Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)      In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)       how far apart the parents live from each other; and
(b)       the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)       the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)       the impact that an arrangement of that kind would have on the child; and
(e)       such other matters as the court considers relevant.
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said
[9] Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
[13] Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
A comprehensive statement of the applicable law in unacceptable risk of abuse cases is contained in the Full Court’s decision in W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235 at [92]-[115]. Whilst this extract is lengthy, the law is complex, and the context of these cases is always one of high levels of emotion and concern for the parents and other persons involved. It is important for all who are affected by this case to know what the relevant law is:
92. The High Court’s unambiguous statement in M and M is that a trial Judge should not make a positive finding of sexual abuse unless the high standard of certainty referred to in Briginshaw (now s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”)) is discharged.
Unacceptable risk test
(a) What is meant by “unacceptable risk”?
93. In his submissions before us counsel for the father has referred us to recent decisions of this Court decided after M and M in dealing with cases involving child sexual abuse, and in particular, with the manner in which subsequent decisions have applied the principles enunciated therein.
94. Prior to our consideration of these decisions we find it appropriate, as a starting point, to re-state what may be regarded as obvious, that is, the significant detrimental harm to a child who is sexually abused. Although contained in a dissenting judgment, the discussion of Fogarty J about the effect of sexual abuse on a child remains as poignant and relevant as it was in 1996. In N and S and the Separate Representative (1996) FLC 92-655 at 82,709 his Honour said:
“(i) The reality of sexual abuse
The sexual abuse of a young child by a parent or care-giver or other person associated with that household is so alien to the concepts and actions of most people in the community that there is an understandable resistance to accepting that it may or does occur. Regrettably, the actuality is otherwise.
...
It is difficult to overstate the importance of protecting children from sexual abuse, and from the consequences which often follow from sexual abuse. Sexual abuse involves the most severe exploitation of children, the most serious invasion of their rights to personal integrity and freedom, and the most serious denial of their rights to personal growth and development. Its effects, both in the short and long-term, can be devastating.”
95. We also have regard to Fogarty J’s acknowledgment of false allegations. At 82,711 his Honour, referring to Thomas J’s judgment in S v S [1993] NZFLR 657, said:
“courts must be aware that not all allegations of sexual abuse are true. False allegations may be made either by parents acting in good faith, as a result of a misperception of information about their child, or by parents deliberately fabricating allegations in order to gain an advantage in proceedings. Ambiguous events often have an innocent explanation.”
96. The core principles in the determination of a case of alleged sexual abuse are those enunciated by the High Court in M and M:
“In proceedings under Pt VII of the Act in relation to a child, the Court is enjoined to ‘regard the welfare of the child as the paramount consideration’ (sec. 60D). The paramountcy of this consideration in proceedings for custody or access is preserved by sec. 64(1). The consequence is that the ultimate and paramount issue to be decided in proceedings for custody of, or access to, a child is whether the making of the order sought is in the interests of the welfare of the child. The fact that the proceedings involve an allegation that the child has been sexually abused by the parent who seeks custody or access does not alter the paramount and ultimate issue which the Court has to determine, though the Court’s findings on the disputed allegation of sexual abuse will naturally have an important, perhaps a decisive, impact on the resolution of that issue.
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 A.L.J.R. 499; 1 A.L.R. 318; McKee v. McKee (1951) A.C. 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 C.L.R. 447 at pp. 450, 458, 462, 463-464.
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.
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 C.L.R. 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.
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.
In resolving the wider issue the Court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her.
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’ (A. v. A. (1976) V.R. 298 at p. 300), ‘an element of risk’ or ‘an appreciable risk’ (M and M (1987) FLC ¶91-830 at pp. 76,240-76,242; (1987) 11 Fam. L.R. 765 at pp. 770 and 771 respectively), ‘a real possibility’ (B and B [Access] (1986) FLC 91-758 at p. 75,545), a ‘real risk’ (Leveque v. Leveque (1983) 54 B.C.L.R. 164 at p. 167), and an ‘unacceptable risk’ (In re G. (a minor) (1987) 1 W.L.R. 1461 at p. 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.”
97. An examination of cases in Australia following M and M and subsequent to the amendments to the Act by reason of the Family Law Reform Act 1995 (“the Reform Act”) demonstrate some of the practical difficulties in applying the principles enunciated in M and M.
98. In B and B the trial Judge was found by the Full Court to have correctly applied the Briginshaw test in reaching his finding that the father had acted in a sexually inappropriate way with the children the subject of the application, and then considering that the children should continue to have access (as contact was then defined) to the father, such access to be supervised for a defined period with provision for a further expert report. In their joint judgment Fogarty, Baker and Purvis JJ at 79,778 discussed the relevant principles to be applied in a sexual abuse case having regard to the High Court’s decision in M and M. Their Honours said:
“The test propounded by the High Court in M and M and which is authoritative in this jurisdiction, is:-
‘that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ (at page 77,081)
The ‘unacceptable risk’ test is therefore the standard used by the Family Court to ‘achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access’. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
...
It should be noted that the M and M ‘unacceptable risk’ test is employed within the context of ‘resolving the wider issue’, namely the determination of what is in the best interests of the child, to which principle the unacceptable risk test was said by the High Court to be ‘subservient and ancillary’. The overriding consideration in all custody and access decisions is the welfare of the child: see s64(1)(a) of the Family Law Act and Brown and Pedersen (1992) FLC ¶92-271.”
99. Their Honours further commented on the fact that a finding of unacceptable risk in respect of unsupervised contact did not “preclude a finding that there is no unacceptable risk to the child if supervised contact is ordered”.
100. One of the issues in B and B was whether an order for supervised contact by a family member or friend was appropriate. The Full Court’s findings on supervised contact have been subject of criticism in subsequent cases (see Re C and J at 83,341 and 83,342 per Fogarty and May JJ). The discussion in the latter case on types of supervision and treatment are particularly apposite in this case.
101. It is however important to note at the time of both decisions the availability in Australia of professionally supervised contact in accredited children contact centres was not widespread, the Commonwealth Government funding the first pilot of 10 children’s contact centres commencing in 1995-1996 through its Family Relationship Service Program.
102. In K v B the father asserted that the trial Judge had not applied the appropriate test in determining whether an unacceptable risk of sexual abuse existed. The trial Judge found, on the balance of probabilities, he could not be satisfied that the father had sexually abused the child, and went on to find however that he could not be satisfied he did not do so. The trial Judge then determined, after looking at the evidence as a whole, there was an unacceptable risk of sexual abuse if he ordered unsupervised contact. In his dissenting judgment Kay J emphasised the right of a child to maintain personal relationships with both parents on a regular basis and said at 80,967:
“With the greatest respect to their Honours in B and B I have difficulty in seeing how that conclusion can be drawn from the words in M and M. All I read M and M as saying in the passage referred to is that the presence or absence of a risk of sexual abuse is not necessarily determinative of whether access is granted. Other issues such as the effects on the child of having to confront the abuser need to be taken into account.”
103. In N and S allegations of sexual abuse of a 4 year old child were made with the child naming the father as the perpetrator. The father denied the allegation. The trial Judge had before him expert evidence from a child psychiatrist. The trial Judge said that the expert had stated that it was most likely that the child had not been abused by either the father or the mother’s new partner, that the child used accusations to get attention from the mother, and the child was not truthful. There was evidence before the trial Judge of a social worker from a child sexual assault service who believed the child had been sexually assaulted by the father. The trial Judge’s findings on sexual abuse were recorded by the majority (Kay and Hilton JJ) at 82,732 as follows:
“Coleman J, as well as Dr Fairley, concluded that he could not entirely discount the possibility that the child may have been sexually interfered with and may have been sexually interfered with by the father. Coleman J concluded on the balance of probabilities that this did not happen. He was not however prepared to conclude that it certainly could not have happened.”
104. Their Honours noted, as in this case, that the appeal was from a discretionary judgment, and the relevant principles to be applied in such a case. They then (at 82,740) referred to the passage in M and M (set out by us in paragraph 96) and said:
“Whilst the High Court did not further expand on what circumstances might create such an unacceptable risk, Coleman J, weighing up all the material before him, concluded that there would be no such risk to the child during the proposed six month access trial.”
105. In his judgment, which was in dissent as to the outcome of the appeal, Fogarty J discussed the question of what is meant by the term “unacceptable risk” and reviewed earlier authorities concluding “it is inevitable that Courts will have to make some effort to quantify the relevant risk”. He then said at 82,714:
“In asking whether the facts of the case do establish an unacceptable risk the Court will often be required to ask such questions as: What is the nature of the events alleged to have taken place? Who has made the allegations? To whom have the allegations been made? What level of detail do they involve? Over what period of time have the allegations been made? Over what period of time are the events alleged to have occurred? What are the effects exhibited by the child? What is the basis of the allegations? Are the allegations reasonably based? Are the allegations genuinely believed by the person making them? What expert evidence has been provided? Are there satisfactory explanations of the allegations apart from sexual abuse? What are the likely future effects on the child?
This is not a catalogue of the correct questions, but a reminder that it is questions such as these which are required to be considered in deciding whether an unacceptable risk may be shown. The weight to be attached to the various answers to the relevant questions will inevitably vary from case to case. But it is essential that questions like these be asked.”
106. His Honour went on to discuss the standard of proof necessary for a finding of unacceptable risk. His Honour did not advocate a two step approach, that is, a consideration of whether or not sexual abuse was proved on the balance of probabilities, and a second step of assessing unacceptable risk to the same standard. He expressed the requirement at 82,715 as follows:
“There is no requirement to ask whether the evidence satisfies a balance of probabilities finding in favour of abuse, though that may nevertheless be useful in some cases. There is, however, a requirement to ask whether the evidence establishes an unacceptable risk.”
107. The Full Court in WK v SR (Baker, Kay and Morgan JJ) at paragraph 48 reaffirmed the consequences to a child in a residence or contact dispute of a finding of sexual abuse proved to the standard required by s 140 of the Evidence Act and held:
“...In these circumstances, evidence which, for example, is relevant and probative in relation to the question of unacceptable risk of abuse occurring, may not be relevant or probative when deciding whether or not a specific incidence of abuse has in fact occurred.”
108. In V and V [2004] FamCA 1081 Finn, Kay and Holden JJ considered specifically s 60B of the Act and whether the benefits of contact for the children outweighed the risks of such contact. In this case the trial Judge found that the children had been sexually abused, but was unable to determine the identity of the perpetrator. The trial Judge refused to make orders for either supervised or unsupervised contact on the basis that such contact would pose an unacceptable risk to the children. Having carefully reviewed the evidence in the case, their Honours set out the submission made by counsel for the Child Representative at paragraph 56 as follows:
“Accordingly it was put by Mr [M] that any finding that the father had in fact been involved inappropriately with these children, or might have been inappropriately involved with the children to the point where he would create a serious danger to the children could only be sustained if the Court had been properly aware of the gravity of upholding such an assertion in accordance with Briginshaw principles. An order for no contact is a grave order which should only be made upon very strong proper supporting evidence.”
109. The Full Court held that the trial Judge was in error in finding there was a real risk of sexual abuse if there was unsupervised contact, having made no positive finding that it was more likely than not that the father was the perpetrator.
110. In TF and JF and Children’s Representative [2005] FamCA 394 May J highlighted that the “concept of unacceptable risk is one that is far from settled in its application to many family situations”. May J, having found that the evidence in the case, “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised...” then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then said:
“Whilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored.”
111. In summary, the law is well settled as to the standard of proof required to make a positive finding of sexual abuse, and that such a finding should not be made unless a trial Judge is satisfied to the highest standard, on the balance of probabilities abuse has occurred. We accept, as a matter of practice, a trial Judge will almost inevitably be required in a case where sexual abuse allegations are raised to consider whether abuse has been proven on the balance of probabilities as well as considering whether or not an unacceptable risk of abuse exists. The High Court in M and M recognised the difficulty in defining with any degree of precision what constitutes an “unacceptable risk” and the cases determined after that decision testify to the difficulty. However, the questions posed by Fogarty J in N and S, and referred to by us in paragraph 105, do provide a structure or framework which may assist a trial Judge to assess future risks to a child.
(b) The contact issue
112. In Re W (Sex abuse: standard of proof) at 93,192 and in TF and JF at paragraph 53 the Court emphasised the importance of maintaining a worthwhile relationship between a parent and child, and that termination of such relationship “ought, in most cases, be the course of last resort”. We acknowledge that s 60B emphasises the objects of Part VII of the Act and that generally children have a right to know and be cared for by both their parents. This provision was the subject of discussion by the Full Court in B and B: Family Law Reform Act 1995 (1997) FLC 92-755 at 84,213-84,217. The objects provision is, of course, subject to the exception that the provisions do not apply when it is or would be contrary to a child’s best interests.
113. The practical difficulties in assessing an unacceptable risk are highlighted by May J at in paragraph 74 of TF and JF. Further, at paragraph 94, the tension between the protection offered by supervised contact (and the maintenance of a child’s relationship with his or her parent) and that child’s emotional well-being is considered. We have not in our discussion of unacceptable risk canvassed in any detail the question of the impact of contact on the resident parent as it is not relevant in the actual circumstances of this case, nor is E’s emotional well-being in issue.
114. Further we note it is not always possible to provide for appropriate supervision particularly if a children’s contact centre is not a practical option. Centres too have their limitations. The guidelines established between courts administering the Act and children’s contact centres accredited by the Commonwealth Department of Family and Community Services recognise that “long term supervision may not be in a child’s best interests” and place emphasis on the need to move to “self management” by parents and others availing themselves of the present restricted services.
115. We appreciate that the decisions in these difficult cases have the potential for long term consequences for a child, and that they require very careful consideration. We do not think it is appropriate or practical to set guidelines as to when supervised contact could or should be ordered, or whether such contact should be in a professionally run contact centre or supervision by private arrangement. The latter, which was deemed appropriate in the circumstances of this case, affords a potentially longer term solution which is likely to afford the opportunity for enjoying more realistic and relaxed parenting time between a parent and child.

In WK v SR (1997) FLC 92-787, the Full Court emphasised the standard of proof that applies in these cases at [47]:
In children’s matters under Part VII of the Family Law Act, where the issue is a child’s contact or residence with a significant person in his or her life, the grave consequences of a finding of sexual abuse cannot be overstated. Accordingly, before trial Judges find themselves impelled to make a positive finding of sexual abuse, as opposed to a finding of unacceptable risk, the standard of proof they are required to apply must be towards the strictest end of the civil spectrum as set out in Briginshaw and s140 of the Evidence Act 1995 (Cth). Inexact proofs, indefinite testimony, or indirect inferences are insufficient to ground a finding of abuse.
In Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192, in referring to WK v SR the Full Court observed at [18]-[19]:
18. In setting out those authorities it does not appear that his Honour paid any attention to the views of the Full Court in WK v SR where the Court emphasised the very high standard by which a Court needs to be satisfied on the balance of probabilities that something has actually occurred. Unless such a rigorous approach is taken, where the often-inevitable result of a positive finding is a cessation of the relationship between parent and child, there is a major risk of inflicting upon the parent and child the disastrous effects of a positive finding that is reached in error.
19. The termination of a worthwhile relationship between the parent and child ought in most cases be the course of last resort. The Court should not shy away from reaching such a result in an appropriate case but at all times judges should be conscious that the adversarial or inquisitorial systems often reach results that are artificial. The truth does not always come out. A false negative finding accompanied by appropriate safeguards as to the future relationship between parent and child, such as adequate supervision to guard against possible abuse, may be far less disastrous for the child than an erroneous positive finding that leads to a cessation of the parent-child relationship. The Court needs to be remain conscious of this imperfection at all times.
In that same decision, the Full Court made some important comments about expert evidence in the context of these cases, at [38]-[39]:
38. In Re W Abuse Allegations; Expert Evidence (2001) FLC 93-085 Nicholson CJ and O'Ryan J (with whom Kay J agreed on this point) warned of giving weight to expert evidence of a psychiatrist who had not seen the parties nor the children but had reviewed the material. Their Honours said at para 147 "...there are grave dangers in reliance upon expert evidence given in such circumstances."
39. Whilst much of their Honours' rejection of the evidence of the psychiatrist in Re W appears to turn on the fact he was retained by one side and must have brought unconscious bias to his task, in our view the criticism of relying upon an opinion about the ultimate issue from a witness who has not seen the parties nor the children remains just as valid when the witness is called by the court. If an expert witness still purports to give an opinion as to the ultimate issue then such opinion would be expected to be heavily qualified by the expert having regard to the fact that the expert had not seen the parties nor the children.
THE EXPERT EVIDENCE
The Child Inclusive Conference Memorandum
The Memorandum produced by family consultant M, as a result of convening a Child Inclusive Conference on 25 May 2017, became exhibit A4. For present purposes, the focus is on what X is recorded as having told the family consultant, bearing in mind that X was aged 10 years at the time. The relevant section commences on page 3, and concludes on page 4 of the Memorandum, and is produced in full:
X (aged 10 years) presented as a chatty, articulate and insightful child. She said that she finds school “so hard”, but that she has a “very good” teacher because her teacher is “nice and doesn’t scream, makes us happy and does sport…. We can talk to her about problems at home and we can ask to talk with her about this outside of class”. X indicated to that she had spoken to her class teacher about “stuff at home”, but appeared reluctant to say further what she said. X said that she has friends at school and wants to be a teacher when she grows up. She said that she enjoys singing, music and drama.
When asked what she likes about Mr Pidoux, she said “a lot of stuff, he is always there to support me and he does my excursions, he doesn’t want me to miss out if my Mum doesn’t pay”. X described Ms L as “very nice” and commented “she is a big part of my family, so supportive and there when I need her.” X appeared very animated when talking about Ms L. She said that on weekends, she enjoys “going out for dinner, doing fun things and exploring” with Mr and Mrs Pidoux.
X said that Ms Pidoux is “very nice” and that she gets “spoilt and calls me princess”. She said she enjoys going out to sky zone and that Ms Pidoux takes her and her friends out, I think she takes good care of me”.
When asked about living with her maternal grandparents, X explained that she does not like it there because her maternal grandmother “always screams, is kind of rude and never lets me do anything”. X said that her maternal grandmother only speaks in Country P language, but that that she can generally communicate with her. X said that her grandmother does all the cooking and cleaning in the house. X said that she shares a bedroom with her mother and Mr C downstairs.
X said that her grandfather is “good” and that she has “the best brothers in the world”, and said that she loves them equally (though favours Mr N). She said that her brothers “support me, help me, care for me, and make sure I get what I need” and that she enjoys watching movies with them.
X explained that she now lives with her maternal grandparents because “Mum said that Dad kicked us out. Mum would say that my Dad would not accept that me and Mum shared a bed, but when I was scared, it was nice to share the bed with Mum, as then I wasn’t scared”.
When X was asked, if there was anything either of her parents could be doing differently in looking after her, she said “it’s hard to say, they are absolutely different people”. X then said “Mum has to be calm more and relaxed, she is always stressed and screams a lot, she screams a lot in the night”.
When asked why Ms Pidoux is screaming, X said her mother often scream when she is intoxicated. X raised that Ms Pidoux’s drinking is problematic and feels that her mother needs support for this. X commented that if her mother received some assistance about her drinking “then I won’t have to worry anymore”. X said “now I’m telling Mum to stop doing it, she is not doing it every night and she has stopped…. she would always drink every night and would get crazy. My brothers would be protective of me and they want me to be good at my education…..now because I have told her to stop drinking every night, she understands now and she is ok now and she is better. I think she is absolutely fine”. When X was asked how she knew her mother to be better? She said “I told her to stop it”. X said “it’s ok to drink every now and then but not fully every night”. When X was asked when was the last time she that her mother consumed alcohol, she said “one month ago”.
X spoke of an occasion when Ms Pidoux was intoxicated and said that “Mum was trying to drag me down the stairs, and Mr N then threw a bottle water on Mum”. When she was asked how she felt about this, X said “I was worried, I was scared, but OK as my brother was there, I think that was the last night she drunk”.
When X was asked about Mr Pidoux and Ms L’s alcohol use. She said “not really, they don’t drink like Mum”.
X commented that there had been occasions when she has not spent time with her father and commented “Mum keeps me away so I don’t see him”. X said that she did not ask her mother why she is not allowed to go “because I don’t want to argue with her”. X said that Ms Pidoux tells her that Mr Pidoux is “a silly man, not well and sick in the head….all that stuff”. X then said to the Family Consultant that Ms Pidoux “will say a way different story”.
X said that there have been an occasion when her father attended the maternal grandparents’ home to collect her, and that her father was calling out for her, but that she not allowed to go to him. X said that her father called the police who attended the house, and that she was sacred when the police arrived.
X indicated that she does not want a change to her current arrangement and said “I don’t want things to change besides my Mum stop (drinking).”
X also told the Family Consultant that, yesterday, she was collected from school early by Mr Pidoux and said that “I had no idea what was going on, I was scared and cried when he told me I had to go into the city” (for the child dispute conference attendance).
X unprompted then said “I used to be so close to my Mum, I’m not very ready for a change of house”. When X was asked why she thought there may be a possibility of this, she said “I love my Mum and staying with my Mum, I love staying with my Dad too”. X then said “don’t get to see Mum much”. X was asked if she is worried about less time with her mother? X said yes and appeared to tear up and seemed upset at the thought of less time with Ms Pidoux than she currently experiences. X explained that her mother works shift work and various hours and said that sometimes she does not see Ms Pidoux when she works evening shifts. When X was asked her views, should there be possible changes to her arrangements in the future, she indicated that Ms Pidoux “might change later on” and appeared to suggest her mother’s behaviour in the future may be more “relaxing” and with “less screaming”
(As per the original)
It is important to recognise that at this time, X was living with her mother at the home of the maternal grandparents. She was in Year 5 and reportedly enjoying school. She was, however, experiencing significant difficulty with reading and maths, and had been assessed as having Attention Deficit Disorder by an educational psychologist. X makes clear disclosures about her mother screaming, often when she is intoxicated. She refers to her mother drinking every night, and going “crazy”. She refers to an incident when her mother was trying to drag her down the stairs. X refers to the mother talking about her father in negative terms.
The significance of this evidence is that it undermines the mother’s assertions that what X has said about her is as a result of her father “grilling” it into her head. X was speaking with the family consultant alone. She was living with her mother at the time. The hypothesis by the mother that, somehow, the father had coached X to make these allegations is an implausible one. In any event, X’s view was that she preferred to continue to live with her mother, provided her mother stopped drinking.
The Reports of Mr H
The first report of Mr H is dated 1 March 2018. This report is based on Mr H’s interactions with the mother, alone. The mother makes a number of important and relevant admissions. For example, she is reported as saying:
Asked about any anomalies of behaviour while she was affected by alcohol, Ms Magnin responded: “I can turn into a monster if I’m really tired, for example, coming home late from work after being all day on my feet” and, even if not intoxicated, she can become very irritable and angry. On those occasions, if she drinks alcohol “it hits me straight away”.
…
She acknowledged that she had been charged once in 2001 or 2002 with driving under the influence of alcohol. She said that at a birthday function, she was given cocktails. She had a Slurpee which contained alcohol. She was made subject to a Good Behaviour Bond.
Mr H administered a range of alcohol-related testing. Blood alcohol was measured using breath analysis and was all found to be normal. Liver function testing and carbohydrate deficient transferrin (CDT) testing were also in the normal range.
As recently as the December before the report interviews, the mother is reported as stating:
On 17.12.17, Ms Magnin described her sleep as “not good lately. Normally, I would love to go to bed.” But lately she is “overtired” and “I will push myself to stay up. I turn into an animal”. This statement was understood to mean that she becomes very aggressive when she is overtired… She says working in a kitchen, “I am so exhausted I attack everybody”.
Mr H formed the view that the mother tended to minimise her history of alcohol consumption, but was somewhat more candid about her issues with anger. By the time of the report interview, X had been ordered to live with her father, and Mr H noted that the mother provided very little information about the reasons for the removal of X from her care and tended to explain her current difficulties in terms of the controlling behaviour and calculating conspiring of the father. It seems that Mr H had some general awareness about the circumstances of X’s removal, and that the decision had something to do with the mother failing to comply with directions about testing and attendance at a drug and alcohol service. He formed the impression that the mother had limited insight into her role in the change in X’s care arrangements. He seemed surprised, noting that the mother was “an intelligent, articulate woman, and appears to possess the capacity for such insight”.
In his conclusions, Mr H responded to certain specific questions put to him. In response to the question of whether the mother was affected by a functionally significant alcohol abuse problem, he indicated that the test data addressing this question are incomplete. However, he indicated that based on the material and the interviews undertaken, it did appear that the mother was engaged in regular problem drinking prior to separation from the father, and that she was engaging in frequent (possibly daily) drinking, up until about one month before X was interviewed by the family consultant at the end of 2017. He was aware of X’s account that the mother’s nocturnal drinking was often accompanied by anger.
In response to the question of what is the nature, intensity and impact of the problem, and in particular, the impact on the mother’s parenting capacity, Mr H explained that it does appear that the mother’s drinking impacted on her parenting significantly in disinhibiting her anger, which was identified by the mother herself as likely to be triggered when she is tired. He noted that the mother herself made brief reference to an incident involving X, in which she “dragged” X. Mr H explained that he had not personally observed the mother’s behaviour (i.e. aggression or disinhibited anger) but that if the father’s claims are true, then the mother’s anger appears to corrosively intrude into the co-parenting relationship, and into her enlistment of X into the dispute. If this were the case, it would be very troubling, and a serious challenge to X’s wellbeing.
In response to the question about the mother’s willingness to address any alcohol abuse problem if it exists, Mr H explained that the mother does not appear to acknowledge that she has had serious problems with drinking. She was more candid about her anger, but did not identify it as a focus for personal change. She did recognise, however, that her mood and wellbeing improved when she works fewer and more sociable hours, and she is insightful about the impact of stress on her psychological wellbeing.
Mr H recommended that the mother attend an anger management program for women and re-engage with her psychiatrist.
It is important to recognise that Mr H clearly had other documentary information before him at the time of his assessment. He had the Child Inclusive Conference Memorandum, records from New South Wales Police, R Hospital and the mother’s treating medical records.
Mr H’s supplementary report is dated 14 May 2018. In this report, he refers to the results of testing conducted on a 3.9 centimetre long sample of hair provided by the mother on 20 March 2018. The sample was negative for illicit drugs but positive for Ethyl Glucuronide (EtG), which Mr H explains is a useful indicator of non-dependent consumption of alcohol, such as binge drinking. The results of this test were found to be consistent with “low to moderate drinking”.
Mr H also refers to further New South Wales police records that had been provided to him relating to the periods 5 October 2016, 6 April 2011, 29 January 2011, 7 October 2010 and 26 June 2010. Mr H’s summary of these reports is found on the second page of his supplementary report. It is a useful summary which the Court is satisfied is also an accurate summary of the police records identified. -
•         An incident on 5.10.16 in which Ms Magnin was identified as the Victim and the Person Named was one of her sons. It is stated that “police formed the suspicion that the VIC was intoxicated to the point where she could not make a police report”.
•         An incident that appears to have occurred on 15.10.16 in which Ms Magnin contacted police to report that “the POI has been selling drugs from the VICs house”.   It is stated that “police immediately observed the VIC to be well affected by intoxicating liquor due to her breath, her slurred speech, red bloodshot eyes and verbal looping”.
•         An incident that occurred on 6.4.11 in which there was a verbal argument between Ms Magnin and one of her sons about her demanding the departure of the other son.
•         An incident that occurred on 20.6.10 in which the victim and the witness were Ms Magnin’s sons. There was reportedly an irruption of rage from Ms Magnin because one of her sons spent too long in the bathroom and she is reported to have “began to kick and smash on the bathroom door”. An argument reportedly followed and Ms Magnin is alleged to have thrown her son’s computer and keyboard down stairs, smashing the keyboard. The victim said that “he does not want to be around the POI when she is like this…was sick of her violence and her anger”. The victim is also quoted as saying I didn’t see her drinking, but she is acting like she is drunk. Ms Magnin was observed to be “well affected by alcohol when speaking with Police” and they were able to “smell intoxicating liquor” on her breath and noted that she was “unsteady on her feet…swaying back and forth”, speaking with “slurred” speech, “rambling and not making sense”. Ms Magnin reportedly denied consuming any alcohol. X was reportedly observed to be asleep until Ms Magnin “began to scream and cry loudly”. Police noted rapid “extreme mood swings” in Ms Magnin. She subsequently is reported to have become “argumentative”. Eventually Ms Magnin is reported to have acknowledged having consumed 3 glasses of wine and “a bottle of vodka”. Police removed X from the home and placed her with her uncle for the night. The sons are reported to have claimed that Ms Magnin was affected by “alcohol and drugs”.
A number of observations can be made about the evidence of Mr H. Firstly, he was not required for cross-examination by any party. Nextly, what the mother told him about her aggression (particularly when overtired) is consistent with the mother’s own evidence in cross-examination. Thirdly, Mr H’s impression of the mother’s tendency to minimise her history of alcohol is entirely consistent with the impression formed by the Court during the cross-examination of the mother, but also informed by the independent corroborative evidence suggesting aggression and violence in the context of intoxication. Finally, Mr H’s impression that the mother did not appear to acknowledge that she had a serious problem with drinking is also entirely consistent with the Court’s impression of the mother after she gave her evidence.
The Family Report

Ms G’s Family Report dated 15 February 2019 is based on interviews and observations that took place at the Sydney Family Law Registry on 22 January 2019. The family consultant also had available to her what appears to be the relevant documents in existence pertaining to that case at that time, as well as the subpoenaed material. X was 11 years and eight months old at the time and had been living with her father and in fact not spending any time with her mother since mid-January 2019. The father’s proposal at the time was consistent with the proposed orders at the final hearing. He indicated, however, that if the mother attended a year-long residential drug and alcohol treatment facility, and demonstrated that she was not using illicit substances or misusing alcohol, then he would consider X spending time with her mother.
The mother’s proposal was consistent with that sought at the final hearing, namely that X live with her, that she have sole parental responsibility, and spend time with her father.
The family consultant noted that both parents made serious allegations against the other about family violence and abuse, and about their capacity to care for X. The father raised concerns about the mother’s consumption of alcohol and abuse of illicit drugs and prescription medications. The mother denied any such problem. Both parents allege that the other suffered from undiagnosed mental health problems.
In interviewing the parents the father was observed to be serious, directive and matter of fact. The mother was observed to be animated, and seemed to deflect serious discussion by using humour. The family consultant observed that the mother seemed unable to remain focussed on specific questions, was adamant about her beliefs, and emotional at times. The Court observes at this point that in cross-examination the mother was likewise unable to remain focussed on specific questions and was adamant about her beliefs.
The Family Report records that both parents seem to have experienced difficult childhoods impacted by excessive discipline.
The mother presented as being unable to understand how there could be any concern about her drug and alcohol given that she had passed all of the drug and alcohol tests.
An issue for the Court in this case is what appears to the mother’s unwillingness to accept the expert evidence about X’s learning difficulties. This is reflected in paragraphs 85-86 of the family report:
85. X used to attend S School, however, in early 2019, she will be attending T School to repeat Year 6 before commencing Year 7 in 2020 at F School. Mr Pidoux was adamant that X would benefit from repeating Year 6 at a different school before moving onto another school because X has been completing schoolwork at the level of Year 4 when she was in Year 6.
86. It is Ms Magnin’s belief that X does not need to repeat Year 6 as X has "always been a middle of the class student" and was able to "get tasks done on time ... I don't know why she is repeating". Ms Magnin said that she did not get any say in whether or not X would repeat Year 6. She described feeling like an "ISIS killer" and thinks that perhaps Mr Pidoux "is paying the Judge through his solicitor", because her perspective about whether or not X repeated Year 6 was not considered. Ms Magnin stated that S School also believed that X did not need to repeat Year 6. She said that X has many friends at S School but that since living with her father X has been fighting with them and has experienced bullying. Ms Magnin said that Mr Pidoux is a "trouble maker" and tells X that her friends "aren't good and that she can't be friends with them". Ms Magnin said that X is "really upset about repeating Year 6 and having to make new friends".
As will be noted in due course, the mother’s firm view expressed in cross-examination was that she did not agree with the report of Ms Q, the education psychologist, whose report will be discussed shortly.
For present purposes, perhaps the most important paragraphs relate to the record of X’s interview with the family consultant. In this regard, paragraphs 100-107 are relevant:
100. X reported that she has not spent time with her mother for approximately one to two weeks because there was an incident in January 2019, which she said made her feel "so scared". X said that she was spending time with her maternal uncle and brother because she did not have a bed at her mother's place because Ms Magnin got rid of her bed to prepare the house for Airbnb clients. X said that the next day when she was meant to go down the coast (V Town) with Ms Magnin, Ms Magnin needed to run errands before leaving. X said that her mother was gone for approximately six hours and during this time, she became hungry, so the maternal uncle ordered her food. X said that Ms Magnin arrived home and wanted X to leave the maternal uncle's home so they could go to the coast. X said she thought her mother was under the influence of alcohol and was afraid to go. She said that her mother became angry and aggressive and kicked the front door of the maternal uncle's home whilst she yelled and cried saying, "cunts, give my daughter back". X said that she was frightened and that her oldest brother was hugging her. X said that she called her father who came to her maternal uncle's home and called the police.
101. X indicated that Ms Magnin is "such a different person during the day, at night she changes so badly that you do not even know who she is". For example, X said that she and Ms Magnin were hugging on the couch together watching a movie. X said that her leg got sore and she moved her position and "Mum started kicking the cushions and talking to herself'.
102. X indicated that when she thinks Ms Magnin is under the influence of alcohol, Ms Magnin’s voice becomes "low", she "talks to herself' and her "eyes squint". She said Ms Magnin is not caring when she is "drunk" and has screamed at her, hit her and chased her to her room. X expressed that Ms Magnin is "blaming others because she is ashamed of what she has done".
103. X indicated that she likes to spend time with her mother during the day but not at night because Ms Magnin consumes alcohol at night. X said, "I am afraid to see her again because of what she might blame me for". X believes that when Ms Magnin consumes alcohol, she later forgets what she has done the night before and acts as if nothing had happened.
104. X said that she wants to live with her father and spend time during the daytime only with her mother.
105. X said that she would like to spend from 3pm Friday to 6pm Sunday in week one and from 3pm Friday to 5pm Saturday in week two in her mother's care, but that she spend the overnight time, from 5pm to the next morning, at her maternal uncle's home. In addition, X said that she would like to have phone calls with her parents whenever she wants to. X expressed that during school holidays she does not wish to attend vacation care, but that she would rather spend time with her mother and maternal uncle.
106. X said, "I love my mother" and that she would like to see her mother every day during the school holidays but sleep at the maternal uncle's home. She said that she feels safe at her uncle's home and that they do "fun things", such as watch movies and make pizza. X said this arrangement "might be confusing for my uncle".
107. X said that she is not feeling pressured by Mr Pidoux to be against her mother, but she feels pressured by Ms Magnin. X said that Ms Magnin would ask how her time was with her father and when she indicates that she has had a good time, Ms Magnin reportedly says, "no you didn't, you are lying". X said that she feels safe with what her uncle says because she is worried that if her father makes the decision about parenting arrangements, she will have a negative "attitude" towards her father.
These paragraphs are also important because they present X’s perspective about an incident that occurred in January 2019, which will be need to be discussed in more detail below. What is clear from these paragraphs, however, is that X has observed her mother’s anger and aggression, particularly when under the influence of alcohol. She expresses her views clearly. It is clear that X loves her mother, but feels pressured by her and is clearly concerned about her mother’s behaviour.
At paragraphs 108-110 X described to the family consultant her relationships with her father, his wife Ms L and with the mother:
108. X described Mr Pidoux as "very supportive", and said that he is fun and plays with her. She said that Mr Pidoux helps her with her schoolwork and that she believes she has gotten "good" marks since living with her father. X said that her father could be strict in a "rude way" but that it is "good". She gave the example of her father allowing her to play for two hours on the computer but if she goes "five minutes over" because she forgot what time it was "he will say X get off the computer" when she is in the middle of a game. X said, "sometimes I have an attitude with him [Mr Pidoux]" which "upsets him". For example, if Mr Pidoux takes her phone away from her, she screams and slams her bedroom door.
109. X described Ms Magnin as "funny and loving when she wants to be". X believes that when Ms Magnin is "drunk, she is aggressive and blames me for everything". X indicated that Ms Magnin has told her that she (X) "plays with people's emotions" and is "rude". X said that Ms Magnin has sent her a text message calling her a "horrible person".
110. X described Ms L as "fun. Caring, and loving. She said that Ms L is "there for me when I need her".
X’s comments about her mother are disconcerting. X is clearly aware of, and seems to have assimilated what her mother has told her about herself. These matters were put to the mother in cross-examination but the Court found her denials unconvincing. Moreover, in cross-examination it emerged that whether or not her mother had actually spoken to her in the terms described at paragraph 109, her mother clearly had these views about her daughter.
Perhaps the most important part in the Family Report is the observations of interactions that are recorded from paragraph 113-122 of the report. X was observed with her father, and stepmother, and these observations were satisfactory. In relation to X’s proposed observation with her mother, the relevant extract commences from paragraph 113 and concludes at 122:
113. X arrived at the Court for interviews with Mr Pidoux, Ms L, her oldest brother, her uncle, and another extended family member.
114. The Family Consultant observed Mr Pidoux with X. During this observation, X and Mr Pidoux laughed together and X directed Mr Pidoux in play. There were moments of comfortable silence between X and Mr Pidoux. They frequently made eye contact with each other. At one point, X seemed to be frustrated that she was not able to guess what her father had drawn and wanted to blame him for her lack of understanding. During a game of Uno, X explained the rules of the game to her father and for him to follow X's lead throughout the game.
115. The Family Consultant then observed Mr Pidoux and Ms L with X. During the observation, X and Ms L giggled as they teased Mr Pidoux by making a snoring sound when they were waiting for him to take his turn in the game.
116. Mr Pidoux and Ms L praised X and also implemented boundaries, for example, saying "good try", "this will be hard, but you'll be up for the challenge", or advising X that she cannot pick up the bundle of cards and choose which card she wants.
117. X was initially quiet during the observation and had her head in a tilted position whilst looking at the ground. It is possible that X was tired, frustrated at waiting for her father to learn the rules of the game Uno and/or upset that she did not win the game as, toward the middle of the observation, X was more lively and jovial.
118. As the Family Consultant ended the observation and told X that now it was time to be observed with her mother, X began to cry and Ms L responded by hugging X to try and comfort her. X stated that she does not want to be observed with Ms Magnin because last time she participated in an intervention with the Court, Ms Magnin later read out the contents of the document to X. This caused X to feel awkward in her mother's presence. The Family Consultant asked if X would feel more comfortable to participate in the observation with her brother. X said yes, if Mr C felt comfortable with that.
119. Once back in the separate waiting area with Mr Pidoux, Ms L, her oldest brother, her uncle, and another extended family member X seemed to have her family members all telling her what they thought she should do about having an observation with her mother. For example, Mr C said that he does not believe that X should be observed with Ms Magnin. Another example is that the maternal uncle offered to participate in the observation. During this time, X was observed to hug both her brother and maternal uncle for possible reassurance and comfort. X agreed to participate in the observation with her mother if Ms L participated.
120. When the Family Consultant approached Ms Magnin about X refusing to participate in the observation unless Ms L was present, Ms Magnin refused to participate in the observation saying "she [X] plays with everyone ... she knows she is wrong with what she did [when the father called the police]".
121. Ms Magnin was then advised that the observation would not be going ahead. Ms Magnin became angry and said "she's playing games ... Mr K Magnin is manipulative and making things bigger than Ben Hur". Ms Magnin said in a firm voice to the Family Consultant, "why can't you make her. .. you are an adult ... you can make her do the observation", "she is a child and can be told what to do". The Family Consultant advised that X is very upset and scared about her (Ms Magnin’s) reaction and does not feel comfortable with doing the observation. Ms Magnin said "X is manipulative" and was not able to show insight as to why X might be scared or worried to participate in the observation despite that last time they saw each other the police were involved.
122. Overall, X seemed to have positive interactions with Mr Pidoux, Ms L, her oldest brother, her uncle, and another extended family member which suggests that she felt comfortable with them.
A number of observations arise:
·At paragraph 118 where X is recorded as stating that she didn’t want to be observed with her mother because on the last time there was an intervention with the Court her mother later read out the contents of the document to X. The document in question is, presumably, the Child Inclusive Conference Memorandum, the contents of which have been set out above. The Court observes that this is not the only assertion made by X about her mother reading out documents to her or seeking to involve her in the litigation. As will be seen from the evidence about X’s letter to her mother, as well as the text messages between them, there is a strong suggestion that this has taken place.
·The Court is concerned about paragraph 119. This must have been a very stressful situation for X. The mother was expressly critical of the family report writer because there was no observation of X with herself, but she was inferentially critical of the report in terms of how the family consultant managed the process that ultimately led to her decision not to allow the observation to proceed. In cross-examination Ms G explained that she was most concerned about X’s emotional state which seemed to escalate the more she encouraged her to be in involved in an observation with her mother. The family consultant agreed that it was possible that the influence of the other family members described at paragraph 119 was a factor in X’s reluctance. Ms G accepted that there could have been transference from her father and stepmother which might have escalated the situation from X’s perspective. Indeed, the Court observes, the transference may well have involved the other family members present. Ms G explained that she was trying to make the best of a difficult situation with an emotional and reluctant child, whilst appreciating the importance of the observation taking place if possible. Ms G sought to negotiate the conditions under which X might be more comfortable to see her mother, even though recognising that the presence of another person was less than ideal in terms of the observation. Ultimately X agreed to participate if her stepmother Ms L was present.
·At paragraph 120 the family consultant reports that the mother declined to participate in an observation if Ms L was present, and made the comments referred to in this paragraph again, inferentially, accusing her daughter of being manipulative.
·The mother’s reaction on being advised that the observation would not go ahead is reported at paragraph 121. The mother’s views about both X and her father are self-evident from this paragraph. The accusation that the family consultant could have done more is understandable from the mother’s perspective but is extremely unfair. After all, the family consultant was not the mother’s agent, but bore the responsibility of protecting X in a situation where her emotional state was deteriorating as the situation was escalating. In cross-examination the family consultant conceded that, with the benefit of hindsight, she might have taken X to a different room, and away from her family. Nonetheless, her principal concerns seemed to be X’s heightened emotional state and the impact on the quality of the observation even if it had taken place.
In cross-examination it emerged that the possibility of an observation at a later time was explored but did not eventuate, and the family consultant remained concerned about the questionable value of having the further observation. This Court agrees, albeit with the benefit of hindsight and having available to it the totality of the evidence. A further observation might have addressed the mother’s needs, but it is highly unlikely to have made any difference. Firstly, and as will be observed in due course below, it is highly likely that X’s reluctance at the family report interviews was substantially influenced by events that took place a few weeks earlier. Secondly, there is ample evidence of communications from X after the date of the family report interviews which confirm X’s views about spending time with her mother. In short, whilst it is less than ideal that there was no observation of the mother with X, this Court is amply satisfied that it would have not made a difference to the outcome of this case.
Ms G’s evaluation commences at paragraph 123. Ms G accurately identifies that the challenge in this matter seems to be how to balance X’s need for an ongoing relationship with both her parents whilst also protecting X. The family consultant noted that X has informed others, at various times, that she is fearful of both her parents. The basis of this seems to be events of violence and aggression and alcohol misuse. Ms G notes that both parents allege that they were the victim of family violence perpetrated by the other. At paragraph 125 the family consultant expressed concerns that the mother seems to lack insight as to how X might experience the mother when she finds it difficult to manage her emotions. The Court observes that issues of the mother’s lack of insight in this regard were manifest during the mother’s cross-examination. At paragraph 127 the family consultant records:
127. Despite Ms Magnin acknowledging that she hit Mr Pidoux over the head, Ms Magnin was not able to take responsibility for her actions of hitting Mr Pidoux with a wine bottle and justified it by saying that Mr Pidoux provoked her. Ms Magnin seems to have limited insight into how her behaviour can impact others. Whilst Ms Magnin conceded to an act of violence towards Mr Pidoux, Mr Pidoux did not acknowledge he was abusive towards Ms Magnin in any manner.

By contrast, the Court has pervasive concerns about the mother’s capacity to meet X’s needs. The stark contrast between X’s attendance at school when she was living with her mother, as compared to living with her father, is self-evident. The mother’s exposure of X to her violence, aggression, and intoxication suggests an incapacity to understand her daughter’s physical and emotional needs. Her unwillingness to accept the expert evidence about X’s learning difficulty, again, casts a shadow of doubt over the mother’s parenting capacity.
Section 60CC(3)(g): The maturity, sex, lifestyle and background of the child
X has Country P heritage through both her parents, and there is no suggestion that this will not be fostered and encouraged, as appropriate, in the father’s household.
Section 60CC(3)(i): Parental attitudes
The Court has already foreshadowed some of its concerns in relation to the father’s attitude about facilitating X’s relationship with her mother. This seems to extend to facilitating X’s relationship with the maternal family, particularly her Uncle K with whom she seems to have a good relationship. The Court can understand why the father would not encourage X’s relationship with certain members of the maternal family, but the relationship between X and Uncle K, and his family, seems to historically have been an important one for X. The father is encouraged to reconsider his attitude about this. He needs to be more than passive in terms of facilitating these ongoing relationships.
With regards to the mother, concerns about her attitude towards X and to her own responsibilities as a parent are quite pervasive. Quite apart from issues of aggression, violence and intoxication, the mother was singularly unable to demonstrate in cross-examination, for example, that she was able to consistently understand, let alone prioritise, X’s interests over her own. When asked about X in cross-examination, the mother would often respond about herself. There is no malice here—the mother genuinely seems unable to understand what it would have been like for X to experience some of the behaviour of the mother before her. Even after receiving X’s letters and text messages, all the mother could do was obfuscate by raising questions of authenticity, rather than focus on the specific issues at hand.
Section 60CC(3)(j) and s 60CC(3)(k): Family violence
There has been family violence in this case. The father is protected by a family violence order against the mother. The mother has contravened this order and was charged and convicted in this regard. The Court finds that the mother has been violent in the presence of X.
Section 60CC(3)(l): Orders least likely to lead to further proceedings
Ideally, the Court seeks to make an order that is least likely to lead to the institution of further proceedings. This is going to be very difficult in this case. It is important to recognise that “finality cannot always be achieved and should not be a decisive consideration where the risk factors outweigh the benefits to the parties and the children of a final decision”: In the Marriage of Archbold (1984) FLC 91-532 at 79,309. X’s emerging autonomy is a significant factor that contraindicates that the shelf life of any orders the Court makes will be a very long one. Even the parents seem to acknowledge this. The prospect of further proceedings between two parents who palpably mistrust each other and who cannot communicate is regrettably a real one. The tragic fact is that litigation has been an ever-present feature of X’s life.
The totality of considerations, having regard to the evidence, strongly indicates that X should continue to live with her father, and that on balance she should be given the opportunity to resume a relationship with her mother through supervised time. The details of this will need to be discussed below.
PARENTAL RESPONSIBILITY
The presumption of equal shared parental responsibility found in s 61DA of the Act does not apply in this case because the evidence indicates that the mother has, in fact, abused X, and has perpetrated violence to or in X’s presence. In any event, the Court would find that the presumption is rebutted by evidence that it would not be in the best interests of X for her parents to have equal shared parental responsibility. They cannot trust or communicate with each other. Their relationship can only be described as toxic. X has expressed very firm views about where she would like to live, and the conditions under which she spends time with her mother. All of these factors strongly contraindicate equal shared parental responsibility. An order for sole parental responsibility will be made.
ORDERS IN THE BEST INTERESTS OF X?
The starting point in this regard must be the proposed Minute of Order prepared by the Independent Children’s Lawyer (exhibit ICL1). As foreshadowed earlier in these reasons, neither the proposals of the father nor the mother represent anything near what the Court has assessed to be in the best interests of X. The orders that the Court will make will be based on the orders proposed by the Independent Children’s Lawyer and discussed below.
In broad terms, the Independent Children’s Lawyer’s proposed order provides for X to continue to live with her father, who should have sole parental responsibility. Order 7 provides that within seven days of making any long-term decision, the father is to inform the mother in writing of the same.
The gateway to X spending time with her mother is that X expresses a wish to do so. During submissions, the Court raised its concern with the advocate for the Independent Children’s Lawyer that such an order would place inordinate responsibility on X. Moreover, the Court expressed its concern that because the father appeared to struggle with supporting X’s relationship with her mother, that it was unlikely, in fact, that X would express such a wish. The Court was satisfied with the submissions made in response. The Court accepts that, in many respects, X has already taken on the responsibility for making this decision, as is evidenced by what she told the family consultant, and as is further evidenced by her letter and text message exchange with her mother.
Thus, the proposed order places no greater responsibility on X than is already on her shoulders. In relation to the father and his willingness to facilitate X’s relationship with her mother, the Independent Children’s Lawyer acknowledged the legitimacy of the concern. However, on her behalf, it was submitted that on close scrutiny the only negative aspect of the parental household was the father’s negative attitude towards the mother, albeit based on his lived reality of the mother’s aggression, violence, emotional abuse, and intoxication. Nonetheless, the Court accepts that it is actually in the father’s interests to allow the relationship to continue, lest X ultimately decide for herself and judge him unkindly for what she may experience as his resistance to a relationship between X and her mother.
The Court thus accepts that in the circumstances of this case, it is not placing undue pressure on X to allow her to make the decision as to whether to spend time with her mother. Indeed, in many respects it is the developmentally appropriate decision to make on the facts of this case.
What was then proposed was that X spend supervised time with her mother, with the mother bearing such cost, that the time be in accordance with X’s wishes but in consultation with any counsellor or therapist that X is attending on, and that the period of supervision continue for six months for two hours each fortnight, and with such visits to occur in the community.
The impression formed by the Court, based on the submissions made on behalf of the Independent Children’s Lawyer, is that the order sought to define the broad parameters of X’s time with her mother, but not necessarily to limit the time to two hours each fortnight. Indeed, the order provides for such further times as the parties agree (order 5(e)). The Court accepts that the orders intend to hopefully re-establish X’s relationship with her mother at a speed and frequency that is largely dictated by X.
From the Court’s perspective, as the spends-time-with arrangement is to be in accordance with X’s wishes, any agreement as to further time is to be based on an agreement between X and her mother, and not the parties generally as order 5(e) suggests. Moreover, the consultation with X’s counsellor or therapist need not be a prerequisite to X’s wishes about time occurring, though the Court can see the obvious benefits to X if her resumption of time with her mother is occurring in the context of therapeutic support.
The father, through his counsel in closing submissions, appeared to have some concerns about the service nominated in the order, B contact centre. The father suggested another service, with the difference allegedly being that one was accredited, but the other was not. There was no evidence about this. The Court cannot choose between two possible supervised contact providers in the absence of evidence. In the circumstances it might be best to prescribe B contact centre, or such other service as the parents agree, or failing to reach agreement, as nominated by the Independent Children’s Lawyer.
The period of supervision is six months from the commencement of X spending time with her mother, not six months from the date of this order. The order does not provide for what happens afterwards. This was explained on the basis that, in all likelihood, X will be at least 14 and a half years old at the end of six months and thus what happens afterwards is largely determined by X. The quest for certainty is an understandable one, but particularly in cases involving older children such as X, the quest for certainty is often elusive. Indeed it may well be that the best the Court can do in this case is to make the order, limited as it is. If it is successful, then the momentum will hopefully have been built that it can continue without Court intervention. If it is not successful, then the situation will be no different than it currently is with X deciding when and how to communicate with her mother.
The mother’s lack of insight about the impact of her own actions on her daughter is perhaps suggestive that she will not be able to restrain herself, in terms of what she discusses with X, if and when she spends time with her. It is clear to the Court that some of the things she has said to X have been inappropriate, and probably highly hurtful to X. The mother does not seem to understand this. With great respect to the mother, she needs to understand that if she cannot control her own emotions and what she says in front of X, the most likely outcome is that X will suspend time with her. The key to the success of this arrangement lies largely in the mother’s hands.
The orders for communication largely reflect the existing arrangement but stipulate that it take place prior to 5pm each evening. This will hopefully increase the success of such phone calls.
Order 7 deals with cards and gifts and seems appropriate, but the father’s request that such cards and gifts be delivered no later than 7pm is not unreasonable given the evidence of cards and gifts being delivered quite late at night.
Order 8 is meant to facilitate X communicating with members of the maternal extended family. Again, this is dependent on her request. The order should framed as one directing the father to permit and facilitate such communication. Some concerns were expressed about the breadth of the order, given that the evidence suggests some dysfunctional members of the broader maternal family. Nonetheless, the Court accepts the Independent Children’s Lawyer’s submission that hitherto X has only ever expressed a wish to see her Uncle K and his family, and her brother Mr N. On this basis the Court will make the order proposed.
Order 10 requires the father to encourage and facilitate X’s communication and time pursuant to the orders. There is scope to tighten the drafting and the Court will do so.
The injunctions against the mother at orders 11 and 12 are appropriate. The requirement on the father in order 13 is appropriate. Order 17 is supported by the evidence. The remaining orders are also appropriate.
One of the orders will be that the Independent Children’s Lawyer remain in this matter for a period of six months from the date of these orders. This was at the Court’s suggestion. It will greatly facilitate the chances of success in implementing these orders, if the Independent Children’s Lawyer has an appropriate supervisory role. The Independent Children’s Lawyer will have leave to re-list on 14 days’ notice as regards the interpretation, implementation, or enforcement of these orders.
The Court is otherwise satisfied that these orders are in the best interest of X.

I certify that the preceding one hundred and forty-nine (149) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli.
Associate:
Dated: 7 July 2021
SCHEDULE A
MINUTE OF ORDER
SOUGHT ON BEHALF OF THE FATHER
1. That the Applicant Father have sole parental responsibility for the child X, born in 2007 in relation to all decision making including but not limited to education, health, overseas travel and passport applications.
2. That X spend no time with the Mother.
3. That the mother is hereby restrained, by way of injunction, from attending X’s:
3.1. School or any other educational organisation at which X may attend;
3.2. Any school events;
3.3. Extra-curricular activities;
3.4. Primary residence; and/or
3.5. Any future place of employment.

4. That the father authorise X’s school to provide the mother with a copy of all school reports, newsletters and all other information that the school provides to parents in the normal course.
5. In the event that X requests to speak with her mother or maternal grandparents by telephone and/or by Skype, that the father shall facilitate such phone call and/or Skype session and place such parameters to send cards and gifts to X care of the father.
6. The mother is hereby restrained from contacting X by telephone or skype or by using any other form of social media or communication platform to communicate with X.
7. At any time the mother communicates with the child, the mother is restrained from discussing these proceedings with the child or within the presence and/or hearing of the child.
8. The mother is hereby restrained from causing or allowing any third party to discuss these proceedings with X.
9. The mother is hereby restrained from discussing these proceedings with any third party including any friends of the child.
SCHEDULE B
THE FAMILY LAW ACT 1975
IN THE FAMILY COURT OF
AT SYDNEY
FILE NO. (P)SYC4645/2011

BETWEEN MR PIDOUX
(Applicant Father)

AND MS MAGNIN
(Respondent Mother)

AND THE INDEPENDENT CHILDREN’S LAWYER
AMENDED MINUTE OF FINAL ORDERS PROPOSED BY THE INDEPENDENT CHILDREN’S LAWYER
1.That all previous parenting orders are discharged.
2.That the child of the marriage X born in, 2007 (hereinafter referred to as “X”), live with the father.
3.That the father has sole parental responsibility for X.
4.That within seven (7) days of making any decision as to the long-term care, welfare and development of X the father shall inform the mother in writing of such decision.
5.In the event the X expresses a wish to spend time with the mother:-
(a)Within seven (7) days or such earlier time the father shall do all such acts and things and sign all such documents as may be required to register with B contact centre and invite the mother in writing to undertake registration with that service.
(b)That the mother shall meet the cost of such supervision service.
(c)That the time shall occur in accordance with X’s wishes and in consultation with any counsellor or therapist X may be attending upon at the time.
(d)That for a period of six (6) months from the commencement of X spending time with the mother such time shall be two hours per fortnight supervised by B contact centre with such visits being supervised in the community.
(e)Such other times as agreed between the parties.

6.That X communicate with her mother by telephone, skype or other electronic means at her request and the father shall facilitate such call taking into account the mother’s work commitments and such call may need to take place prior to 5 pm of an evening.
7.That the mother and extended maternal family is at liberty to send a card and or present to X only on the occasions of X’s birthday, Naming Day, Christmas and Easter each year by sending the same to X’s home address.
8.That X communicate with and spend face to face time with members of her maternal extended family, excluding Mr C, at her request.
9.That X is at liberty to terminate any period of spend time with or any communication with her mother or extended maternal family at her request and in accordance with her wishes.
10.That for the purposes of Orders 5, 6 and 8 the father shall encourage and facilitate such communication and or spend time with arrangements.
11.Except if pre-arranged pursuant to orders 5 and 6 herein and pursuant to order 7 herein, the mother is restrained from approaching or contacting X by any means, including but not limited to electronic and social media communication, attending X’s school, extra curricular activities, her home, her father and step mother’s place of work or any church X may attend.
12.That for the purposes of prearranged communication or spend time pursuant to orders 5 and 6 herein, the mother is restrained from communicating with X or attending time with X if she has consumed any alcohol in the 12 hours prior to the commencement of time.
13.That within seven (7) days of the date of these orders the father do all such acts and things and/or sign all such documents as may be required to register the mother as a parent of X with F School Suburb D which will facilitate the mother being placed on any email list or give authorisation for the mother to join any “App” that the school might use to disseminate information to parents including providing a copy of any order form for school photos and having the mother’s details included on the schools “Compass” program.
14.That the father shall notify the mother as soon as practically possible, and no later than twenty-four (24) hours of admission, in the event that X is hospitalised due to injury or illness and will keep the mother updated as to X’s progress in writing until such time as X is discharged.
15.That the parents keep each other informed of their current residential address, telephone number and email at all times.
16.That in writing for the purposes of these orders means by text message or email.
17.That both parents are restrained from discussing these proceedings or exposing X to any third party discussing these proceedings in the presence or hearing of X.
18.That both parents are restrained from making comments of a critical, demeaning or offensive nature about the other parent, their loved ones or members of their extended family in the presence or hearing of X and are restrained from exposing X to any such comments by a third party.
19.That the ICL is given leave to provide a copy of these Orders to The Principal, F School, Suburb D.
20.That any time X spends or communicates with the mother, the mother is restrained from bringing X into contact or having any communication with her half-brother Mr C.
21.That the ICL remain in the matter for a period of 6 months from the date of these orders.
22.That within seven (7) days of the date of this order the father do all such acts and things to engage a trauma informed counsellor (hereinafter referred to as “the counsellor”) for X and inform the ICL of the name address and contact details for that counsellor.

23.That the father give all necessary authorisations to the Counsellor for the Counsellor to speak with the ICL as to X’s progress.
24.That the ICL has leave to provide the following documents to the counsellor referred to in order 22:-
(a)       Copy of these orders.
(b)       Copy of reasons for judgement.
(c)       Copy of the family report of Ms G dated 15 February, 2019
(d)      Copy of the reports of Mr H dated 1 March and 14 May, 2018

File number(s):	SYC 4645 of 2011
Judgment of:	ALTOBELLI J
Date of judgment:	7 July 2021
Catchwords:	FAMILY LAW – PARENTING – where there are allegations of family violence by each parent against the other – where the child has been exposed to alcohol-related violence – where clear views expressed by 14 year old child – consideration of best interest principles – final parenting orders made.
Legislation:	Family Law Act 1975 (Cth) Pt VII, ss 60B, 60CA, 60CC, 61DA, 65DAA, 102NA
Cases cited:	Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8 In the Marriage of Archbold (1984) FLC 91-532; [1984] FamCA 10 M v M (2000) FLC 93-006; [1998] FamCA 1742 McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92 MRR v GR (2010) 240 CLR 461; [2010] HCA 4 Re W (Sex Abuse: Standard of Proof) (2004) FLC 93-192; [2004] FamCA 768 W and W (Abuse allegations: unacceptable risk) (2005) FLC 93-235; [2005] FamCA 892 WK v SR (1997) FLC 92-787; [1997] FamCA 57
Number of paragraphs:	149
Date of last submission/s:	7 April 2021
Date of hearing:	6-7 April 2021
Place:	Sydney
Counsel for the Applicant:	Ms Spain
Solicitor for the Applicant:	Somerville Legal
The Respondent:	In Person
Solicitor Advocate for the Independent Children's Lawyer:	Ms Callander
Solicitor for the Independent Children's Lawyer:	Legal Aid NSW

SYC 4645 of 2011
BETWEEN:	MR PIDOUX Applicant
AND:	MS MAGNIN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	ALTOBELLI J
DATE OF ORDER:	7 JULY 2021