Sander & Lynwood

Case [2024] FedCFamC1F 126

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1) FIRST INSTANCE

Sander & Lynwood [2024] FedCFamC1F 126

File number: BRC 7049 of 2022
Judgment of: CAREW J
Date of judgment: 13 March 2024 
Catchwords: FAMILY LAW – CHILDREN – Unacceptable risk – Whether the children are at unacceptable risk of psychological or emotional harm from the mother –Where the mother previously alleged the father had sexually abused one of the children – Where there was a considerable escalation in the mother’s allegations over time – Where the mother ceased the children’s contact with the father for periods of time since separation – Where the mother indicated she has abandoned the allegations against the father but maintains suspicions – Where the mother has not explained why she has abandoned the allegations and agreed to unsupervised time with the father – Where it is not accepted that the father made an admission of inappropriate touching – Where the child was likely exposed to the mother’s belief that she had been sexually abused – Where the child was likely encouraged to rehearse disclosures – Where the mother’s allegations, beliefs or suspicions are entirely irrational and unreasonable and unlikely to have been genuine – Where the children will live with the father, and after a moratorium of three months, and a short period of supervision, spend alternate weekends and half school holidays with the mother.   
Legislation:

Evidence Act 1995 (Cth) ss 128, 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 60B, 60CA, 60CC, 60CG, 61C, 61DA, 62B, 64B, 65D, 65DAA, 65DAC, 65DA

Cases cited:

Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley [2022] FedCFamC1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93–344

Jones v Dunkel (1959) 101 CLR 298

LGM & CAM (2011) FLC 93-481

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Parker v Comptroller-General of Customs (2009) 83 ALJR 494

Shanahan v Jatese Pty Ltd [2018] NSWSC 1097

Odgers, Stephen, Uniform Evidence Law (Thomson Reuters, 18th edition, 2023)

Number of paragraphs: 312
Date of hearing: 18 – 21 December 2023
Place: Brisbane
Counsel for the Applicant: Mr Lake
Solicitor for the Applicant: Transitional Legal
Counsel for the Respondent: Ms Pendergast
Solicitor for the Respondent: Northside Family Law Centre
Counsel for the Independent Children’s Lawyer: Mr McGregor
Solicitor for the Independent Children’s Lawyer: Bridges Family Law Specialists

ORDER

BRC 7049 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS SANDER
Applicant
AND:

MR LYNWOOD
Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CAREW J

DATE OF ORDER:

13 MARCH 2024

THE COURT ORDERS THAT:

1.All previous parenting orders, undertakings, and parenting plans are discharged.

2.Mr Lynwood (“the father”) shall have sole parental responsibility for major long-term issues (as defined by s 4(1) of the Family Law Act 1975 (Cth)) for the children X born 2015 and Y born 2016 (“the children”).

3.Prior to making…

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AGLC
Sander & Lynwood [2024] FedCFamC1F 126
Case
[2024] FedCFamC1F 126
Decision Date

CaseChat Overview and Summary

The matter in the Federal Circuit and Family Court of Australia concerned the parenting arrangements for two children, X and Y, following the separation of their parents, Sander and Lynwood. The primary dispute was whether the children were at an unacceptable risk of psychological or emotional harm due to the mother’s allegations that the father had sexually abused one of the children, X. The mother had escalated her allegations over time, ceased contact between the children and the father, and had not explained her change of position regarding the allegations. The court had to determine the credibility of the mother’s allegations, the impact of these allegations on the children, and the appropriate parenting arrangements to protect the children’s welfare.

The court considered whether the mother’s allegations were reasonable and rational, taking into account the mother’s history of making such allegations, the lack of any physical evidence, and the impact of these allegations on the child. The court found that the mother’s allegations were not based on any reasonable or rational basis and were likely influenced by her personal crisis and fixation on the allegations. The court also found that the child had been exposed to the mother’s belief that she had been sexually abused and had been encouraged to rehearse disclosures. The court concluded that the mother’s allegations, beliefs, or suspicions were entirely irrational and unreasonable and unlikely to have been genuine.

The court ordered that the children would live with the father but would spend alternate weekends and half school holidays with the mother, subject to a moratorium of three months and a short period of supervision. The mother was required to engage in therapy to protect the children from her suspicions and to parent cooperatively with the father. The court also imposed various restraints and obligations on both parents to ensure the children’s welfare and to prevent derogatory comments in the children’s presence. The court emphasized the importance of the children’s communication with both parents and their attendance at extracurricular activities.

Orders

Orders of the court

1. All previous parenting orders, undertakings, and parenting plans are discharged.

2. Mr Lynwood (“the father”) shall have sole parental responsibility for major long-term issues (as defined by s 4(1) of the Family Law Act 1975 (Cth)) for the children X born 2015 and Y born 2016 (“the children”).

3. Prior to making a decision about a major long-term issue in relation to the children, the father shall:

(a) Notify Ms Sander (“the mother”) of the decision to be made and invite her to provide feedback; and

(b) Consider any feedback provided by the mother; and

(c) Once a decision has been made, communicate the decision made to the mother.

Living arrangements

4. The children shall live with the father.

5. In order to give effect to this Order, the father’s mother, Ms E and/or the father’s wife, Ms F are authorised to collect the children from Court Children’s Service on level 3 of the Commonwealth Law Courts building and thereafter assist the children to transition into the father’s care.

6. The children shall spend time with the mother as agreed by the parents in writing and failing agreement, as follows:

(a) For a period of three months from the date of this Order, the mother shall not spend any time or communicate with the children unless with the consent of the father in consultation with Dr C, clinical psychologist, or such other therapist retained by the father in the matter and:

(i) The father shall engage with Dr C to support him parent the children and deal with any behavioural issues which may arise;

(ii) The mother shall engage with Dr C to assist her:

A. To come to terms with this Order;

B. To protect the children from exposure to her suspicions that the father has sexually abused X;

C. To parent the children cooperatively and consistently with the father; and

D. To develop appropriate assertive parenting strategies;

(iii) Should Dr C not be available to assist the parents or either of them for whatever reason, the parents shall choose another duly qualified therapist to assist them and for this purpose, the father shall provide the mother with a list of three names, and the mother shall choose one, failing which the father shall choose; and

(iv) The parties shall share equally the costs associated with Dr C, or any other therapist retained for the purposes outlined herein.

(b) For a further period of one month after the expiration of the three-month period the mother shall spend supervised time with the children for four weekly visits, at D Centre, located at G Street, Suburb H or such other service as may be agreed by the parents in writing and failing agreement the father will provide the mother with a list of three service providers and the mother shall choose one, failing which the father shall choose;

(c) After the children have spent supervised time at D Centre (or such other supervised contact service) with the mother pursuant to paragraph 6(b) of this Order, and subject to compliance with paragraph 8 of this Order, thereafter:

(i) Each alternate weekend from after school or 3.00pm on Friday until before school or 9.00am on Monday;

(ii) For half of the children’s autumn, winter, and spring school holidays, for the first half in even numbered years and the second half in odd numbered years; and

(iii) For half of the children’s summer school holidays in weekly blocks, for the first week and each alternate week thereafter in even numbered years and the second week and each alternate week thereafter in odd numbered years.

Special days

7. Notwithstanding any provision of this Order to the contrary, and provided that the mother has spent time with the children in accordance with paragraph 6(b) of this Order, and further subject to the mother’s compliance with paragraph 8 of this Order, the children shall spend time with the parents for the following special days:

Mother’s Day

(a) The children shall spend special time with the mother from after school on the Friday before Mother’s Day until 6:00pm on Mother’s Day or, at the mother’s election, to before school the following day.

Father’s Day

(b) The children shall spend time with the father from after school on the Friday before Father’s Day until 6:00pm on Father’s Day.

Christmas Day

(c) The children shall spend time with each of the parents for Christmas as follows:

(i) With the father from 12.00pm Christmas Day to 12.00pm Boxing Day in odd numbered years;

(ii) With the mother from 12.00pm Christmas Day to 12.00pm Boxing Day in even numbered years;

(iii) With the father from 12.00pm Christmas Eve to 12.00pm Christmas Day in even numbered years; and

(iv) With the mother from 12.00pm Christmas Eve to 12.00pm Christmas Day in odd numbered years.

8. The children spending time with the mother pursuant to this Order or as agreed between the parents in writing is strictly conditional upon the mother continuing to engage with Dr C or such other therapist retained pursuant to this Order to assist her:

(a) To come to terms with this Order;

(b) To protect the children from exposure to her suspicions that the father has sexually abused X;

(c) To parent the children cooperatively and consistently with the father; and

(d) To develop appropriate assertive parenting strategies.

9. The costs of ongoing therapy for the mother shall be borne by the mother solely.

10. The mother shall continue therapy for so long as reasonably recommended by the therapist retained pursuant to this Order and in order to establish her compliance with this Order, the mother shall provide to the father a letter from her therapist at least each month confirming her engagement in therapy as required by this Order or if therapy is no longer required then a statement to that effect.

11. For the purposes of any therapy provided to the parents and/or the children either separately or together, any therapist retained to provide that assistance should be provided with a copy of the Reasons for Judgment dated 13 March 2024 and, upon request, may be provided with the reports of Mr B dated 5 August 2017, 25 July 2018, and 26 September 2022 and/or the report of Mr J dated 21 June 2023.

12. After the moratorium, the children shall be at liberty to communicate with their parents by telephone or electronic means such as Facetime and Skype at all reasonable times, and the parent with whom they are with shall assist the children to make the call to the other parent.

13. After the moratorium, the mother shall be at liberty to attend the children’s school and extracurricular events and activities provided that the mother complies with all lawful directions given to her by the school principal or other person in authority at the event.

Changeover

14. Changeover shall be as agreed between the parents in writing and failing agreement, changeover shall be at the children’s school or if it is a non-school day then at a fast food outlet, Suburb K with each parent to be at liberty to have a family member attend in their stead.

Restraints and obligations

15. Each parent is restrained from making any derogatory comment about the other parent in the hearing or presence of the children and shall take all reasonable steps to ensure that no third party makes any derogatory comment about the other parent in the hearing or presence of the children.

16. The mother and father shall advise each other in writing of any changes to their residential address, landline telephone number (if applicable), and mobile telephone number within 48 hours of any change occurring.

17. The mother and father shall advise each other as soon as practicable of any emergency involving either child’s health whilst the children are in their respective care and shall provide the other parent with details of any hospital or doctor the child/children attend as a result of the emergency and provide any contact telephone numbers if possible.

18. The father shall keep the mother advised in writing of all health and allied health care providers that the children attend.

19. The mother and father shall both use all reasonable efforts to ensure that the children attend all training sessions, matches, recitals etc. for extracurricular activities attended by the children.

20. Neither parent shall enrol, nor engender a belief in either child that the child will attend, any extracurricular activity which falls within the time the other parent is to spend time with that child without first obtaining the consent in writing of the other parent to the child attending or enrolling in that activity.

Access to information

21. By this Order, the father authorises the children’s health and allied health care providers to provide to the mother all information and documents relating to the children’s respective health and allied health care that health and allied health care providers are lawfully able to release to a parent.

22. By this Order, the father authorises the children’s respective educational providers to provide all information to the mother and to discuss the children’s progress and schooling with the mother.

23. By this Order, the father authorises the school to provide a copy of the children’s respective school reports, school notices, newsletters, school photographs and correspondence to the mother, at the mother’s cost.

Miscellaneous

24. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

It will be helpful to first set out some background to this dispute. BACKGROUND The mother and father married in 2012 and separated on 17 January 2017. The parents were divorced in mid-2018. These parenting proceedings concern two children, namely, X born 2015 and Y born 2016 (“the children”). When the parents separated, the children were under two years’ old. The children remained with the mother after separation and currently live with her in Brisbane and attend a local Catholic school. The mother was born in 1988 and is 35 years of age. The mother works mainly from home as an administrator. The father was born in 1985 and is 38 years of age. He is employed as a professional. The father remarried in 2020. His wife, Ms F, and the father have one child together, namely, Q born 2021. Ms F is an educator and first met the children in August 2019. The father moved from Brisbane to Region R in mid-2020 which is about an hour and a half from the children’s current residence with the mother. After they were married, the father and Ms F initially lived in rented accommodation and moved into their own home in mid-2022. The father describes himself as a “religious person” and is involved with his church. The father and Ms F met at a religious group. Initially after the mother and father separated, the father spent a full day at a time with X and a few hours with Y each week. In early 2017, the mother alleged that the father had sexually abused X. An interim order was made in mid-2017 for the father to spend time with the children supervised by either of his parents. In late 2017, the mother confronted the father in a café apparently because she believed the father was not complying with the supervision requirements. It does not seem to be in dispute that the paternal grandmother was in the bathroom when the mother arrived. The mother apparently photographed the paternal grandmother. The mother withheld the children until a further interim order was made in November 2017 when the supervised visits resumed. On 23 February 2018, the father’s time with the children was extended but continued to be supervised by his parents. The parents were required to attend family therapy. They attended several sessions but separately. On 17 August 2018, a ‘final’ parenting order was made by consent. The order granted the parents equal shared parental responsibility for all decisions about major long-term issues, including, among other things, the children’s name. The children were to live in an eventual shared care arrangement such that they spend time with the father for four nights per fortnight, namely, alternate Thursdays and alternate weekends from Friday until Monday. Until June 2022, the children were living with their parents in a shared care arrangement pursuant to the order made on 17 August 2018. In or about early June 2022, the mother alleged, for the second time since separation, that the father had sexually abused the child, X. The wife filed an Initiating Application on 14 June 2022 in which she sought to have the 17 August 2018 order discharged and for a final order that the father spend fortnightly supervised time with the children at a contact centre. The mother also sought sole parental responsibility. The mother has twice amended her Initiating Application and the order now sought is referred to earlier in these reasons.

Evidence

Evidence Before The Court

Mr CC was not a witness in the mother’s case however a letter from him dated December 2023 was tendered by consent. It is apparent from Mr CC’s brief letter that, notwithstanding Mr J’s strong recommendation that the mother “involve herself in a credible therapeutic regime that would substantially address unresolved issues that continue to inform her reluctance and inability to facilitate and enable the children’s reasonable relationship with their father” and that also addressed “the potential for misunderstanding and misinterpretation of the history of reported emotional reactivity and behavioural challenges demonstrated by [X]”, the mother did not undertake such therapy. Mr B’s oral evidence - December 2023 As already noted, Mr B conducted interviews with the parents, Ms F, and observed the children with the father on the Friday before the trial started. Q also attended. Mr B said the mother told him that she no longer placed weight on the allegations of sexual abuse but that she had not spoken to X about that and continued to pick her up early from school on the Fridays she is supposed to spend time with the father. Mr B was unable to obtain an answer from the mother as to what had changed her mind. Consistent with her evidence before me, the mother was unable to identify to Mr B what the turning point was for her. In my view, that inability must call into question the genuineness of her stated change of position. In Mr B’s opinion, it is the mother rather than X that requires help in terms of facilitating X seeing her father. Mr B opined that even if the mother genuinely capitulated and really wanted to make the transition easy for X, he was pessimistic about her ability to do so given the history of X’s likely exposure to the mother’s own anxiety (and I would add, likely exposure to the mother’s belief that the X has been sexually abused by her father). Mr B anticipated that it would likely become “a scene” with X declaring she was not going, and he anticipated that without a great deal of assistance, in the form of therapy, as previously recommended by Mr J, the mother simply would not be able to facilitate the transition. Mr B suggested that a third party known to X, or an appropriate professional be involved in the transition. DISCUSSION Neither the mother’s trial affidavit filed 20 November 2023, nor an affidavit filed by her on 15 December 2023 explains her capitulation and agreement to the father spending unsupervised time with the children. The mother’s attempt to explain her reasons during cross-examination was unconvincing. In fact, her insistence that she continues to harbour suspicions based on what X has said and her behaviour, does nothing to convince me that there has in truth been any change in her position. While on one level, I can understand that a mother wishing to protect her child from a potential predator may take desperate action to obtain the necessary “evidence”, the problems created thereby are twofold. First, any actual evidence may be destroyed. Secondly, any ‘disclosures’ made by a child as a consequence of being asked leading questions can be given little weight. Young children can be very suggestible and if a parent or person in authority asks a child a question in such a way as to suggest that they should give an answer, or answer in a particular way, the answer is simply unreliable. It cannot be known whether the answer was given because it was expected or suggested or whether the child is conveying something that occurred. Context is everything and a precise account of language used is essential.

Decision

Reasons for decision

After a thorough review of the evidence as set out in these reasons, I make the following specific findings:(a)In early 2017, X returned to the mother after spending the day with the father;(b)The next morning, the mother noticed the child walking with an unusual gait with her legs apart and she appeared to be in pain;(c)The mother examined X’s genitals by parting her labia and is likely to have noticed some redness at the introitus;(d)The child may have said “rub bum bum” which the mother seized upon to form the basis of allegations against the father;(e)The mother’s accounts of what the child said has changed and varied over time;(f)At the relevant time, the child was in nappies that would be changed by the father during visits and in the process of changing X he would use wet wipes to clean her vulva and bottom and apply Sudocream as required;(g)In the weeks leading up to this date, the child had experienced nappy rash;(h)In early 2017, the child was examined at the T Hospital and it was noted that the child’s nappy was heavy with urine and other than redness at the introitus nothing else of consequence was noted. The diagnosis was possible vulvovaginitis. No notification was made to Child Safety;(i)The next day, the child was examined by Dr V and a steroid cream was prescribed. No notification was made to Child Safety;(j)About a week later, the mother confronted the father with an allegation that he had sexually abused X while changing her nappy;(k)During the confrontation, it is likely that the mother also alleged that that Ms S and/or Mr W were present or involved when the alleged abuse occurred;(l)The confrontation between the parents was emotional and involved the parents both raising their voices;(m)It is likely that the father said words to the effect or a combination of words to the effect, “there is no need to go to the police” and/or “I’ve done nothing” and/or “don’t go down this path” and/or “you can’t just go making accusations” and/or “that didn’t happen”;(n)While saying these words or a combination of them it is likely that the father bent in some way from a standing position;(o)Even if the words used by the father and/or his demeanour could be interpreted as “begging” the mother not to go to police, it was not an indication of guilt but rather an understandable response to the prospect of an untrue accusation being made to police;(p)The father has never admitted to inappropriately touching or sexually abusing X;(q)The mother has misrepresented to various persons and this Court that the father made an admission of sexually abusing X when he had not;(r)In relation to the 2017 allegations, the mother had no reasonable or rational basis to allege that the father had or would sexually abuse X;(s)The allegation was made in the context of a personal crisis experienced by the mother after learning of him having an affair while she was pregnant with Y, and it caused her to lose all trust in the father;(t)The mother sought to involve Ms S and Mr W in the 2017 allegations, without any reasonable or rational basis;(u)Having made the allegation, the mother proceeded to look for evidence to support it and, in that process, X was subjected to intrusive examination by the mother on numerous occasions, interviewed by police and Child Safety officers, and exposed to the mother’s continuing anxiety (either real or contrived) that X was not safe with the father because he sexually abused her when she was under two years old;(v)X’s behaviours observed by the mother, and no other person, and interpreted by the mother to be sexualised behaviours were, if they occurred, within the bounds of normal behaviour for a child of her age, particularly in circumstances where the child’s genitals had been the focus of intense scrutiny by the mother since early 2017 and in the context of the child’s likely exposure to conversations suggesting she is not safe with the father and has been a victim of sexual abuse by him;(w)Despite consenting to the 17 August 2018 parenting order, the mother continued on occasion to represent to others that X had been sexually abused by her father and it is likely that X was within earshot;(x)The mother continued to look for evidence to support her allegations and upon X returning home in June 2022 somewhat subdued (as a consequence of little sleep the evening before) the mother encouraged Mr N to elicit disclosures from X which he did by asking her leading questions;(y)The child was encouraged to rehearse her disclosure (either directly or indirectly) with Mr N, the mother, maternal grandmother, and teacher before parroting the disclosure almost immediately upon the commencement of the police interview in June 2022;(z)In relation to the 2022 allegations, the mother had no reasonable or rational basis to allege that the father had or would sexually abuse X;(aa)Ms BB’s involvement with X was unhelpful in that it proceeded upon the apparent premise that the child had been sexually abused by the father and Ms BB encouraged X, perhaps unwittingly, to see the father as someone she needed to be protected from;(bb)X’s anxiety is likely to be due in large part to exposure to her mother’s fixation on the allegations of sexual abuse over a number of years; and(cc)There is unlikely to be any practical difference between the mother’s now stated suspicion as opposed to belief that X has been sexually abused by her father.CONCLUSION ON OTHER ISSUES

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.