Pires & Nandi - [2022] FedCFamC1F 842

Federal Circuit and Family Court of Australia
(DIVISION 1)
Pires & Nandi [2022] FedCFamC1F 842

File number(s): PAC 2661 of 2020

Judgment of: SMITH J

Date of judgment: 3 November 2022

Catchwords: FAMILY LAW – PARENTING – Where there is one child aged eight – Where the child lives with the mother – Where the mother believes the father has groomed the child and taken sexual pleasure from her – Where the father denies this – Where the child has made no disclosures of sexual abuse – Where the Court is not satisfied that the father has groomed or sexually abused the child – Where the Court does not consider that the father poses an unacceptable risk of sexual, or other, harm to the child – Where the Court finds that the mother was not acting maliciously but genuinely believed and believes that the father posed, and continues to pose, a risk of sexual harm to the child – Where the mother has avoided involving the child in the allegations to date – Where the mother has not sought to undermine the child’s relationship with the father despite her beliefs – Where the child has a meaningful relationship with both parents – Where the father accepts the child should live primarily with the mother and an equal time arrangement would not be in the child’s best interests – Where there is overwhelming mutual distrust between the parents – Where it is not feasible for the parties to effectively share equal parental responsibility – Where the Court is concerned, however, about the mother’s exercise of parental responsibility in relation to secondary schooling: Ordered that the mother have sole parental responsibility, except for selecting a secondary school which is to be shared, provided she take into consideration any views expressed by the father – Ordered that the child live with the mother – Ordered that the child spend time with the father – Ordered that the mother engage with a psychologist – Other orders.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth) ss 60CC, 60CC(2), 60CC(3)

Cases cited:
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Carlson & Fluvium [2012] FamCA 32

Isles & Nelissen [2022] FedCFamC1A 97

M v M (1988) 166 CLR 69; [1988] HCA 68

Re Andrew [1996] FamCA 43

Division: Division 1 First Instance

Number of paragraphs: 384

Date of last submission/s: 5 May 2022

Date of hearing: 26-29 April, 5 May 2022

Place: Sydney

Counsel for the Applicant: Ms Swart

Solicitor for the Applicant: Sarah Bevan Family Lawyers

Counsel for the Respondent: Mr Schonell

Solicitor for the Respondent: Shorehills Legal Solicitors

Counsel for the Independent Children’s Lawyer: Ms Hamilton

Solicitor for the Independent Children’s Lawyer: Mahony Family Lawyers
ORDERS

PAC 2661 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PIRES

Applicant

AND:
MS NANDI

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

SMITH J

DATE OF ORDER:

3 NOVEMBER 2022

THE COURT ORDERS THAT:
Parental responsibility
1.Ms Nandi, born 1980, ("the mother") is to have sole parental responsibility for making decisions about the major long term issues concerning the child, including the care, welfare and development of the child, X, born 2014, ("the child"), other than in relation to the selection of the high school the child is to attend, provided that the mother:
(a)notifies Mr Pires, born 1979, ("the father") of any proposed decision relating to the long term care and welfare of the child; and
(b)ensures that such notification is given to the father in writing and is given not less than 28 days before a final decision is made, except in the case of an emergency; and
(c)takes into consideration any views expressed by the father in respect of such proposed decision; and
(d)notifies the father in writing within 7 days of making such decision.

2.The mother and the father are to have equal shared parental responsibility in relation to the selection of which high school the child is to attend.
3.The mother is not to make any changes to the child's living arrangements that make it significantly more difficult for the child to spend time with the father pursuant to these orders, or for the parties to comply with these orders.
4.For the avoidance of doubt, each party will be responsible for day to day decision making when the child is in their care.

Live with mother
5.That the child shall live with the mother.

Time with father
6.That the child shall spend time with the father, during school terms, as follows:
(a)Commencing Friday 11 November 2022, each alternate weekend from the conclusion of school, or 3pm if a non-school day, Friday until 5:00pm Saturday.
(b)Commencing Friday 9 December 2022, each alternate weekend from the conclusion of school, or 3pm if a non-school day, Friday until 5:00pm Sunday.
(c)From the commencement of Term 1 of 2023 and continuing thereafter:
(i)Each alternate week, commencing from the first weekend after the commencement of each school term, from the conclusion of school, or 3pm if a non-school day, Friday until the commencement of school, or 9am if a non-school day, Monday.
(ii)At such other times as agreed between the parents in writing.

7.That the child shall spend time with the father, during school holidays, as follows:
(a)For the school holidays at the conclusion of Term 4, 2022, as follows:
(i)From 9.00am on 29 December 2022 until 5.00pm on 3 January 2023;
(ii)From 9.00am on 10 January 2023 until 5.00pm on 14 January 2023; and
(iii)From 9.00am on 24 January 2023 until 5.00pm on 26 January 2032.

(b)Thereafter, for the first half of each school holiday period at the conclusion of Terms 1, 2 and 3, being from the conclusion of school on the last day of school attendance until 5.00pm on the second Saturday of the holiday period.
(c)Thereafter, for half of the school holidays at the conclusion of Term 4, as agreed between the parents in writing and failing agreement, as follows:
(i)For the first half in even numbered years commencing from the conclusion of school on the last day of required school attendance until 5.00pm on the midpoint; and
(ii)For the second half in odd numbered years commencing from 5.00pm on the midpoint until 9am the day immediately prior to the first day of required school attendance.
(iii)At such other times as agreed between the parents in writing.

8.That for the purposes of these orders, the child's school holiday periods commence at the conclusion of school on the last day of required school attendance and concludes at the commencement of the first day of the child's required school attendance.

Special Occasions
9.That notwithstanding any other order contained herein, the child shall spend special occasion time with her parents as follows:
(a)If the child is not already due to be in the care of the father on Father's Day, from 10.00am until 5.00pm on Father's Day.
(b)If the child is not already due to be in the care of the mother on Mother's Day, from 10.00am until 5.00pm on Mother's Day.
(c)If the child is not already due to be in the care of the father on the child's birthday, the child shall spend time with the father:
(i)For a birthday falling on a school day from the conclusion of school until 6:00pm;
(ii)For a birthday falling on a non-school day from 10.00am until 2pm;

(d)If the child is not already due to be in the care of the mother on the child's birthday, the child shall spend time with the mother:
(i)For a birthday falling on a school day from the conclusion of school until 6:00pm;
(ii)For a birthday falling on a non-school day from 10.00am until 2:00pm.

(e)With the father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in even-numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in odd-numbered years.
(f)With the mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day in odd-numbered years and from 2.00pm Christmas Day until 2.00pm Boxing Day in even-numbered years.
(g)At such other times as agreed between the parents in writing.

Changeover
10.That for all periods of time commencing and concluding at school the father shall facilitate changeover at school by collecting the child from and returning the child to the school.
11.That for all non-school changeovers, the father shall collect the child from outside the mother's residence at the commencement of his time and the mother shall collect the child from outside the father's residence at the conclusion of his time.

Communication
12.That when the child is in the care of the mother, the child shall have telephone and/or FaceTime communication with the father each Monday and Thursday from 6.00pm to 6.30pm, and the child shall have free and liberal communication with both parents, and each parent must reasonably accommodate and facilitate this, including any requests made by the child.
13.That when the child is in the care of the father, the child shall have telephone and/or FaceTime communication with the mother each Monday and Thursday from 6.00pm to 6.30pm, and the child shall have free and liberal communication with both parents, and each parent must reasonably accommodate and facilitate this, including any requests made by the child.
14.That any communication between the parents regarding the child's parenting arrangements shall occur via email or text message unless in the event of an emergency in which case they may telephone.

Keeping informed and access to information
15.That the parents shall keep each other informed in writing of their mobile telephone number, residential address and email address and shall advise the other within 48 hours of a change in details.
16.That should the child suffer a serious medical condition requiring medical attention whilst in the care of either parent:
(a)The other parent is to be notified immediately or as soon as practicable;
(b)The other parent is to be advised of full details of the medical practitioner or medical facility upon which the child attends immediately or as soon as practicable;
(c)The medical practitioner or medical facility is to be advised that both parents have access to the child's medical records and the information contained within them on request.

17.That each of the parents shall inform and keep the other informed of any medical practitioner upon whom the child may attend and of any appointments and consultations with a specialist medical practitioner as they arise.
18.That each parent shall be permitted to access all medical records in relation to the child and to contact any treating medical practitioner that the child may attend from time to time and this order may be provided, and shall act as an authority, to those medical practitioners and holders of such records to release information with respect to the child.
19.That each parent shall be permitted to obtain from any school which the child may from time to time attend copies of any school reports, progress notes, newsletters and other material related to the child and this order may be provided, and shall act as an authority, to those schools to release such information and material to each of the parents.

Attending school events
20.That each parent is entitled to attend events involving the child including school and extra-curricular activities which allows for parental participation.

Restraints
21.That the parents are restrained from:
(a)Physically disciplining the child, and from permitting a third party from doing so;
(b)Denigrating the other parent or members of the other parent's family or household within the presence or hearing of the child, and each party shall further use their best endeavours to ensure that no third party denigrates the other parent or members of the other parent's family or household within the presence or hearing of the child;
(c)Discussing these proceedings, or any allegation raised in these proceedings including the allegation of sexual abuse, within the presence or hearing of the child, and each party shall further use their best endeavours to ensure that no third party discusses these proceedings or any allegation raised in these proceedings within the presence or hearing of the child;
(d)Exposing the child to family violence;
(e)Changing the child's name, unless agreed in writing between the parties;
(f)Subjecting the child to or engaging or indoctrinating the child in any religion or religious beliefs, including through religious studies or undertaking religious education, without the prior written consent of the other parent, with the exception that the child may participate in general cultural events associated with religion, including but not limited to Christmas, Easter and major festivals.

Schooling
22.That the child shall continue to attend upon Suburb C School for the duration of her primary schooling and the parents are restrained from changing her enrolment unless agreed to in writing.

Counselling
23.That within 21 days of the date of these orders, the mother shall do all things required of her to attend upon her general practitioner doctor for the purpose of obtaining a referral for attendance for counselling with a psychologist and thereafter the mother shall attend upon the psychologist at such frequency and for such duration as recommended by the psychologist.
24.That within 7 days of the mother engaging with a psychologist as provided for in order 23, the mother shall provide to the psychologist to the following documents:
(a)His Honour's Reasons for Judgment; and
(b)Child Responsive Program Memorandum of Ms D dated 26 November 2020; and
(c)Magellan Family Report of Ms D dated 11 June 2021.

Travel outside the Commonwealth of Australia
25.Both parties are permitted to take the child out of the Commonwealth of Australia on the following conditions:
(a)Both parties must ensure that so far as practical these occasions are to coincide with school holidays.
(b)The party proposing travel must give the other party as much notification as possible of their intention to take the child out of the Commonwealth of Australia in any event will not give less than 30 days written notice of such intention, unless in the case of emergency.
(c)The party proposing travel must give the other party an itinerary of the child's travel, including but not limited to the departure and return dates, country or countries the child will be travelling to, the approximate dates on which the child will arrive and depart each country and a telephone number and address at which the child can be contacted in each state and/or country.
(d)While travelling, the travelling parenting must immediately notify the non-travelling parent of any changes to the travel plans.

26.For the purpose of order 24, the non-travelling parent must provide their consent to the proposed travel. The non-travelling parent is not required to consent, and such travel may only occur with the consent of both parties.
27.Within 14 days of one party making a request to the other in writing for the child to be issued with a passport, both parties must do all things and sign all documents necessary for the child to be issued with an Australian passport, and the costs of the passport are to be borne equally by the parties.
28.The father is to retain possession of the child's passport when she is not travelling outside of Australia, and for this purpose the mother must return the passport to the father within 48 hours of returning to Australia.

Costs
29.If a party, including the ICL, seeks costs they are to file an Application in a Proceeding in accordance with the Rules.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pires & Nandi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J.

This case is primarily about whether X ("the child"), born 2014 (aged 8), has been groomed and sexually abused by her father, the applicant Mr Pires ("the father") (aged 42) and whether or not he poses an unacceptable risk of harm.
The respondent, Ms Nandi ("the mother') (aged 41), believes the father has groomed the child and taken sexual pleasure from her. The father denies this. He said the mother maliciously fabricated these allegations for forensic reasons in the context of a deteriorating marriage and an argument about the sole use and occupation of the former matrimonial home.
The child lives primarily with the mother, has made no disclosures, has a good relationship with both parents, and though aware of the conflict appears to be unaware of the allegations of sexual abuse.
Both parties and the Independent Children's Lawyer ("ICL") appointed to represent the child, and Ms D the Court Child Expert (“CCE” or “the expert”), all agree that if I accept the mother's case on sexual grooming, then I must find that the father poses an unacceptable risk of harm to the child that cannot be ameliorated by safeguards. In that case, the child's best interests, which are the paramount consideration and which are to be determined in accordance with the Family Law Act 1975 (Cth) ("the Act"), require that she should spend no time with, and have no communication, with the father. I agree.
The ICL and father submitted, supported by the expert, that if in the alternative the court finds that there was no sexual abuse, and that the mother had made the allegations maliciously, then a change of residence would need to follow with restrictions on the time the child spends with the mother. I again agree.
At the conclusion of the hearing the ICL submitted, firstly, that the evidence did not support a finding that the father committed any acts of sexual grooming or abuse, and, further that the evidence did not support a finding that the father posed an unacceptable risk of sexual or other harm to the child. However, the ICL also submitted that the mother's beliefs, though wrong, were subjectively genuine, so that there should not be a finding of malice.
The father effectively adopted the ICL's position on these major issues in closing submissions.
The mother maintained that her evidence made out the allegations of sexual grooming and use of the child as a sexual object. I note that the fact that the child was not apparently aware of the abuse would not alter the position if the abuse was found to have occurred.
For the reasons set out below, and having carefully considered each aspect of the evidence on sexual abuse separately as well as all of the evidence as a whole, I find that the evidence does not establish that the father sexually groomed or abused the child. Further, I find that the evidence does not establish that the father poses any risk of sexual harm to the child.

While the ICL and the father did not ultimately submit that the mother's allegations were maliciously made, the analysis of the evidence said to establish sexual abuse is inextricably tied up with an assessment of the mother's belief and its factual foundations. For reasons set out below, I find that the mother's belief, though incorrect, was subjectively honest.
While the sexual abuse allegations dominated the Trial, the mother also raised issues of family violence. I find that the child was subject to the conflict between the parties, especially shouting and angry exchanges between the parties, and the father throwing a bowl of porridge at the mother, sufficient to constitute "family violence" within the Act. The expert considered the family violence to be at the lower end of the spectrum and situational and, though not acceptable, not a significant issue for consideration in the making of orders. I agree.
I find that neither party poses any risk of physical or psychological harm to the child. The one risk issue is that the mother may inform the child of her belief about the sexual abuse. As the mother has not informed the child of her concerns to date, I do not consider that risk high, or a risk which requires more than an order restraining her from doing so as proposed by the ICL. There is an ongoing risk of harm to the child from experience of conflict between the parties and both parties need to be aware of, and try to shield her from, this.
I also find that Ms E ("the paternal grandmother") who lived with the parties for a time, and who still lives with the father and will be involved in caring the for the child under the orders I will make, also engaged in shouting matches to which the child was exposed, but does not pose any risk of physical or psychological harm to the child, including to the child's relationship with the mother.
There were also issues about the parties' capacity to communicate, co-parent and share parental responsibility, given the serious allegations they have each made against the other, and the high level of distrust still evident at Trial.
While the father accepted in closing submissions there was no malice, the hurt he has suffered from these allegations, and the belief he held for a long time that being incorrect the allegations must have been malicious, has clearly had a significant impact on him.
While the child has a good relationship with both parents, the mistrust between the parents is high. The parties agree that the child should live with the mother. Given the high conflict between the parties I find that the mother should have sole parental responsibility with an obligation to notify and consider the father’s view, except on the issue of the selection of a high school. I find that the child should spend unsupervised time with the father, increasing to three nights each alternate weekend from Friday afternoon to Monday morning and half school holidays, and that there should be regular communication. There are also a range of other orders as discussed below.
RELATIONSHIP HISTORY
The parties were both born in Country F. The parties met at G University, City Q in about 1995. The father moved to Sydney, Australia, in about late 2001. The mother moved to Sydney in about 2002. They commenced living in shared accommodation in about mid-2003. They said they did not enter into a sexual relationship until they married in a traditional marriage ceremony in Country F in late 2006 and early 2007. Their marriage was registered in Sydney in early 2007. They subsequently purchased the former matrimonial home at H Street, Suburb C, NSW ("the Suburb C home").
It was common ground that the parties had a very limited sexual relationship from the start of the marriage. However, the mother's evidence, considered in more detail elsewhere, was that whilst not engaging sexually with her, the father had "sexual addictions" leading him to opportunistically "prey" on vulnerable women, such as single mothers and sex workers, and to constantly masturbate while viewing pornography online at home, including whilst live streaming. She said these sexual addictions and this conduct both upset and alarmed her.
The father denied that he was a sex addict, that he preyed on vulnerable women or that he abused pornography. He did not, however, contest that he visited sex workers, flirted with other women online, and used pornography. There was no suggestion of any use of child pornography. There was a dispute about the extent to which he engaged in these behaviours. Ultimately, nothing turns on that and it is unnecessary to decide. The significant matter is that the mother clearly considered all of these behaviours to be highly inappropriate in the context of their marriage and their own limited sex life, and communicated to him that she was very upset by his conduct.
The parties worked to resolve their conflict, and for a period the mother was satisfied that the father had changed his behaviours. The child was born in 2014.
However, the father's behaviours resumed. This led to significant conflict in the relationship. The conflict caused the parties to separate under the one roof. The father said this initial separation occurred in about October 2015. The mother said it was in about June 2016.
The parties continued to live together under the one roof at the former matrimonial home until final separation. That occurred between 22 December 2018 or 17 January 2019. The evidence suggests that the mother remained hopeful of repairing the marriage whilst living under the one roof until about early 2018. It is not clear whether the father had the same view.
The mother said that she began counselling in early 2018 at the family relationship Centre (FRC) and that in early 2018 she told the father that she wanted to separate. Whatever her hopes of the father changing his behaviours and of a reconciliation were to that point, from this point the mother appeared intent on a final separation.
The parties entered in to mediation through relationship Australia. The father said that he undertook the intake assessment at Relationships Australia in about early 2018.
In late 2018, and in the context of their deteriorating relationship, the mother formed the opinion that the father was engaging in grooming and sexualised behaviours with the child. In forming that opinion she not only considered events during that period but also reviewed the father's prior conduct in light of her growing concerns. Her evidence makes it clear that she was influenced in her perceptions of the father's actions by her belief that he was a sex addict and a sexual predator.
The facts and circumstances which led her to form the belief that the father was sexually grooming the child are at the centre of these proceedings and are considered in detail elsewhere.
In late 2018, the father left to go on an overseas holiday. In early 2019, before he returned, the mother moved to rented premises at L Street, Suburb M ("Suburb M"), which is about 5 kilometres from the former matrimonial home. The mother sent the father an email explaining that she had moved with the child to a nearby location, however, she would not tell him where they were living. She says she informed the police of her move as a protective measure. At that time the child was about 4 and a half years old.
At about this time, the mother raised her concerns that the father might be sexually grooming the child to her counsellor Ms N. While the counsellor apparently asked the mother to consider whether what she had observed might be innocent, the mother's report gave rise to a requirement for Ms N to make a mandatory report to the NSW Department of Communities and Justice (DCJ). DCJ investigated. They were given basically the same information as was raised in this Trial. DCJ did not consider that there was a basis for further action.
For a period of time, the mother accepted the view of DCJ that there was nothing untoward. As detailed elsewhere, proceedings commenced and initially the parties were moving towards shared parental responsibility with the child to live with the mother and spend substantial and significant time with the father.
However, the mother continued to have concerns. She interpreted certain interactions between the father and the child as examples of ongoing sexual grooming and abuse. In particular, at a medical appointment in late 2020 and a dental appointment in late 2020 the child climbed onto the father's lap seeking a cuddle. While the father apparently tried to stop the child, because of the mother's concerns, the mother considered this firm evidence of ongoing sexual abuse. She then adopted the position that the father poses an unacceptable risk of sexual harm to the child which she maintained at Trial.
There is a dispute about precisely what the parenting arrangements for the child were during the period in which the parties were separated under the one roof, and who did what and how much for the child. However, while it is clear that the mother was the primary carer, it is also clear that both parents continued to be involved in the child's life and that the child maintained a good and meaningful relationship with each of them through this period and that she still does.
The mother is employed full-time in the health sector. She says she has flexible working hours, including home based work. The mother does not have a new partner.
The father is an IT professional. He lives at O Street, Suburb C. He has not re-partnered. The paternal grandmother lives with him. He expects she will live with him until she passes. He works full-time but also works from home and can have flexible hours.
The child commenced Kindergarten at Suburb C School on about early 2019, having been enrolled from late 2017. The child remains enrolled at the school and attends family day care after school each day until approximately 5:30pm.
PROCEDURAL HISOTRY
Proceedings
The father commenced proceedings by filing his Initiating Application on 4 June 2020. The father proposed that the parties have equal shared parental responsibility and that the child live with the mother and spend time with the father.
On 19 June of 2020, consent Orders were made that the child was to live with the mother and spend time with the father alternating Saturdays and Sundays from 10am until 2pm. The orders included a restraint upon the parties that prevented them from permitting the child to view any pornographic material or material that was not classified as age appropriate for the child.
On 14 August 2020, the mother filed her response seeking, inter alia, that the parties retain equal shared parental responsibility, that the child live with the mother, and that the child spend time with the father.
On 24 September 2020, the mother filed her Notice of Child Abuse, Family Violence or Risk of Family Violence particularising her concerns regarding the alleged sexualised behaviours of the father toward the child and other instances of family violence.
On 24 September 2020, this matter was allocated to the Magellan Protocol with orders for the preparation of a Magellan Report. The parties were ordered to attend an intake for the Child Responsive Program and to attend upon a Family Consultant for the purposes of the preparation of a Children's and Parent's Issue Assessment Report ("CAPIA).
On 12 October 2020, the mother filed an amended response seeking sole parental responsibility, that the child live with her and spend time with the father.
It is worth noting that this change of position on parental responsibility by the mother occurred prior to the events of late 2020 at the doctor’s and dentist's offices, to which reference is made elsewhere.
On 20 November 2020, the father filed an Application in a Proceeding seeking the interim orders be varied. The father's proposal included that the parties retain equal shared parental responsibility, that the child continue to live with the mother, and for child to spend time with the father increasing in graduated increments.
On 14 December 2020, after the events of late 2020, the mother filed her Response to the father's Application in a Proceeding. The mother sought, inter alia, that the father's time, pursuant to the Orders of 19 June 2020, cease and that all future time spent between the father and the child be supervised. The mother further sought that the father be restrained by injunction from placing or positioning the child on his lap or crotch, or bathing or showering her.
On 16 December 2020, Orders were made by a Justice of this Court that the child live with the mother and spend time with the father on alternate Saturdays from 10:30am until 6:30pm, and the intervening Sundays from 10:30am until 6:30pm, and every Friday from after school until 7:30pm. I note that at the family report interviews in 2021, the parents said that they were still complying with these orders.
Hearing
The matter was heard across four days from 26 to 29 April 2022, with closing oral submissions on Thursday, 5 May 2022. Each party was legally represented, including by Counsel.
Each party, including the ICL, submitted a court book and relied upon a submissions bundle.
The father submitted his Court Book comprising 232 pages, which was marked for identification [MFI1]. The father relied upon his amended application, filed 5 November 2021, his Trial Affidavit, filed 5 November 2021, the Affidavit of his mother Ms E, filed 5 November 2021, and his Notice of Risk, filed 4 June 2020. The father further relied upon his Case Outline, filed 25 April 2022.
The mother submitted her Court Book comprising 338 pages, which was marked for Identification [MFI3]. The mother relied upon her Further Amended Response, filed 10 September 2021, and her Trial Affidavit, filed 9 November 2021. The mother also relied upon her Case Outline, filed 22 April 2022.
The ICL submitted their Court Book comprising 398 pages, which was marked for identification [MFI5]. The ICL relied upon the Project Magellan Report prepared by the NSW Department of Communities and Justice (DCJ), the Child Responsive Program Memorandum, dated 26 November 2020 and prepared by Family Consultant Ms D, and the Magellan Family Report, dated 11 June 2021, also prepared by Family Consultant Ms D.
The parties tendered various subpoenaed documents which are referred to where relevant.
I have not taken out a transcript. The quotes from oral evidence are based on my review of my notes and the Court recordings.
THE FATHER'S ALLEGED SEXUAL ADDICTION AND THE ONGOING BREAKDOWN OF THE RELATIONSHIP PRIOR TO LATE 2018
Parties sexual relationship and values
The mother lived with her parents until she was 10 years of age. They moved to Country P for work and she went with them. After six months she became homesick and returned to City Q to live with her maternal grandparents, with whom her older sister had remained living. While the mother was questioned about this aspect of her life at some length, going to its possible impact on her perceptions of appropriate paternal behaviours and interactions with children, I do not consider it is relevant other than to establish that the mother was raised in a socially conservative household and culture.
The parties did not have sex prior to marriage. The father was the mother's first sexual partner. The father's pre-marital sexual background was not explored in the evidence.
The parties did not engage in anything more than a token sexual relationship at any stage of their marriage. Attempting to determine the reasons why this was the case, or attempting to allocate responsibility, is not necessary to determine the case, and is therefore inappropriate where the parties will continue as the child's parents. (See for example Carlson & Fluvium [2012] FamCA 32 at [168]). Suffice to say that the absence of a sexual relationship between the parties provides important context to the conflict that arose between them.
Father's alleged "sexual addictions"
The mother's evidence in chief on his topic was set out in her affidavit under the heading "Father's health issues and sexual addictions".
The mother said in oral evidence that she was not aware of any sexual difficulties at the start of the relationship. However, about nine months into their relationship she said that the father told her that he had "sexual health problems ejaculating".[1] Shortly afterwards, the mother said she overheard the father speaking on the telephone to another woman in "a sexual way".[2] She said that when she confronted him the father said "I am not satisfied with my sex life with you."[3]
[1] Affidavit of the mother filed 09/11/2021, paragraph 28.
[2] Affidavit of the mother filed 09/11/2021, paragraph 29.
[3] Affidavit of the mother filed 09/11/2021, paragraph 29.
The mother said in oral evidence that it was only when she realised that he was speaking with other women and he told her "that there were sexual problems that he was facing" that she realised there was a problem in the relationship. This occurred within the first year of their marriage.
The mother said in chief that on many occasions she found the husband "late into the night, watching pornographic images on his laptop and engaging in self-sexual genital activity over his laptop and engaging with a person by live stream".[4]
[4] Affidavit of the mother filed 09/11/2021, paragraph 32.
When it was suggested to her in cross examination that he watched pornography "occasionally" she said it was "more than occasionally". She said that she regularly woke at night and the father and his laptop were gone. She said that it was not every day, but maybe three or four times a week, and especially on the weekends. She said he would take his laptop into the toilet and could be there for up to a couple of hours. She said that late at night she had come out and seen him sitting in the lounge room with the laptop on his lap, and that she could see his aroused genitals. She said that she had seen the pornography on the laptop and also the various pornographic websites he visited.
When asked whether she considered the father's use of pornography as evidence of "sexual perversion" or as evidence of "something wrong" she said "yes, I think there was … something not quite right".
The mother also said in chief that the father was "going to sex massage parlours".[5] The mother said that the father told her that did not have any problems ejaculating when he was at a massage parlour, and that he only had this problem with her.[6] She said he also told her on one occasion that a condom had broken when with a sex worker, so they both needed to be tested for sexually transmitted diseases.[7]
[5] Affidavit of the mother filed 09/11/2021, paragraph 33.
[6] Affidavit of the mother filed 09/11/2021, paragraph 39.
[7] Affidavit of the mother filed 09/11/2021, paragraph 39.
She said that when she raised his "infidelity and sexual behaviours" he denied them. She said he had "difficulty admitting his wrong doings by me". She said she "explained to him that I was very emotionally upset about his ongoing sexual activities and behaviours which l believed had become addictions."[8]
[8] Affidavit of the mother filed 09/11/2021, paragraph 33.
The mother said in chief that in 2012 she came across an email the father had written to a woman, who was separated and with a young child, in which:[9]
36. … He described his sexual activities and how he wanted to have physical sex with her and other sexual activities. It appeared to me [Mr Pires] was an opportunist and sexually preyed on women if he sensed any vulnerability. This email triggered much of emotional distress for me.
(Emphasis added)
[9] Affidavit of the mother filed 09/11/2021, paragraph 36.
She said that when she raised this email with him he had told her it meant nothing to him.
The wife said in cross examination that she was concerned that the father had attended a massage parlour and had a "sexual massage". She said it became a concern to her firstly, because they did not have much of a sexual relationship, secondly because he was watching pornography, and thirdly because he was attending a parlour on a regular basis. This was one of the reasons why she originally wanted to separate in 2012.

The mother said in cross examination that she had raised the issue with her GP who suggested counselling for the father. She asked the father to see her GP and then to see a psychologist or sexual health doctor. She said the father attended the clinical psychologist Dr R to address these sexual behavioural issues. She said she went with the father twice, but that it was not marriage counselling.
The mother said in chief that in 2013 she felt the father had "recovered" and that their relationship had greatly improved.[10] She wanted to start a family. This resulted in the child's birth in 2014.
[10] Affidavit of the mother filed 09/11/2021, paragraph 41.
However, the mother said that in about late 2015, when the child was about 18 months old, she discovered the father's laptop had between 10 and 15 "chatting sexual messages" with various females from across the world, in which he described himself as "a single father looking for a love interest".[11] She said these messages dated back over about the previous six months. She said that after this she again saw the father watching pornography on his laptop and "acting out self-satisfying sexual genital activities late into the night".[12]
[11] Affidavit of the mother filed 09/11/2021, paragraph 43.
[12] Affidavit of the mother filed 09/11/2021, paragraph 44.
She said she was "extremely upset and very alarmed" with the father's "continued sexual addictions which had resurfaced".[13]
[13] Affidavit of the mother filed 09/11/2021, paragraph 45.
The mother said that the father:[14]
47. … then became emotionally disconnected from me. Our relationship slowly deteriorated, with [Mr Pires] spending weekends out of the family home and having minimal interaction with [X]. But when we were in social situations, he would put on a polite charming tone and speak with me and interact with [X] to present as a happy family unit. He continues this mannerism when in public to now.
[14] Affidavit of the mother filed 09/11/2021, paragraph 47.
In cross examination on the father's sexual behaviours, the mother said she had never seen the father access child pornography and confirmed that she was not suggesting he had ever accessed child pornography. The mother was asked, in the context of her evidence about his sexual behaviours:
Q: Did you form a concern that he was sexually attracted to children?
A: No, No, No, Not at that time. No, Not at all.
Q: Did you ever form a concern that he was sexually attracted to children?
A: Not at that point. Not in those years.
Q: And in later years, did you form that concern?
A: No, it's only after the incidents in 2018 that I was just, yeah [late] 2018.
Q: So from [late] 2018, did you think that he was suffering from paedophilia.
A: I don't know what he was suffering for, I think my concern at that point was to my, to [X]. I was then, I was at that point, I was, my entire focus was on [X] and I don't know what was going on with him because at that point we've already not talking. I, I thought maybe early on before the incidents of [late] 2018 I had thought at one point he was in depression. I don't know what was happening so yeah, I don't know at all what was going on with him to be. Yeah I have no idea.
The mother was also asked:
Q: Do you now think that he is sexually attracted to children?
A: I, I don't know.
Q: You don't know or you do know.
A: No, I don't know. I don't know.
There was no evidence or suggestion that that the father had, or has, any sexual interest in children, other than the mother's interpretations of his interactions with the child, considered elsewhere.
While separated under the one roof, the parties apparently continued to present themselves to the world as an intact family, and they worked around each other to both maintain a relationship with the child. The mother's evidence was that during this time she was uncertain about the long-term future of the relationship.
Late 2017-Early 2018: Father's overseas trip
The mother said in chief that the father had told her he was going for a 4 week holiday to Country F.[15] He left in late 2017. She said that while he was overseas he spoke to the child for about three to five minutes on about five occasions.
[15] Affidavit of the mother filed 09/11/2021, paragraph 91.
She said "I later learnt [Mr Pires] had been untruthful to me of his holiday destination as he had gone to [Country S] and [Country U] and only spent 5 days in [Country F]. It seemed to me [Mr Pires] did not facilitate facetime calls as he attempted to conceal which country he was in."[16]
[16] Affidavit of the mother filed 09/11/2021, paragraph 93.
She said that they then argued. Amongst other things she said to him that:[17]
94. … I am aware of all the women coming home, you visiting hotels, you were lying to me and everyone that it was social trip to [Country F], but you were in [Country U] and [Country S] for weeks, visiting women in hotels and staying weeks in overnights.
[17] Affidavit of the mother filed 09/11/2021, paragraph 94.
In cross examination the mother was asked, in the context of the parties being separated though living under the one roof, why she had such a strong response to the father's trip overseas:
Q: What did it matter to you where he went?
A: Well, at that point - I mean, it was - things were really muddled up and confused, and we were - at least I was. I didn't know what was happening in the relationship. Yes, I did say the separation date was 12 - you know, July 2016. But I still didn't know the relationship stood. I didn't know what was happening, and, you know, sometimes he would be - he would talk to me, sometimes he would talk about, you know, buying a new car together. And I just didn't know where we were heading or what was happening. And then when he told me that he's going to [Country F] for four weeks, I just believed him that he's going to [Country F], and then I came to know, no, he's not going to [Country F], he's not going to [Country F], he's gone somewhere else. And yes, I don't know where we were. I was just completely confused and - with what my relationship status was. I know I said that, you know, we had separated, because we didn't have any communication, and that is what it was. We didn't have any communication, but also externally, socially, nobody knew anything. We were still going out as a couple, as a family. If, you know, people were calling us, we were still doing that. He used to send pictures of us as a family when we were outside. So I was - I don't know, I was really confused at that point.
Q: So is it the case that effectively you've picked a date in hindsight to say when you think the separation was?
A: No, but July 2016, I think in my mind I was like, I can't work this anymore. I stopped communicating, and I - you know, I can't do anything more. I just let him do whatever he wanted to do. And I - and also I think - yes, my dad passed away in July 2016, and yes - and after I came back, you know, he didn't show me any - like, there was nothing. There was no empathy, no nothing. And yes, I think that's why I picked that date, because I thought I'm not doing anything more now for him.
His Honour: Were you, in 2018, when you were seeing someone at Relationships Australia, still hopeful that, given that you were living together and had a child, you might manage to somehow work something out and reunite?
A: I don't think I was thinking of reuniting, but I was just trying to understand, like, what is going on with him. Like, what is it that I cannot see, I cannot understand. Because all that time, I think I had hope - I think until I had reached FRC, I kind of had hope that this is just a phase, he will get out of it, it will - you know, things will change. But it, you know - maybe he's too stressed, I will just give him a break, he can, you know, do whatever it is. But I didn't expect, you know, for him to, like, tell me that he's going to [Country F] but then he had gone somewhere else. Like, all those things were - yes, I - it just added to me not knowing him - like, who is this person, you know. There is so much that is going on that I don't know, and yes. I think I was really, really confused in 2018, [early] 2018 when I started that - with - when I saw [Ms T], I was just telling her about everything that has happened, and I was - yes, I just - I just felt sorry, actually. I felt really bad for him, that, you know, I couldn't help him. There was nothing I could do for him .....
Q: [Ms Nandi], is the significance of him going to - telling you he was going to one country and going to three instead, is the significance of that to you that you at that point stopped trusting him?
A: I think I had already - I don't know whether - like, the entire thing, there was no trust, I don't think, which is why we stopped communicating. The entire period there was no trust.
It was clear from her affidavit evidence, and despite what she said in cross examination, that the mother formed the opinion that, consistent with her view of the father as a predatory sex addict, he secretly engaged in sex tourism when he was meant to be on holidays back home in Country F.
Early 2018: Mother's decision to finally separate
The mother said that after this she wanted to leave the former matrimonial home but felt financially trapped, had no family in Australia, and was dependent on the father, and so she sought out personal counselling with a Family Relationship Centre. She said in cross examination that she attended on a “[Ms T]” in early 2018 through Relationships Australia.
It was after this, in early 2018, that the mother told the father that she wanted to live in different houses. This caused further conflict between the parties.
Maternal aunt and paternal grandmother
The mother invited her aunt, Ms W ("the maternal aunt"), from Country F to come and stay and provide support. The maternal aunt stayed in early 2018, and then again in mid-2018. The mother described her aunt's support in, for example, telling the father that "we know all about your extra marital affairs".[18]
[18] Affidavit of the mother filed 09/11/2021, paragraph 103.
In early 2018, the paternal grandmother arrived to stay. The mother felt that this was not helpful. She said "Suddenly after 2 years it appeared to me [X] had two sets of parents not just one mother."[19] There was clearly a degree of conflict between the paternal grandmother and the mother. It appears the paternal grandmother often communicated with the father by shouting at him, which the mother considers family violence.
[19] Affidavit of the mother filed 09/11/2021, paragraph 106.
Early 2018 Family Relationship Centre
In early 2018, the parties participated in a parenting mediation and agreed on a four month trial parenting plan.[20] The plan was based on the parties residing under the one roof and provided for the father to collect the child from childcare on Thursdays and to feed and bath her, and to have her in his care on Saturdays from 8am to 7pm and on Sundays from 8am till 12pm. The parties agreed to access appropriate support for the child.
[20] Affidavit of the mother filed 09/11/2021, Annexure H.
THE FACTUAL BASIS OF THE MOTHER’S BELIEFS
The mother said that she was concerned for the child's safety if left alone with the father because of incidents:[21]
22. … over [late] 2018, [early] 2019 and [late] 2020 of [Mr Pires's] inappropriate behaviours towards [X] and behaviours towards [X] which I believed were sexually abusive.
(As per the original)
[21] Affidavit of the mother filed 09/11/2021, paragraph 22.
The instances the mother identified as giving rise to her belief that the father had sexually abused the child were detailed under the heading "father's sexually inappropriate behaviours/abuse towards child".[22]
[22] Affidavit of the mother filed 09/11/2021, paragraphs 139-153.
Late 2018 events
The mother commenced by stating:[23]
139.From about [late] 2018, I saw incidents that I believed to be concerning inappropriate behaviours and sexually abuse by [Mr Pires] towards [X]. They caused me to be very concerned for [X's] physical, psychological and emotional safety and well-being if left in [Mr Pires's] care alone.
(As per the original)
[23] Affidavit of the mother filed 09/11/2021, paragraph 139.
She then set out a series of events, which are said to have occurred on multiple dates in late 2018. Although the mother's evidence makes it clear that it was the totality of the events that caused her to become concerned, it is necessary to separately consider her evidence on each event to understand the way in which she formed her overall view, and to assess the probability of the events observed being sexual in nature.
Before considering the evidence on each event, it is worthwhile noting that the expert said of the issues at [80-81] of the Family Report that:[24]
80.The allegations, according to [Ms Nandi], contain elements of physical touch and exposure to sexualised behaviour. The nature of the allegations made by [Ms Nandi] include behaviour that may be viewed as grooming type behaviour, or behaviour that desensitises a child to future sexual abuse. Whether or not this also occurred prior to separation does not necessarily have any bearing on whether or not it was grooming behaviour, as it would be likely that grooming behaviour would have started early in [X's] life, and may have also included desensitising sexualised behaviours to [Ms Nandi], so that she would not be concerned and raise any alarm.
81.Alternatively, the behaviours described by [Ms Nandi] and [Mr Pires] can also be viewed as normal parent child interaction. The difficulty is that it is not uncommon for grooming behaviour to appear to be normal behaviour, as effective grooming behaviour will look this way so that it is accepted. However, how [Mr Pires] responded to the allegations did appear to provide accounts of what may normally occur in any child-parent interaction, both including physical affection and in treatment of an issue like eczema. Ultimately, whether or not [Mr Pires] is likely to have sexually abused [X] (which includes grooming behaviour) may be a matter for the Court to determine.
[24] Exhibit ICL3, paragraphs 80-81.
I have this in mind when assessing both the issue of whether or not there should be a finding that grooming did or did not occur or that it is not possible to say, and the issue of whether there is a future risk of grooming and sexual abuse occurring. I consider the expert's evidence elsewhere.
Late2018
The mother referred to the first incident:[25]
A. i.On [a date in late] 2018, about mid morning, I had bought some snacks and walked into the lounge room and noticed the blinds were drawn and romantic [Country F language] song video clip of romantic sensual physical scenes playing on the TV. I saw [Mr Pires] touching [X] on her bottom when watching TV.
ii. He wasn't letting her go even when she was shouting "I want to go". [Mr Pires] was making her lie down with her head in his lap and his hand on her bottom and pressing it. Her head was on the side of his leg. I immediately said, "[X] get up and sit straight on the other side of the sofa". [X] did. [Mr Pires] was silent.
iii. I was stunned of what I had seen and heard which appeared very strange and I felt puzzled and very troubled about what [Mr Pires] was doing and not letting [X] go when she wanted to. I felt the clip was inappropriate and unsuitable viewing with a four year old child.
(As per the original)
[25] Affidavit of the mother filed 09/11/2021, paragraph 139A.
Each party was cross examined about the various elements of this incident.
In cross examination, the father denied any inappropriate behaviour. He said the blinds were down because at that time of day the sunlight reflected off the TV and this was his usual habit. He said the video clips were not adult in nature but merely standard Country F music video clips. He accepted he may have had the child's head on his lap and had his hand on her bottom. He denied that his physical contact with the child was sexualised.
The mother said this event occurred at about 10:30am to 11am. She agreed that the light probably did reflect on the television in the living room. She said that having the blinds drawn was not an issue in itself.
She was asked about the Country F language music video clip. When asked what she meant by "romantic sensual physical scenes" she said there was "romantic music", and in one of the clips they were dressed in "sexualised outfits". She clarified that she meant the outfits "focused on body parts" and that the camera came close to "various parts of the body" and that there was "sensual dancing". She confirmed that nobody was exposed or naked. She agreed that she was talking about "tight flowing clothes" with "slow music". She initially said she thought it was "sexual in nature". She then corrected herself to describe the scene as "sensual in nature". While it was not material of the highly sexualised kind one might commonly see in western music video clips, she said she thought it was inappropriate for a young child who had only ever watched ABC kids TV.
The mother was asked how the father was "touching" the child "on her bottom". She said that his "hand was just there on her bottom". She then said at that time she did not think anything about it. She said she included it in her evidence because of the overall pattern of incidents.
When asked about the fact that "he wasn't letting her go", said she did not understand why the father was "not respecting her wishes". However, she also said her statements about this event were in the context of the later "occasion when I saw one hand on the crotch and one hand on her bottom". During cross examination the mother confirmed that when she referred to "crotch" she meant "genitals".
She was asked why she spoke to the child and not the father if she thought he was acting inappropriately. She said it was because the parties were not speaking to each other and she did not wish to engage with the father as he might "come back" at her.
As described by the mother, the father was watching music videos from the parties home country with the child, which videos would be modest by western music video standards, with the blinds down because the sun shone through the window onto the TV screen at mid-morning, and the child was laying with her head in his lap and his hand lay lightly on her bottom. The child wanted to get up but the father was not allowing her to.
Although the mother said she was "stunned", her oral evidence suggested that she did not experience that emotion at that time, and that there was an element of hindsight involved.
Late 2018
The next incident occurred the following day. The mother said:[26]
B. i.On [a date in late] 2018, in the morning I prepared a snack for [X] and went to give it to her in the living room. I again noticed that the blinds were drawn and romantic [Country F] songs video clip with romantic sensual physical scenes was playing on the TV. [X] was sitting with her head resting on [Mr Pires's] arm and his hand was on the side of her bottom but just lightly resting. I gave the snack and left the room. When I returned about 15 minutes later, I saw [X] was half lying down with her head still on [Mr Pires's] lap and [Mr Pires's] hand was under her bottom and his other hand on his crotch. I immediately asked [X], "[X] sit properly and do some colouring and writing."
ii.[Mr Pires] pretended to act as nothing had happened and just let [X] go. [X] got up and went over to the dining table and began colouring. I was shocked of what I saw [Mr Pires] doing and felt it was repulsive and just not right. It was extremely concerning and disturbing as I felt that what I had seen was inappropriate behaviour. I was troubled that [Mr Pires's] behaviours were for his sexual satisfaction. I did not say anything to him still feeling shocked. I was finding it difficult to comprehend what I had witnessed. I avoided conflict in front of [X].
(As per the original)
[26] Affidavit of the mother filed 09/11/2021, paragraph 139B.

In cross examination, the father again denied that this was anything other than a parent sitting with a young child watching modest music video clips on TV while his daughter rested her head on his lap, his hand rested lightly on her bottom and his other hand resting in his own lap.
The issues with the closed blinds mid-morning and the content of the Country F music clips is dealt with above. In cross examination the mother was asked whether she was concerned about what she had seen the day before and was coming back to check. She said "no". She also said that she did not see a problem up to the point in time when she had given the child a snack and left the room. To that point it was similar to the day before, apart from the child's head not being on the father's lap.
The mother said that when she used the word “lap” she meant “crotch” and more specifically “genitals”.
The mother was asked:
Q: What do you mean his other hand was on his crotch?
A: It was on his genitals.
Q: In what way was his hand on his genitals?
A: Holding his genitals. It was just kept like, like just kept.
Q: Just, Just resting there? Just like that? Just resting? We're not talking any sexually explicit movement of the hand are we?
A: No. It was on his genitals. He was holding it.
At that time, the mother demonstrated her meaning by holding one of her hands, cupped, and then placing the other hand, also cupped, over the first hand. At the time, my impression was that the actions as demonstrated by the mother appeared consistent with, and indeed more consistent with, the way a man might rest his hand cupped on his lap when sitting than with the way he might hold or apply pressure to his genitals for sexual pleasure. It would not be unusual to see a man with his hands resting in the position the mother described in any public setting.
The mother was also asked:
Q: Did you see a problem with him having his hand resting on his genitals whilst he is sitting down?
A: He was holding his genitals and the other hand was on X's bottom. Yes, I did have a problem.
Q: And did you see any evidence that his genitals was aroused?
A: It was cupped and that's all I can say.
Q: Did you consider the possibility that his hand was just simply resting there at a convenient place?
A: Did I have that possibility?
Q: Yeah
A: No, I, I didn't have that possibility. It somehow didn't come to me.
Q: So when you saw it you thought it was sexual?
A: I think all of it put together with that music playing in the background, with the blinds drawn down, with it being in the morning and then knowing about [Mr Pires's] past sexual history, yes it just all just came together to me at that point.
Q: So if he had never been to a massage parlour and he'd never accessed pornography, would this have been concerning to you?
A: uh yes it still would be concerning to me because the blinds being drawn in the daytime for me and then and watching that kind of music and his hand being on the crotch yes it would have still been a concern.
(Emphasis added)
This was another of a number of references the mother made to the father's sexual history in her oral evidence when pressed to explain what aspects of his interaction with the child she perceived as sexualised.
The mother was asked whether it was possible that the father did not react, not because he was "pretending" to act as if nothing had happened, but because nothing had in fact happened. She said that could not say and did not know. When pressed, she said she was concerned because "he didn't react at all". Asked what she would have expected him to do, she said "I don't know he might have questioned me". She said this was because she believed that normally he would have reacted to her. She was asked what she thought his response would have been if, in fact, nothing sexual had been happening. She said that knowing the father, he would have reacted to her involvement. In effect, she inferred a consciousness of guilt from the fact that he did not react.
When asked which part of what she observed she had found "repulsive", she said "his hand on his crotch and the other hand on her bottom". She said that these things in particular caused her to form the view that his behaviours were for his "sexual satisfaction".
When asked whether she perceived him to be "sexually aroused", she said "probably". When asked whether he had an erection, she said "I couldn't tell". When it was put to her that she drew the conclusion that his behaviours were for his "sexual satisfaction" without any evidence of his "sexual arousal", she said "all I saw was that his hand was on his crotch and it was cupped and I can only say what I saw".
Late 2018
The next incident referred to was two weeks later. The mother said:[27]
[27] Affidavit of the mother filed 09/11/2021, paragraph 139C.
C i.On [a date in late] 2018, I returned home about 6.15pm which was earlier than usual. As I entered the home and headed upstairs, I heard the upstairs master bathroom exhaust on and I could hear [Mr Pires] very loudly talking but in a friendly tone. I thought [Mr Pires] was washing [X's] hands or face. I went into [X's] room to put my bags down and as I headed towards the master bedroom, I heard [Mr Pires] asking laughingly 'What do you put in there? Does anyone ask you if you put anything in there?'
ii. The bathroom door was half open and I glanced into the bathroom and saw [Mr Pires's] back. He was dressed only in his shorts with his towel around his neck and I caught a glimpse of [X] and [Mr Pires's] hands were on her leg and [X] was standing on the bathroom vanity.
iii. [Mr Pires] immediately noticed me in the mirror and as he moved sideways, I saw a panicked look on his face. [Mr Pires] pulled [X's] towel which was hanging on shower cubicle. As [Mr Pires] moved, I saw [X] standing on top of the vanity with both her hands holding her […] (private part) open with a lot of sorbolene cream on her inner thighs.
iv. [Mr Pires] immediately wrapped [X] in the towel and carried her out. [X] looked dazed and called out 'Mummy!' reaching her hand out. I said "Hi". [Mr Pires] took [X] to her room and placed her on the ironing stand and put her night suit on and placed her on the ground and [X] came running to me.
v. I shut the master bedroom door with just myself and [X] inside, as I changed. A few minutes later as I was talking to [X], I opened the door to see [Mr Pires] standing right outside the door listening. I immediately shut the door again and spent a few more minutes with [X] as she didn't want to go downstairs.
vi. After a few more minutes I re-opened the door and [Mr Pires] was standing outside again, pretending to look for something in a cupboard. [X] and I went downstairs. [Mr Pires] left the home after about 30 minutes in his usual Saturday night routine. I noticed [Mr Pires] had changed his bedroom sheets.
vii. I asked [X] "Are you ok?" Is there anything you want to tell me" I noticed [X] was itching her private parts. I asked "Do you have a rash?" X said "Yes. Daddy said my […] is red and Daddy put cream on. "
viii. [X] then said "Daddy said 'my […] is thick and hard'. I was stunned at that statement. I had a look and there was no cream in the area but it was red similar to the nappy rash that she usually gets. I told [X] "There is no cream in that area." [X] said "Daddy put another cream". I asked "What cream did he put, can you show me." [X] said "I don't know."
ix. As I went to the bathroom to see if there was any other cream in bathroom, [X] said "It was tooth paste" and began laughing. I said "No that can't be right" and [X] laughed. I stopped there as I was unsure if [X] was making it up.
What I saw and heard during this incident caused me extreme shock and alarm that [Mr Pires] may have inappropriately sexually touched [X]. I sensed that [Mr Pires] was getting sexual satisfaction from viewing her. I was extremely worried and as a protective measure decided not to leave [X] alone with [Mr Pires].
(As per the original)
The father's evidence was accurately summarised in the Child Responsive Program Memorandum at [20] as:[28]
20.The other allegation that he stood [X] on the bathroom vanity where she had cream on her inner thighs was related to him bathing her and then standing her on the vanity to dry her and apply cream to her eczema, which included 'sorbolene' cream and 'sudocrem'. He said that they joked together that the 'sudocrem' looked like toothpaste. [Mr Pires] stated that he applied creams to [X's] inner thighs and genital areas, and he has done this since [X] was a very young child. He said that when he bathed [X], she would often splash him with water and he would be wet, which may have resulted in [X] telling [Ms Nandi] that she gave him a bath.
[28] Exhibit ICL2, paragraph 20.
In cross examination, the mother was asked what sort of contact she felt was appropriate between a father and a daughter under five years of age. She said it was appropriate for a father to bath a daughter and to apply cream to her genitals if cream was required. She agreed that the child had significant eczema and other allergies, and that it was routine every time she was bathed to apply sorbolene and a special cream for flare ups, and that there was nothing inappropriate in the father doing this or cleaning the child's genital region.
The mother was then asked about what aspects of this this event lead her to believe there was sexual intent.
She was asked about the fact that the husband was in the bathroom in his shorts with his towel around his neck with the child standing on the vanity and him holding her legs. The mother said that that was not strange. She did not think it was strange that the child was naked, or that the father was applying sorbolene cream to a rash around her genitals given her history of rashes and her age.
The mother identified the things that concerned her as the fact that she interpreted the father's look when he saw her appear unexpectedly in the bathroom as "panicked". This caused her to conclude that he felt "he'd got caught out doing something wrong". She also said that there was a lot of cream, which she also thought was unusual. In particular, she also felt that the fact that the child "had her hands opening her vagina, keeping her vagina open" and that the child was "looking down" was odd.
When it was put to the mother that all of this was normal behaviour on the part of the father in cleaning and applying cream to a 4 and a half year old with a rash around her genital region, she replied "why did he panic?" She also emphasised that the child had a "dazed look" on her face. When asked what about the "look" made her think the child was being sexually abused she said:
A: Maybe not the look. I didn't understand the whole sequence of things that happened. It all happened so quickly and then I, I see her daze come out and him you know taking her which was ok that he took her, he'd dressed her up and she came but then again I, I shut the door. I saw him I think 3 times on 3 occasion's right outside the bedroom door and all of those things put together. Yep. That was the incident that that.
When asked what she thought happened, the mother said she thought the father was:
A: … behaving inappropriately with her. Like, he was, I don't know seeing her in a sexual way or he was getting gratification from seeing her parts. That is what I concluded from that.
The mother was asked about the child saying "Daddy said 'my […] is thick and hard' and agreed the area sometimes had little boils and nappy rash and that the cream they used caused the skin to get thicker. The mother agreed that the father did not put toothpaste on the child's genitals, and that the child was saying something that was not true and was merely playing and being silly when she said this.
The mother agreed that the child did not appear distressed "other than then the dazed look"
It was put to the mother that there were two possible explanations for what she saw. Firstly, the innocent explanation given by the father, that he was giving the child a bath and then standing her up and putting cream on the rash she had around her genital area, and was perhaps startled when the mother appeared behind him unexpectedly. Secondly, that it was inappropriate behaviour because the father took sexual pleasure from looking at the child naked. The mother was asked why she picked the second interpretation. She said:
A: Again, I think it was like what all I just told you all those 5 things. 5 or 6 things that I've mentioned. Also then you know the previous weeks, when I had seen [Mr Pires] with [X] and him watching TV. And then of course I know all of [Mr Pires's] past history with sexual health so yep all of those things.
Q: And you say that you were able to sense that [Mr Pires] was getting sexual satisfaction from viewing [X].
A: Yeah, I think he was just looking at it.
Q: What do you mean?
A: Yes, Yes.
Q: And how did you say that you were able to sense that?
A: Just firstly while he panicked. I think that was my when he panicked. When he saw me. It was just a glimpse. I just passed and you know my reflection was on the mirror and it was a panicked look that I saw and he straight away grabbed the towel straight away wrapped her, took her out and all of those things made me think that.
(Emphasis added)
Again, when pressed, the mother's answers made it clear that her perception of the events as sexual was influenced by her knowledge and view of the father's "past history with sexual health" in which she had described him as a sex addict and sexual predator. She also placed significant weight on the fact that she felt that the father looked panicked, noting that in relation to an earlier incident she placed weight on the fact that he did not respond.
Despite her oral evidence at other points during the Trial that the father's sexual history and her view of him as a sexual predator did not influence her interpretation of these events, it was clear from her oral evidence and her repeated references to that history when answering questions about these events that her view of the father as a sex addict and opportunist who preyed on vulnerable women was relevant to how it "all just come together" for her that the father's behaviours were for his sexual gratification.
Late 2018
The fourth incident referred to was one week later. The mother said:[29]
D. On [a date in late] 2018, [X] and I were having dinner. [X] said "Mummy does not take bath with me". After a few minutes of chat, [X] said "Daddy took bath with me" I asked "What did Daddy do?" [X] said "Daddy took all his clothes off and took a bath with me. I saw his […]". She then giggled.
I felt appalled and shocked as [X] had never taken a bath with me or [Mr Pires] as it was against both our cultural beliefs and upbringing. I was becoming increasing worried and anxious of [Mr Pires's] behaviours towards [X]. I felt he was getting sexual pleasure from viewing her.
(As per the original)
[29] Affidavit of the mother filed 09/11/2021, paragraph 139D.
The father said he showered the child and that the parties did not use a bath. He said he had not taken off his pants nor exposed his genitals to the child. He said the child would sometimes splash him and get him wet, and that she may have meant that she bathed with him in that way.
In cross examination, the mother agreed that the child giggled and was not showing any distress. She agreed that the child had told her that the father had put toothpaste on her genitals and was laughing as she said it, and that the father clearly had not put toothpaste there. She also agreed that the child was also giggling when she said the father took his clothes off and bathed with her.
The mother agreed that she also used the word "bath" to mean "shower". She was asked whether she accepted his explanation for what the child might have meant, i.e. that the child throwing water over the father was the child bathing the father, and she said she did not.
Given that both parents bathed the child and applied cream to her genital region and that the mother did not consider that abnormal or inappropriate, the mother was asked what it was that made her think the father was getting sexual pleasure, the mother retreated somewhat in her evidence and said that rather than positively feeling this was something of a sexual nature but that she thought it was a possibility.
Late 2018
The fifth incident referred to was approximately three weeks later. The mother said:[30]
E.On [a date in late] 2018, I was sitting on the bed rest outside the bathroom whilst [Mr Pires] gave [X] a shower. I heard [Mr Pires] say to [X] to "Open..I have to wash in there - it is all dirty - that's how you keep getting rashes".
About another 5-10 seconds later he said "Keep it open". After a few more seconds I heard him say "good". I thought he was referring to her […].
I had become even more concerned and anxious about [Mr Pires's] behaviours towards [X].
(As per the original)
[30] Affidavit of the mother filed 09/11/2021, paragraph 139E.
The father said that he was probably cleaning the child's genital region to avoid ongoing rashes. Given the mother's acceptance that it was appropriate for the father to wash the child, and to make sure her genital area was clean and to apply cream if necessary, she was asked why hearing this made her more worried.
The mother said there was nothing concerning about the father's tone of voice, and that the child did not sound distressed. It appears that she treated this event as confirmation of the concerns that had formed in the preceding month.
Prior events re-considered in hindsight
The mother gave evidence that:[31]
140. In hindsight I recalled and remembered other previous incidents of what I believed were inappropriate and or sexual abusive behaviours by [Mr Pires] towards [X]…
(As per the original)
[31] Affidavit of the mother filed 09/11/2021, paragraph 140.
The mother confirmed in oral evidence that everything in this section of her evidence only seemed problematic to her in hindsight.
Bouncing baby on crotch
The mother said:[32]
b. [Mr Pires] put [X] on his lap and bounced her on his crotch when she was 18 months to 2 years of age. I also recall [Mr Pires] almost always put [X] on his crotch while watching TV or at random times in the home yet he put her on his lap - side of his leg when he was outside in social environment.
(As per the original)
[32] Affidavit of the mother filed 09/11/2021, paragraph 140b.
The father's evidence was that he had played with the child as a baby by bouncing her on his lap, and not on his genitals, and that she would sit and play on his lap in the way children do.
The mother was asked about the father bouncing the child on his "crotch" or "genitals". She confirmed that they were both wearing clothes and that the child, who was then a "baby", would jump up and down and stand on the father. She maintained that he would put the child on his genitals.
The mother she said it was only with hindsight, after the events of late 2018, that she came to understand the distinction between placement of the child on the crotch/genitals and placement on the lap. When asked whether she thought bouncing the child on his genitals gave the father sexual pleasure, she said, "yes, maybe". She said that, in hindsight, she thought it was "sexual in nature" because she said she did not think she had seen any other man do this, that is, bounce a baby on his crotch and not his lap or knee.
The mother said that, in hindsight, she asked herself why the child would be on the father's crotch rather than his lap and decided it was because "that is the sexual organ that is where you can derive sexual pleasure from so why should the child be sitting on that part of the body."
The mother confirmed that she saw no evidence of an erection or other identifiable evidence of sexual arousal, although she said she did not know what was going on under his clothes.

The father's viewing of pornography, which did not involve children, and use of adult sex workers and flirtation with single adult mothers, whom the mother considered vulnerable, in the absence of any other evidence of a sexual interest in children, does not persuade me that the father has paedophilic tendencies.
Nevertheless, the fact that the mother took into account the father's sexual history with adult women does not necessarily mean that what she otherwise observed was not sexual abuse. It is necessary, therefore, to attempt to examine the father's conduct with the child without assuming, as the mother did, that he is a sex addict whose sexual addiction is relevant to his interactions with the child. In doing that, I consider it relevant that the mother's concerns only arose during the course of the high conflict situation of a final separation after years of living separated under the one roof.
I note that the child does not appear to have viewed any of the father's actions as inappropriate; however, the essence of grooming is that a young child might be groomed or used for sexual pleasure without realising or understanding what was occurring.
I will not re-iterate each fact or element relied upon by the mother as set out elsewhere.
It is clear, as the expert stated, that the totality of the behaviours might be normal adult child interactions, or might be grooming behaviours.
The evidence does not reach the standard necessary to make a finding on the balance of probabilities that there was sexual abuse. However, that is not the end of the inquiry.
Having reviewed and weighed the evidence, for the reasons advanced by the ICL and supported by the father, I am satisfied that the critical element influencing the formation of the mother's belief that there was sexual grooming was her view of the father as a sexual predator in the context of heightened emotions during the high conflict final stages of the marital breakdown.
I also find that the mother was not acting maliciously but genuinely believed and believes that the father posed, and continues to pose, a risk of sexual harm to the child.
Given that the mother has managed to avoid involving the child in the allegations to date and has not sought to undermine the child's relationship with the father despite her beliefs, I also find that the mother does not pose a significant risk to the child of falsely informing her that she has been sexually abused or of seeking to undermine the child's relationship with the father. I accept the mother's evidence that she will continue to comply with Court orders, and access counselling.
I nevertheless accept the mother's submission that this will place a strain on the mother, which may in turn impact on her capacity to parent the child, and that this is a relevant fact to take into account in determining the specific orders for the time the child will spend with the father.
I find that the parties were involved in high situational conflict for an extended period of time. I accept the mother's contemporaneous statement that the issues were "mainly verbal in nature" with an event of throwing a bowl of porridge. While this is not acceptable behaviour on the father's part, it is at the lower level of family violence events and the mother's perception of the extent of the conduct may have been influenced by the high conflict and her view that the father was sexually grooming the child. Nevertheless, the father's conduct amounts to family violence within the meaning of the Act and displaces the presumption of equal shared parental responsibility.
I find that each parent separately has the capacity to provide for the child's physical and emotional needs. The limitations on their capacity is when they are required to co-parent.
Legal issues
The Court is required to make orders in the child's best interests. Her best interests are determined by reference to the considerations set out in s 60CC of the Act.
Section 60CC(2) provides that the primary considerations are:
(a)The benefit to the child of having a meaningful relationship with each parent; 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.
The Court is to give greater weight to the need to protect the child.
In this case, for reasons given elsewhere, I am satisfied that neither parent poses a risk of physical harm to the child. I am satisfied that the risk of psychological harm to the child posed by the mother's incorrect belief is low, and that it can also be ameliorated by the mother undergoing counselling, as the mother herself suggested she would, and by a restraint on informing the child about the abuse.
The child has a meaningful relationship with each parent. On a prospective basis, I am satisfied that the child will benefit from the maintenance of that meaningful relationship with each parent.
There are a range of additional considerations to be taken into account as set out in s 60CC(3) of the Act.
Section 60CC(3) deals broadly with issues of risk and relationships, issues concerning the child, including their characteristics and views, as well as matters regarding parental capacity and participation, issues of practicality and the risks and impact of ongoing litigation.
I have addressed the risk issues elsewhere.
I am satisfied neither parent, nor the paternal grandmother, pose a risk to the child of physical or emotional or sexual harm in their respective households.
The child is too young for her views to be given much weight, although the orders I make are consistent with her view. There is nothing about the maturity, sex, lifestyle and background of the child or of either of the parents that has not been dealt with elsewhere that is relevant. The child's health has been dealt with elsewhere and there is no additional characteristic of the children that is relevant.
There is no aspect of the orders I propose to make which will cause a change that will adversely impact on the child. The expert was satisfied that she would adjust to overnight time with the father relatively quickly given their good relationship and her age and maturity.
I am satisfied that each parent has a good attitude to the child and to the responsibilities of parenting, and has participated to the extent possible in the child's life. I note that the father may not have participated as much in the early years; however, I do not consider this to be an impediment to his ongoing participation.
The only aspect of either parent's parenting capacity which is impaired is the mother's capacity to manage her emotions and conduct and to prioritise the child's needs over her own emotional needs as a result of the mother's ongoing genuine, but incorrect, view that the father presents a risk of sexual harm to the child.
There are no practical difficulties with the orders I will make.
There is a real risk of ongoing litigation, in particular given the mother’s beliefs. That may be added to by the need to jointly determine a school. That additional risk is worthwhile in my view. If the Court needs to determine a high school that will indicate that there may be a decision that should not be left to one parent.
DECISION AND ORDERS
The ICL provided proposed final orders for the mother to have sole parental responsibility, for the child to live with the mother, and for the father to spend unsupervised time with the child. The father provided proposed final orders which sought equal shared responsibility, and sought some modifications to the ICL's proposals for time, that is the ICL's orders 2-20. He added proposed orders 21-24 for travel out of Australia with the child, 25 around make up time, and 26 as a first right of refusal if the other parent is unavailable to care for the child.
The mother's primary proposal was based on a finding of a risk of sexual harm leading to no time and no communication. Given the findings I have made, I will not consider that. She included in her case outline a proposal in the alternative, which was supplemented in closing oral submissions by reference to the ICL's proposal.
Given the view I have formed, it is convenient to start with the ICL's proposals in relation to each issue.
Parental responsibility
For reasons given elsewhere, I find that the father engaged in family violence within the meaning of the Act and that the presumption of equal shared parental responsibility is rebutted. It is then necessary to consider what orders for parental responsibility are in the child's best interests.
The ICL proposed that mother exercise sole parental responsibility (ICL orders 1), provided that she notify the father in writing 28 days prior to making any proposed decision relating to: which high school the child should attend, or about elective surgery, treatment of chronic conditions, orthodontic treatment and other long term medical issues affecting the child. There is a proposed obligation to take the father's views into account and notify the father within 7 days of making a decision. The obligation to consult was said to be "except in the case of an emergency." The ICL also proposed a caveat (ICL order 18) that the child should continue attending Suburb C School for her primary schooling, there being a restraint on this being changed unless agreed to by both parties in writing.
The ICL's position was that the parties' capacity to communicate and co-parent was so poor that it was not realistic for them to share parental responsibility. The mother had a similar position.
The mother's final proposal, on the facts I have found, was in relatively similar terms to that of the ICL and her submissions were in a similar vein. She submitted that the level of mistrust between the parties was so high and the communication so poor that it would be extremely difficult for them to make joint decisions. She also submitted that whilst she gave evidence that she could cope with the child spending unsupervised time with the father, there would be a degree of stress involved and that stress would be significantly added to if she was required to negotiate with the father on major issues. That stress could impact her parenting capacity as the child's primary carer. It was submitted that the relatively recent evidence of some ability to communicate and agree on issues, as set out in various emails, would be given little weight against the history of poor communication and distrust.
The father submitted that although co-parenting would be difficult, it would be protective for the child for both parents to be involved in making any major or long term parenting decisions. The father also pointed to the recent evidence of improving communication and the fact that with the agreements on religion there were relatively few decisions left to be made, noting that unless they agree to both pay for and select a private school the child will presumably go to her local high school.
The essence of the father’s submission was that while the mother's parenting decisions were generally good, granting her sole parental responsibility created a risk that she would again make decisions based on her incorrect view, as she had when she ceased time after the doctor and dentist appointments, and that joint parental responsibility, though creating the risk of conflict and litigation, would be a protective order.
Equal shared parental responsibility is not in the interests of the child where trust is so low, communication is historically so fraught, and co-parenting so poor, largely for the reasons articulated by the ICL based on the evidence of the expert.
In these circumstances, I find that the child’s best interests require that the mother, who is the primary carer and who has generally shown good judgment in making decisions for the child other than where the father is concerned, should have sole parental responsibility subject to the obligation to notify and consider the father’s views as proposed by the ICL, subject to one caveat.
The parties agree that unless they mutually agree to pay, they cannot afford a private high school. In the usual course the child will then attend the local high school, so the potential for dispute is limited. However, I am concerned that the mother may seek to use the selection of a high school in a way which is not in the child's best interests. While it does give rise to a risk of litigation, on balance, I think that risk is worth taking for the protective factors involved in requiring both parties to agree on a high school.
Accordingly, I find that the least worst option for the child is for the parties to exercise equal shared parental responsibility only in relation to the selection of a high school.
Live with mother
The ICL proposed that the child live with the mother (ICL order 2) and the father and mother both agree with this order.
Time with father
It follows from my finding, supported by the evidence of the expert, that the child should spend unsupervised time with the father.
The father properly conceded that equal time was not appropriate. The issue is the balance between allowing the child to spend enough time with the father to maintain her meaningful relationship with him, but not so much that she is disadvantaged by the poor co-parenting capacity. It may be that it is not possible for the child to spend significant and substantial time with the father, as defined by the Act, but nevertheless sufficient time to maintain her meaningful relationship with him.
The ICL proposed (ICL orders 3-6) unsupervised time with the father, including overnight time, graduating from alternate weekends from after school Friday to 6 pm Saturday during the school term, commencing from the date of these orders, through a series of increases over time up to an ongoing process from Term 1 of 2023 of time from after school Friday to Monday morning on alternate weekends in week one and the alternate Wednesday overnight in week two. During holidays the ICL proposed increasing time, starting with five consecutive nights and ending up with half school holidays. There are also provisions for special occasions.
In closing submissions the ICL submitted that the expert had "reluctantly" agreed to the overnight time in the alternate week, which was included in the ICL's proposal, but emphasised that the ICL was not firm about that alternate week overnight because of the capacity for that single overnight to become a point of conflict.
In closing submissions the ICL's proposal was therefore for either three or four nights per fortnight, depending upon my view of the expert's opinion and the risk that the single overnight in the alternate week could become a point of contention, particularly if poor communication means that there are difficulties coordinating the child's school needs.
The father largely adopted the ICL's proposal as to the time the child is to spend with him, except that rather than time stopping after the increment to four nights per fortnight he proposed a further increment to five nights per fortnight, in line with the mother's proposal prior to the events at the doctors and dentists waiting room.
In relation to the ICL's proposed orders 3(a), (b) and (c), dealing respectively with the first and second month from the making of orders and the time until term one of 2023, the father proposed that the orders be structured to read from after school or 3 pm on a non-school day until 6:30 pm rather than 6 pm.
In relation to the ICL's proposed order 3(d) dealing with the ongoing arrangement from the commencement of term one of 2023, the father again proposed the inclusion of additional words from 3 pm on Friday if a non-school day until 9 am Monday if a non-school day, to avoid doubt about how to deal with public holidays or pupil free days. He proposed Thursday night in the alternate week rather than Wednesday, as a matter of convenience.
The father's proposed order 3(e) includes the additional increment to the ICL's proposal. The father proposed that from term one of 2024, the week one cycle would go from the conclusion of school or 3 pm Thursday until the commencement of school or 9 am on Monday, together with the overnight in the alternate week being on the Thursday. That would be five nights a fortnight rather than the maximum of four proposed by the ICL. The expert was against such a proposal.
The father's proposal (4) as to school holiday times adopted the ICL proposal. The father's proposal (5) concerning the changeovers adopted the ICL proposal. The father's proposal (6) as to special occasions substantially adopted the ICL proposal but submitted that, for consistency, the references to 5:30 pm and 1:30 pm in the ICL's proposal 6(c) and (d) would be 6 pm and 2 pm. I will set the hours in the orders that I consider appropriate.
The mother's proposal for time during school holidays, if there was no finding of unacceptable risk, at order 11, was each alternate week on Friday from the conclusion of school (or 3 pm if it is a non-school day) until 7:30 pm, on Saturday from 10.30 am to 6.30 pm, and on Sunday from 10.30 am to 1.30 pm. For school holidays, she proposed three consecutive days each holiday from 9.30 am to 6.30 pm each day, as well as some day time on Christmas and Boxing Day. No overnight time was involved at any stage.
The mother's proposal, whilst said to be based on "a finding that the Father did not sexually abuse the child and the child is not at an unacceptable risk of harm whilst in the care of the Father" is not truly predicated on that basis. It is not a reasonable proposal given my findings. It would not be sufficient to allow the child to maintain a meaningful relationship with the father. It is evidence of her ongoing belief that the father poses an unacceptable risk of harm to the child.
I accept the expert's opinion that an equal time arrangement, or near equal time arrangement of five of more days per fortnight, requires a high level of communication and co-parenting in order to facilitate transitions and to avoid unnecessary conflict. That does not exist here. The level of distrust and lack of communication mean that, in my view, the child's best interests will be served by providing her sufficient time with the father to ensure that their meaningful relationship is maintained, but moderated particularly during school term so that the child's daily life is not negatively impacted by poor co-parenting.
There is no doubt, as the ICL submitted, that the expert was cautious if not reluctant in her discussion of the proposal for the alternate week overnight.
The mother's submissions also referenced Re Andrew [1996] FamCA 43 and emphasised that although she would cope, the greater the time the child spends with the father and the more transitions per period, the greater the strain on her and the greater the risk of it impairing her general parenting capacity. There is some merit in that submission.
The finding that there is no unacceptable risk and that the child will benefit from spending time with the father clearly supports, as the expert said and the ICL supported, the child spending three nights per fortnight, from Friday after school or at 3 pm to Monday before school or 9 am, with the father during the school term, and in due course half of each school holiday. With the inclusion of holiday time, and of communication addressed elsewhere, I am satisfied that is sufficient time to allow the child to maintain a meaningful relationship with the father.
I am satisfied that this is also an arrangement the mother will be able to cope and which, by minimising non-school changeovers, will reduce the potential for friction and for issues to arise that adversely affect the child due to a lack of co-parenting capacity.
That then gives rise to the issue of the alternate week overnight. Both the expert and the ICL were concerned about this. While it would be good for the child to have this overnight to reduce the gaps between spending time with the father, weighing the risks of this single overnight becoming a point of conflict because of the inability to co-ordinate against the additional benefit of this time to the child, and not the father, I consider that the risks outweigh the benefits.

The evidence does not support the father's proposal for a five night per fortnight arrangement. The co-parenting capacity does not exist to make such an arrangement feasible.
The ICL made provision for special occasions, which the father largely supported and which seem reasonable
I will make orders leading to three days per fortnight and half school holidays and special occasions, in a form that seems appropriate to me.
Changeover
The ICL proposed (ICL orders 7-8) changeovers to be via school or outside the mother's or father's residence. The father adopted the ICL's proposals 7 and 8 in respect of changeovers. The mother's proposal, at order 12, was in relatively similar terms. I will make the ICL's proposed order.
Communication
The ICL proposed (ICL orders 9-10) telephone and FaceTime communication with the parent the child was not with each Monday and Thursday, and orders as to communication being by text or email except in emergencies (ICL order 11). The father adopted much of the ICL's proposal, altering Thursday to Wednesday in view of his proposed overnight Thursdays, and adding a clause that the parties facilitate any additional request by the child. The mother's proposal, at 16-17, was in reasonably similar terms and in oral submissions she agreed to the ICL's formulation.
I will make orders similar to those proposed by the ICL, but adding the father's proposed requirement to facilitate the child's desire to speak to the parent she is not with.
Keeping informed and access to information
The ICL proposed that the parents keep each other informed of their contact information including addresses (ICL order 12), that in the event of a serious medical condition the other parent be notified immediately or as soon as possible (ICL order 13), that each parent inform the other of any the details of any treating medical practitioner or appointments with specialists (ICL order 14), that each parent have access to all medical records (ICL order 15), and that each parent be permitted to obtain school records (ICL order 16). The father and mother both agreed.
Attending school events
I understood the import of the ICL's oral submissions to be that both parties should also be able to attend school events, but this does not appear to be included in the written version of the proposed orders. The mother proposed this at her order 24, and I will make that order.
Restraints
The ICL proposed (ICL order 17a-d) relatively standard restraints on physical discipline, denigration, discussing the proceedings or and exposing the child to family violence. The father adopted the ICL's proposals 11- 17(a)-(d), but added at 17 (e) and (f) forms of orders to deal with the agreed restraints on changing the child's name and indoctrinating the child in any religion. The mother proposed similar standard restraints as well, at 33, as a restraint on the agreed issue of religion. There is agreement the child's name is not to be changed.
I will make orders giving effect to the standard restraints and also the agreed restraint on changing the child's name and a form of restraint on religious indoctrination.
The mother proposed a series of restraints on the father, at 28-29, including not showing her pornographic material and not placing the child on his crotch or bathing or changing her. There is no evidence that the father has ever showed the child pornographic material. The expert opposed a restraint on the father allowing the child to sit on his lap or show him affection. The child is now of an age where she bathes herself. I do not consider these necessary nor appropriate and will not make these orders.
Schooling
The parties agreed that the child should finish her primary schooling at Suburb C public school.
The father sought to add to that order a caveat that the child "shall attend upon a secondary school located within 15kms of [Suburb C]". In this way the father sought a de facto restraint upon relocation on the mother by way of a purported schooling order.
The parties are to have equal shared parental responsibility for the selection of the child’s high school. That deals with this issue.
Mother to attend counselling
The ICL proposed (ICL order 19-20) that the mother be required to attend upon her GP for the purpose of obtaining a referral to a psychologist for counselling, that the mother then attend on that psychologist as recommended by that psychologist, and that she provide to that psychologist a copy of these reasons, along with the Memorandum and Report of the child expert. The father agreed to this order. It is in line with the mother's evidence as to how she would manage this situation and is, in my view, essential to ensure that the mother is able to cope with these orders so that she does not now involve the child in her beliefs about the father.
Travel outside Australia
The father made additional proposals relating to travel at 21-23 of his proposed orders. His proposal was that both parties could take the child out of the Commonwealth of Australia. He also set out the process for the giving of information and the providing of consent to be followed, and also proposed orders as to passports.
The mother's proposal, at 35-36, was that she hold the child's passport and that only she be permitted to remove the child from Australia and that she be able to do so without the father's consent.
Despite the ICL's expressed concerns about the mother in the context of her ongoing belief of the risk of sexual harm, the father said that he had considered the matter and was confident the mother intended to make her life with the child in Australia, although I note at order 24 that he proposed that he would retain the child's passport while she was in Australia.
As I understand the mother's oral submissions, in those circumstances, she agreed to the father's proposal but on certain conditions.
I have concerns that the mother is a flight risk, for the reasons raised by the ICL.
However, where to a process that would allow each of them to travel overseas with the child, and only in the circumstances of specific agreement by each party on each occasion, I consider it appropriate to make an order that facilitates that intention.
The orders make it clear that overseas travel is not a right, but that it may occur only if the situation reaches a point where both parties agree that it is appropriate for the child to travel overseas with one of the parents.
The father will hold the passport.
Make up time
The father proposed, at 25, a best endeavours clause in respect of make-up time in the event of travel or illness. It has no force and no utility and I will not make it.
Right of first refusal
The father also proposed at 26 that in the event either party was unable to care for the child they should give the other party first right of refusal. In the context of the conflict in this case I do not consider that appropriate and will not make that order.
Costs
If either party or the ICL seeks to make an application in respect of costs they are to file an application in a case and supporting affidavit within 28 days, otherwise each party shall bear their own costs.
CONCLUSION
I am satisfied, weighing the evidence and taking into account the relevant considerations that these orders are in the best interests of the child.
I hope that the parties are able to work through their distrust, and work together to reduce the level of conflict between them, for the child's benefit, and for their own.

I certify that the preceding three hundred and eighty-four (384) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.
Associate:
Dated: 3 November 2022

File number(s):	PAC 2661 of 2020
Judgment of:	SMITH J
Date of judgment:	3 November 2022
Catchwords:	FAMILY LAW – PARENTING – Where there is one child aged eight – Where the child lives with the mother – Where the mother believes the father has groomed the child and taken sexual pleasure from her – Where the father denies this – Where the child has made no disclosures of sexual abuse – Where the Court is not satisfied that the father has groomed or sexually abused the child – Where the Court does not consider that the father poses an unacceptable risk of sexual, or other, harm to the child – Where the Court finds that the mother was not acting maliciously but genuinely believed and believes that the father posed, and continues to pose, a risk of sexual harm to the child – Where the mother has avoided involving the child in the allegations to date – Where the mother has not sought to undermine the child’s relationship with the father despite her beliefs – Where the child has a meaningful relationship with both parents – Where the father accepts the child should live primarily with the mother and an equal time arrangement would not be in the child’s best interests – Where there is overwhelming mutual distrust between the parents – Where it is not feasible for the parties to effectively share equal parental responsibility – Where the Court is concerned, however, about the mother’s exercise of parental responsibility in relation to secondary schooling: Ordered that the mother have sole parental responsibility, except for selecting a secondary school which is to be shared, provided she take into consideration any views expressed by the father – Ordered that the child live with the mother – Ordered that the child spend time with the father – Ordered that the mother engage with a psychologist – Other orders.
Legislation:	Evidence Act 1995 (Cth), s 140 Family Law Act 1975 (Cth) ss 60CC, 60CC(2), 60CC(3)
Cases cited:	Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Carlson & Fluvium [2012] FamCA 32 Isles & Nelissen [2022] FedCFamC1A 97 M v M (1988) 166 CLR 69; [1988] HCA 68 Re Andrew [1996] FamCA 43
Division:	Division 1 First Instance
Number of paragraphs:	384
Date of last submission/s:	5 May 2022
Date of hearing:	26-29 April, 5 May 2022
Place:	Sydney
Counsel for the Applicant:	Ms Swart
Solicitor for the Applicant:	Sarah Bevan Family Lawyers
Counsel for the Respondent:	Mr Schonell
Solicitor for the Respondent:	Shorehills Legal Solicitors
Counsel for the Independent Children’s Lawyer:	Ms Hamilton
Solicitor for the Independent Children’s Lawyer:	Mahony Family Lawyers

PAC 2661 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PIRES Applicant
AND:	MS NANDI Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	SMITH J
DATE OF ORDER:	3 NOVEMBER 2022