PUGH & PUGH

FAMILY COURT OF AUSTRALIA

PUGH & PUGH

[2020] FamCA 1125

FAMILY LAW – CHILDREN – Best interests of the children – Parental responsibility – Where the mother alleges that the father sexually abused the parties’ daughter and finding sought by the mother that this occurred – Where insufficient evidence to support a finding that the father sexually abused the daughter and many inconsistencies in the evidence before the Court – Where the mother alleges that the father was a perpetrator of serious family violence including financial and sexual abuse towards her throughout their relationship – Where significant reservations are held about the reliability of the mother’s evidence and the Court is not satisfied that the father perpetrated family violence as alleged – Where significant concerns are held about the mother’s psychological functioning on the basis of her lack of insight into risks posed by her partner towards her and the children, as well as certain vulnerabilities that appear to affect her judgement and actions in relation to the children – Where Court accepts expert’s opinion that issues with mother’s psychological functioning present a risk to children – Where notwithstanding concerns held about mother, children are otherwise in a secure, settled relationship with her and a change in living arrangements would be emotionally painful for them – Where children’s relationship with father is equally positive and the children benefit from regular and consistent time with him – Where appropriate that parties equally share parental responsibility and orders are made that children live with mother and spend significant and substantial time with father.

FAMILY LAW – INJUNCTIONS – Personal protection – Where a significant domain of harm to the children arises from the mother’s partner due to manipulative and predatory behaviour by him – Where father and Independent Children’s Lawyer propose a restraint on mother from permitting the children to come into contact with the mother’s partner – Where the father further seeks that the mother’s time with the children be reduced so that the restraint on mother’s partner be more likely to succeed – Where findings are ultimately made that the mother’s partner has engaged in a process of grooming towards mother and daughter, and the Court contemplates that it is likely ongoing – Where the Court accepts the expert’s opinion that a restraint on contact between the children and the mother’s partner and strict adherence thereto by the mother best mitigates risks of harm posed by the partner – Orders made restraining the mother from bringing her partner into contact with the children.

Evidence Act1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61B, 61C, 65D, 61DA, 65DAA

Amador & Amador [2009] FamCAFC 196
Godfrey & Saunders [2007] FamCA 102
G & C [2006] FamCA 994
Godfrey & Saunders [2007] FamCA 102
Goode & Goode (2006) FLC 93-286
Johnson & Page [2007] FamCA 1235
Mazorski & Albright (2007) Fam LR 518
McCall & Clark (2009) FLC 93-405
M v M (1988) 166 CLR 69; [1988] HCA 68
W & W (Abuse Allegations: Unacceptable Risk) (2005) FLC 93–235

APPLICANT:

Mr Pugh

RESPONDENT:

Ms Pugh

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

FILE NUMBER:

PAC

2582

2018

DATE DELIVERED:

17 December 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

18, 19, 20, 21 May & 10, 11, 12 June & 10 July & 30 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

York Law Family Law Specialists

COUNSEL FOR THE RESPONDENT:

Mr Blackah

SOLICITOR FOR THE RESPONDENT:

Atkinson Vinden

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Schroder

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney

Orders

All prior parenting orders are discharged.
The parties have equal shared parental responsibility for the children X born … 2008 and Y born the … 2011 (“the children”).
The children shall live with the mother.
The children shall spend time with the father:
(a)During school terms each alternate weekend from Friday after school until Wednesday before school.
(b)During school holidays for one half of school holidays and in absence of agreement for the first half of holidays in even numbered years from the conclusion of the last day of school until 12.00 noon on the middle Saturday of such holidays, and for the second half of holidays in odd numbered years from 12 noon on the middle Saturday to before school on the first day of the children’s attendance at their school.
(c)On Father’s Day from Saturday 5.00 pm the Saturday before Father’s Day until before school the following Monday.
(d)From 11.00 am Christmas Day until 11.00 am on Boxing Day in even numbered years and from 11.00 am Christmas Eve until 11.00 am Christmas Day in odd numbered years. Notwithstanding any other orders the children shall spend time with the mother from 11.00 am Christmas Day until 11.00 am on Boxing Day in odd numbered years and from 11.00 am Christmas Eve until 11.00 am Christmas Day in even numbered years.
(e)At other times by written agreement to be communicated by text message or e-mail.
Changeovers for the purposes of these orders are to occur at the children’s school whenever time with a parent commences or ends on a school day. The mother is restrained from attendance at school at the time of changeover into the father’s care.
Notwithstanding any other order the children shall spend time with the mother on Mother’s Day from Saturday 5.00 pm the Saturday before Mother’s Day until before school the following Monday.
Each party is entitled to:
(a)Attend upon the children’s school in relation to parent teacher interviews, events at which parents ordinarily attend, assemblies and award events concerning the children at which parents are permitted to attend.
(b)Make their own arrangements to obtain copies of reports, photographs and notes at their own expense.
(c)Give to the school if required authority for the other parent to do all things as permitted in this order.
Where changeover does not otherwise occur before or after school, changeover shall occur at C Library, B Street, Suburb D.
For the purposes of communicating with each other in relation to parenting matters the parties will communicate in writing by e-mail and text message in a polite and civil manner. The parties are to communicate with each other by telephone in relation to any emergency or hospitalisation concerning the children as soon as is practicable.
Pursuant to Section 68B of the Family Law Act 1975 (Cth) the mother is restrained from allowing Mr E:
(a)To come into contact with, reside with, or be within 500 meters of the home at which the children are residing whilst the children are in the care of the mother, or within 500 meters of the school at which the children attend.
(b)To communicate with the children by any means whatsoever including but not limited to telephone, Skype, text, e-mail, by any social media, App or letter, card or gift.
(c)To be within 500 meters of any venue, place or location where the children may be located when living with their mother from time to time, for the duration of the time that the children are with their mother at such venue, place or location.
The mother is to give written direction to the school at which the children attend that Mr E is not permitted to attend the school:
(a)To collect the children.
(b)To contact the children in any way whilst they are at their school.
(c)To be present at any events at the children’s school where the children will be present and at which a parent would ordinarily attend.
The mother is hereby restrained:
(a)From discussing these proceedings with or in the presence of the children.
(b)From making allegations to the children’s school that the father has abused the children of either of them, or allowing or permitting any other person to do so.
(c)From relocating the children’s residence to more than 20 kilometres from the G School or such other school that the parties agree in writing beforehand that the children attend.
(d)From discussing allegations about her own experiences of trauma as a child or the sexual abuse allegations concerning X to or in the presence of the children or either of them, or allowing or permitting any other person to do so.
The father is hereby restrained from discussing these proceedings with or in the presence of the children.
Each party is restrained from denigrating, abusing or criticising the other party’s parenting to or in the presence or hearing of the children or allowing anyone else to do so.
The Independent Children’s Lawyer is directed to the write to the Principal of the school at which the children attend enclosing a copy of these Orders
The father is at liberty to do all such things and execute all necessary documents to facilitate therapy with X, and the mother shall cooperate in relation to such therapy by doing all such things and executing all necessary documents and authorities, as follows:
(a)Attend upon X’s General Practitioner to obtain a mental health plan and referral to a therapist (with preference for either a clinical psychologist or psychiatrist) as recommended by X’s General Practitioner, to provide therapy for X in relation to the false sexual assault allegations that she has been exposed to by the mother and Mr. E.
(b)Provide a copy of these Orders to the General Practitioner and the therapist.
(c)Provide a clean copy of the Report of Dr. F dated the 17^th April 2019 to such therapist, without any commentary or notes attached thereto from any other person.
(d)Follow the recommendations of the therapist
(e)In the event that the costs of the therapy exceed the Medicare rebate, the parties shall equally bear the excess cost.
The mother shall within 28 days do all such things and execute all necessary documents and execute all necessary authorities as follows:
(a)Attend upon her General Practitioner to obtain a mental health plan and referral to a therapist (with preference for a clinical psychologist) as recommended by her General Practitioner, to provide therapy for the mother in relation to her childhood trauma arising from being sexually abused.
(b)Provide a copy of these Orders to her General Practitioner and such therapist.
(c)Forthwith then make the first available appointment with the nominated therapist.
(d)Notify the father and the Independent Childrens Lawyer in writing of the name, address, telephone number of such therapist within 48 hours of making an appointment.
(e)The Independent Children’s Lawyer shall provide to the therapist a clean copy of Dr. F’s Report and a copy of these Orders, without any commentary or notes attached thereto from any other person, except a covering letter explaining that the documents are being provided to assist with the mother’s therapy and confirming the date and time of such therapy as advised by the mother.
(f)The mother shall follow all reasonable recommendations of the nominated therapist.
(g)In the event that the costs of the therapy exceed the Medicare rebate, the mother shall bear the excess cost.
(h)The mother is to provide to the therapist a written authority for the therapist to confirm with the father the mother is continuing to attend upon therapy as recommended by the therapist from time to time, (but not to discuss with the father the nature of the therapy that is taking place).
The parties are restrained from removing or attempting to remove the children X born … 2008 and Y born the … 2011 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names of the children the X born … 2008 and Y born … 2011 on the Airport Watch List and Passenger Analysis Clearance and Evacuation (PACE) System in force at all points of arrival and departure in the Commonwealth of Australia and maintain each child’s name on the Watch List until further order of the Court.

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

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

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2582 of 2018

Mr Pugh

Applicant

And

Ms Pugh

Respondent

REASONS FOR JUDGMENT

Introduction

The parties (“the mother” and “the father”) are engaged in a dispute relating to the future parenting of their two children, a girl aged 12 (“the daughter”) and a boy aged nine (‘the son”) (collectively “the children”) following the breakdown of their 12 year marriage.
The parties were initially also in dispute about a fair distribution of their property but that part of the proceedings was resolved by way of orders made with their consent in October 2019.
In around early 2018, as the relationship between the parties was breaking down the mother became pregnant with the child of another man (“the mother’s partner”). The mother’s relationship with her partner is a contentious issue between the parties. The father and Independent Children’s Lawyer (“ICL”) maintain that he poses an unacceptable risk of harm to the children for various reasons associated with his conduct.
The father’s proposal is that the children live with him and that he exercise sole parental responsibility for them. His proposals for the mother’s time depend upon the Court’s findings, including in relation to the likelihood that she will comply with orders concerning contact with her partner.
Although the ICL agrees with the father’s contentions about the risk of harm posed by the mother’s partner and also proposes a wide restraint on the mother allowing any form of contact between the partner and the children, it is the ICL’s proposal that the children remain living with the mother and spend substantial and significant time with the father and that the parents equally share parental responsibility.
The mother contends that it is in the best interests of the children that the parents equally exercise parental responsibility for the children and that the children remain living with her. Although she proposed at the commencement of the final hearing that the daughter spend time with the father in accordance with this child’s wishes, by the end of the final hearing the mother proposed orders that will see both children spend defined substantial and significant time with the father. Although the orders proposed by the mother in relation to her partner are complex and depend on findings of fact, it is generally her wish that she, her three children and partner live together as a single family unit after the proceedings are complete.
The question for me to determine is which parenting arrangement in relation to the children is proper having regard to the children’s best interests being the paramount consideration.

Background

The father who is 42 was born and raised in Australia. The mother who is 40 was born in an Asian country and came to Australia with some of her family as an adolescent.
The parties met as young adults and formed a relationship in 1998. They began living together three or four years later.
The parties married in … 2005 about a year after they purchased their first home.
In December 2007 the mother ceased paid employment for a period of 18 months.
The parties’ daughter was born in 2008 after being conceived with the assistance of In Vitro Fertilization (“IVF”).
The mother returned to work in June 2009 and the paternal grandmother assisted with the daughter’s care.
In 2011 the parties’ younger child, the son was born, his conception also having been assisted by IVF.
Following the birth of the son, a vasectomy was performed on the father in circumstances which are in dispute between the parties. According to the father he underwent this procedure in early 2012 at the request of the mother, while the mother contends that this procedure was undertaken sometime in 2014 and was instigated by the father.
In around October 2012 the parties were required to make a decision about unused embryos at the IVF clinic. Subsequently (at a time which is unclear) both parties signed a document directing the IVF clinic to destroy these embryos. In a letter dated January 2013 the IVF clinic advised that the destruction of embryos had taken place in accordance with the parties’ instructions.
Since the birth of both children, the father has been concerned about the mother’s emotional and psychological wellbeing and the impact of her alleged mental health difficulties upon her parenting capacity. It is his contention that many of the mother’s difficulties arise from her experience of sexual abuse as a child in the country in which she was raised. The mother denies that she has any mental health difficulties. These are significant matters in dispute between the parties to which I will return.
For two months in mid-2013 the mother lived with the children in her home country, although differing accounts are given as to how this came about. The mother asserts that the parties separated for a short while during this time while the father denies separating from the mother and claims the trip was an extended holiday.

The involvement of the mother’s partner in the parties’ and children’s life

During a weekend away in April 2017, the parties met a man who was to become the mother’s partner. For convenience, I will refer to him as “the mother’s partner” throughout these Reasons including when referring to him at times when he and the mother were yet to form a relationship. When the mother and her partner first met he was then in a relationship with a friend of the mother’s and this couple had been invited along to a weekend away with the parties and their family.
The mother’s partner who holds no occupational qualifications of any kind had for a number of years held himself out as providing a range of services including massage therapy which he offered exclusively to women.
There had been a complaint to police in 2005 that the mother’s partner had sexually abused a young woman in the course of treatment but she did not want to proceed with charges at the time. He had also been convicted in January 2016 of assaulting a woman in the course of a massage service and this conviction was confirmed by the District Court in April 2016. He had completed a nine month good behaviour bond in relation to this offence a short time prior to meeting the parties, although they were both unaware of anything of this nature at the time.
A few weeks after the weekend away in April 2017 the mother advised the father of her interest in commencing “counselling” sessions with the man who was to become her partner. In the months that followed the mother regularly paid her partner for his “services”, which also extended to handyman work around the home, and later “guided meditation” and massage.
In October 2017 the mother and her partner had a sexual encounter and from about this time the parties’ relationship began to deteriorate.
On 3 and 22 November 2017 the mother tested positive for a sexually transmitted disease, chlamydia but she did not inform the father (who had not himself had the infection) of this matter at the time.
In the same month the mother first discussed with the father her desire to have a third child. Many of the events thereafter are a matter of significant dispute between the parties but there is no dispute that they subsequently agreed to investigate the possibility of conceiving a third child with the assistance of a sperm donor rather than looking into the possibility of the father undergoing a procedure to reverse his vasectomy.

In circumstances which are also the subject of significant dispute, the suggestion was raised at around this time that the mother’s partner be the sperm donor for the parties’ third child. At the time of discussions concerning this possibility, the mother falsely told the father that her partner was homosexual and apparently on this basis the proposal that the mother’s partner be the sperm donor did become the confirmed plan between the parties. The father was also unaware at this stage that the mother and her partner had engaged in a sexual encounter and that a relationship between them had begun or was nascent.
Although the parties agree upon little else in relation to this plan, it is apparent that on 7 December 2017 the mother and her partner attended upon a doctor at an IVF clinic as “the couple” seeking IVF services. The available records of the doctor who was consulted indicate that this doctor erroneously believed he was being seen by the mother and her husband (the father) and that a person known to this couple (who he hadn’t met) was to be the donor.
For the purposes of outlining a background to the dispute it suffices to say that the father maintains that the mother’s partner was to be the sperm donor for the third child who the parties would raise together in an intact family, although it appears there had been earlier discussions about the mother being a “surrogate” for a couple unknown to them. The mother’s case varied between the possibility of her being a “surrogate” for her partner’s child who he was to raise and her desire to have a child of “her own”. However described, the mother denies that she and the father were to raise the child together, though it is common ground that when the discussions regarding the third pregnancy were ongoing the parties had not separated and the father was unaware of the nature of the mother’s relationship with her partner.
From about January 2018 the mother’s partner began providing advice and engaging in some activities with the mother such as “guided meditation” and massage that the mother and the partner apparently believed would assist with the mother’s fertility.
There was an incident at the parties’ family home on 23 March 2018 in which the mother claims the father demanded that she engage in unwanted sexual activity. Although there was significant focus on this particular incident which was covertly recorded by the mother[1] she also deposes to being subjected to regular and sometimes quite brutal sexual assaults and other family violence throughout the entirety of her relationship with the father. This contention is entirely rejected by the father and is a matter to which I will return.
[1] The audio recording was admitted into evidence (Exhibit 9).
The mother conceived her third child in late-March/early April 2018[2] without using the services of the IVF clinic. The mother’s partner is the father of this child.
[2] Exhibit 19 - the records from the mother’s doctor includes the results of an ultrasound conducted on 26 April 2018 which indicate the presence of a single live foetus with a gestational age consistent with five weeks and six days (inferentially from date of last menstrual period).
From around the time the mother became pregnant, the mother’s partner was increasingly involved with the family, especially the mother and children, on a day to day basis. Aside from minor renovations he undertook on the parties’ home, (including converting the parties’ garage to a bedroom for the mother and installing locks on the door of this room), the mother’s partner continued to provide “counselling” sessions and financial advice to the mother both at the parties’ home and at his premises.
The mother says that from around this time, she moved to sleep in the converted garage to remove herself from the father’s sexual demands and abuse. She and the father engaged in emails, letters and conversations about her claims of sexual abuse.
In April 2018 while the father was away for business, the mother organised for her partner to assist her in the care of the children before and after school. During the father’s absence the mother also confided in at least one of the parties’ friends (“the family friend”) for the first time that the father had sexually abused and been violent and controlling towards her throughout their marriage and that he drank to excess. The mother also told this friend that her partner was assisting in uncovering the father’s “dodgy” financial dealings.
On 21 April 2018 the mother conducted a pregnancy test and also stayed the night at her partner’s home with the children.
On 23 April the positive result of the mother’s pregnancy test taken two days earlier was known and the mother informed her partner of the result. There was an ultrasound conducted on 26 April 2018 which also confirmed the pregnancy.
On 2 May 2018 the mother advised the father by letter that she would be going away for two weeks as she needed time to prepare for injections for the purposes of the IVF procedure that had been scheduled to commence on 9 May, even though by this stage she knew she was already pregnant. She proposed that the father care for the children during her absence.
At about this time the father became concerned about some of the daughter’s behaviour towards the mother’s partner which appeared to him to be inappropriately affectionate having regard to his understanding of the partner’s role in the children’s lives. The daughter had also been sending cards and notes to the mother’s partner for the past couple of months describing her love and affection for him.

Events leading to the parties’ separation

On 3 May 2018 the mother’s partner made a recording of the daughter disclosing that she had been “touched inappropriately” by the father. The mother’s evidence is that this followed a disclosure in similar terms made to her by the daughter earlier that day.
On 4 May 2018 the mother confronted the father by phone with the daughter’s allegation which he denied. Despite this, the children were cared for by the father that night and on at least one other night after this conversation (or numerous nights according to the father) on occasions when the mother was absent from the home. Many of the matters in relation to the allegations of sexual abuse and the mother’s conduct thereafter are a central dispute in the proceedings which is discussed later in these Reasons.
On 5 May 2018 the father wrote a letter to the mother in the course of their written interchanges about her allegations, in which he apologised for “forcing himself” onto her at times (“the 5 May 2018 letter”). There is a significant dispute between the parties about the circumstances in which this letter was written and all matters related to the mother’s allegations against the father of family violence which will be considered later in these Reasons.
The mother cancelled the IVF injections that had been due to commence on 9 May 2018. Although she already knew at that stage that she was pregnant and for this reason did not need the treatment, she provides other reasons in the proceedings for cancelling this treatment.
On 28 May 2018 when the father was away interstate for business the mother informed him by email of a document she had placed in his suitcase. This document titled “divorce notification” outlined her accusations against him of rape, alcohol abuse, financial abuse and sexual abuse of the daughter and was also circulated by her to a number of the father’s family members. She also proposed an arrangement in this document for the future care of the children which included them spending each alternative weekend from Friday to Sunday with the father.
According to the mother the father returned to the family home the following day but moved out and went to live at the paternal grandparents’ home a day later on 30 May 2018. The father says he moved out on 27 May but both parties agree, whenever this occurred, they were from this time separated.
A short time later the mother’s partner began staying overnight at the parties’ family home. The father asserts that he first heard from the children that the partner “stays here every night” from as early as 1 June 2018 but the mother denies that her partner ever moved into the family home and claims that at the time of separation he was living in another state.

Events following separation

On 8 June 2018 the father commenced these proceedings and sought interim orders including that the children live with the mother and spend each weekend from after school Friday to before school Monday with him.
On 18 June 2018 the mother informed the IVF clinic that she had successfully become pregnant through artificial insemination “after working with a naturopath alternative women’s fertility expert” (which as became clear in the proceedings was a reference to her partner).
In June 2018 the father first became aware of allegations that the mother’s partner had conducted himself improperly with women in the past through a friend who had apparently gained this information through an internet search.
On 21 June 2018 the mother informed the principal at the children’s school by email that she was divorcing the father due to his infidelity and abuse of herself and the daughter and of her pregnancy to an IVF “donor” who she advised was not her partner. The purported purposes of this emailed letter was to put the school on notice to be wary should the father contact the school, to raise concern about the father’s presence at the daughter’s dance class and advise that the “donor” may be involved in assisting her with the children such as picking them up from school.
A few days later, a complaint was received at the helpline of Family and Community Services as that Department was previously known (“the Department”) in relation to the daughter’s disclosures of sexual abuse by the father on 3 May 2018. Police attended at the family home and spoke to the mother and also listened to the recording of the daughter speaking made by the mother’s partner who is described in police records as a “family friend”. On the basis of these complaints a provisional Apprehended Violence Order (“AVO”) was made for the protection of the daughter against the father on the same day.
The allegations of sexual abuse were subsequently allocated to a Joint Investigation Response Team (“JIRT”)[3] and in the course of that investigation various interviews were conducted including with the daughter, the mother, the mother’s partner and the father. The father denied all of the allegations against him when interviewed.
[3] The Joint Investigation and Response Team, made up of officers from police and the Department investigate allegations of serious child abuse.
On 11 July 2018 the mother advised the father, through a letter from her lawyer that due to a police investigation into his alleged sexual assault of the daughter she would not be making the children available to spend time with him.
On 18 July 2018 while the JIRT investigation was proceeding the mother advised the father by email that an arrangement for the children to spend regular time with him without overnights would shortly recommence.
The JIRT investigation did not substantiate the allegation of sexual abuse but did substantiate that there was a risk of psychological harm to the children through their exposure to adult conversation by the mother. The parents were both advised of these matters on 2 August 2018.
At a court event before a registrar on 9 August 2018 interim orders were made with the consent of the parties that the parents equally share parental responsibility for the children and that the children live with the mother and spend time with the father including on each alternative weekend and half of the school holidays. The Court also made an order restraining the mother from allowing her partner to reside with or spend time with the children.
On 21 August 2018 (when the AVO proceedings for the protection of the daughter against the father were listed before a Local Court) the application for the AVO was withdrawn by police.
The father contends that in September and October 2018 the mother caused or even required the children to have contact with her partner contrary to the court-ordered restraint. The mother’s compliance with the court order concerning contact with her partner is a matter of significant dispute between the parties to which I will return.
The mother contends that the daughter continued to make allegations to her and others about the father’s untoward conduct. The father denies any impropriety on his part. He has significant concern about the alleged ongoing complaints by the daughter and the mother exposing the children to the parental dispute including her allegations against him such as that he was violent and sexually abusive towards the mother throughout the relationship.
On 19 November 2018 the father filed an application for interim orders that would see the children live with him and spend time with the mother for a few hours on two periods each week to be supervised by members of the paternal family. The father also initiated contravention proceedings with respect to the mother’s alleged breach of the injunction regarding contact between the children and her partner.
On 3 December 2018 the mother filed a Response seeking final orders that the children live with her and spend time with the father once a fortnight supervised at a contact centre. The mother also filed a Notice of Risk of Abuse and supporting affidavit revisiting the allegations of sexual abuse made by the daughter in May 2018 and also alleging sexual assault of herself by the father during the marriage.
The following day at a court event before a registrar the mother withdrew her Notice of Risk of Abuse and counsel who then appeared for her confirmed that the mother did not pursue a case that the children are at an unacceptable risk of harm with the father, though she did press her contentions in relation to family violence. At this court event the parties also consented to interim orders for the children to spend time with the father over the upcoming period when the mother was to be hospitalised for the birth of her third child.
In 2018 the mother gave birth to her third child, (“the children’s half-brother”).
The family were seen by the court appointed expert in March 2019 and the expert’s report, dated 18 April 2019, was released to the parties a short time later.
The expert’s evidence is a matter which will be dealt with at length later in these Reasons. It suffices to say at this stage that the expert considered that relevant matters of significance in the dispute related to the children’s best interests were the genuineness or otherwise of the mother’s belief about the truth of the daughter’s sexual abuse allegations, the mother’s judgement, understanding and evaluation of risk especially in relation to her partner, the mother’s childhood experiences of trauma and abuse which make her particularly vulnerable to manipulation and control and the conduct of the mother’s partner including documented complaints regarding his inappropriate behaviour with women and the possibility he may be grooming both the mother and the daughter.
The expert was particularly concerned about the descriptions of the daughter’s relationship with the mother’s partner and matters that the child herself reported when interviewed. The expert was of the view that it was understandable the father had concerns about the grooming process that is “the gradual intrusion of the mother’s partner into the life of his wife and daughter by gradually gaining their trust and positioning himself as some kind of protector who best understands them and their feelings”. The expert was also of the view that it was not possible to conclude that the mother’s childhood experience of trauma had not significantly impacted on her psychological functioning.
In his report the expert described his observation of the children in the company of both parents as “unremarkable in the extreme”. He considered that both children related well to both of their parents.
In summary, the expert opined that it was very challenging to make a recommendation about the future parenting arrangements for the children. Although he had concerns about the mother’s childhood history, her relationship with her partner and some of the “very poor judgement exercised by her in relation to [the daughter]” it was also clear that the children were emotionally, primarily dependent on the mother, loved her and treated her as their “central emotional hub”. He opined that the children perceived themselves as very much part of the family comprised of their mother and younger half-brother (whose father is the mother’s partner). In these circumstances the expert considered it to be extremely important that the mother be alerted to the issues including the reasons for her vulnerability and that she seek psychological assistance for herself.
Overall the expert considered that it was difficult on the basis of the children’s attachment to their mother to recommend a change in living arrangements but suggested that there be a serious consideration of such a change unless the mother obtains psychological assistance from a mental health professional experienced in sexual abuse and trauma. He recommended that so long as the mother obtains psychological assistance the children could continue to live with her for the majority of the time and spend five nights per fortnight in the care of the father but concluded that a testing of the evidence may significantly change this recommendation in favour of a change in the living arrangements.
Following release of the expert’s report the mother did seek psychological assistance but did not engage with a health professional consistent with the expert’s recommendations and this is a matter to which I will return.
The father contends that there was at least one further occasion in mid-2019 when the children were brought into contact with the mother’s partner which as indicated previously is a matter that will be considered later in these Reasons.
On 23 October 2019 final orders were made with respect to the parties’ property. Three days later the father went to the former family home for the first time since separation and observed comments written in the mother’s first language on the wall at the children’s height such as “[the father] was oppressive and persecuted [the mother] sexually, financially and mentally”, “[the father] is greedy, angry, lost and has no morals”.
In November 2019 the mother and all her children began living in a property owned by her partner and adjoining his residence.
From mid December 2019 to the end of April 2020 the mother conducted all of her communication with the father by email, addressed to “[father’s first name/nanna]” and copied in the paternal grandmother. On 23 December 2019 the mother informed the father by email that “[the daughter] has become adamant that she does not want to visit you” and that this child regularly speaks of her discomfort around the father and paternal grandmother.
In January 2020 when the children were spending time with their father interstate there was an incident which resulted in the mother contacting police for the purposes of undertaking a welfare check. No matters of concern about the father’s care of the children were observed by police.
Due to the arrangements in place as a result of the COVID-19 Pandemic the proceedings were heard over nine days in May, June and July 2020 by way of video link.

The expert evidence

The Expert’s Report

The expert in the proceedings, a clinical psychologist interviewed the family in March 2019 for the purposes of providing an opinion to assist in the resolution of the dispute. His report (“the expert’s report”) dated 18 April 2019 was released to the parties a short time later.
In addition to interviewing each of the parties, the mother’s partner and the paternal grandmother (who each provided information to the expert consistent with their respective affidavits) were interviewed. The expert also interviewed each of the children and observed them with the adults.

The expert described the daughter as presenting as an “extremely bright, socially engaging and articulate girl”. He records that from the very outset this child told him she thought the reason for the meeting was to discuss a few changes that she thought should be implemented and immediately indicated to the expert that she found the mid-week contact with the father disruptive and moving between homes difficult. The expert opined that “it was abundantly clear that this was rehearsed. When asked what her mother had told her to tell me she shared almost verbatim that her mother felt that the mid-week contact was disruptive, that it was difficult to move between the houses, and that her mother had told her to tell me so”.
The expert went on to express the view that it is difficult to know to what extent the mother is aware of the extent to which she communicates her feelings to the children. The expert referred to the following incident that occurred in his presence to illustrate this point. In the presence of the children, the expert confirmed with the mother that the father would be taking the children home that evening to which she responded that “unfortunately this was the case”. In doing so, the expert opined that the mother “seemed oblivious to the communication and the negative message and intent conveyed to the children about the father” by this one simple statement. It seemed clear to the expert that the daughter was certainly aware of and sensitive to her mother’s negative statements.
The expert observed that the daughter very strongly adhered to her mother’s position, repeated what the mother said and how her mother felt and treated these emotions and issues as though they were her own. The expert gave numerous examples of these observations.
The expert also opined that one of the more unusual aspects of the daughter’s presentation related to her affect. The child did not express any sadness about her parents’ separation but was clearly teary and upset about something. When asked, the child told the expert that she was distressed about not being able to see the mother’s partner, and the expert noted “it was difficult to understand or explain why she felt so strongly in relation to him”. Overall the child conveyed “a somewhat idealised perspective in relation to [the mother’s partner]”.
When asked about her parents and their conflict, the daughter was largely dismissive, minimised the significance of having separated parents and the father’s reduced presence in her life. The expert observed that this child was defensive of her mother and protective in relation to her.
The expert also observed “enormous overlap between [the daughter’s] construction of events and that of her mother”. At one point when elaborating on how much she loved the mother’s partner the daughter started sobbing at the prospect of not being allowed to see him. The expert drew a parallel to the similarities between the daughter’s portrayal of her relationship with the mother’s partner and the mother’s portrayal of her relationship with her partner.
The expert reports that the daughter “attributed all of the family’s problems to her father and his behaviour such as breaking into her mother’s room, associating with other women and partying”.
In relation to the allegation of sexual abuse allegedly perpetrated by the father against the daughter, the expert reports:
Significant in my view, was that it was only when I introduced the topic of alleged sexual interference that there was any mention of the issue and even then [the daughter] conveyed no anxiety, discomfort, awkwardness or distress. She told me that she went into her father’s room for a cuddle, as was normal, and that she snuggled into her father as was usual, and that she woke to find his hand in her pants. She told me that she was speechless then fell back to sleep only to wake again and find that his hands were in his pants again. [The daughter] told me that she was not sure if the father even knew what he had done, that he may have been dreaming about having sex with another woman but she also confirmed that nothing like this had ever happened before and has not happened since.
The daughter also confirmed to the expert that her mother was also worried that the father did similar things to the child that he did to her, that she was worried that her mother was so stressed and anxious and that her mother was suffering as a result of not being able to spend time with her partner. In summary, the expert opined that it seemed “abundantly clear” that the daughter “is emotionally enmeshed with her mother, with whom she shares feelings, thoughts, fears and concerns”.
When the expert interviewed the son, who presented as a bright, engaging and articulate boy, this child also shared with the expert verbatim that he did not wish to spend time with the father mid-week because it was too disruptive, that he was unable to get himself organised, that he wanted to spend more time with his mother, sister and younger brother. The child went on to elaborate that this was the only way he could have a happy life and told the expert specifically that his mother said to him to tell the expert that he did not want to see his father in the mid-week.
The expert opined that the son’s presentation was uneven, that he did speak about positive times with his father but interjected negatives to this narrative. This child appeared to the expert to seem to “really struggle with how to best negotiate the space between his parents” and pleaded that his father be kinder and nicer to his mother and him doing so would be good for this child because the mother is the sort of person who needs a lot of affection. The expert said that this child conveyed the sense that his mother was emotionally needy and that it was partly his responsibility to care for her.
The expert described that the negative comments about the father were conveyed by the son in a rote fashion and found it noteworthy that anything the son said that was positive in relation to his father was quickly undone by a qualifying or negative statement and that the child “appeared to struggle with being able to maintain a single, unified perspective in relation to his father”.
Of the son’s struggle to integrate his feelings, the expert reported the following:
[The son] struggled to integrate the feelings of loyalty to his mother and love and affection for his father. In the waiting area when in an unstructured situation [he] initiated physical contact with his father, sat on his lap, was hugging him in a manner that was clearly spontaneous and unrehearsed. [The son] was able to tell me that his father cared for him, loved him and that he enjoyed spending time with him. After having spoken very positively about his father and having described how he enjoyed his father, as an afterthought, [the son] added that his father used to hit him when he was little but he could not remember the details. [The son] seemed to struggle to know what to say, and how to portray his relationship with his parents in some kind of balanced, even perspective.
When the parents were each seen in the company of the children separately, the children were observed to be very relaxed, engaged easily and entered into free and reciprocal communication. The expert observed that both children “clearly showed a greater ease and preference to be with their mother” and that there was “the unmistakeable sense that she was the central emotional hub to their lives”. The expert said he was “left in no doubt that the children’s primary emotional dependency needs were met by their mother and that they trusted and relied upon her”.
The expert also observed that the children’s interaction with their father “was different but equally positive”. Although the expert did not observe the same degree of familiarity, he observed “unmistakeable warmth, easy interaction, [and] enthusiastic participation” and described that “the quality of reciprocation was unmistakeable”.
The expert dealt in a particular part of his report with the concerns raised by the father about the mother’s partner, which the expert said “deserves some attention”. The expert had regard to advertisements placed on the mother’s partner’s social media page promoting his massage services that involved “[sensual] techniques” and his description of sensual massage as a genuine solution to satisfy a woman’s sexual needs “safely and discretely”. The expert expressed the view that the portrayal of services offered by the mother’s partner “encapsulates many of [the father’s] concerns that the mother’s partner is a highly manipulative man who takes sexual advantage of vulnerable woman under the guise of helping them”.
The expert devotes another section of his report to the father’s concerns regarding the mother’s mental health. It is recorded in the report that the father reported having long-standing concerns regarding the mother and her mental health consistent with the matters outlined in his trial affidavit. These concerns include a long history of depression, and previous suicidal intent prior to being married and (as reported by the mother to the father and many others) being subjected to sexual abuse on three occasions in her childhood.
The father described the mother has having been severely affected by this abuse by people who she trusted and that this has affected her core sense of trust. The father also reported particular concern that the mother had spoken to the daughter regularly about her experiences of sexual abuse, had been unable to protect either of the children from her childhood experiences and had shared them, oblivious of the impact on the children of so doing.
The mother also raised with the expert the alleged sexual abuse of herself by the father and the alleged sexual abuse of the daughter and each of these are matters dealt with separately in the expert’s report. The mother’s reports of her own sexual abuse at the hands of the father are consistent with her affidavit account.
In relation to the alleged sexual abuse of the daughter the expert noted the many conflicting aspects to the allegation and the reasons that it was not substantiated by the Department.
The expert also expressed concern that notwithstanding the seriousness of the allegations the mother left the daughter in the care of the father for two weeks after the alleged assault, the daughter made no disclosures to anyone other than her mother and the mother’s partner and there were no concerns held by the school or anyone else about any inappropriate behaviour displayed by this child. The expert also observed that police were clearly concerned about the mother’s significant history of sexual abuse that had not been addressed in counselling, and the potential that her experiences had distorted her perspective “amidst grave concerns around the inappropriate violation of boundaries, leadings questions, overinclusion of both children in [the mother’s] narrative and [the mother’s] inability to sustain appropriate boundaries”.
The expert then noted the record of JIRT workers having asked the mother to not talk about being raped by the father to the son and yet repeating this statement on four further occasions which of itself was felt to place this child at risk. The expert also observed the concern expressed by officers from the Department that the lack of resolution about the mother’s child sexual abuse, has impacted significantly on her perception of what transpired in relation to her children and “may have inadvertently influenced and co-constructed [the daughter’s] false allegations of abuse”.
Concern was also expressed about the risk to the daughter of psychological harm because of the explicit nature of conversations she was exposed to by her mother, including the mother’s descriptions of the father forcing the mother to have sex with him and touching the mother inappropriately.
The expert also noted a number of other concerns in relation to the allegations of sexual interference including that in the letter to the school principal the mother described the daughter as not showing any signs of psychological distress and as definitely not in need of psychological assistance which the expert opined was an unusual response by a parent to a child’s disclosure but was consistent with the child’s unremarkable presentation and absence of any signs in her behaviour to suggest trauma.
The expert also observed that the daughter’s disclosure of sexual abuse was not clear and unambiguous, that there was confusing and contradictory detail and that none of the detail overlaps.
In relation to the mother leaving the children in the father’s care the day after the alleged abuse for two weeks, the expert opined that either the mother’s anxiety in relation to the daughter was displaced and somehow numbed by her own experience of sexual abuse and her judgement compromised as a result, or “she expressed little anxiety because at some level she clearly understood that the allegations were not true”.
The expert also expressed concern in relation to the mother’s partner’s involvement in the disclosure including the daughter exposing herself to him. Having regard to the nature of the information obtained in relation to the mother’s partner and his behaviour which the expert opined may “well fall within the broad understanding of grooming behaviour”, the expert opined that the daughter’s actions in exposing herself in a manner that might otherwise only be restricted to her parents is “an obvious area of concern”. He went on to say that regardless of whether the mother was or was not present when this occurred, this is “not appropriate”.
The expert also noted inconsistencies and contradictions in the daughter’s statements which he considered “prominent”, and the daughter’s volunteering that her father did to her what her father did to her mother which the expert considered raised “obvious, immediate concern in relation to boundaries, leading questions, erroneous suggestions and constructed anxiety emanating from her mother and her mother’s experiences”.
Commenting upon the daughter’s confirmation to the interviewers that her mother had been speaking to her after what happened, the expert opined “it is impossible to know to what extent her reports reflect influence from her mother”.
While the expert reported correctly that it is beyond capacity of the report to make a determination of fact in relation to the allegations of sexual abuse, he drew strong attention to “the contradictions, lack of clear and consistent detail, and more importantly the presence of alternative, possible explanations to account for the disclosures”.
Under the heading “conclusions”, the expert first focuses on the allegations of sexual abuse against the daughter summarising all of the concerns about the allegations and the mother’s conduct particularly in leaving the children in the care of the alleged perpetrator immediately after the disclosure.
The expert hypothesises that the mother either held genuine fears for the safety of her daughter and still left this child in the care of her abuser, or conversely, did not have genuine fears and consequently “her actions may require careful attention”.
The expert had particular difficulty understanding the mother’s conclusion that notwithstanding the sexual interference of the daughter, she did not believe that the father was a child molester but thought that his true intention and motivation was to reflect poorly on her mental health and justify his actions in relation to the separation and divorce, including his application to have the children placed in his care.
The expert opined that this explanation by both the mother and her partner simply makes no sense as it was the mother who initiated separation while the father wanted reconciliation, and it was the mother who ultimately left the relationship. The expert also opined importantly:
Furthermore, to conclude that [the father] sexually interfered with [the daughter] as a way of either punishing [the mother] or in a premeditated sense and that he did so to cast [the mother] in some kind of negative light in order to advantage his ultimate family law aspirations, would reflect so poorly on [the father] that it would be almost impossible to not conclude that he functions in a highly manipulative, antisocial and callous fashion, with casual disregard for the well-being of others, let alone his own children. There is no tangible indication to suggest that this the case.
In his conclusions the expert also opined that there are many areas of contradiction in the dispute that will require careful forensic testing including the mother’s description of her childhood as idyllic in obvious contradiction to her own account “that has significant and far reaching implications when it comes to her judgement, evaluation of risk, including whether [her partner] is a risk, and her interpersonal choices generally”.
So far as the concerns raised by the father about the mother’s partner are concerned, the expert considered the available material including the previous documented complaints about the partner’s inappropriate behaviour with women, and the details contained on the partner’s own social media page. In the opinion of the expert the latter conveys “a highly dubious content and justification for what at one level appears to be an opportunity for gratuitous sexual gratification under the guise of sensual tantric massage”. The expert opined that he could not imagine any form of therapeutic treatment that would entail the touching of genitals, regardless of medical or psychological condition and expressed no doubt that if the work undertaken by the mother’s partner was under the auspices of a national registration body that severe disciplinary action would be taken against him.
The expert concluded that the parties clearly had significant relationship problems that likely stemmed in part from the mother’s early childhood experiences including her experiences of child sexual abuse, but opined that “the involvement of [the mother’s partner] in the family heralds a significant redirection of the family’s developmental trajectory”. It is the opinion of the expert that although there are many unusual features characteristic of the dispute and interesting side issues “the central issue relates to the alleged disclosure of sexual abuse by [the daughter], the investigation by police and protective services, and the lack of substantiation of those allegations”.
The expert then reiterated the significant concerns raised about the disclosures through the police investigation including concern about coaching, the lack of boundaries and the inability on the part of the mother to refrain from interfering in the process in a manner that the expert considered “was so direct and blatant that her lack of insight around direction by police that she not do so is remarkable”.
The expert reiterated the alleged disclosure and subsequent interviews of the daughter which in his view revealed “conflicting, contradictory information, an unstable fact pattern, and an inconsistent account of what occurred” and placed weight on the fact that even in the daughter’s discussion with him, the importance of the alleged abuse only emerged in response to his introduction of the topic and even then, the child’s account “lacked emotion, conveyed a certain rote quality, and conveyed little, if any anxiety”. The expert opined that the child’s description of what transpired was unconvincing and her explanation of what had occurred seemed particularly unusual. He then reiterated concern about the unusual circumstances of the disclosure, the subsequent actions of the mother in leaving the children in the father’s care and her decision to detail in writing a full and detailed account to the school principal which indicated to the expert “clearly had the implication that there was some kind of voyeuristic component”. He considered that the mother’s confabulation around these issues is particularly noteworthy and in his view “are far beyond the limits of what would be normal in the circumstances”.

In summary, the expert opined that it is not possible to conclude that the mother’s early childhood experiences of abuse and other associated trauma have not impacted upon her subsequent psychological functioning and considered it very likely to have done so. He also regarded that the problem in a prognostic sense is that the mother denies the implications, relevance and need for treatment for matters which the expert considers are of paramount importance.
In summary, the expert also opined that the issue of the mother’s partner cannot be ignored and drew particular attention to the fact that the sexual encounter between the mother and her partner coincided with the deterioration in the parties’ relationship and the mother’s decision that her partner should be given a child and provide the sperm for insemination. The expert opined that it is not possible to understand with any clarity this chain of events and why either party agreed to go ahead with this plan, and in relation to the mother why she would do so “other than because of some kind of psychological connection to, and romantic intent with [her partner]”.
The expert did not consider it surprising that the father had concerns about the mother’s partner and his involvement in the family and in particular, the daughter’s emotional distress at the absence of contact with the mother’s partner which the expert considered “extreme, unusual and disproportionate.” He opined that it was understandable that the father had concerns about the grooming process, being “the gradual intrusion of [the mother’s partner] into the life of his wife and daughter by gradually gaining their trust and positioning himself as some kind of protector who best understands them and their feelings”.
Under the heading of conclusions the expert also felt that the mother’s unusual communication style that directed conversation away from topics that were of discomfort to her in favour of topics that she sought to impress, required careful forensic attention as did the question of whether the father had abused the mother. The expert opined that it is “not possible to conclude that [the father] was not abusive” but considered the question of whether this matter had any direct relevance to the issues before the Court would need to be considered in the context of other evidence.
The expert’s observations of the children in the company of both parents was “unremarkable in the extreme”, though the expert reiterated his concerns about the daughter’s disproportionally emotional and unusual response to the separation from the mother’s partner. He stated in conclusion that there is ample evidence to support his opinion about the blurred boundaries and the intrusion into the psychological functioning of the daughter by the mother and his clinical impression that the daughter found it difficult to separate her emotional experience from that of her mother. While police had similar concerns that the daughter may have been coached by the mother, the expert suspected that the process was more likely to be emotional transfusion amidst poorly defined psychological boundaries and the mother’s lack of awareness of the inappropriateness of her communication style that likely accounts for the daughter’s presentation.
Having observed the father’s concerns regarding the mother’s partner which the expert considered understandable, the expert opined that there is no suggestion that the mother’s partner has behaved inappropriately with a child or that he is a risk as such to the children. However, the expert considered that “transgression of romantic boundaries at a later stage, given the emotional entwinement by [the daughter] with [the mother’s partner] should be a source of concern and should be drawn to the attention of both parents, although future risk is difficult to quantify”.
The expert acknowledged in his conclusion that it was very challenging to make recommendations for the future parenting arrangement that would best meet the children’s best interests. He opined in summary:
The challenge is how to proceed; in my view [the father’s] concerns regarding [the mother], her past history of abuse, childhood trauma, her relationship with [her partner], and some of the very poor judgement exercised by her in relation to [the daughter], must reflect significantly on her psychological functioning. However, it is also clear that the children are emotionally, primarily dependent upon her, love her, and treat their mother as their central emotional hub. They perceive themselves to be very much a part of the family comprised of their mother and [the children’s younger brother]. It is clearly not going to be possible in the long-term to prevent contact between the children and [the mother’s partner]. It would in my view by extremely important that [the mother] be alerted to the issues, why she is vulnerable and that she seek psychological assistance for herself; I am not at all swayed by her suggestion that she has been unaffected by her childhood trauma, that her childhood was idyllic, or that she has exercised good judgement in relation to [her partner]. Whilst it is difficult on the basis of the children’s attachment to their mother to recommend a change in living arrangements, it is nonetheless my suggestion that there be serious consideration of a change in the living arrangements, unless [the mother] obtains psychological assistance from a mental health professional experienced in sexual abuse and trauma.
It is not difficult to understand why [the father] believes that the children should reside with him. There is a persistent level of uncertainty around [the mother] and her psychological functioning, and the choices made by her. Some of her reasoning for her actions reflect a most unusual perspective; her behaviour in relation to [the daughter] both in relation to her father and by sharing inappropriate material with her could be considered abusive in and of itself. However, the children present well, they are happy, they are well-adjusted, and both impress as being bright, articulate, and engaging. They relate well with both parents. In the absence of [the mother’s partner], I suspect that [the father] would support the children continuing to reside in the care of their mother. There are inescapable practical realities, not least of which is that he works full-time, that his responsibilities entail a global responsibility, and there is some travel required. The children are otherwise settled, secure in their relationship with their mother, but benefit from the regular and consistent time spent with their father. There can be no doubting the basis of [the father’s] concerns, but [the mother’s] portrayal of the relationship with [the father] can also not be ignored; it was problematic in the extreme. Even if the Court were to determine that [the mother’s] claims in relation to [the father] were true, that she was a victim of coercive and controlling behaviour, and in particular of a sexually aggressive type, there is no suggestion that this overflowed to impact adversely on the children as such and no evidence to suggest from the children themselves that they have been adversely affected by their parents’ relationship; [the mother] has in many ways parented at a high level.
In all of the circumstances and notwithstanding all of the concerns, the expert felt that the least uncertain alternative, based on the condition that the mother obtain the psychological assistance recommended, is that there be a maintenance of the status quo whereby the children continue to reside primarily with the mother and spend five nights each fortnight in the care of the father.
The expert’s ultimate recommendation in his report is that the current arrangement continue. His opinion concerning further psychiatric or psychological assessment of the mother, the mother receiving psychological assistance as recommended, and a strict and unwavering commitment to court orders, were “absolute contingencies” to that recommendation and he also noted that testing of evidence may change the recommendations significantly.

Oral Evidence

Cross-examination of the expert first related to the issue of the mother’s partner. The expert expressed the view that the greatest concern about the daughter’s presentation with respect to the mother’s partner is “a splitting” whereby the partner is idealised and the father is everything that [the partner] is not. The expert described this as “more troublesome”, “odd” and that it “leaves me [the expert] feeling most uncomfortable”.
The expert was informed of some of the oral evidence of the mother’s partner such as holding others responsible for various matters such as placing content on his website and wrongfully appealing only the severity of his sentence (rather than his conviction) and that he remained unrepentant in relation to the benign nature of the various services he has offered- matters which the expert said were “obviously concerning”. In particular the expert was concerned about the lack of empathy that the expert opined “is often lacking in people who are more self-absorbed, more narcissistically organised, people who have an inflated sense of their own capacity and abilities that can often be very alluring, superficially charming, enticing”.
The expert expanded upon his opinion in oral evidence as to the capacity of the mother’s partner to manipulate other people, explaining that there were two alternate hypotheses. The first is that the mother’s partner is manipulative, ingratiating and grooming the mother and potentially the daughter while the other is that his intentions are positive and that he has been a great support and someone who should be respected and admired for his support and assistance to the family. The expert described that these two hypotheses sit on the ends of a continuum and that the question to be resolved is where the mother’s partner sits on the continuum. When asked whether he could express a view about the more likely hypotheses the witness gave the following answer:
It – it would be impossible to ignore the possible – it would be impossible to ignore the grooming issue. Impossible. Just because of the vulnerabilities that [the mother] has brought. It’s impossible to ignore the grooming hypothesis in relation to what I understand to be the factual matters relating to [the mother’s partner] in terms of his criminal convictions. It’s impossible to ignore his own words on the web page. It’s impossible to ignore that you tell me every time he’s presented with this, he – he places responsibility elsewhere. It troubles me enormously that he is viewed in such idealised terms. Very so idealised is – is – it’s – it’s not quite normal. We’re supposed to see good and bad in people and accept the integrated whole. So it – it would be correct, your Honour, for you to conclude from my evidence that I am concerned about that, by all means.
The witness remained firm when asked to explain the vulnerability of the mother which he explained arises from her splitting the difficult and challenging aspects of her childhood suggesting that they are not problematic when her history suggests that she is a person who has experienced really significant maltreatment.
The expert remained unshaken in his view that three sexual assaults upon the mother in her childhood are likely to have caused significant psychological impact and ongoing impact. The witness also confirmed that the mother was adamant that this childhood sexual abuse was insignificant, it had happened a long time ago and that she expressed concern that the father was incorporating her abuse into his narrative.
The expert was also absolutely firm that the events from her childhood that the mother described to him were undoubtedly sexual abuse. He opined that the mother’s denial that the abuse had occurred at all when cross-examined indicates a blind spot which raises a risk “that she will not recognise a potential in relation to [the daughter] because of her own experience and not having dealt with it”.
The witness agreed that if the daughter was being subjected to “grooming” the magnitude of harm to her is great. He opined that if the Court were to conclude that the mother’s partner posed an unacceptable risk to the daughter in this regard then the “least uncertain way” to mitigate that risk would be to exclude the mother’s partner from all contact with the child. The expert also said that such an exclusion may “well be” the only way to mitigate that risk if the court is satisfied that the mother doesn’t have any insight into the risks posed by her partner.
When asked about the genuineness of the mother’s belief concerning the daughter’s allegations of sexual abuse against the father the expert did not waiver from the view expressed in his report. That is, the mother either really believed that the daughter had been sexually abused (in which case leaving the child with the father and encouraging more contact with him indicates that the mother has “a massive blind spot herself to the impact of that abuse on her child”) or she did not authentically believe the complaint but was prepared to accept it at the time “because it served a purpose to do so”.
Under cross-examination the expert was asked about whether he had changed his recommendations for a final parenting arrangement for the children. He confirmed that his recommendation was absolutely contingent on various matters including in particular that the mother receive psychological treatment as recommended. The expert was informed about a covering letter to the psychologist who the mother consulted following the release of the expert’s report. In that letter, the mother says “[the expert] says loosely that he “believes” I “may” have suffered childhood sexual abuse or trauma as a child over 35 years ago…”, a notion which the mother says she considers “totally ridiculous”. The expert agreed that there’s little utility in psychological assistance about an issue she denies.
The expert considered the fact that the mother had subsequently seen a psychiatrist as “certainly helpful” but said he was not clear “to what extent she has insight and has understanding as to how everyone around her is concerned and why”.
The expert agreed that is sounded promising that in his report the psychiatrist opined that “[the mother’s] narrative is shifting from that of being a victim towards becoming more reflective”. The expert maintained however that he would be reassured if the mother had acknowledged that she understood the Court’s concern and was committed to her partner not having any contact with the children for whatever period of time they were in her care so that the children could have a relationship with their father and brother and be kept safe, even if she did not in fact agree with these orders. He reiterated that this would be an appropriate way forward but opined that at present “I don’t know if she is there”.
When asked about the conditions upon which he made recommendations about the children remaining in the mother’s primary care the expert said that he considered the second of his “absolute contingencies” to be the most important, that being an unwavering commitment to the orders pertaining to the children. In this regard he opined:
It may be that a way forward is to accept that [the mother’s] views in relation to [her partner] and the risk that he does or doesn’t pose won’t change. But if she says, “Well, during the time that the children are in my care he is going to have no contact with them whatsoever” – full stop – that might be a way forward. Now, I understand that the concern is going to be that she doesn’t adhere to that, but that might be a way forward, and that might, for example, have been a useful outcome of some of the therapeutic reflection – that I have to think about my children first.
The expert was asked about his opinion in the event that the court found it unlikely that the mother would comply with an injunction against bringing the children into contact with her partner, and in particular if the children were to move to live with the father as a result. The expert opined that he did not think the children would need therapy but that it would be a “painful reality for them” if they were taken from the person with whom they feel most dependant and reliant for reasons that are beyond their capacity to understand.
The expert found it difficult to agree with various suggestions put to him about suitable arrangements for the children to spend time with the mother if they were to move to live with the father. He was concerned that any orders that would see the children being away from the mother for longer periods of time would be extremely distressing to them and considered that this may be a greater risk to them than the mother being unable to recognise the potential risk in the behaviour of her partner.
The expert emphasised that it would be best for the children if some middle ground could be navigated which maintains the children’s relationship with the mother whilst still ensuring their protection from her partner. The expert was informed of the tenor of the mother’s evidence that she found it difficult to contemplate a future parenting arrangement for the children which included the restraint on contact with her partner and even raised the possibility of moving interstate if such an order were to remain in place and the children were to live with the father. The expert considered “the uncomfortable question [of] whether [the mother] is really able to elevate the children’s needs ahead of her own” as “the linchpin consideration”. In the expert’s opinion it was not an unreasonable expectation for a parent to say, “I will do whatever I have to protect my children and to keep them safe,” and advance their welfare above and beyond anything any everyone else.
Under further cross-examination by the mother’s counsel in relation to the question of the mother’s ongoing compliance with a restraint in relation to her partner (if such an order were made) the expert constantly returned to the view that a key consideration is that compliance adding “I certainly don’t want to see these children not be in her care”. He reiterated again that the big issue is how to factor in an appropriate means to address the concerns for the protection of the children that are “obvious to everybody who reads or knows about this case”.
The witness later agreed when answering a question about the children’s relationship with their half-brother that he was firmly reiterating the best way forward would be for the children to remain living with their mother and that the mother strictly comply with the non-contact order in respect of her partner. He added that means that the mother must step up and say “my children’s needs are more important than all other needs. I will work in and around this. I will get some assistance. I will do what I have to do”.
When shown the 5 May 2018 letter the expert was unable to say that it was the letter he referred to in paragraph [34] of his report and added that he thought he had seen the letter in question but just did not recall. The witness agreed that the father did not tell him by way of explanation for writing that letter that the mother was threatening to take the children away and making it impossible for him to see them again. The expert maintained that he found the father’s explanation for writing it did not make any sense.
The expert witness was cross-examined by each of the parties over the large part of one day. He was not challenged about any of the facts upon which he based his opinions, remained largely unshaken in relation to them and was able to expand upon and give examples from the evidence to justify those opinions. The expert is highly qualified and experienced[4] having bachelor and master degrees in behavioural sciences and psychology and having been engaged in practice for 37 years as a psychologist and clinical psychologist particularly with respect to children and adolescents. The expert has taught in training programs for child psychiatry, clinical psychology, clinical child psychology and to paediatric registrars and medical students. The expert has been involved in consultation in a wide range of settings and has been in full-time private practice since 1995. He regularly presents to family lawyers and practitioners in family law and has had 24 years of work in the Family Court of Australia.
[4] Information obtained from the expert’s curriculum vitae which appeared to have been omitted from the report but was forwarded to Chambers by the ICL as requested in the knowledge of, and without objection by, the parties.

Records from an account in the mother’s name indicate that she used the funds in it at her discretion including transferring money to her partner and sending money to family members overseas. The mother agreed under cross-examination that she had unfettered access to funds in this account. Consistent with the father’s case, the documentary evidence also demonstrates that the mother held a credit card during this period from which she not only paid for groceries but also used for her own discretionary spending without any clear limitations.
It is significant in my view that when confronted with this evidence inconsistent with her claims the mother had great difficulty making obvious concessions and then changed her evidence from a positive statement that she had been financially controlled and abused to a statement that she “felt” that she had been abused in this manner.
The statements of the mother about how she “felt” in relation to experiencing abuse at the hands of the father is a consistent feature of her evidence. In these Reasons at [394], [407], and [432], I refer to various parts of the evidence where the mother talks about “feeling” abused or controlled.
The expert in his report emphasised that given the nature of this dispute and the allegations and counter-allegations, “it may be that a more helpful way to proceed is to focus not on emotional facts, that is not what people say or believe to be the case, including any spiritual or philosophical rhetoric, but rather, focus on unwavering forensic facts of what is known to have occurred”.
In determining whether the father sexually abused the mother as alleged I take care to focus on the objective facts, rather than the emotional facts. In particular, I attach no weight to the statements made by the mother from time to time that she “felt abused” by the father in determining whether she was abused by the father.
I accept the submission made on behalf of the father that there is little corroborative evidence in the dispute about the issue of family violence matters and that it is to a large extent a contest between the accounts of the mother and the father.
In determining this dispute, I have significant reservations about the reliability of the mother’s evidence and approach it with caution for the following reasons.
First, in the mother’s own affidavit account there are a number of matters which are demonstrably incorrect. These include that she was unaware of her pregnancy until mid-May 2018 when the medical records produced by her own doctor indicate that she was given the positive results of her pregnancy test on 23 April 2018. On a related issue she deposes to making a booking on 2 May 2018 for injections on 9 May 2018 as part of the IVF process which she describes as “a major step in achieving a pregnancy” when she was already aware that she was pregnant at the time.
The mother also deposes to recording the daughter on 3 May 2018 “without her knowledge” when it is abundantly clear from the recording itself (and concessions later made under cross-examination) that the child was well-aware of the recording. I also consider it noteworthy that the mother did not annex the recording to her affidavit and that it was required to be called for and played in the proceedings.
Similarly, although the mother makes clear allegations that the father “came home after drinking and forced through my door breaking off the door handle om 23 March 2018” and purports to annex a recording of him engaged in this conduct to her affidavit, she initially sought not to rely upon that recording which was also ultimately called for and played in the proceedings.
I consider these omissions significant as each of the recordings is not consistent with the mother’s account in her affidavit, which raises questions about the mother’s perception of events (where that perception is inconsistent with objective evidence) and her manner of strategically withdrawing such alleged corroborative evidence when it becomes apparent that the evidence does not corroborate her version.
The last mentioned matter is similar to an observation made by the expert when interviewing the mother which I similarly observed in the course of her giving evidence and which I consider significant in assessing the reliability of her account. In this regard the expert observed the following:
Obtaining a clear and concise history from [the mother] was difficult; her responses were tangential, and she ensured that her responses were redirected so as to embed in the response to my questions the stories she wanted to reflect negatively upon [the father]. It was difficult to get a direct response to a direct question. Accordingly, her response style conveyed a sense of being evasive, she portrayed herself as a hapless victim in an otherwise controlling family.
…
There are many aspects about this dispute that will require more careful forensic attention. I draw attention to [the mother’s] unusual communication style, that directed conversation away from topics that were of discomfort to her in favour of topics that she sought to impress.
These features of the mother’s communication style were well-evident in the proceedings. For example, when she was cross-examined at some length about the issue of influence that she may have had on the daughter’s account of sexual abuse given to JIRT investigators on numerous occasions, the mother directed her answer to another question entirely related to her own regret at not having reported the daughter’s complaints to police earlier.
The next matter that I consider very relevant to my assessment of the mother’s account is that one of the only items that she suggests corroborates her version of events does not in my view support that version. Both the submissions made on behalf the mother and father each refer to the video of the incident on 23 March 2018. It is to be remembered that the mother deposes that this recording shows the father drunk as he had come home drinking and forced his way through the door, breaking off the door handle and cracking the door where the hinges were screwed in the presence of the children.
Having viewed the video, I do not agree that it shows the matters alleged by the mother or is probative of her allegations about the father’s violence. In my view, the submission made on behalf of the father describes the contents of the video accurately, that is, that a door handle has fallen to the floor, the mother asserts in the presence of the children that the father broke it and the father denies it. It otherwise records the mother doing no more than making allegations and complaints, such as that the father is drunk (which in my view is not apparent from the video) and for these reasons I see it as a self-serving video created by the mother for some future benefit as the father contends.
In assessing the reliability of the mother’s account I also consider it significant that the mother did make a number of concessions as to important matters under cross-examination which are consistent with the father’s version. For example it was always the mother’s case that the father first made the suggestion that he partner be the sperm donor for the parties’ third child and that at the time she and the partner were not romantically entangled which is entirely at odds with the father’s case. He describes the mother as insisting upon this arrangement which he found strange but agreed to under the pressure of the threats made by the mother that she would separate from him if he did not agree. His entire case is consistent with this contention that he was desperately trying to save his marriage while the relationship between the mother and her partner was developing without his awareness and he explains all of his actions including the writing of the letter by reference to these circumstances. Under cross-examination the mother ultimately conceded that shortly after the sexual encounter with her partner in October 2017 she no longer wanted to be married to the father, and wanted her partner to be the father of her third child and it was she who came up with the idea that he be the sperm donor in this context.
Another matter to which I attach some weight is that the only person to whom the mother appears to have made complaints about the father’s violence was the family friend and that she first started reporting these matters at the time that she was actively making plans to separate from the husband such as by getting her financial circumstances in order with the assistance of her partner. The mother did assert however, for the first time under cross-examination that she reported the father’s violence to her mother who is now deceased.
While this is by no means determinative, in my view, given the seriousness of the allegations the mother makes about the father’s assaults including that she suffered injuries and that on two occasions she claims police officers encouraged her to make formal complaints, it seems significant that the mother did not make a complaint to any agency or seek any assistance over many years. The mother also conceded under cross-examination that when she made reports of the father’s violence to her friend the level of contact with this friend had dramatically increased for no apparent reason and that some of the things she reported to her friend at the time, such as that the father had given her chlamydia were untrue. These matters cast doubt on the reliability of the complaints to her friend.
The mother also refers to an anonymous report having been made at an unspecified time to police about her being subjected to family violence but no such record was adduced in the proceedings. It is also clear that at the time of the JIRT investigation the mother informed police that she had been the victim of family violence at the hands of the father. She claims that she was encouraged by police at the time to seek an AVO or take the matter further and it seems difficult to understand why she did not do so at a time when she had already separated from the father if such complaints were true.
All of the foregoing matters give rise to concerns about the accuracy and reliability of the mother’s account. Although under cross-examination the mother insisted that the events had occurred at other times she utilised language such as that she “felt” abused and on other occasions even expressed a lack of certainty about the actual allegations she was making against the father.
The father in my view gave his evidence in a straight forward manner which was not marked by exaggeration or evasion. His evidence is corroborated by reliable documents such as bank records where they are available and the video recording of the incident on 23 March 2018 is consistent with his version of events. His explanation for the writing of the 5 May 2018 letter is consistent with his version of events generally and in all of the circumstances I accept his evidence as to this matter.
In all of the foregoing circumstances, I accept the father’s version of events and in so doing, am satisfied that he did not perpetrate family violence against the mother as alleged.

The Law & Discussion

The Objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) and the principles underlying it set out in s 60B, form the framework for the part of the Act dealing with parenting.
The Objects are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The Principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Court is to make such parenting orders that are considered proper (section 65D). According to s 60CA of the Act, in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of a child as the paramount consideration.
The mother seeks orders that would see the children continue to live in her primary care and spend defined time with the father that falls within the definition of substantial and significant time. She also proposes that the parties equally share parental responsibility for the children. It is also her proposal that the injunction currently in place restraining her from permitting the children to come into contact with her partner be discharged so that she and her partner and her three children may live together in the one household.
The father seeks orders that would see the children move to live primarily with him and that he have sole parental responsibility for them on the basis that the children would be exposed to an unacceptable risk of harm if orders were made as the mother seeks.
The ICL seeks orders that will see the parents equally share parental responsibility for the children and that they remain primarily in the care of the mother and that the restraint in relation to contact with her partner and the children be strengthened and extended. The ICL proposes orders in relation to the father’s time that vary a little from the current arrangement but would continue the children’s substantial time with him. The ICL proposes other orders that will see the daughter receive therapy for the psychological harm she has experienced and the mother receive therapy for her psychological issues as recommended by the expert.

Best Interests Considerations

Section 60CC sets out the primary considerations and additional considerations to be considered by a Court in determining what is in a child’s best interests.
The primary considerations (under s 60CC(2)) are:-
a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)The need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.
I am required to give greater weight to the need to protect the children from harm than to the benefit to the children of having a meaningful relationship with both parents.
The phrase “meaningful relationship” has been interpreted as meaning a relationship which is “significant”, “important” or “of consequence”[17]. Each of the proposals of the parties and the ICL would result in fostering a meaningful relationship between the children and both parents. It is implicit in each of the proposals that the children do benefit from having a meaningful relationship with each of their parents, a position with which I agree.
[17] McCall & Clark (2009) FLC 93-405; Mazorski & Albright (2007) Fam LR 518; G & C [2006] FamCA 994.
Although the proposal of the father would see a significant reduction in the time the children spend with their mother the word “meaningful” is qualitative rather than quantitative and the phrase has not been interpreted as requiring the court to craft orders to support an optimal relationship with each parent[18]. Further, in accordance with objects of Part VII of the Act the best interests of children are met by ensuring they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the child.
[18]Godfrey & Saunders [2007] FamCA 102 at [36].
The second of the primary considerations is concerned with the need to protect children from harm arising in particular ways. There is no suggestion in these proceedings that the children have a particular need to be protected from neglect or would be subjected to or exposed to family violence under any of the proposals.
So far as abuse is concerned it was curiously not ever contended on behalf of the mother that the children or the daughter in particular would be exposed to an unacceptable risk of sexual abuse in the care of the father even though she contends that he has sexually abused the daughter. For the reasons given and discussed at length I am satisfied that the father did not sexually abuse the daughter and as there is no other basis upon which any risk of this type may arise I am also satisfied that such a risk does not exist.
Another form of abuse which arises in these proceedings from which the children require protection is psychological abuse perpetrated by the mother.
It is to be remembered that departmental officers substantiated this form of abuse having been perpetrated by the mother. Within his report the expert drew attention to records of a JIRT interview in which, contrary to requests made by JIRT officers, the mother repeated in the presence of the son statements concerning sexual abuse she alleged the father had perpetrated towards her. Further in his report, the expert opined that some of the mother’s reasoning for her actions “reflect a most unusual perspective; her behaviour in relation to [the daughter] both in relation to her father and by sharing inappropriate material with her could be considered abusive in and of itself”.
Despite attaching some weight to these matters, the expert remained of the view that it was still in the best interests of the children to remain living with their mother.
A significant domain of harm to the daughter identified by the expert arises if I am satisfied that the mother’s partner has engaged in the process of “grooming” the children and they are to have ongoing contact with him in the mother’s care. The expert described the process of “grooming” as a person positioning himself as a kind of protector who best understands the other person and their feelings.
The expert was unshaken in his opinion that the daughter found it difficult to separate her emotional experience from that of the mother and that the mother’s actions and attitudes in relation to her partner after the two had a sexual encounter (in particular in proposing that the partner become the sperm donor for her third child) could only be understood on the basis of the mother’s “psychological connection to and romantic intent with [her partner]”.
The expert was also firm in expressing significant concern about the daughter’s disproportionate emotional response to separation from the mother’s partner which was “uncomfortably intense and difficult to explain purely on the basis of direct contact”.
In light of the foregoing expert evidence and the facts as found in relation to the mother’s partner, I am satisfied that the partner began gradually intruding into the lives of the mother and children (and particularly the daughter) from soon after the mother and her partner met and was well-established by the time the parties had separated and in the months thereafter.
Having regard to the mother’s vulnerabilities as identified by the expert, I am satisfied that the more likely hypothesis in relation to the conduct of her partner (of the two hypotheses raised in his evidence and referred to in [128] of these Reasons) is that the mother’s partner is manipulative, ingratiating and has been grooming the mother and the daughter from around at least October 2017.

The risks to the children and the daughter in particular as a result of the mother’s partner’s grooming of the children are amplified by his past conduct. I accept the matters identified in the father’s written submissions that concerning behaviours which add to this risk are:
·The proclivity of the mother’s partner to engage in sexually predatory behaviour towards vulnerable women which brings with it the risk that the daughter may be the victim of such conduct and that the son may form his attitudes towards relationships with women in this context
·The proclivity of the mother’s partner to engage in therapy of a dubious nature towards vulnerable people where he holds no appropriate qualifications to do so, which raises a risk that the children may be exposed to perverse belief systems
·The delusional beliefs of the mother’s partner that he is qualified by virtue of experience in areas of medicine that he is able to practice with an equivalent or greater degree of knowledge than medical professionals, and the risk that he may purport to provide “treatment” to the children in respect of such matters
·The lack of boundaries demonstrated by the mother’s partner with respect to his appropriate role which was concerning when he was in the position of a family friend and raises far more risks if he were to be in a step-father role
There are also the risks associated with the completely idealised view of the mother’s partner held by the daughter. Such view has been developed and promoted through grooming and manipulation by the mother’s partner to the extent that the daughter in various settings appears to be more emotionally dependent upon the mother’s partner than her father, summed up in her statements that the mother’s partner is “everything that the father is not”. If the mother’s partner were to play a role in the parenting of the children (and in particular the daughter) there is a real risk to the children’s ongoing relationship with their father.
In summary I accept the father’s contention set out in written submissions on his behalf that the mother’s partner “presents a bad role model, a delusional character, a manipulator, a sexual predator and a person who cannot be relied upon to support the children’s relationship with the father”.
I also accept the evidence of the expert that if the Court finds that the mother’s partner has engaged in grooming the daughter, the risk of harm to her is great. I further accept the expert’s evidence that in all of the circumstances, including the mother’s lack of insight into the risks posed by her partner, the only way to be certain about mitigating the harm of this magnitude is through a complete restraint on contact between the mother’s partner and the children and that such a restraint be strictly adhered to by the mother.
There is also no evidence to suggest in relation to the mother that this process of grooming has not been ongoing. Rather, as the mother’s partner is the father of her third child, she has not sought treatment of the type recommended by the expert and intends remaining committed to her partner, it is likely in my view that such a process is still ongoing.
In submissions made on behalf of the father very significant weight is attached to the need to protect the children from the harm posed by the mother’s partner. It is submitted that the evidence about ongoing contact between the children and the mother’s partner, the ongoing level of affection expressed by the daughter to the mother about her partner and the mother’s own evidence of attempts to foster a relationship between the children and her partner indicates that the grooming of the daughter is continuing by proxy through the actions of the mother. In this regard the father also attaches significant weight to the concerns expressed by the expert about whether the mother is really able to elevate the needs of the children above her own. It is for this reason that the father proposes orders that will see the children live with him and contends that only such orders will mitigate the harm arising in this regard.
The expert clearly considered the magnitude of harm to the children not only as a result of the grooming by the mother’s partner of the children themselves but through the impact on the children of the grooming by the mother’s partner upon the mother herself. It is the opinion of the expert that strict adherence to the injunction rather than a change in residence is the appropriate way to address the harm to the children that arises in this manner.
In my view the mother can be in no doubt as a result of these proceedings of the importance of complying with the injunction prohibiting contact between the children and her partner. Through the making of these orders the proceedings will be complete and she should have no reason to hope for a reinstatement of any parenting arrangement whereby she and her partner together with her three children live together in one household.

Additional considerations: s 60CC(3)

Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.

Views of the children’s and factors underlying those views

The children expressed very firmly to the expert that they wish to live with the mother, her partner and half-brother in the mother’s household. In circumstances where I have found that the mother’s partner poses an unacceptable risk of harm to the children and having regard to the children’s age I attach no weight to the children’s desire to live in a household with the mother’s partner or have any relationship with him.
I do attach some weight to the children’s expressed to desire to continue to live with the mother and half-brother.

Nature of the children’s relationship with each parent and other significant persons (including grandparents or other relatives)

Likely effect of a change in the children’s circumstances

In my view these two interrelated matters are particularly salient in these proceedings.
According to the expert’s unchallenged evidence which I accept the children are emotionally primarily dependent upon the mother, treat her as their emotional hub and perceive themselves to be part of the family comprised of their mother and younger half-brother.
The expert was also not challenged about his opinion that the children’s observed interaction with their father was equally positive to the interaction with their mother and was characterised by warmth, easy interaction and enthusiastic participation.
The expert devotes significant attention in his report to the relationship between the daughter and the mother’s partner which to a significant extent was based upon matters that the daughter reported to him and her presentation. The expert opines that the daughter’s emotional distress at the absence of contact with the mother’s partner was “extreme, unusual and disproportionate”. He reiterates his concerns about the “disproportionally high”, and “uncomfortably intense” nature of the daughter’s level of affection for the mother’s partner in a number of places in his report and oral evidence, found this presentation “difficult to explain purely on the basis of direct contact” and was concerned about the daughter’s idealised view of the mother’s partner. On the basis of the foregoing evidence I have no doubt that the children will benefit from an ongoing separation from the mother’s partner.
Despite all of his concerns about the mother’s partner the expert did not ultimately recommend that the children move from the mother’s primary care to live with the father.
In coming to this final recommendation the expert attached significant weight to the nature of the children’s relationship with their mother and half-brother. He was ultimately quite firm in concluding that the best way forward would be for the mother to elevate the children’s needs ahead of her own and comply with a restraint on bringing the children into contact with her partner even if she did not agree with the assessment of risk he posed. In this way the children could remain living in the mother’s care and in the household with their half-brother and also share a relationship with their father without need to move to his household.
The expert made it clear that he did not support a move for the children to live with the father. He felt that the change in care, notwithstanding the father’s capacity, would be very emotionally painful for the children having regard to their emotional attachment to the mother and half-brother. He was concerned that any orders that would see the children being away from the mother for long periods of time would be extremely distressing to them and considered that this may be a greater risk to them than the mother being unable to recognise the potential risk posed by her partner.
The proposal of the ICL is most consistent with the expert’s opinion in this regard and application of these considerations favour the parenting arrangement proposed by the ICL.

Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and or communicate with the children

Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children

These are not weighty considerations in this dispute. Each of the parents has been actively involved in decision making, both before and after separation and in the case of the father has been active in spending time and communicating with the children following separation.
Although at one point in her affidavit the mother seems to complain about the father’s financial support of the children following separation this was not borne out by the evidence. Rather I am satisfied that the father has made significant contribution in the support of the children following separation and to date including through the payment of Child Support.

Practical difficulty or significant expense involved in spending time with and communicating with the other parent

Other relevant circumstance

If orders are made as sought by the ICL or mother there will be no practical difficulty or expense involved in the children spending time with and communicating with the father.
Unusually in this case however significant practical difficulty is involved in the parenting arrangement promoted by the ICL as the mother will be restrained from permitting her partner who is the father of her youngest child to come into contact with the children. It is clear from the evidence (and unfortunately tangibly demonstrates the mother’s blind spot with respect to risk posed by her partner) that the mother struggled in contemplating any parenting arrangement in which this restraint would continue and which would bring about the result that she and her partner and all of their children would not be able to live together in a single household.
The expert made it abundantly clear and I accept the weight to which he attaches to this matter that the mother must elevate her children’s needs to have a relationship with both parents and to be protected from the harm associated with her partner in combination with her own vulnerabilities if the children are to remain living with her. There can be no doubt that the mother will be on notice through the expert’s opinion and its adoption in these Reasons that she must elevate the children’s needs above her own and overcome the practical difficulties that arise if such a restraint is made.

Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent

Attitude to the children and responsibilities of parenthood demonstrated by each parent

Capacity of each parent and any other person (including grandparent or other relative) to provide for the children’s needs including emotional and intellectual needs

The daughter is a bright, socially engaging and articulate child. She has had the benefit of the culture and traditions associated with her cultural heritage and her mother’s religion. She speaks her mother’s first language and has had the opportunity to live in and visit her mother’s country of birth. The son also presented to the expert as bright, engaging and articulate and has also received similar benefits to the daughter from his mother’s cultural heritage and associated traditions.
Little is known about the background and traditions associated with the father’s heritage though it is clear that the children have enjoyed connections with extended family members and cousins on their paternal side and are closely connected to their paternal extended family.
The psychological vulnerabilities of the mother have been dealt with at length in these proceedings as they have assumed some significance for the reasons given. It will undoubtedly benefit the children and the mother’s own understanding of risk and relationships generally if she accepts the evidence of the expert as to these matters which I have considered weighty for the reasons given and develops insight into her vulnerabilities and receives appropriate therapy from an appropriately qualified expert for an appropriate period of time.
The orders proposed by the ICL include orders that she receive such appropriate therapy and that the father can confirm the same. In my view such orders will appropriately address this issue.
Other than the mother’s blind spots and issues with her psychological functioning as explained, I am satisfied that the mother is a capable parent. The children are described by the expert as “present[ing] well, they are happy, well-adjusted and both impress as being bright, articulate and engaging”. In light of the children’s presentation and evidence concerning the father’s role in their life, I also have no doubts about the father’s capacity to meet the needs of the children.

Conclusion

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[19] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[19] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the order sought by the father must mean that he would all the duties, powers, responsibilities and authority which, by law parents have in relation to the children if such an order were made and that the mother would have none of the duties, powers, responsibilities and authority with respect to the children.
For the reasons given, I am not satisfied that any of the circumstances arise such that the presumption does not apply.
As I am satisfied that the proper orders will see the children remain living with the mother, it would be inappropriate to make an order that the father have sole parental responsibility. The ICL and mother seek orders that the parents equally share parental responsibility in accordance with the presumption. I am of the view having regard to the best interest’s considerations that the presumption is not rebutted.
As an order will be made for the parents to have equal shared parental responsibility for the children, under s 65DAA(1) of the Act, I must consider whether the children spending equal time with each of the parents would be in their best interests, and whether such an order is reasonably practicable.
Neither of the parties nor the ICL seek an order for equal time and it can be taken that none contends that such an order would be in the children’s best interests.
I am then required consider under s 65DAA(2) whether the children spending substantial and significant time with each of the parents would be in their best interests and reasonably practicable. The orders that I propose making will see the children live with the mother and spend substantial and significant time with the father which I consider for the reasons given to be in the children’s best interests.
Having regard to all of the foregoing best interests considerations, giving weight to particular matters for the reasons explained, and attaching particular weight to the opinion of the expert for the reasons given, I am satisfied that the orders proposed by the ICL (with some minor amendments that are inconsequential) are in the best interests of the children and for this reason are considered proper.
For all of the foregoing reasons I make orders as set out at the forefront of this decision.

I certify that the preceding five hundred and forty four (544) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 17 December 2020.

Associate:

Date: 17 December 2020

[2020] FamCA 1125

Key Legal Topics

Areas of Law

Family Law

Evidence

Equity & Trusts

Legal Concepts

Injunction

Procedural Fairness

Remedies