REDDIN & BICKETT

[2021] FCCA 3

FEDERAL CIRCUIT COURT OF AUSTRALIA

REDDIN & BICKETT [2021] FCCA 3

Catchwords:
FAMILY LAW – Parenting – interim hearing - children aged 6 and 4 years –  where Final Orders were made on 4 April 2017 providing for equal shared parental responsibility, the children to live with the mother and spend regular time with the father – where the mother asserts that the child has made a disclosure of sexual abuse by the father -  where the child was taken to see a medical practitioner but did not make any disclosures and there was no physical evidence of abuse – where there has been an investigation by SAPOL and Child Protection Services and no further action has been taken – SAPOL have identified a concern that the children’s disclosures may have been “coached” by the mother – mother’s position is that all time spending between the father and the children be suspended – in the alternative the mother seeks time spending on a day time basis only – mother also seeks injunction restraining the father from posting photographs of the children on social media - father alleges that as a consequence of mother’s behaviour the children are subject to ongoing psychological and emotional abuse –- father seeks that the children live in his primary care or in the alternative that there be a shared care arrangement – preliminary assessment of risk – father’s time with the children to resume – whether or not an order for costs thrown away should be made against the mother and/or the mother’s solicitor.

Legislation:

Family Law Act 1975 (Cth), ss.4AB, 60CA, 60CC, 61DA, 65DAA, 117

Cases cited:

Deiter & Deiter [2011] FamCAFC 82

Goode & Goode (2006) FLC 93-286

Marvel & Marvel [2010] FamCAFC 101

SS & AH [2010] FamCAFC 13

Applicant: MS REDDIN

Respondent: MR BICKETT

File Number: ADC 2812 of 2015

Judgment of: Judge Kari

Hearing dates: 18 September 2020, 15 October 2020, 18 December 2020, 28 January 2021, 3 February 2021, 4 February 2021

Date of Last Submission: 4 February 2021

Delivered at: Adelaide

Delivered on: 5 February 2021

REPRESENTATION

Counsel for the Applicant: Mr Roberts

Solicitors for the Applicant: Southern Vales Legal

Counsel for the Respondent: Mr Boehm and Ms Fuda

Solicitors for the Respondent: Family Law Project and Salisbury Lawyers

Counsel for the Independent Children's Lawyer:	Ms Miller
Solicitors for the Independent Children's Lawyer:	Mr Eid of Nicholas Eid Lawyer

THE COURT ORDERS

1. That the children X (born in 2014) and Y (born 2016) do resume spending time with the father as follows:

   (a)As and from 12 February 2021, from 4pm Friday until 4pm Sunday each alternate week in accordance with paragraph 5(b) of the Final Orders made 4 April 2017;

   (b)As and from 18 March 2021 each alternate Thursday from the conclusion of school/kindergarten until the commencement of school/kindergarten Friday;

   (c)As and from 23 April 2021 paragraph 5(b) of the Final Order made 4 April 2017 shall be varied to provide for a conclusion time of the commencement of school/kindergarten Monday, or 4pm if a non-school day, and

   (d)Forthwith and otherwise in accordance with paragraph 6 of the Final Orders made 4 April 2017.

2. That paragraph 7 of the Final Orders made 4 April 2017 (as amended by paragraph 1 of the Orders made 27 July 2020) be discharged.

3. That forthwith all handovers that do not take place at the children’s kindergarten or school take place inside the Suburb L Police Station.

4. That until further order the mother is restrained and an injunction is granted restraining her from:

   (a)Bringing the children into contact with Mr M, and/or permitting any other person to do so; and/or

   (b)Cutting, shaving or bleaching her hair and/or using any chemicals or treatments on her hair other than commercially available shampoo and/or conditioner.

5. That the mother do all such acts and things necessary to authorise (and to the extent necessary these orders shall stand as such authority) the release to the father of all information that a parent would ordinarily receive from:

   (a)The children’s school and kindergarten; and/or

   (b)Any treating therapist or medical professional upon which the children attend and/or have attended.

6. That each the mother and the father be at liberty to provide a copy of these orders to the children’s school and/or kindergarten and otherwise any of the professionals referred to in paragraph 5(b) herein.

7. That pursuant to s 62G(2) of the Family Law Act 1975, the parties and the children X and Y attend upon family consultant, Ms G on a date and at time/s to be advised for the purposes of the preparation of a family report, with a request that such report be released by 26 June 2021.

8. The Family Report deal with the following matters:

   (a)Any views expressed by the said children and any factors (such as the said children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;

   (b)The matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975; and

   (c)Any other matters that the Family Consultant considers important to the welfare or best interests of the said children.

9. The solicitors for the parties shall forward copies of all documents filed with the Court to family consultant, Ms G in accordance with the directions of the Child Dispute Co-ordinator.

10. The parties shall do all things necessary to facilitate the completion of the Family Report, including making themselves available for appointments and executing any authorities for the release of information to the report writer.

11. The report writer shall be at liberty to liaise with any person in relation to the welfare of the children.

12. Upon the Report being provided to the Court, the Court shall provide a copy to each party’s lawyer and to the Independent Children’s Lawyer in the proceedings.

13. Unless a party objects, in writing, within fourteen (14) days of the release of the Report, copies of the Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the children to whom these proceedings relate:

    (a)A Children’s Court;

    (b)A child protection authority;

    (c)A State or Territory legal aid authority; and

    (d)A convener of any legal dispute resolution conference.

14. Unless otherwise ordered, no person shall release the Report, or provide access to the Report to any other person.

THE COURT NOTES THAT: 

(A)At the date on which a copy of the Report is to be provided to any of those identified above, it may not have been admitted into evidence and may be untested or if admitted would only form one part of the evidence in the proceedings.

(B)Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one (1) year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

1. That the proceedings are adjourned to 30 August 2021 at 4.00pm for Callover and possible Trial listing.

2. That the parties personally attend the Callover AND it is requested that Counsel properly instructed for Trial attend and in the event they are not available, the file principal attend.

3. That no less than seven (7) days prior to the Callover date the parties shall file and serve:

   a)   A brief summary of the issues in dispute, together with a Minute of the specific Orders sought;

   b)     A Trial plan identifying the witnesses to be relied upon at Trial, an estimated length of Trial and any Subpoena which will be issued; and

   c)   Details of the costs incurred to date and the anticipated costs of Trial.

UPON NOTING that in the event that the Orders for the filing of documents for the Callover provided for in these Orders have not been complied with, the Court shall:

(a)Give consideration to vacating the Callover and listing the matter for Mention only;

(b)Give consideration to making an Order:

(i)That the defaulting party pay the costs of the party not in default; and/or

(ii)Consider as to whether costs Orders be made personally against the solicitor for the defaulting party and/or a referral of the solicitor to the South Australian Legal Profession Conduct Commissioner.

1. That within 14 days, the mother’s solicitor pay to the father’s solicitor costs fixed in the amount of SIX HUNDRED AND SIXTY DOLLARS ($660).

2. That all interim parenting applications otherwise be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Reddin & Bickett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 2812 of 2015

MS REDDIN

Applicant

And

MR BICKETT

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to two children, X, who was born in 2014 and is almost 7 years of age, and Y, who was born in 2016 and is almost 5 years of age.

2. Despite the very young ages of the children, these are the third set of proceedings which have come before the Court since 2015.

3. Following the commencement of the current proceedings in February 2020, there have been countless interlocutory applications and at least 10 separate hearings.

4. Against that background, it would be trite to say that these parents are embroiled in an acrimonious dispute. Sadly, it appears that the high level of animosity and distrust that these parents have for each other has resulted in these children being at the epicentre of a parental “tug of war”.

5. The current dispute between the parents relates to the time spending/living arrangements between the children and the father. The father has not spent any time with the children since 11 August 2020.

6. The current state of affairs has arisen against the backdrop of the following events:

   a)Final parenting orders were made by this Court on 4 April 2017 which provided for the children to live with the mother and spend regular time with the father from March 2018 each alternate weekend from 4pm Friday until 4pm Sunday, together with specified times for Christmas, Father’s Day, and the children’s birthdays.

   b)The current proceedings were commenced by the mother in February 2020, in circumstances where the father had retained the children in his care.

   c)In March 2020, and prior to any hearing, the mother managed to return X into her primary care by removing her from her school and retaining her. However Y remained in the father’s care.

   d)After hearing argument on 7 April 2020, I made orders providing for the father to return the child Y to the mother and for the father’s time with both children to resume from 8 May 2020 pursuant to the orders made on 4 April 2017.

   e)Since 7 April 2020, the father has made three separate applications seeking orders for the delivery up of the children, on the basis that the mother had not complied with orders for him to spend time with them.

7. I heard a lengthy argument in this matter across two separate days on 18 September 2020 and 15 October 2020. At that juncture I reserved my decision.

8. At the time that I heard the argument across September and October 2020:

   a)The mother had withheld the children as and from 11 August 2020 as a result of an alleged disclosure made by the child Y that the father had sexually abused her. In light of that allegation, the mother’s position was that all time spending between the children and the father should be suspended. In the alternative the mother submitted that if the Court forms the view that time spending should recommence, the Court should take a “cautious approach” and any time spending should occur on a day time basis only.

   b)The father on the other hand asserted that the mother had embarked on a calculated course of conduct over the course of these children’s lives and particularly across 2020 with the intent of denying the children from having a meaningful relationship with him. The father asserted that as a consequence of the mother’s behaviour, the children are being subjected to ongoing psychological and emotional abuse. The father’s position was that the children should live in his primary care. In the alternative the father agitated for a time spending regime that would see the children spending substantial and significant time with him.

   c)The Independent Childrens Lawyers (“the ICL”) did not support the orders promoted by either parent. Rather the ICL agitated for a return to the arrangements provided for in the orders of 4 April 2017.

9. The matter was listed for the delivery of judgment on 18 December 2020.

10. At that hearing, the court was informed by the mother’s solicitor and the ICL that it appeared that there was an active investigation into the disclosures that were said to have been made by the children, and that the children had participated in a formal record of interview.

11. This was a frustrating development, as the father unawares that there was an open investigation and that the children had been interviewed by Child Protection Services. More importantly however, the court was not told about these matters and there had been no application to adduce further evidence by the mother. It has not escaped the court that but for being informed about these developments by the ICL just prior to judgment being delivered, there was a very real risk that this court would have made orders without being informed of matters which went to the heart of the issues in dispute. This is a turn of events that has concerned the court greatly, and the mother’s solicitor ought seriously reflect upon his conduct in the matter, including the attempts to divert attention and blame to the ICL, where no such criticism was warranted.

12. As a consequence of these events, the matter was ultimately adjourned on 18 December 2020 to enable the investigation process to conclude.

13. As best as I can ascertain, the investigation process concluded in late December 2020/early January 2021, and it appears that SAPOL are taking no further action and no charges are to be laid against the father.

Short background

1. The short background of the parties and their relationship is as follows:

   a)The father was born in 1977.

   b)The mother was born in 1986.

   c)The parties were in an “on/off” relationship for a number of years commencing in approximately 2013.

   d)They had a number of brief periods of separation during their relationship, with final separation occurring in May 2017 (according to the mother) or in October 2017 (according to the father).

   e)There are two children of their relationship:

   i)X who was born in 2014 and aged 6 years and 11 months; and

   ii)Y who was born in 2016 and aged 4 years and 11 months.

   f)The mother has three children from previous relationships, who live with her on a full-time basis namely:

   i)B, whose birthdate is unknown;

   ii)C, whose birthdate is unknown; and

   iii)D, who was born in 2018.

   g)The father has one other child from a previous relationship, namely E who was born in 2005 and lives with him on a full-time basis.

The court proceedings

1. On 4 April 2017, final parenting orders were made by the Court which provided for the parties to have equal shared parental responsibility for the children and for the children to live with the mother. The orders among other things provided for the father to spend time with the children in summary as follows:

   a)With both of the children each Thursday from 3.45pm to 6.00pm;

   b)With X each alternate weekend from 4.00pm on Friday until 4.00pm on Sunday;

   c)Upon Y attaining the age of two years, with Y each alternate weekend from 4.00pm Friday until 4.00pm Sunday, with such time to coincide with the time that X spent in the father’s care; and

   d)On special occasions.

2. Unbeknown to the Court the parties had reconciled at the time that the final orders were made.

3. On 22 December 2017, following the final breakdown of the relationship between the parties, the father reinstated the proceedings seeking interim orders on an urgent basis for the children to be delivered up to his care.

4. It appears to be agreed that the basis for the father’s application was that the mother had retained the children in her care from about November 2017, in circumstances where she asserted that X (then aged three) had made disclosures that the father had sexually and physically abused her.

5. The second set of proceedings were finalised on 15 February 2018 by way of orders made by Judge Mead (as she then was) which provided for the final orders made on 4 April 2017 to resume “in full force and effect” from 31 March 2018 with some graduated periods of time to occur between the father and the children prior to the resumption of the arrangements in accordance with the final orders.

6. The current proceedings were commenced by the mother on 21 February 2020, with the mother seeking an urgent order for the children to be returned to her care, in circumstances where the father had withheld them from her since 16 February 2020.

7. The father filed his Response on 12 March 2020, in which he sought parenting orders with respect to X, Y and also the child D. On an interim basis, the father sought orders for:

   a)The parties to have equal shared parental responsibility for the children;

   b)The children to live with him;

   c)The children to spend time with the mother on a supervised basis;

   d)The mother to undertake a random urine analysis drug test;

   e)The mother to undergo a psychological assessment; and

   f)Paternity testing to be undertaken in relation to the child D.

8. In his Affidavit filed in support of his Response, the father raised concerns in relation to the mother’s illicit drug use and mental health; asserting that strange men regularly frequented the mother’s home and that Y was being sexually abused by the mother’s child B. This is a disclosure that I am now aware was also reported to the Department of Child Protection, with no further action or investigation taken.

9. The matter came before the Court for an interim hearing on 7 April 2020. At the time of the hearing the child X was in the care of the mother; the mother having collected X from school on 11 March 2020 and retained her, while the child Y remained in the care of the father. The Court made orders which provided for:

   a)The father to return the child Y to the care of the mother at 5.00pm that day;

   b)That a Recovery Order be issued but stayed pending the written advice of the mother’s solicitor if Y was not returned;

   c)The father’s time pursuant to the orders made on 4 April 2017 to be suspended and not resumed until 8 May 2020;

   d)The parties to attend a Child Dispute Conference with a Family Consultant of the Court pursuant to s 11F of the Family Law Act 1975 on 17 August 2020;

   e)The parties and their legal representatives to attend a Family Dispute Resolution Conference at the Legal Services Commission on 2 September 2020.

10. On 21 May 2020, the father filed an urgent Application in a Case seeking that X and Y be delivered up to his care and that the mother participate in random urinalysis drug screen testing. The basis for the Application in a Case was that the mother had refused to facilitate the children’s time spending time with him in accordance with the orders made on 7 April 2020, and he had not seen the children.

11. In the Affidavit filed by the mother on 17 June 2020, the mother asserted that her reason for withholding the children from the father and not complying with the orders made in April 2020, was that she did not know the father’s current residential address. The mother further deposed that she facilitated the children spending time with the father on the weekend commencing Friday 5 June 2020 to Sunday 7 June 2020 in accordance with the children’s wishes. Since that visit the children were scared of the father and did not want to spend time with him.

1. The mother sought orders in her Response to the father’s Application in a Case for the father to provide his residential address and advise her of any change to same within 7 days, and pending those details, for the father’s time with the children to be suspended until further order.

2. The father’s Application in a Case and the mother’s Response to the Application in a Case were heard on 19 June 2020, at which time the Court noted that the final orders made on 4 April 2017 remained in full force and effect and ordered that:

   a)The parties each provide the other with their residential address and keep the other informed of any change to the same; and

   b)The parties each be restrained and injunction be granted restraining each of them from attending at or within the vicinity of the other parent’s home and proving any third party with the other parent’s residential address.

3. Those orders were predicated on the basis that once that information was exchanged, the mother would begin facilitating the father’s time and complying with orders made by the court on 7 April 2020.

4. On 17 July 2020, the father filed a further Application in a Case in which he again sought orders for urgent delivery up of the children as the mother had not facilitated his time spending with the children, other than between 5 June 2020 and 7 June 2020. The father also sought orders for the appointment of an Independent Children's Lawyer and for the mother to submit to hair follicle drug testing.

5. In the mother’s Response to the father’s further Application in a Case filed on 24 July 2020, she sought that the orders made on 4 April 2017 be varied such that all handovers occur at her home and that otherwise the orders of 4 April 2017 remain in place. She deposed in her Affidavit contemporaneously filed that the father had not spent time with the children since 7 June 2020 “due to the father’s behaviour at handovers.”

6. On 27 July 2020, the Court made orders which provided for:

   a)Handovers to occur at the commencement of the father’s time at 4.00pm at the Hungry Jacks at Suburb F and at the conclusion of the father’s time at the mother’s home;

   b)An Independent Children's Lawyer to be appointed;

   c)In the event that the mother did not comply with the orders for the children to spend time with the father made on 4 April 2017, the father to have liberty to make a request to Judge Kari’s chambers to have the matter relisted upon the filing of an Affidavit.

7. The parties attended a Child Dispute Conference with Family Consultant Ms G on the 17 August 2020. At the time of the Conference, Ms G recorded:

   a)That the mother was withholding X and Y from the father, based on a disclosure allegedly made by Y to the mother on 11 August 2020 that the father had been “tickling Y’s vagina,” which the father denied.

   b)The father sought that the child D be added to the proceedings, however the mother denied that he was the biological father of D and opposed the father’s application to include her in the proceedings.

8. On 15 August 2020, the father filed an Affidavit pursuant to the order made on 27 July 2020 seeking that the matter be relisted on an urgent basis as the mother had not facilitated any time between him and the children since 11 August 2020.

9. Upon the filing of the father’s Affidavit, orders were made in chambers on 21 August 2020 for the mother to file and serve an Affidavit in response to the father’s Affidavit filed on 15 August 2020 and for the proceedings to be listed for interim hearing on 18 September 2020.

10. The interim hearing on 18 September 2020 was conducted by Microsoft Teams as a result of the restrictions in place due to the COVID-19 pandemic and each of the parties was present by video.

11. During the hearing the Court was advised that the parties attended a Family Dispute Resolution Conference at the Legal Services Commission on 2 September 2020. While the parties could not reach agreement about the substantive issue of the father’s time at the Conference, they had reached agreement for paternity testing to be undertaken with respect to the child D. They had also agreed to each have hair follicle drug testing and had provided samples for that purpose, but the results were not yet available.

12. I have since learned that the paternity testing in relation to D has been completed and it is unlikely that the father in these proceedings is that child’s father.

13. In the course of the hearing on 18 September 2020, the Court observed that the mother had dark purple coloured hair and raised concerns about any impact that might have on hair follicle test results. The mother informed the Court that she had coloured her hair approximately two weeks prior to the hearing and prior to providing the hair follicle sample for testing. However she asserted that the hair colour was not permanent and there was no ammonia in the colour used. She additionally asserted that she has been colouring her hair for many years.

14. The hearing on 18 September 2020 was adjourned part-heard, with only the mother’s counsel and the Independent Children's Lawyer having completed making their submissions on that day. Procedural orders were made pursuant to s 69ZW for the South Australia Police and the Department for Child Protection to provide information and documents in relation to the parties and the children, for the parties to file and serve the results of their respective hair follicle tests and for the hearing to resume on 15 October 2020.

15. Prior to the hearing on 15 October 2020, each of the parties filed the results from their respective hair follicle drug tests. Both parents’ results appear to have been negative for the presence of all illicit substances.

16. In addition, on 8 October 2020, the mother filed a further Application in a Case seeking that the father’s time with the children pursuant to the orders of 4 April 2017 be suspended and injunctions be granted to restrain the father from posting photographs of the children on his social media accounts and dating profiles.

17. The hearing on 15 October 2020 was conducted on a face to face basis and at the conclusion of the hearing I reserved my judgment with respect to the matter.

18. On 16 December 2020, the parties were advised that the matter was listed for the delivery of judgment on 18 December 2020.

19. What was not known to the court at that time, but became clear over the course of the day on 18 December 2020 (as a consequence of submissions made over two separate hearings that day and affidavits that the court directed be filed), is that the mother asserted:

    a)She heard from “Ms H” from Child Protection Services in late October 2020, asking her to make a time for a the child Y to be interviewed;

    b)On 16 November 2020, the child Y was interviewed by Child Protection Services at the J Medical Centre;

    c)In November the mother was contacted by “Ms H” who asked her to make a time for X to be interviewed;

    d)An interview was ultimately arranged for X to be interviews by Child Protection Services on 10 December 2020; and

    e)On 4 December 2020 the mother contacted her solicitor to advise him that the child Y had been interviewed and that X was to be interviewed the following week.

20. The mother’s solicitor contacted the ICL on 5 December 2020 advising that there may be a “possible” investigation. No such communication was had with the father’s legal representatives.

21. Thereafter the ICL set about making enquiries and was ultimately not advised until late in the day on 17 December 2020 (on the day before the intended judgment delivery) that the ICL was able to ascertain that “the assessment remains ongoing” and that SAPOL were involved.[1]

    [1] Independent Children’s Lawyer Affidavit filed 18 December 2020, “NAE-02.”

22. As a consequence of that information, at the hearing on 18 December 2020, the court adjourned the proceedings until 28 January 2021 to enable enquiries to be made as to the investigation process.

23. At the hearing on 28 January 2021, the court had the benefit of affidavit’s that had been filed by the parties and the legal representatives, and it appeared that the investigation process had concluded.

24. In particular, after the hearing on 18 December 2020 it appears that the father himself contacted SAPOL and met with a Detective Mr K. The father asserts that during that meeting he was told that the mother had reported the allegations in person at the Suburb L Police Station on 3 September 2020. The father complains that this is on contrast to the mother’s assertion that the disclosure was reported online. Whereas the mother asserts that the disclosure was initially made by phone and she was required to attend the police station to complete the report, which she did on 3 September 2020.

25. The father also asserts that Detective Mr K informed him at that meeting that “there were no findings made in respect of inappropriate touching, there is no further action to be taken and they are closing the file”.[2]

    [2] Father’s Affidavit filed 14 January 2021, paragraph 26.

26. The Father ultimately met with “Ms H” from Child Protection Services at the J Medical Centre on 21 January 2021 for a formal interview and asserts that he was told by her that a report would be generated to sit on the file.

27. On 27 January 2021 the court received information from SAPOL pursuant to the “Family Law Information Sharing Co-location Project” in the following terms:

    “… 03/09/2020 – Child Protection / Sexual Incident – The reporting person for this matter, Ms Reddin, reported to police that her daughter Y disclosed on 11/08/2020 that “Daddy tickles my vagina” during a conversation. CPS interviewed both Y and X. Both girls gave an account of MR BICKETT tickling their private parts, however police/CPS noted that there were a number of inconsistencies with some of the information provided. Police/CPS could not make out criminal offending, or rule out the possibility that the disclosures had been coached. Police spoke MR BICKETT, who stated that he had never tickled either child on their privates, and that he believed that the report was malicious. Both MR BICKETT and MS REDDIN informed that police would finalise the occurrence.

    Outcome: Filed Pending Further Information 30/12/2020.”

The parties positions

1. The issues for the Court to determine at the present juncture are:

   a)Whether the father’s time with the children should be suspended until further order.

   b)In the event that the Court is satisfied that the father’s time should not be suspended:

   i)Whether the children should live with the father and spend time with the mother; or

   ii)Whether the children should remain living with the mother and thereafter what time the children should spend with the father.

   c)Whether injunctions should be granted restraining the father from posting photographs of the children on his social medial and dating profiles.

2. The mother asserts that she holds “significant concerns” with respect to the father and seeks that the orders for the father’s time with the children be suspended until further order.

3. The mother however has vacillated as to what is to occur if the father’s time is not suspended, and in that regard:

   a)At the hearings in September and October 2020 the mother’s position was that the Court take a “cautious approach” and that time spending with the father occur on a day time basis only.

   b)At the hearing on 28 January 2021 the mother’s solicitor suggested a supervised time spending regime.

   c)At the hearing on 3 February 2021 the mother’s counsel maintained that there be no time and did not proffer an alternative.

   d)At the hearing on 4 February the mother’s counsel proposed that the father’s time be limited to day time only and that it commence for a couple of hours, and thereafter increase to a full day pending the receipt of a Family Assessment Report.

4. When the matter was argued across September and October 2020, the mother’s main concerns appeared to relate to:

   a)Disclosures made by the child Y to the mother on 11 August 2020 that the father had sexually abused her; and

   b)The father’s requests for information relating to the children from the children’s school and medical practitioners.

5. It has been the father’s position throughout all of the hearings of these applications that commenced in September 2020 that the mother has an “agenda” with the overall objective of preventing the children from having a meaningful relationship with him.

6. During the hearing on 18 October 2020, the father’s counsel referred to an email sent by the mother to the father on 23 February 2020, which is contained at paragraph 32 of his Affidavit filed on 12 March 2020 and reads as follows:

   I will unravel the web that you have spun for at least the last six years strand by strand until you are left with nothing. And nothing is still more than you deserve. Enjoy your time while it last because it will be the last. That’s a promise.

7. The timing of when that email was sent is said by the father to bear some significance, as it was sent immediately after the mother recommenced litigation in this court after the father having withheld both children.

8. Of more significance from the father’s perspective is that since that time, the mother has effectively ensured that he has had no relationship with the children across the 2020 year, despite orders made by the court to settle the children’s arrangements and quell the disputation between the parents. The father asserts that the mother’s conduct in consistently failing to comply with orders made across 2020, reflects the very sentiments that she expressed to him in her email of 23 February 2020, that she wishes to ensure that he is “left with nothing” when it comes to the children.

9. According to the father, the mother’s conduct is causing emotional and psychological abuse to the children and they should be placed in his care. In the alternative, the father seeks that the children spend time with him for a block period of seven nights per fortnight; effectively a shared care regime.

10. Either way the position of the father and that of the mother is that they no longer support the living and time spending arrangements for the children provided for in the final orders made in 2017.

11. The Independent Children's Lawyer supports a resumption of the father’s time with the children pursuant to the orders made in April 2017. However he asserts that there should be some caution exercised around the father’s relationship with X. His concerns in relation to the child X are said to arise from communications he has had with X’s school and her school counsellor.

The legal principles

1. In parenting cases both at an interim or final hearing stage, the paramount consideration of the Court is the best interests of the subject children.[3]

   [3] Family Law Act 1975 (Cth), s 60CA.

2. In order to determine what is in a child’s best interests, the Court is guided by those factors set out in s60CC of the Act, as follows:

   (2)    The primary considerations are:

   (a)    the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)    the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   (3)    Additional considerations are:

   (a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;

   (b)the nature of the relationship of the child with:

   (i)     each of the child’s parents; and

   (ii)    other persons (including any grandparent or other relative of the child);

   (c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:

   (i)     to participate in making decisions about major long‑term issues in relation to the child; and

   (ii)    to spend time with the child; and

   (iii)   to communicate with the child;

   (ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

   (d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:

   (i)     either of his or her parents; or

   (ii)    any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

   (e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;

   (f)the capacity of:

   (i)     each of the child’s parents; and

   (ii)    any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;

   (h)if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)     the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)    the likely impact any proposed parenting order under this Part will have on that right;

   (i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;

   (j)any family violence involving the child or a member of the child’s family;

   (k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:

   (i)the nature of the order;

   (ii)the circumstances in which the order was made;

   (iii)any evidence admitted in proceedings for the order;

   (iv)any findings made by the court in, or in proceedings for, the order;

   (v)any other relevant matter;

   (l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)any other fact or circumstance that the court thinks is relevant.

3. The Act also contains a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility,[4] however:

   a)The presumption is specifically rebutted and not to be applied in situations relating to abuse and/or family violence; and/or

   b)At an interim stage of proceedings, the Court has the discretion not to apply the presumption if the Court “considers that it would not be appropriate in the circumstances for the presumption to be applied…”[5]

   [4] Section 61DA.

   [5] Section 61DA(3).

4. If the presumption of equal shared parental responsibility is to be applied, then the Court is required to consider whether the child should spend equal time with each of their parents provided that any such equal time arrangements are in the child’s best interest and are reasonably practicable.[6]

   [6] Section 65DAA.

5. If the presumption is not applied (for whatever reason), then the Court is required to make orders that it considers to be in the best interests of the child with reference to those factors set out in section 60CC of the Act.

6. Family Violence is defined in section 4AB of the Act as follows:

   (1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

   (2)Examples of behaviour that may constitute family violence include (but are not limited to):

   (a)    an assault; or

   (b)    a sexual assault or other sexually abusive behaviour; or

   (c)     stalking; or

   (d)    repeated derogatory taunts; or

   (e)     intentionally damaging or destroying property; or

   (f)     intentionally causing death or injury to an animal; or

   (g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i)preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

   (3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

   (b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

   (c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

   (d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

   (e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

1. In Goode & Goode (2006) FLC 93-286 at 82, the Full Court set out the “legislative pathway” that is to be followed in interim parenting cases as follows:

   a.identifying the competing proposals of the parties;

   b.identifying the issues in dispute in the interim hearing;

   c.identifying any agreed or uncontested relevant facts;

   d.considering the matters in s60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   e.deciding whether the presumption in s61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   f.if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   g.if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable;

   h.if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s60CC, or impracticable

   i.if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s60CC;

   j.if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s60CC; and

   k.even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

2. While the Full Court identified in Goode & Goode (at paragraph 68)

   “…the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”.  Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible.”

3. This does not mean to say that the Court cannot and should not at an interim stage of the proceedings make findings, but rather that caution should be taken if findings are to be made.

4. The Full Court has considered the question of the making of findings at an interim stage of proceedings in a series of cases.

5. The decision of the Full Court in SS & AH [2010] FamCAFC 13, was cited with approval by the Full Court in Marvel & Marvel [2010] FamCAFC 101 (and in turn Marvel has been cited with approval by the Full Court in Eaby & Speelman [2015] FamCAFC 104). In Marvel at paragraph 120, the Full Court commented:

   “As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders.  Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted.  This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children…”

6. The Full Court went on to say (at 122-123):

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings.  Their Honours said:

   “In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   “The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested.  Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected.  It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”

7. These comments from the Full Court should also be read in the context of the difficulty facing a decision maker at an interim stage where there are allegations of family violence requiring the assessment of risk. In Deiter & Deiter [2011] FamCAFC 82, The Full Court set out (at paragraph 61):

   “The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events.  In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made.  We accept, however, that it is always a question of degree depending on the evidence that is before the Court.”

8. In addition in Deiter, the Full Court also discussed the use of corroborative evidence when weighed against the uncontested evidence of the parties.

The sexual abuse allegations made by the mother

1. While there may have been other reasons in early 2020 for the mother withholding the children, at all of the hearings in the present dispute the mother’s position was that as a consequence of disclosures of sexual abuse made by Y, the father’s time with the children should be suspended.

2. The mother’s counsel did not enunciate with reference to the legislative pathway or otherwise exactly why the mother was taking that position. However I would have to assume that because allegations of sexual abuse had been made, the mother is suggesting that the children are at risk of harm and indeed an unacceptable risk of harm in the form of sexual abuse.

3. At the hearings on 3 and 4 February 2020, the mother’s counsel was asked to identify the basis upon which the mother asserts that the children are at risk of harm so as to support an order that there be no time spending between the children and the father.

4. In response, the mother’s counsel identified the risk to be two-fold:

   a)Firstly a risk of sexual abuse as a result of the disclosures of sexual abuse; and

   b)Secondly a risk of emotional harm as a consequence of the children’s fear that the father having retained the children on 16 February 2020, would not return the children to the mother if they were to spend time with him.

5. Dealing firstly with the allegations of sexual abuse. It is clear that the alleged disclosure was first raised by the mother in these proceedings during the s 11F Child Dispute Conference with Ms G. Ms G recorded the alleged disclosure in her Memorandum to the Court dated 17 August 2020 in the following terms:

   Issues in dispute

   12. Parenting arrangements in the context of the mother’s current concerns that the father is touching (“tickling Y’s vagina”) Y, which the father categorically denies.

   Risk factors

   Child safety and wellbeing

   17. Allegations by the mother that Y has recently disclosed that her father touches her on the vagina. The mother reported that Y’s night terrors and traumatised postures have ceased since Y confided in her what the father had been doing and since Y has stopped spending time with her father.

   Future directions

   27. Parenting arrangements as per the Orders of 4/04/2017 have again de-railed, with the mother withholding the girls after Y reportedly disclosed on 11/08/2020 that her father had been touching her vagina.

6. Following the release of Ms G’s Memorandum to the Court, the Independent Children's Lawyer wrote to the Department for Child Protection (‘the Department’) on 17 August 2020, seeking a report about the Department’s previous and ongoing involvement in relation to the children.

7. By letter dated 20 August 2020, the Department for Child Protection responded to the Independent Children's Lawyer’s letter and advised as follows:

   Information in relation departmental files indicated the department does not currently have an open case or investigation occurring in relation to the children. Since April 2014 the department have received 11 notifications in relation to these children. These notifications have primarily pertained to allegations of domestic violence between the parents and the father’s excessive physical discipline of the children.

   In November 2017 the department received a notification alleging concerns of a sexual nature related to the father. This notification was forwarded to SAPOL to follow up.

   The most recent notification received on 14 August 2020 alleged X had reported ongoing domestic violence incidents between the mother, her partner Mr M and the father. It alleged there are concerns regarding the mother’s mental health and that X has missed a substantial amount of school.

8. On 15 September 2020, the mother filed an Affidavit in which she deposed with respect to the alleged disclosure by Y as follows:

   2. On Tuesday afternoon of 11 August 2020, upon the return from the Respondent Father’s the night before, my child Y born in 2016 and currently 4 years old disclosed to me that the Respondent Father “tickles her vagina” when she is sleeping. She spontaneously told me this when I was getting ready for bed and she was showing fear of the darkness and sleeping on her own.

   3. X then told me that she has also witnessed the Respondent Father tickle Y inappropriately as he did to her at the same age.

   4. I have also noticed that when Y started seeing the Respondent Father again, she began to display signs of being distressed, such as thumb sucking for the very first time, bed wetting, fear of the darkness, not wishing to sleep without me by her side and shutting herself in her room alone during the day, which were all out of character.

   5. I subsequently took Y to see Dr N, she was not comfortable with the doctor touching her or checking her over, he has reported this to the necessary people.

   6. I have also notified the police (report number ...) of the allegations who have not spoken to Y as yet but as I understand they are pursuing the matter.

9. At the hearing on 18 October 2020, the Independent Children's Lawyer tendered a subsequent letter which he had received from the Department dated 16 September 2020. That letter reads as follows:

   Subsequent to the information provided to you on 20 August 2020 it is noted that the department have received one further child protection notification. The notification received on 23 August 2020 alleged that Y was taken to the doctor with concerns that she had been touched on the vagina by the father. The notification alleged that there were no disclosures made and no medical evidenced at this time (sic).

   This notification did not reach the threshold for developmental involved and therefore there is no current investigation or open case with the department.

10. The father categorically denies the allegations of sexual abuse and asserts that the mother has made false allegations as yet another vindictive attempt by her to “derail the proceedings” and prevent him from having a meaningful relationship with the children.[7]

    [7] Father’s affidavit filed 19 August 2020, paragraphs 23, 32.

11. He complains that the mother did not inform him or his solicitor, or file an Application in a Case in relation to the alleged disclosure made by Y on 11 August 2020, before raising the disclosure with Ms G during the Conference on 17 August 2020. [8]

    [8] Father’s affidavit filed 19 August 2020, paragraph 23.

12. He further asserts that this is not the first time that the mother has made sexual abuse allegations against him. The father drew the court’s attention to the events that precipitated the mother withholding the children amid similar allegations in relation to X in late 2017. This resulted in the father having to recommence Court proceedings to resume spending time with the children.[9]

    [9] Father’s affidavit filed 19 August 2020, paragraph 28 - 29.

13. The father says that in the 2017 court proceedings, the mother deposed that she took X to be interviewed by Child Protective Services and at the end of the interview she was told that X had not made any disclosures about possible sexual abuse. As the sexual abuse was not substantiated, orders were made for the father’s time to resume.[10]

    [10] Father’s affidavit filed 19 August 2020, paragraph 30 -31.

14. On the one hand it is difficult for me to make any firm findings at this stage as to the recent allegations of sexual abuse made by the mother, or the father’s position that the mother is acting vindictively to sever his relationship with the children.

15. On the other hand, a number of issues stand out and when read together, which causes me to have some very significant concerns about the veracity of the mother’s allegations of sexual abuse. Of significance is:

    a)The contents of the text message that the mother sent to the father on 23 February 2020, which make it abundantly clear that the mother was in her own words going to embark on a course of action to leave the father with “nothing” so far as his relationship with the children was concerned.

    b)The timing of when the mother raised the alleged disclosures of sexual abuse, being on the day of and during her section 11F appointment on 17 August 2020, almost an entire week after the alleged disclosure was said to have been made and where it otherwise appears that between 6 August 2020 and 11 August 2020 the parents were able to agree to relatively flexible time spending arrangement between the father and the children, but otherwise the mother had failed to comply with orders of this court over an extended period of time to facilitate the children spending time with the father.

    c)That when X was interviewed and examined by her doctor in August 2020 she made no disclosures, and nor was there any physical evidence of sexual abuse.

    d)That the Department for Child Protection have not been involved in any investigation.

    e)That SAPOL have closed their file amid concerns that the children’s disclosures during their respective CPS interviews on 16 November 2020 and 10 December 2020 contained inconsistencies and there were concerns that the children had been coached.

    f)The passage of time from when the alleged disclosures were first said to have been made by the children, their failure to make any disclosures relatively contemporaneously when seen by their GP, as against the disclosures that were ultimately said to have been made when interviewed by Child Protection Services.

    g)That the disclosure now said to have been made by the children appear to have a striking similarity to an allegation of sexual abuse that the father made in March 2020. At that time the father asserted that the child Y had disclosed to him that the mother’s child B “tickles” her vagina.[11]

    [11] Father’s affidavit filed 11 March 2020, paragraph 36.

16. In addition, at the hearings in September 2020 and October 2020 I also heard submissions from the Independent Children’s Lawyer that he had made enquiries with the children’s school and kindergarten, and it appears that aside from some residual fear by X that the father will remove her again (as he did in February 2020). On the whole the children are progressing well, they have made no disclosures to any of their teachers and there were no other “remarkable” observations from the school/kindergarten perspective.

17. Of significance with respect to the child Y the ICL informed that the school has an awareness from comments made by her at school that she is “a little bit sad” and wants to see her father.

18. Given the young ages of the children, at this stage (and without expert assessment) it is difficult for me to place much weight on the comments variously attributed to them. However in making that comment, I do not at all ignore those comments and I certainly do not overlook the significance of the school and kindergarten’s perception that both of these children are doing well in their educational setting and are not presenting with concerning behaviours. This is something that I have taken into account when weighing up the mother’s allegations of abuse and the competing applications.

19. What is somewhat incongruous in the mother’s position is that back in September 2020 and October 2020 when from her perspective the children had made disclosures to her which had not been repeated to their GP, she advanced a position that in the event that the court considered it appropriate for the father to resume time spending, her position was that it only occur during the day time. When asked to enunciate why that was so, the mother’s counsel proffered that “a lot of these activities are suggested that they occur with the children when they are going to bed – the bedtime and the like.”

20. That is a submission that frankly I struggled to understand, as I would have thought that any time spending, day or night, presents the same level of risk of sexual abuse given that it would be unsupervised time spending where the father has the opportunity to act in a predatory and sexually abusive fashion.

21. Again incongruously, by the time of the hearings on 3 and 4 February 2021, when CPS had conducted interviews of the children and raised concerns about the inconsistencies in their disclosures and possible coaching by the mother, and SAPOL had closed their investigation, the mother initially promoted that there be no time spending whatsoever between the father and the children, however overnight amended her position back to that which she had originally agitated with respect to day time, time spending only.

22. Again, I struggle to understand the mother’s ever changing position on the topic of the father’s time.

23. At this juncture, and for all of the reasons that I have discussed, I have some significant reservations about the allegations made by the mother, and I am unable to form the view that the father presents an unacceptable risk of sexual abuse, nor even a risk of sexual abuse.

The emotional harm allegations made by the mother

1. Turning to the mother’s assertions that there is a risk of emotional harm brought about by the children’s alleged fear that the father will not return the children to the mother’s care if they spend time with him:

   a)I am reminded that the father has not breached any orders of the court following his retention of the children in February 2020.

   b)I am also mindful that SAPOL have raised concerns about the mother’s coaching with respect to the disclosures of sexual abuse made by the mother.

2. While the ICL has been advised by X’s educational facility that she had a residual fear of the father retaining her, for all of the reasons that I have already considered in these reasons, on balance at this stage, I cannot rule out the possibility that any such fear that the children are exhibiting, may well be as a consequence of the mother’s influence.

The father’s allegations

1. From the father’s perspective, he argues that there are risk factors in the mother’s household so as to ground his application to change the primary care of the children and/or increase his time with the children to a shared care arrangement.

2. The father’s allegations have been made in these proceedings from the inception of the litigation in February 2020, and formed the basis of his decision to retain the children in his care at that stage.

3. The father’s concerns appear to relate to:

   a)The mother’s alleged illicit drug use, and the irregularities around her hair follicle testing (as a result of her admitted use of hair colour) which might suggest that the negative result is not conclusive; and

   b)Matters pertaining to family violence in the mother’s household.

4. So far as the mother’s alleged illicit drug use is concerned, this is something about which again I am unable to make findings. However, I do have some significant concerns that the mother, knowing that she was to have hair follicle drug testing, proceeded to colour her hair following the Family Dispute Resolution. Moreover, it is apparent to me that the mother continues to colour her hair (it presently being a shade of green from my observations during the hearings in January and February 2021), thus potentially obscuring any testing that might be further ordered.

5. Because I have concerns about the mother’s previous hair follicle testing, and her ongoing apparent use of hair dye, I consider it appropriate to restrain the mother from further colouring or chemically treating her hair, so as to preserve the integrity of any hair follicle testing that might be ordered into the future.

6. This is an injunction that the court proposed making to the mother’s Counsel at the hearing on 4 February 2021, to which the mother consented.

7. So far as matters of family violence in the mother’s household are concerned, these issues came into sharp focus at the hearing on 3 February 2021, which resulted in the mother giving oral evidence.

8. What is now apparent to me from the mother’s oral evidence is that there was an incident of family violence in the mother’s household on 5 September 2020, during which the mother acknowledges she was the victim, and her then partner Mr M was the perpetrator.

9. This incident, is not something that the mother had otherwise informed the court about in any of the affidavits she had filed since 5 September 2020. Rather this information only came to light as a consequence of an affidavit the father’s solicitor filed on 19 November 2020 annexing documents that had been produced to the court by each SAPOL and the Department of Child Protection.[12]

   [12] Independent Children’s Lawyer (Emily Paige Fullagar) affidavit filed on 19 November 2020.

10. The mother ultimately however gave oral evidence that the information contained in the Police Report of 5 September 2020[13] was indeed accurate to the following extent:

    a)That she had argued with Mr M that day over a television programme.

    b)That she had asked Mr M to leave, which caused him to push her with a plastic tub that he was holding.

    c)That Mr M then kicked a suitcase which hit the mother’s foot causing a cut to her little toe on her left foot, which did not require medical attention.

    [13] Ibid, page 24.

11. That in addition to matters contained in the police report, the mother gave oral evidence that:

    a)The children were home during the incident on 5 September 2020, although the mother understood that they were asleep in their beds.

    b)The mother acknowledged arguing with Mr M over the course of their “on off” relationship, which began in February 2020, with cohabitation occurring between June/July 2020 and the first two weeks of January 2021, albeit with periods of time that Mr M moved out of her home as they were not getting along and to assist him in his own separate parenting dispute to “gain access to his children”.

    c)That the mother asserted that there were no other occasions where the children were exposed to family violence in her household between her and Mr M.

    d)The mother admitted however to Mr M making threats to “bury” the father, which were overheard by the children sometime after 11 August 2020 and before 5 September 2020, and resulted in her having to tell the children that Mr M would not act in that way.

    e)That Mr M and the mother broke up in about the first two weeks of January 2021 and they are no longer living together and there is no prospect of the relationship or cohabitation resuming, albeit that they remain in contact.

12. These admissions by the mother in her oral evidence while a little confusing, were equally concerning, as they appear to some degree to support concerns being raised by the father about the mother’s household.

13. I am reminded that by letter to the ICL dated 20 August 2020 to which I have previously referred, the Department of Child Protection advised that on 14 August 2020 notifications had been received by the Department about disclosures that the children had made about family violence between the mother and Mr M (and the father).

14. During the hearing on 3 February 2021, the father’s counsel took me to a record from the Department of Child Protection dated 14 August 2020.[14] While I acknowledge being confused by the dates in the record during the course of that hearing, having reflected upon that document, and sought the parties views of my interpretation at the hearing on 4 February 2021 it now appears to be agreed that there a report was made to the Department of Child Protection on 14 August 2020 by someone other than the father, and in relation to the same, the notifier is alleged to have reported:

    [14] Ibid, page 45-48.

    a)That the mother and (name omitted) “fight 24/7 and that they have a digital keypad on their bedroom door”.

    b)That X had disclosed that (name omitted) swears at the mother all the time and yells at the children calling them “wankas” and “little fucks”.

    c)The notifier reported that the mother and (name omitted) have broken up 3-4 times.

    d)That X had disclosed that the mother and (name omitted) were fighting and (name omitted) threw a suitcase and it landed on (name omitted) foot causing her to scream.

    e)That X had disclosed that while the mother and (name omitted) were fighting she was “next to her mother’s room and (name omitted) had shoved her mother into the wardrobe and started to yell at the mother, slamming her into the wall.

    f)That (name omitted) was screaming.

    g)That (name omitted) said to X “nah im (sic) bigger than your dad im (sic) going to put him down”, and that X appeared shocked when recounting this.

    h)X is alleged to have disclosed that the mother and (name omitted) fight all the time, but she had not provided further information about frequency.

    i)The child Y is said to have had a red mark on her face, but she did not provide an explanation.

    j)Y is said to have disclosed that (name omitted) had kicked a footstool she was sitting on causing her to face plant onto the tiles.

    k)The notifier reported “heaps of screaming at the home and the children screaming, that there have been lots of cars coming and going from the home.”

    l)That the child X “reported the day that her mother got pushed into a wardrobe and slammed on the wall, that she wanted to go to school however her mother would not let her and would not provide X a reason why.”

15. While again I am not in a position to make findings about these matters, I am somewhat concerned that:

    a)The children appear to have made certain disclosures about family violence in the mother’s household between the mother and her then partner.

    b)In light of the mother’s evidence about the length of her relationship with Mr M, I would have to have some confidence in inferring that Mr M was the person in the records whose name was omitted.

    c)The mother alleged in her oral evidence that there had only been one incident on family violence between her and Mr M on 5 September 2020. Whereas the record from 14 August 2020 predates that incident.

    d)The notification made on 14 August 2020, appears to refer to an incident in which a suitcase was thrown at the mother by Mr M causing injury to her foot, which appears in part to bear some similarity to the incident reported on 4 September 2020 which the mother asserts was the only incident of family violence between herself and Mr M. Given the timing of the report to the Department of Child Protection and the SAPOL record, I have some concerns that there may have been more than one incident of family violence between the mother and Mr M, and possibly two incidences that involved Mr M harming the mother with a suitcase.

    e)The alleged disclosure made by X in the record in 14 August 2020, that Mr M had said he was going to “put him down” in reference to the father, bears some resemblance to the mother’s allegation in her oral evidence that the children had overheard Mr M tell the mother that he would “bury” the father, causing her to reassure the children to the contrary. Again, given the date of the report to the Department of Child Protection and the mother’s refinement of when the children overheard Mr M make a threat towards the father, together with the difference in the words used, I must have some concern that the children overheard threats by Mr M towards the father on more than one occasion.

16. When I combine all of this information together, I am left with the distinct impression that the mother has not been entirely forthcoming about the circumstances in her own household until forced to make some acknowledgements during her oral evidence at the hearing on 3 February 2021. That being said, there remain some concerning inconsistencies between the mother’s oral evidence and the record, particularly that of 14 August 2020;

17. Moreover, the matters which I have just summarised give me some cause for concern that there are elements of risk in the mother’s household, particularly so far as their exposure to family violence is concerned, and possibly that they may themselves be at risk of physical harm from Mr M given the alleged disclosure by Y about having a stool kicked from under her causing her to “face plant” on the tiled floor.

18. For all of the reasons I have set out, I consider that it is appropriate to make an injunction restraining the mother from bringing the children into to contact with Mr M or permitting any other person to do so. This is an injunction that the mother agreed to have made when the court raised it at the hearing on 4 February 2021.

Conclusion as to the children’s living and time spending arrangements

1. While at this juncture I have some very significant concerns about the mother’s household, I do not consider that they are such so as to warrant a change of primary care or a change to a shared care regime, before such time that a more fulsome Family Assessment is conducted. That is a decision that is finely balanced, and is one about which I have some reservations.

2. However for all of the reasons that I have discussed, I consider that it is appropriate that the father’s time with the children resume as a matter of some urgency, and that the time include day-time and overnight time spending.

3. While it is understandable, given the events that have unfolded across 2020, for the father to seek orders that place the children in his primary care or in the alternative that there be an equal shared care regime, that is not something at this juncture that I consider should occur, particularly as the children have now not had any meaningful time with the father since across the better part of 2020 and I do not have the benefit of any expert evidence in the form of a Family Assessment.

4. I am mindful of the competing submissions that have been put:

   a)By the father that a clear way of addressing the “false” allegations of sexual abuse that the mother has made is to change primary care and/or to grant the father substantial and significant time as a means of delivering a message to the girls that the father presents no risk, despite what they might otherwise believe; and

   b)By the ICL and the mother that a graduated reintroduction of time given the hiatus of time spending between the children and the father is appropriate; noting as I do that the mother only supports day time spending whereas the ICL supports a return to the previous alternate weekend regime.

5. I also am conscious that the court is not bound to adopt the positions advanced by any of the parties, and that the ICL acknowledged that a way of sending a message to the children that the father is not a risk to them is to reinstate more fulsome time immediately and not on a graduated basis.

6. In my view, and for all of the reasons that I have already discussed in these reasons, I consider that it is appropriate to not only reinstate the father’s time immediately in a more fulsome way, but in addition for that time to go beyond that which the 2017 orders provided.

7. In addition to the matters that I have already discussed, it is not lost on me that the previous time spending regime was something that the parties agreed to when the children were very young.

8. I am also mindful that the orders that I intend to make will see that the children are separated from the mother and the half-siblings in the mother’s home for longer than they have previously experienced. However it is not lost on me that the children’s relationship with the father and their half-sibling in the father’s home has been significantly impacted by the events over the last year. I consider on balance that the relationship between the children and the father and the children and their half-sibling E needs to be restored and nurtured and one way of doing that is to increase the amount of time that the children spend in the father’s home.

9. As a result of all of the matters that I have considered and discussed in these reasons, it may be that at some point in the future the court is prepared to contemplate the father’s proposed interim changes, particularly if the concerns in relation to the mother persist and if the mother is unable to comply with orders of this court.

10. I note that the ICL shares the court’s concerns that the mother has been unable to comply with orders of the court, and that her ongoing failure to do so, would certainly impact on the ICL’s support of the mother retaining primary care of the children in the future.

11. In addition to the orders that I propose to make regarding the children’s time spending with the father, I also consider it appropriate for handover to occur inside a police station (if not at school) to reduce the chance for disputation between these parents and to reduce any potential for the children to be exposed to that disputation.

The father’s requests for information about the children

1. The mother complains that the father has been pursuing information in relation to the children to “further undermine the children’s security and the relationship” with her.[15]  This information includes:

   a)School attendance records for X from her school;

   b)Notes from X’s school counsellor about her sessions with X; and

   c)Notes from the children’s doctors about any conversations they have had with the children.

   [15] Mother’s affidavit filed 9 October 2020, paragraph 3.

2. The father agrees that he has requested the above information and says that it is proper for him to do so, in light of the fact that he has equal shared parental responsibility for the children and is wanting to understand what is going on in their lives.

3. Again, the position of the mother is something that I struggled to follow, particularly when these parents share parental responsibility as a consequence of the final orders made on 4 April 2017.

4. In that context, and provided that the father is not requesting any information that a parent would not ordinarily receive from the children’s school or treating professionals, I do not consider that he has overstepped the mark in any way.

5. Moreover, the mother’s seemingly unreasonable position has the tendency at this interim stage of underscoring the submissions made on behalf of the father that this is a mother going to great lengths to minimise the role of this father in these children’s lives.

Injunctions regarding the father’s posting of photographs of the children on social media

1. The mother seeks an order “that the father be restrained and an injunction be granted restraining him from posting any photos of the children on social media including his dating profiles.”[16]

   [16] Mother’s Application in a Case filed 8 October 2020, paragraph 2.

2. The only evidence from the mother in support of the injunction is the sentence at paragraph 8 of her Affidavit filed on 9 October 2020 which reads as follows:

   The father has also been posting photos of the children including D on social media including his Tinder and POF profiles and other dating sites.

3. During the hearing on 15 October 2020, the mother’s counsel submitted that the posting of the children’s photographs by the father is “unnecessary” and is “inflaming the situation.”

4. The father denies that he has photographs of the children on dating accounts. While he has not deposed to the same, the father’s counsel advised the Court at the hearing on 15 October 2020 that the photographs that the mother was referring to were posted on the father’s personal Facebook page and that he had concerns about how the mother had seen them as he had “blocked her” from seeing his page.

5. The Court has not been provided with any evidence in the form of a screenshot or otherwise, of the photographs that were allegedly posted by the father on social media. As a result, the Court cannot determine what exactly is of concern in the photographs or the account on which they were posted by the father.

6. In these circumstances, I consider that there is insufficient basis upon which to grant the injunction as sought by the mother.

Costs Application made by the father

1. At the hearings on 3 and 4 February, I heard submission in relation to a costs application that had been made by the father for costs thrown away as a consequence of the events that had transpired after the conclusion of the October 2020 hearing.

2. The father’s sought costs fixed in the amount of $660 which were said to be in relation to Counsel fees only for the additional hearings in December 2020 and January 2021.

3. The father’s Counsel submitted that the costs application could have been for a much greater amount given the additional affidavit material that had been generated in the matter.

4. The court was not advised as to how those costs were calculated. However I note:

   a)That the father is in receipt of a grant of legal aid, and that at the hearing on 18 December 2020, the court noted that the costs claim for the two hearings that day was pursuant to that grant of legal aid in the amount of $220 inclusive of GST for each hearing; and

   b)That a short mention hearing under Item 13 of Schedule 1 to the Federal Circuit Court Rules provides for an amount of $305, and that this amount is increased by an Advocacy loading provided for in Item 12 by an additional amount of $152.50, bringing a total amount of $457.50 for each short mention hearing conducted.

5. Accordingly, I would have to assume firstly that:

   a)The costs are not pursuant to the scale, as the amount claimed is less than the scale would provide; and

   b)The costs are likely to be an amount commensurate with the father’s grant of legal aid.

6. The costs application was made as against the mother, and in addition as against the mother’s solicitor.

7. I am mindful of section 117 of the Family Law Act,  which relevantly provides:

   (1)        Subject to subsection (2), subsections 45A(6) and 70NFB(1) and sections 117AA and 117AC, each party to proceedings under this Act shall bear his or her own costs.

   (2)        If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A), (5) and (6) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.

(2A)  In considering what order (if any) should be made under subsection (2), the court shall have regard to:

(a)  the financial circumstances of each of the parties to the proceedings;

(b)  whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;

(c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;

(d)  whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;

(e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

(f)  whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and

(g)  such other matters as the court considers relevant.

1. I am also mindful of Rule 21.07 of the Federal Circuit Rules 2001, that provides as follows:

   (1)  The Court or a Registrar may make an order for costs against a lawyer if the lawyer, or an employee or agent of the lawyer, has caused costs:

   (a)  to be incurred by a party or another person; or

   (b)  to be thrown away;

   because of undue delay, negligence, improper conduct or other misconduct or default.

   (2)  A lawyer may be in default if a hearing may not proceed conveniently because the lawyer has unreasonably failed:

   (a)  to attend, or send another person to attend, the hearing; or

   (b)  to file, lodge or deliver a document as required; or

   (c)  to prepare any proper evidence or information; or

   (d)  to do any other act necessary for the hearing to proceed.

   (3)  An order for costs against a lawyer may be made on the motion of the Court or Registrar, or on application by a party to the proceeding or by another person who has incurred the costs or costs thrown away.

   (4)  The order may provide:

   (a)  that the costs, or part of the costs, as between the lawyer and party be disallowed; or

   (b)  that the lawyer pay the costs, or part of the costs incurred by the other person; or

   (c)  that the lawyer pay to the party or other person the costs, or part of the costs, that the party has been ordered to pay to the other person.

   (5)  Before making an order for costs, the Court or Registrar:

   (a)  must give the lawyer, and any other person who may be affected by the decision, a reasonable opportunity to be heard; and

   (b)  may order that notice of the order, or of any proceeding against the lawyer be given to a party for whom the lawyer may be acting or any other person.

2. The father grounds the application for costs on submissions that:

   a)The mother’s conduct in the proceedings has resulted in additional and unnecessary hearings, stemming from a submission that the mother has deliberately and maliciously misled the court, and/or the police, and/or CPS as to the allegations of sexual abuse;

   b)The mother and her solicitors conduct in failing to inform the court that there was an investigation being conducted, and of the communications that were had with the ICL and not with the father from about 4 December 2020 has resulted in numerous unnecessary hearings and affidavit material being filed;

   c)That the mother has failed to comply with orders of the court.

3. The mother’s Counsel opposed the costs applications and in that regard:

   a)No application was made requesting that the mother’s solicitor be separately heard on the application, which is something of particular importance given the costs application was first made on 18 December 2020 and the court made a notation to Orders made that day that the court was considering whether those costs be personally paid by the “mother and/or by the mother’s solicitor”.

   b)Submissions were made with reference to section 117(2A) of the Act that the mother has parlous financial circumstances and that she is in receipt of a grant of legal aid, is in receipt of Centrelink benefits and receives no child support from the father.

   c)Submissions were made in an attempt to divert attention to the ICL. However, that submission was ultimately abandoned when challenged by the court.

4. At this juncture on balance I do not consider that the mother’s conduct in the proceedings can be entirely categorised as the father submits.

5. Nor do I consider that the mother is in the financial position to meet any order for costs.

6. It is not lost on the court however that there have been several additional hearings in the matter, in particular the hearings on 18 December 2020 and the hearing in January 2021. On any view those additional hearings may well have been avoided entirely, and/or resulted in the generation of less affidavit material than that which was ultimately filed, had the mother’s solicitor advised the court and/or the father in a timely way of the new information that came to his knowledge well before 18 December 2020 that the children were being interviewed by Child Protection Services.

7. In my view, the conduct of the mother’s solicitor is of significant concern, and has been compounded by the attempt to deflect attention to the conduct of the ICL.

8. In all of the circumstances, I consider that it is indeed appropriate to make a costs order against the mother’s solicitor.

9. For all of those reasons, I make the orders which appear at the commencement of these reasons.

I certify that the preceding one hundred and fifty eight (158) paragraphs are a true copy of the reasons for judgment of Judge Kari

Associate: 

Date: 5 February 2021