Sander & Lynwood - [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, 18^th 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 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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CAREW J:

There can be no greater horror for a parent than to believe or suspect that their child has been the victim of sexual abuse by the other parent, and there can be no greater horror for the other parent than to be wrongly accused of such a heinous crime. In this case, the mother of two young children, X aged eight and Y aged seven, has at various times harboured such a belief about the children’s father, which he has always denied.
Notwithstanding holding such a belief up until about 27 November 2023, Ms Sander (“the mother”) now contends that she no longer holds such a belief, although she retains “suspicions”. The mother’s ongoing suspicions do not prevent her, she contends, from supporting the children spending unsupervised time with Mr Lynwood (“the father”).
The father contends that the mother has fabricated the allegations against him and that the only way the children can be assured of having a meaningful relationship with both parents is for the children to live with him.
For the reasons explained below, I have concluded that the mother’s continuing suspicions that the father sexually abused X and that she is not safe with him, are without any reasonable or rational basis and will likely prevent the mother from facilitating a relationship between X and the father despite her protestations to the contrary. If X remains in the primary care of the mother, she will likely grow up wrongly believing she is a victim of sexual abuse by the father.
Accordingly, the children will live with the father, and he will have sole parental responsibility for major long-term decisions with an obligation to consult the mother before making such decisions. While there will be a moratorium on the mother having contact with the children for three months, I will make provision for the father to consent to the children or either of them spending time or communicating with the mother on a supervised basis within that three-month period in consultation with Dr C or such other appropriately qualified psychologist retained by him to assist in the children’s transition to his care. Thereafter, the children will spend alternate weekends and half school holidays with the mother after an initial period of supervision after the moratorium.
ISSUES
The following significant issues were formulated by the parties for my determination:
(1)Is there an unacceptable risk of psychological or emotional harm to X should she be forced to spend time with her father against her apparent wishes?
(2)Does the mother pose an unacceptable risk of emotional/psychological harm to the children arising from her alleged fabrication of allegations of sexual abuse against X by the father?
(3)Have X’s reported disclosures been overtly or unconsciously influenced by her possible awareness of the mother’s view of the father’s alleged conduct towards X?
(4)Is the mother’s alleged belief that the father has not sexually abused X genuine and, if so, what impact, if any, would an order for the father to spend time with X have on her parenting capacity?
(5)Was the mother’s previous belief that X had been sexually abused by the father genuine and if so what impact, if any, would an order for the father to spend time with X have on her parenting capacity?
On 21 July 2023, when trial directions were made, two additional issues were at that time identified as the first and second issues requiring determination, namely:
(1)Has the father sexually abused the child, X?
(2)Does the father pose an unacceptable risk of harm to the children arising from allegations that he sexually abused X?
At trial, the mother contended that she no longer believed that the father had sexually abused X or posed an unacceptable risk of harm to the children in future. The mother contends that she informed the father and independent children’s lawyer (“ICL”) on 27 November 2023 that her position had changed after her trial affidavit had been filed on 20 November 2023. It would seem, given the content of the mother’s trial affidavit, that the mother at that time was pressing ahead with her allegations that the father had sexually abused X.
At the time the matter was set down for trial, the mother indicated her intention to rely upon evidence from several witnesses in support of her belief that the father had sexually abused X and thereby posed an unacceptable risk of harm in the future. The witnesses were identified in the trial directions order made on 21 July 2023 as: the maternal grandmother, Ms L; the mother of one of X’s school friends, Ms M; a friend of the mother’s, Mr N; and a psychologist, Dr O. Notwithstanding that the issues for my determination require a finding as to the genuineness of the mother’s belief, the mother did not rely on any of her proposed witnesses in her case.
The mother did not provide any explanation in her evidence in chief for no longer believing the father sexually abused X despite having filed a further affidavit on 15 December 2023.
When asked during cross-examination why she no longer believed that the father had sexually abused X, the mother could not point to any specific evidence or provide any specific explanation for the change. The mother referred in a general way to the police evidence, the evidence from the Department of Child Safety, Seniors and Disability Services (“Child Safety”), and the s 93A video interview conducted by police with X in mid- 2022, which she had viewed at some time between July 2023 and October 2023. Notwithstanding her position that she no longer believed that the father had sexually abused X, the mother said she maintained “suspicions” that he had done so “because of what [X] had said and her behaviours”.
After discussion with counsel, it was agreed that, having regard to the mother’s largely unexplained change of position, it was necessary to consider all evidence relating to the mother’s previous allegations. Accordingly, and with the consent of the parties, police statements provided by the maternal grandmother and Mr N in mid-2022, along with other police records and records from Child Safety, brief notes from Dr O, records from P Centre and the children’s school, were received into evidence as part of the tender bundle prepared by the ICL and marked exhibit 12 in these proceedings. X’s s 93A video recorded interview with police in mid- 2022 also forms part of the evidence before me (exhibit 5) and was played during the trial.

The ICL and the father submit that a finding should be made that the mother’s “suspicions” are “groundless”. It is submitted that such a finding is open and necessary for the future emotional and psychological protection of X. The mother resists a finding that her suspicions are groundless given that such a finding, it is submitted, would need to rely upon there not being “a skerrick of evidence to support this”. The mother further resists a finding that her belief was not genuine but does not resist a finding that there was no reasonable basis for her belief.
The father has incurred legal fees in relation to the current proceedings of approximately $100,000 and the mother of approximately $60,000. Legal Aid Queensland have committed $26,000 to the matter.
PROPOSALS OF EACH PARTY
By her Amended Initiating Application filed 11 December 2023, the mother proposes that she and the father have equal shared parental responsibility for the children, that they live with her and spend time with the father on alternate weekends and half school holidays, although in the case of X, that there be a gradual reintroduction of her time with the father with the assistance of Dr C, a clinical psychologist. The precise terms of the order sought by the mother are set out in her Amended Initiating Application.
The father proposes that the children live with him and has adopted the order proposed by the ICL with a couple of minor changes. I observe that while the father is a willing applicant for the children to live with him, he really would have been content to spend regular time with them as previously ordered. The father’s application for a change in primary care is a direct result of the mother being unable or unwilling to facilitate X’s time with him despite previous orders to which the mother consented.
The ICL recommends that the children live with the father, and after a moratorium of three months, and a short period of supervision, the children spend alternate weekends and half school holidays with the mother. The precise terms of the proposed order are set out in exhibit 13.
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.
An interim order was made by consent on 30 June 2022. The parenting arrangements for the children changed such that they were to spend each alternate Saturday from 9.00am to 4.00pm and each alternate weekend from Friday to Monday with the father. Without the father admitting to the need for supervision, his time with the children was strictly conditional upon Ms F or the paternal grandmother acting as supervisors and the father not being present in the home where the children are sleeping during the hours of 7.00pm to 7.00am. Notwithstanding the order, the mother did not facilitate X spending time with the father, the mother contending that X was terrified of seeing the father. The mother attended the child’s school each alternate Friday and removed X from school early to prevent the father collecting her.
A further interim consent order was made on 9 June 2023 whereby the father’s time with the children was to remain supervised, however the prohibition against him being in the house from 7.00pm to 7.00am applied only if X was in the home.
Notwithstanding this further order, the mother has not facilitated X spending any time with the father.
The only occasions X has spent time with her father since June 2022, were on 2 July 2022 at the maternal grandparents’ home, on 27 October 2022 at P Centre, and on 15 December 2023 during the recent family report interviews.
APPLICABLE LEGAL PRINCIPLES
Parenting proceedings are regulated by the Family Law Act 1975 (Cth) (“the Act”), and s 43 of the Act requires the Court to have regard to several matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[1]
[1] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, 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, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage, or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities,[2] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[3] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[5]
[2] Evidence Act 1995 (Cth) s 140.
[3] M v M (1988) 166 CLR 69 (“M & M”).
[4] Ibid.
[5] Ibid; N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[6] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[7] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[8] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[9]
[6] Eastley & Eastley [2022] FedCFamC1A 101 at [31] (“Eastley”).
[7] Johnson & Page (2007) FLC 93–344 at 81,890–81,891, [68]–[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[8] Isles (fn 7) at [7].
[9] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[10] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[11] on each and every factual dispute.
[10] Baghti & Baghti and Ors [2015] FamCAFC 71.
[11] M & M (fn 3) at 76.
Each parent has parental responsibility (i.e., all the powers, responsibilities, and authority which, by law, parents have in relation to a child) for a child subject to any order made by the Court (s 61C).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the Court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare, and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name and changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act, I have considered all sections as required when making my determination.[12]
IS THERE AN UNACCEPTABLE RISK OF PSYCHOLOGICAL OR EMOTIONAL HARM TO X SHOULD SHE BE FORCED TO SPEND TIME WITH HER FATHER AGAINST HER APPARENT WISHES?
[12] Banks & Banks (2015) FLC 93–637.
Neither the parents nor the ICL contend that there is an unacceptable risk of psychological or emotional harm to X should she be forced to spend time with her father against her apparent wishes. This is despite evidence that X has presented at school throughout parts of 2022 and significant parts of 2023 with anxiety, and X's GP’s opinion that the child suffers from anxiety.
It seems this joint position is informed by the apparent history of a close relationship between X and her father prior to June 2022, the partially successful interaction between the father and X on 2 July 2022, the successful interaction between the father and X on 27 October 2022 at P Centre, and the more recent successful interaction between the father and X facilitated by the family report writer, Mr B, on 15 December 2023.
Mr B is a very experienced family report writer and social worker. He has prepared three reports in this matter (5 August 2017, 25 July 2018, and 26 September 2022) and interviewed and observed the parents and children for a fourth time on 15 December 2023 and provided an oral report on the first day of the trial.
On 15 December 2023, Mr B observed that X presented anxiously, and point blank refused to see her father. Mr B opined that as X was able to easily relax if the topic changed to something other than her father it indicated to him that her anxiety “is not too high given the circumstances”. The mother did talk to X about seeing her father but “along the lines of do you want to types of questions to which [X] said no”.
Interestingly, when Mr B asked the mother what she thought X’s level of anxiety was out of 10, she said eight, whereas Mr B thought it was “about a four”. Mr B thought the mother needed to be more direct and clearer in her messaging to X that she wanted her to see the father. Mr B was not convinced the mother made a serious attempt to do so and so he talked to X and came up with an ingenious plan that involved some play activity with paper balls.
When the father entered the room (Y had already joined the room and made up the balls with X), the children threw the balls at the father, and they all laughed and played happily. Mr B noticed X give her father a high five. The father’s other daughter, Q, came into the room at one point and joined in the game which went on for about half an hour before Mr B had to bring it to an end. The father describes X taking a paper ball from his hand and letting her hand linger on his for several moments. Mr B described the interaction during the 30 minutes as “such a nice time”. While there was no affection observed by Mr B between the father and X, she did give him a “fist bump”.
The mother contends that she was pleased that the session went well. I have my doubts about the sincerity of that contention for several reasons. Firstly, the mother, through her counsel, suggested that the duration of this activity was only about five minutes, which Mr B rejected. I accept Mr B’s evidence about the duration of the activity and the success of it. Secondly, during cross-examination, the mother contended that X was crying on the way home after the interviews on 15 December 2023 and had “a sore tummy from her anxiety, and she went home to bed as well”. Even if this were the case, there may be any number of reasons for such a presentation e.g. she may have been feeling guilty that she had enjoyed the time with her father knowing that her mother would not approve. Thirdly, the mother made no attempt to facilitate X spending time with her father the day after the interviews. X was not even taken to the changeover.
As a result of the interaction Mr B observed on 15 December 2023, he opined that the prospects of X and her father building a relationship “are quite good” and that “despite everything, [she] still has an attachment to her father … and can interact with him in certain circumstances without anxiety”. Mr B acknowledged that “how she goes to her father from one parent to the other would be stressful for her, but it would depend how it’s done”. In Mr B’s opinion, “talking to [X] about how she feels runs the risk of reopening her anxiety which … can then allow it to escalate … [T]he initial process, which is the most difficult part for most children – is that initial breaking of the ice with the other parent”. In Mr B’s opinion, while it will initially be difficult for X she will likely settle with her father.
Further, Mr B opined that one of the reasons he did not think reconciliation therapy would be helpful would be because it focusses on how X feels. The problem about the mother’s proposal that X and the father undertake reintroduction therapy is, in his view, that “it delays it even further, and this has been happening since 2017”. In terms of the mother facilitating X spending time with the father, Mr B expressed some scepticism, as he did not observe “any demonstration of any actual change in her behaviour”.
I accept Mr B’s opinions and the joint position of the parties that any risk of psychological or emotional harm that may arise by X being forced to spend time with the father against her apparent wishes is not of the magnitude of being unacceptable.
REMAINING ISSUES
Given that the remaining issues are interrelated and focus on the allegations previously made by the mother and her current stated belief that the father has not sexually abused X, it is convenient to deal with those issues at the same time. The issues are set out above at [6].
During her oral evidence, the mother spoke of her preparedness to give the father the benefit of the doubt although the mother maintained that she still has suspicions that the father may have touched X inappropriately “based on what [X] said and also her behaviours”. It is not entirely clear what the practical difference is between the mother’s previous belief and current suspicions. X is still not spending any time with the father.

In considering whether the mother has fabricated the allegations; whether X’s statements indicating possible sexual abuse have been influenced in some way by the mother; whether the mother’s past and current beliefs are genuine; and what impact an order for X to spend unsupervised time with the father would have on the mother’s parenting capacity, it seems to me that the timeline leading up to the sexual abuse allegations is important, and will be set out in some detail despite the mother no longer contending that the father poses an unacceptable risk of harm to X.
Relevant timeline
Mother’s allegations of sexual abuse in 2017
Before turning to the specifics of the allegations it is instructive to set out some brief history.
The catalyst for the parents’ separation on 17 January 2017 was the father’s “affair” with a woman from his work, named Ms S (I mention her name only because it becomes relevant later in the timeline). The extent of the affair is not relevant. Suffice to say the father disputes his relationship with Ms S was sexual and describes it as an “emotional affair”. Whatever the extent of it, when the mother discovered the affair before giving birth to Y, she was understandably devastated and felt betrayed by the father.
Y was born in 2016 and the parents separated some time later.
In the initial stages after separation, the father spent some limited time with the children at the mother’s parents’ home, where the mother and children were then living, and then on several occasions the father spent the day with X at his home.
The mother contends in her trial affidavit that she made a complaint to police about the father sexually abusing X based on his admission. The relevant parts of her trial affidavit are set out below:
24. [The father] filed in the federal circuit court for orders to see the children in 2017. I did contest his application at the time on the basis that [the father] had made an admission to me that he had touched [X] in an appropriate (sic) way which prompted me to take decisive actions based on what occurred.
25. On 1 April 2017 [X] came home from [the father’s] house and I recall her face was withdrawn and she looked upset.
26. When changing [X’s] nappy on the 2 April 2017, [X] informed me that her Dad “rubbed her bum bum”. [X] had a red mark on her vagina, as well as couldn’t walk properly. I queried this with [the father], to which [the father] made an admission to me.
27. After separation, [the father] sometimes came over to my parent’s house for short frequent visits with the children kids (sic). On 2 April 2017 or thereabout, I told him what [X] told me. He did not deny it. [The father] then got down on his knees and said “please don’t tell the police, I don’t want to go to jail and become someone’s bitch”. He left afterwards.
28. I recall that I made a complaint to the Police based on the admission that [the father] had made.
If the father had indeed made an admission that he had touched X inappropriately, one can understand the mother’s conviction of his guilt, however, upon review of all evidence I reject the mother’s assertion that the father admitted to touching X inappropriately. The father has never made an admission of doing so. Indeed, the mother made that very concession i.e. “the father has never admitted to actually doing anything (sexually abusive) to [X]”, to Mr J, a clinical and forensic psychologist, who interviewed the mother on 31 May and 7 June 2023. Mr J was not required for cross-examination. Mr J’s report, in relation to the mother, is discussed in detail later in these reasons at [241]-[247].
As of 2 April 2017, X was still wearing nappies. It is not in contention that the father changed X’s nappies during the time she was with him. The mother is quite explicit in her trial affidavit that the statement “rub bum bum” (and I note the word “dad” is not included in quotation marks) was made by the child on 2 April 2017. During cross-examination, the mother conceded she asked the child where her “bum bum” was and that the child indicated her “vagina”. It was further conceded that what the mother meant by “vagina” was the vulva. It is not at all clear to me when or in what circumstances the child implicated the father. I further note that it was not until the day after the child was returned to the mother that the mother contends the child was in pain and walking with her legs apart.
The father agrees that the mother and he had a conversation on or about 2 April 2017 during which the mother told him that X had said something about him rubbing her “bum bum” and that the mother said she was going to the police. The father denies he made any admission and denies that he has ever touched X inappropriately. The father contends that he said to the mother that there was no need to go to the police as nothing happened and/or that he “asked [her] not to go down this path”. He denies being on his knees and saying the words attributed to him although I note he told Mr B during interviews for the first family report on 27 July 2017, that he was standing and then bent down. The father concedes it was an emotional encounter involving each of them raising their voices.
When asked during cross-examination to recall as best he could the words used by himself and the mother during the confrontation, the following exchange occurred between counsel for the ICL and the father:
Father:… She said that “[X] told me that you touched her bum bum”.
Counsel for the ICL:     And what did you say?
Father:I told her that of course I – I’ve got to change nappies. She told me – but before that, [the mother] told me she was – “[X] touched your – she told me she touched your bum bum. I’m going to the police.” That’s – that’s what she told me. And then I – and then I said, “I’ve done nothing. I didn’t touch her inappropriately. There’s no need for you to go to the police.” And then it was emotional – you know, “Of course I’ve got to change her nappy. That’s what Dads do” – that kind of thing. She kept pressing it and pressing it, and then I – I ended - - -
Counsel for the ICL:     Again - - - as best you can recall - - - what did she say?
Father:Sorry. Yes. So she continued to say, “No, this is what my daughter has told me. I believe my daughter. My daughter wouldn’t lie” – that kind of thing. And then – or not that kind of thing – that’s what she said. And then it got to a point where we were going nowhere, so I just – I ended up leaving. Yes.
Counsel for the ICL:     So you said it got emotional?
Father:  Yes.
Counsel for the ICL:     In what way did it get emotional?
Father:Just, you know, she’s telling me one thing and saying she’s going to the police, and I’m saying, “That didn’t happen,” and so you just – it’s a – it’s heated but not physical or violent or anything like that. It’s just – you kind of say, “No, that didn’t happen,” and she .....
Counsel for the ICL:     So when you say “heated”, what do you mean by “heated”?
Father:  Just voices rising. Yes.
Counsel for the ICL:     All right. And what – was there any occasion when you may have been on the ground for some reason?
Father:No.
Counsel for the ICL:     No. Was there any occasion when you said to her, “I don’t want to go to jail and - - -
Father:No, not – no, no.
Counsel for the ICL:     - - - or be someone’s bitch”?
Father:  No, no.
Counsel for the ICL:     Nothing like that?
Father:No, not to my recollection. I – I would remember saying something like that. I didn’t – I didn’t say anything like that.
It is unclear from the mother’s trial affidavit whether this encounter between the parents occurred before or after the mother took X to the T Hospital in early 2017, although it is apparent from other material, e.g. the first family report dated 5 August 2017, that it occurred after. It remains somewhat unclear whether there were two confrontations between the parents, one in early 2017 and one a week later.
During the interviews for the first family report, the mother told Mr B that prior to 2 April 2017 she was concerned about the children spending time with the father in the company of Ms S. The mother did not elaborate. There was no indication by the mother that she had any suspicions about possible sexual abuse prior to 2 April 2017 and no mention to Mr B of a video recording made by the mother in February 2017.
Yet in a formal written statement provided by the mother to the Queensland Police Service in late 2017, the mother stated the following:
7. I recall [in] February 2017 at approximately 2.40pm, I recall taking a photo on my phone of the way [the father] was holding [Y] and I was concerned because it wasn’t supportive of [Y’s] neck.
8. Following that my attention was led to [the father’s] behaviour with [X] and for some reason I started filming on my phone because I thought it was odd. I remember seeing [X] sitting on his chest and go down towards his penis area. I then remember seeing him pull her up and gently guide her back towards his penis area. He made it appear like a game.
9. At the time I felt awkward about it. I can understand it happening once but a second time, I would have expected him to move her into a different play position.
10. I didn’t make a big deal about it at the time because although it seemed odd, as a mother it is something that you don’t want to comprehend or believe, especially because [the father] is her father.
11. [In early] 2017, [X] even said to me while I was changing her nappy “Daddy touch”. Even then, I didn’t want to believe that something like that could possibly have happened in the care of her father. […] I presented her to [T Hospital] because she was screaming and walking with her legs apart. Even at the hospital, two doctors questioned me and my mother approximately 4-5 times if we suspected anything had happened to her and still at that time, I didn’t want to believe that something had happened.
12. [The next day], I took [X] to her GP and he made a note that I needed to check her every time she came home from her fathers.
It is apparent from the mother’s police statement that she either harboured suspicion about the father prior to early 2017, or that she used an innocent video recording for the purpose of later bolstering her allegations. It is also noteworthy that her police statement contends the child said “Daddy touch” which is inconsistent with her trial affidavit. When cross-examined about what the child actually said on that day, the mother could not recall.
It is important to note that police reviewed the video recording provided by the mother to police and referred to in her late 2017 police statement. The police records reveal the following:
Police from [Suburb U] CPIU reviewed the supplied footage as described in the GR. The footage relating to the subject guiding the child’s head into his crotch which was recorded by the [mother] in [early] 2017, shows the subject siting on the floor back against the lounge. Lifting the child up spinning her, and placing her back down on his lap as a game. The child is heard giggling. At one point the subject brings the child down on her stomach, the child’s feet are up near the subject’s face, and the child’s head lands down in the crotch area. The subject and be heard to say “what are you doing down there” laughing before quickly lifting the child up and away from the area again, and continuing the game.
This happens quickly and only once. Both involved are fully clothed. The act is an innocent act of a parent playing with his child. The [mother] was present when this occurred, filming the entire incident, and did not say anything at the time of it occurring, nor prevented the children from seeing the subject since it occurred back in February, indicating that the complainant had no concerns for the child’s safety in the care of company of the subject.
(Emphasis added)
The mother does not challenge the opinion expressed by the Child Protection Investigation Unit that the recording she made of X and the father was an “innocent act of a parent playing with his child”.
The mother told Mr B on 27 July 2017, that in early 2017, she took X to the T Hospital for a check-up as X had “chaffing around her vaginal area”. The mother made no mention of the child allegedly having a “mark” or a “red mark about two centimetres long” (referred to later in these Reasons).
The notes produced from the T Hospital record the following:
Date seen: […] 2017 Time Seen: […]
…
[…] month old [X] with vaginal redness, itch and dysuria for 1 day. No fever, nausea or vomiting and otherwise unwell. Noted by mother today – child crying in pain, pulling at nappies, appeared to be in pain when passing urine, walking wide based gait.
No worms seen. no discharge and no blood. No change in nappy, detergents, wipes etc. Visits dad every Saturday – no sleep over, he does not bathe her and he reported no problems yesterday. Last week, had nappy rash after visit as she went down slide and had wet nappy on for a period of time. yesterday she helped him wash the car and got wet.
…
Exam
Alert and well looking
…
No injuries noted
…
Perineum – skin in good condition; no obvious diaper rash noted, no discharge and no blood noted, no worms seen, nappy heavy with urine.
Redness at introitus, no lacerations or excoriation noted, no signs of trauma noted.
Ax-thrush? Reacted to contact with wet nappy for extended time ?? worms
Reaction to wipes/soap etc
Plan – urine dipstix to exclude uti, …
… unless other reasons for concern on exam or raised by mother no need to follow NAI pathway
Urine – nad, discussed with mother re vulvovaginitis and mx, f/u with GP
(Emphasis added)
It seems to be common ground that the “NAI” refers to “non accidental injury”, “nad” refers to “no abnormality detected” and “mx” refers to “management”.
What is apparent from the hospital records is that in the immediate lead up to the mother’s allegations, X had suffered nappy rash. It is also apparent that prior to examination it was noted that the child was in a nappy that was “heavy with urine”. The redness at the introitus (entrance to the vaginal canal) was diagnosed as possible vulvovaginitis.
The mother told Mr B on 27 July 2017, that she did not report any other concerns to the hospital but was dissatisfied with their diagnosis that X had suffered from “soap irritation”. I find it unlikely that the mother did not raise her suspicions with the hospital particularly as she contends that she was questioned several times about any concerns she had and the very next day she took the child to another doctor.
In early 2017, the mother took X for a consultation with Dr V, a general medical practitioner. The mother told Mr B that she informed Dr V of the words X had used when she returned from the father’s place which made her suspicious of sexual abuse. The records of Dr V are not in evidence. However, I note from the police records that the mother told police in mid-2017, that Dr V had prescribed a steroid cream and did not state the redness was due to any concerning behaviour. It is common ground that Dr V did not contact Child Safety. The mother also told Mr B on 27 July 2017, that she acted upon advice to “physically check [X] after further visits to her father”. It is unclear who provided such advice to the mother if it was indeed provided. However, the mother concedes that from that time she became vigilant and checked X’s genitals each time she returned from spending time with the father until she was no longer wearing nappies.
The mother further told Mr B on 27 July 2017, that X had also told her, but not until three days later, that Ms S and Ms S’s brother, Mr W, had been with her on the day she was at her father’s place. The mother told Mr B that she had shown X a photo of Ms S and Mr W but was vague when asked by Mr B why she had a photo of them. The mother said she had seen on Mr W page that there were “videos of him throwing sex toys around the house and videos of him in the bathroom with sex toys”. The mother admitted to Mr B that she felt hurt when hearing that Ms S was at the father’s home on the day in question.
A week later, X spent time with the father. They went to the shops with his mother. When the father returned X, he told the mother he had put X on the toilet. The mother felt he was “gloating”, and she made the connection in her mind “did he do it again or was he thinking of doing it again”. The mother checked X’s genitals.
The mother told Mr B that it was four days later that she confronted the father and “he got down on his hands and knees and begged me not to go to the police because he didn’t want me to send him and his friends to jail” (emphasis added). Earlier in the family report, Mr B records that the mother had told the father of her suspicions in early 2017. In this context, I note that, the father provided a written statement to police in late 2017 in which he refers to a confrontation occurring in early 2017. The statement includes the following:
34. [In early] 2017, during an argument, [the mother] told me the doctors who had seen X [in early] 2017 had told her to check [X] after our visits, that [X] had said “Daddy touch” to her in relation to her irritated areas, and that she was suspicious of what was occurring during my time with [X]. …
35. I denied such allegations and requested a copy of the doctor’s certificate and the records, which was not provided. …
…
38. I vehemently deny the allegations that [the mother] has made against me. I have never touched my daughter inappropriately nor allowed another person to do so. To my knowledge, [X] has never been touched inappropriately while in my care. I have never left her unsupervised while she has been in my care.
I accept the father’s evidence as contained in his police statement that the mother said the doctors at the hospital told her to “check” X after the visits. There is nothing in the hospital notes to corroborate the mother’s statement. Indeed, the mother contends that she did not tell the hospital of her suspicions.
It seems more likely that there were two confrontations about the mother’s allegations. One in early 2017 after which X again spent time with the father three days later, and one a week later. On both occasions it seems the father had other people with him during the visit, either Ms S on one or both occasions or his mother. It is also apparent that whatever the child did say, there have been differing versions provided by the mother.
Assuming the child said something along the lines of “daddy touch” or “rub bum bum”, neither term indicates of itself anything inappropriate. The child was still in nappies and the father did change her nappies. It seems likely that during the process of changing her nappy the father would have had occasion to “touch” or “rub” X’s bottom or vulva as part of cleaning her. It seems rather extraordinary that the mother would interpret the child’s words as indicating sexual abuse.
When Mr B asked the father on 27 July 2017 about the confrontation in early 2017, the father said that when the mother mentioned Ms S’s name and said she was going to the police as she did not trust him, he said “you just can’t start throwing accusations around because people go to jail and you can’t go to the cops for no reason". The father continued by saying “all I did, I was standing up and I bent down” but did not kneel. “I remember I was blindsided by it, because I had seen her two days earlier and she was accusing me of having an affair”.
In early 2017, Child Safety recorded a ‘child concern report’ in which it is apparent that the mother reported that X was seeing her father every second Saturday and that the father had “touched” X.
The mother made a complaint to police in early 2017 and the father did not see the children again until 21 May 2017. The police records note the mother informed police about the breakdown of her relationship with the father due to the father’s affair with a woman from his work, whom the mother named, and it is common ground that it was Ms S. The police records include the following additional information:
…
[In early] 17, the [mother] was changing the nappy of [X] when [the child] placed her hands over her vagina and [said] the words, ‘Daddy touch’. The [mother] examined the [child’s] vagina to find redness. The [mother] took the [child] to the [T Hospital] where the [child] was seen by 2 doctors. The doctors allegedly found nothing suspicious allegedly stating that the redness may be due to soap irritation. … On an unknown date after [this date], the [mother] informed the [father] that only supervised visits will occur with the [mother] being present at all times. This resulted in verbal abuse from the [father] directed at the [mother]. The [mother] allegedly then challenged the [father] in relation to the alleged medical issue with the [child] and the hospital visit plus the comments made by the [child] namely ‘Daddy touch’. It is alleged that the [father] went to the floor on his hands and knees and pleaded for the [mother] not to call the police. No admissions were made.
…
(Emphasis added)

It is significant in my view that police records note that “no admissions were made”. This could only have come from the mother and is contrary to the evidence in her trial affidavit. The police notes go on to record that the mother complained about the father bringing the child into contact with two people whose names are redacted. It is common ground that the two people are Ms S and her brother, Mr W. The notes continue as follows:
It is further alleged that [Ms S] resides with her brother [Mr W] who frequently places nude photographs of himself in Facebook. … The [father] alleges that he has no contact with [Ms S] or [Mr W]. This has been tested by the [mother] with Facebook photos of distant family members being shown to [the child]. When asked their names, the [child] cannot answer. When a group picture including [Ms S] and [Mr W] is shown to the [child], the [child] indicates both and says their names.
It is highly concerning that the mother tested her theory of Ms S being present during X’s visits with the father, with her then toddler.
In early 2017, the mother was contacted by police and told them she had also contacted Child Safety. The mother again raised her concerns with police about the child coming into contact with Ms S and Mr W. The police notes record the following further information:
[The mother] stated that she is aware, via Facebook inquiries that [Mr W] has posted videos of throwing sex toys around the house and therefore not a good influence for her children, to be around. She believes [Mr W] is in his 20’s. She stated she has broached the subject of [Mr W] with [the father], but [the father] denied ever meeting [Mr W].
…
[The mother] stated that between [early April] and [late April] [the father] had taken X to the […] shops with his Mother and he mentioned putting [X] on the public toilets. [The mother] found this unusual as [X] is not yet potty trained (unsure why this would cause concern).
…
… A 93A statement will not be done from [X] …, due to her age and limited verbal skills.
(Emphasis added)
It is apparent from this material that the mother had become somewhat fixated on the idea that Ms S and the father were still seeing each other, and that X was spending time with Ms S.
In early 2017, Child Safety were again contacted and informed (presumably by police) that the “redness was likely to be an irritation” and that “police will not be taking any further action”. The two notifications received by Child Safety up to this point were recorded as ‘child concern reports’, it being noted that there was “insufficient information to indicate that [X] has been harmed”.
In mid-2017, the mother applied for a protection order against the father on the grounds of emotional and verbal abuse. The mother told Mr B on 27 July 2017 that she had applied for a protection order based on “his emotional, psychological and financial abuse … he used to verbally abuse me in front of [X] when I was pregnant”. The mother also said she did not like the idea of the paternal grandmother supervising the father’s time with the children because “she has been harassing me … she is very much like him, she will lie about things”.
On 3 June 2017, the parents attended a mediation but failed to reach agreement.
A protection order was made by consent without admission in mid-2017 and expired in mid‑2018. The order contained standard provisions including a prohibition on the father coming to the mother’s residence except for the purpose of having contact with the children but only as set out in writing between the parents or in compliance with an order from a court.
There have been numerous notifications made to Child Safety in this matter. Due to the legislative protection given to the identify of notifiers, the records produced by Child Safety are heavily redacted and none of the parties requested that unredacted copies be provided. However, it is not in dispute that notifications have been made in this matter by the mother, the father, X’s school, and P Centre. There is no suggestion that any party unknown to the parents have made a notification to Child Safety.
In mid-2017, a notification was made to Child Safety. The records are heavily redacted but include the following “[X] … daddy touched me … [X] was in … pain … concerns that [X] had been abused or interfered with … significant concerns about [X’s] behaviour … [X] … rash and soap irritation”. Child Safety determined that there was “insufficient evidence that [X] has been harmed or has experienced significant harm. … At this time there is insufficient information to suggest the child … sexual abuse by the father … likely to have been an irritation”. There is nothing to suggest that the reference to “daddy touched me” was something new but rather another version of what the child allegedly said in early 2017.
On 11 July 2017, the father commenced court proceedings.
During her interview with Mr B on 27 July 2017, the mother told Mr B that she was “one hundred percent sure” that the father had sexually abused X. The mother said her certainty was informed by what X had said, namely, “daddy touched” - and noting her very young age the mother said, “you can’t make up something (like that)”. Further, the mother said when she told the father about it, he “got down on his hands and knees” and pleaded with her not to go to the police and said he did not want to go to jail and become someone’s “bitch”. The allegation that the father said he did not want to be someone’s “bitch” was not an allegation made when the mother reported the conversation to police in early 2017. The mother confirmed to Mr B that she had no suspicions about the father prior to separation.
First family report – 5 August 2017
The first family report, which has already been referred to above, is dated 5 August 2017 and was prepared after interviews with the parents on 27 July 2017, observations of the children, and brief interviews with the paternal and maternal grandmothers.
The mother was noted to be “very emotional at times” during the interview. The mother was living with her parents at that time and was assisted by her mother in the care of the children.
At the time of the interviews, the father had not seen the children for six weeks. The father said the confusing thing was that he did have unsupervised time with X after the allegations were first raised. While the father was generally positive about the mother’s primary care of the children, he expressed concern that the allegations might have a negative long-term effect on X and he was further concerned that if she had counselling on the assumption she had been sexually abused by him it would be “feeding into something that doesn’t exist”.
The father spoke positively about the mother’s extended family and their involvement with them during the marriage. The father spoke of them as being “lovely people” and said that the maternal grandmother cared for X two days per week. This may be contrasted with the mother’s version that the father tried to limit her contact with her family. The father noted that there was some friction between the mother and the paternal grandmother. The father emphasised his involvement in caring for X including bathing and feeding her. X was bottle fed from three weeks of age which enabled him to play a greater role. The mother disputed the extent of the father’s involvement in X’s care. During the interviews, each parent accused the other of being controlling.
Mr B observed X with the father on at least two or three occasions over the course of the day. X was noted to be “happy, animated and responsive in his company” on each occasion. “There was no hesitation in her going to him and they exhibited a very responsive and observable bond over the course of their time in their play together”. X “appeared to enjoy her time with him very much”.
In Mr B’s view, X’s “language [was] not developed and probably commensurate with her age”.
In Mr B’s opinion, the father’s affair with Ms S devastated the mother and called into question for the mother whether the father was the person she thought. The mother felt abandoned and “[o]ver the following months I am of the view that she was at a point of personal crisis”. The mother believed that X conveyed sexual abuse by her father although Mr B opines that the actual words attributed to the child, if taken literally, do not indicate sexual abuse.
Mr B noted that the grandmothers had indicated a preparedness to facilitate the changeovers at that time, if needed.
7 August 2017 – consent order
On 7 August 2017, an order was made by consent for the father to spend time with the children supervised by either of the paternal grandparents and the changeovers were to be facilitated by the paternal and maternal grandmothers.
Events post consent order
Also in mid-2017, Child Safety received a notification at 1.05pm and again the records are heavily redacted but include the following:
Notifier is aware that the father sexually assaulted the daughter … the children are at risk of spending time with their father unsupervised … notifier is aware that the father … under the influence of a substance … the father … drug abuse and his behaviours are concerning.
There is no evidence or even allegation of current or historical drug abuse in this case. Historically, the mother raised issues about the father’s alcohol use, but it is not raised as an issue in these proceedings nor is there any evidence that drug abuse had been an issue at any time. The information received by Child Safety was received as a child concern report as there was insufficient information to establish the children had been harmed or were at risk of harm.
On 9 September 2017, a further notification was received by Child Safety and again their records are heavily redacted stating only that the notification raised the following:
… sexual abuse of [X] by her father, … [X] … daddy and [Mr W] rubbed her … [the father] and paternal grandmother are taking [X] around to see [Ms S] and [Mr W] … [The father] had not been providing [Y] … food during … visits with the child. No known impact on the child’s health and wellbeing … Notifier believes that [the father] has scared [X] … No further context known.
(Emphasis added)
This represents an escalation in the allegations reported to Child Safety implicating the father and now Mr W. Child Safety treated the notification as a child concern report as there was “insufficient evidence that the information presented by the notifier is strongly consistent with sexual abuse”. Importantly, Child Safety noted the “great deal of discord between the parents” and expressed concern about the possible impact on the children’s emotional wellbeing that may place them at risk of harm.
It seems the mother was becoming somewhat desperate by this time because in late 2017, she engaged the services of a private investigator to follow the father. A report was provided to the mother from the private investigator in late 2017 confirming that he had followed the father from the time he picked up X in the company of his mother at 10.00am until the father noticed the private investigator at 2.11pm when the private investigator departed. It is apparent that the father was followed as he went about his day after collecting X, travelling to a local shopping centre, returning home, collecting his mail from his mailbox, and travelling to another shop in the company of his mother and Ms S. It would seem from the content of the report that at least one purpose of the surveillance was to ascertain if the father was seeing Ms S who is referred to in the report as the father’s “suspected girlfriend”.
In late 2017, the mother made a complaint to police in which she alleged that the father had breached the protection order by lunging at her in a café. It is not in contention that the mother followed the father and confronted him because she contended that his mother was not present at the café while he had the children with him. It is my understanding that this is the occasion that the father contends his mother had gone to the toilet. It seems the mother provided a photograph to police in which she said the paternal grandmother could be seen holding back the father from lunging at her. Contrary to the mother’s allegations, after police reviewed CCTV footage from the café, they determined that no breach of the protection order had occurred.
During the mother’s conversation with police in late 2017, the mother also made a comment about X’s recent behaviour, namely, that she had been touching herself inappropriately and had recently tried to “hump” the mother while she was sitting down and was “rolling her eyes back in her head … replicating an orgasm”. The mother told police that the father’s time with the children was supervised:
due to a previous incident when the … child returned from visitation with a sore vagina with an internal mark left on the inside of the child’s vagina.
(Emphasis added)
There is no evidence to support the mother’s claim to police that there was an “internal mark left on the inside of the child’s vagina”. When challenged about this claim during cross-examination, it firstly became apparent that the mother did not use correct terminology for female genitalia. It is not uncommon for people to use various terminology but in matters of such seriousness it is important, in my view, to understand exactly what is meant by the terms used. When referring to “vagina” the mother confirmed that she meant “vulva”, but she maintained that when she pulled X’s labia majora apart when changing her nappy on the morning in early 2017, she saw a mark on the inside of the labia majora. (I note that the mother had earlier in her cross-examination denied parting the child’s labia). The mother described the mark she allegedly saw, as a straight line about two centimetres long. The hospital records from early 2017 do not corroborate the mother’s evidence. There was redness noted at the introitus (which would indicate that for the purposes of the examination, the child’s labia were parted) but specifically there were “no lacerations or excoriation … no signs of trauma” noted. I do not accept the mother’s evidence that the child had any mark as described by her, and it does not reflect well on the mother that such a claim was made to police.
In late 2017, another notification was received by Child Safety raising X “licking her dad” and “sexualised behaviours”. Child Safety contacted X’s daycare and was advised that X had not demonstrated any problematic or harmful sexualised behaviours and had not disclosed any concerns regarding either parent. X was noted to be emotional on Wednesdays but when the mother changed the daycare day to Monday in mid-2017, there was noted to be a “great improvement in her emotional wellbeing”. It was noted by the daycare centre that X did suffer from separation anxiety from the mother.
In late 2017, an afterhours notification was received by Child Safety with the following information apparent:
Notifier is aware … father … abusing children, … Notifier is also aware that … [X] … humping … Daddy does it”
(Emphasis in original)
The notifications were recorded as child concern reports with their rationale being as follows:
… “Daddy licked me”. The reporter could not provide any contextual information about this incident and how this had harmed [X].
… check conducted with [X’]s daycare who reiterated no concerns regarding [X] …
… there is no indication that [X] is displaying behaviours that are not age appropriate
Child Safety is worried that if ongoing concerns continue to be raised and [X] is continually being subject to intrusive checks … she may be at risk of experiencing emotional harm.
(Emphasis added)
A short time later, the mother again contacted police and gave them a video she had taken of what the police determined was an entirely innocent interaction between X and the father that occurred in her presence in February 2017. The police review and conclusions are set out at [76] of these reasons.
In late 2017, another notification was made to Child Safety with the unredacted parts including the following:
… [the father] … forcing himself onto [X] … concerned about [X’s] sexualised behaviours …
Child Safety concluded that there did not appear to be any harm or inappropriate behaviour and opined that X was not displaying sexualised behaviours and that her behaviour was typical of a two year old.
Some weeks later, the police again spoke with the mother who said she had “nothing further to say about the matter/s reported and no concerns”. The police records note the following:
The sexualised behaviour reported by [the mother] is consistent with behaviour of other children of similar ages and is not necessarily a learned behaviour, to which [the mother] said that she understood. [The mother] stated that the behaviour was continuing however was accepting of the behaviour being common amongst young persons.
Due to the age and limited verbal skills of the child, a 93A interview was unable to be obtained. No further police action to be considered; DOCS to be notified.
(Emphasis added)
Despite the apparent concessions made by the mother to police, the mother did not agree to unsupervised time recommencing.
Second family report - 25 July 2018
Mr B prepared a second report dated 25 July 2018 based on interviews with the parents, observations with the children, and interviews with the grandmothers.
The mother maintained her belief that the father had sexually abused X.
The father said he had recently become aware that the mother had taken X to an occupational therapist. The father contacted Mr Z who informed him that X was exhibiting behaviours that were normal for her age.
The father reported that Ms S had taken out a peace and good behaviour bond against the mother.
The mother was noted to be “clearly anxious” over the course of the assessment. X was attending daycare two days a week but “it took a while to get her used to it”. The mother connected the child’s adjustment to childcare on whether it was a day she was to see the father, stating that X did not want to see him. X was reported to have been very avoidant of males and took some time to adjust to a male childcare worker at day care. The mother described the father as a “pathological liar”. The mother reported that X had told her that a crocodile had got her daddy and one was going to ger her and she was going to die. X was also reported to be being fearful of crabs and to having clung to the mother after disclosing this. The mother interpreted this information as “[The father] likes to take thin[g]s too far, like (he might say) hurry up and get out of the water, there is a crocodile coming” and it probably scared her. The mother contended that X had continued to say sexually suggestive things with the last time being late 2017 when she said, “daddy and [Mr W] have rubbed my bum bum”. The mother said X was still engaging in sexualised behaviours such as rubbing Y’s nipples and licking him “like an ice block”. The mother did not think the father had much of a relationship with Y and did not think the father fed him very well because the mother said she has to feed him when he returns to her.
The mother maintained her view that “I think definitely he has done something to her because when she started seeing him again, she was scared of men and calls them monsters and hides behind (me)”. The mother nevertheless complained that the father had repeatedly cancelled his time with the children. The mother said he had cancelled 15 times. When interviewed, the father said he had cancelled visits a couple of times when he had to go overseas for work. The mother said she recorded all of the changeovers “because they come up with so many lies” and the mother cried while recounting this. The mother told Mr B of a defamation case commenced against her and a complaint to police by Ms S. The father told Mr B that he thought the changeovers were fine.

In seeking a referral for counselling from Dr DD, it is revealed from her notes dated July 2022, that the mother provided some background including the following:
…
[X] has recently made allegations against her dad …
Mum reports that [X] has told both her teachers and the police that she wakes up in her dad’s bed and he has been touching her inappropriately
The ex-partner has a new wife and [X] has reported that she is apparently there in bed also
…
[X] is now not keen to go with her dad at all – jumps through the car trying to get away and screams and tells him that she won’t go
[Y] is still going reluctantly
(Emphasis added)
Mr CC - psychologist
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.
In this case, not only was the involvement of Mr N unjustifiable on any level, there is the added factor that X is likely to have been exposed to her mother’s disapproval of her spending time with her father for many years.
Notwithstanding this background, I have been acutely conscious of the importance of examining the entirety of the evidence before reaching a conclusion about any risk posed by the father, despite the mother’s apparent capitulation, and when considering the magnitude of any risk posed by the mother. The consequences of a wrong decision in cases involving allegations of sexual abuse may result in the exposure of a child to sexual abuse or may unnecessarily deprive or limit a child’s relationship with a loving parent.
When reviewing the evidence in its entirety, I conclude that upon discovering the father’s infidelity, the mother entered a period of personal crisis where she became fixated on the father and Ms S which led her to making a baseless claim that the father and/or Ms S and/or Mr W had sexually abused X. The mother’s various accounts of what the child said on the morning in early 2017 have been inconsistent and unreliable. The child was under two years old at the time with limited verbal skills. Even accepting the mother’s own varying accounts of what the child said in early 2017, the words used do not of themselves indicate that the child had been sexually abused. The child was in nappies at the time, and it is common ground the father changed her nappy and, in that process, wiped or rubbed her bottom and vulva for the purposes of cleaning her.
The mother’s previous conviction that she was 100 percent convinced of the father’s guilt, based on what the child said and her subsequent behaviours, is unfathomable.
Despite the mother consenting to the ‘final’ parenting order on 17 August 2018, I find that the mother continued to harbour suspicions and continued to interpret anything said by the child or any behaviour as supportive of her suspicions e.g. when the child said at four years of age that the father had applied Sudocream; when the child was observed playing with her brother’s “nipples”; when Y said they shower together. All these matters were subsequently relied upon by the mother to support her allegations.
The mother was clearly dissatisfied with the police and Child Safety conclusions in relation to her 2017 allegations and was prepared to bide her time until she felt she had sufficient evidence to pursue her allegations again. I say this because when the mother made the 2022 allegations, she again brought up the 2017 allegations and alleged that the sexual abuse had been going on since the child was under two years old.
There was a considerable escalation in the allegations over time. Bizarrely, the mother sought to implicate Ms S and Mr W in the 2017 allegations and Ms F in the 2022 allegations. The mother attempted to bolster her 2017 allegations by relying upon an innocent video of the father and X playing in 2017. The mother retained a private investigator for some unknown purpose but seemingly, at least in part, to prove that Ms S was the father’s girlfriend in late 2017. The mother then made an unfounded allegation that the father had breached the 2017 protection order.
The mother’s involvement of Mr N was most unwise to say the least. Mr N’s own account of his involvement with an already very distressed child in 2022 was nothing short of abusive. Unfortunately, it seems the mother was blinded by her determination to prove her allegations against the father and in the process became oblivious to the harms she herself was causing X. The risk of this emotional harm was foreshadowed by Child Safety on several occasions.
A finding as to the genuineness of the mother’s beliefs or suspicions must be based on a consideration of the evidence in its entirety and the reasonableness or otherwise of the mother’s stated beliefs or suspicions and how she acted upon those beliefs or suspicions. In my view, there is nothing reasonable or rational about the mother’s allegations, beliefs, or suspicions; they are entirely irrational and unreasonable.
It seems to me that despite the mother contending she supports X spending time with the father, the mother will be content to rely upon the child’s refusal to see the father and it will not happen.
SPECIFIC FINDINGS
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
Lest there be any doubt, the conclusions reached on the issues posed by the parties for my determination are as follows:
(1)Any risk of psychological or emotional harm posed to X by spending time with the father against her apparent wishes does not amount to an unacceptable risk;
(2)The mother does pose an unacceptable risk of psychological and emotional harm to X by reason of her allegations that the father has sexually abused X which have no reasonable or rational basis;
(3)It is more likely than not that X’s reported disclosures have been overtly or unconsciously influenced by her possible awareness of the mother’s views of the father’s alleged conduct towards X;
(4)It is unlikely that the mother is genuine when stating that she no longer believes the father sexually abused X, but there is no evidence of what, if any, impact that would have on her parenting capacity other than her inability to facilitate X having a relationship with her father;
(5)It is unlikely that the mother’s previous belief that X had been sexually abused by her father was genuine in circumstances where I find that there was no reasonable or rational basis for such a belief.
WHAT PARENTING ORDER IS IN THE CHILDREN’S BEST INTERESTS
While a willing applicant to become the children’s primary carer, the father would have been content with ongoing contact with the children pursuant to the 17 August 2018 order. The father presses for a change in primary care as the only way the children will be able to have a relationship with both parents in the future.
The father’s application for a change of primary care is supported by the ICL.
While the findings I have made will obviously inform the paramount decision of what parenting order is in the children’s best interests, there are other factors that I must consider.
Importantly, I must consider if the unacceptable risk of psychological and emotional harm to X posed by the mother can be ameliorated in some way. I have considered whether a change in primary care might occur for a limited period to enable the mother to undertake appropriate therapy and then for primary care to revert to the mother. Such a proposition was not supported by any party as a primary position no doubt given the obvious additional disruption it would cause the children. Perhaps more importantly, I am unable to find that a return to the primary care of the mother after three months would not simply re-enliven the mother’s fixation on gathering evidence. I come to this conclusion notwithstanding the fact that the children spent time with the father in accordance with the 17 August 2018 order until June 2022. During this time, the mother was continuing her attempts to undermine X’s relationship with the father e.g., unilaterally changing the child’s surname, telling a neighbour that the father had sexually abused the child, and rejecting or ignoring the father’s requests for weekly telephone time with the children.
When asked what the risks were for the children if they remained with the mother and she does not genuinely believe that the father does not pose a risk to the children, Mr B said, and I accept:
…[it] can be pervasive in terms of children’s undertaking of their upbringing, unless it’s corrected somehow. One correction would – could be by changing care. Another way of correcting it would be by a complete change of attitude by the mother. In the absence of that, I think that it does run the risk of affecting [X’s] sense of self, and her confidence in relations with others, and a capacity to do things or take risks, you know, which is important for children, in my view, and her sense of safety with her father in any context, and, therefore, once she has children their sense of safety with their grandfather. So it’s – it’s a big issue.
I have also taken into account that pursuant to the order made by consent on 30 June 2022, the mother was required to engage with a clinical psychologist and provide that person with a copy of the order, and Mr B’s family reports and thereafter provide proof that she had done so to the father and the ICL. The mother did not do so.
Further, Mr J made a strong recommendation for the mother to seek therapy to deal with her ongoing issues relating to the marriage breakup and in relation to any behaviours she observed X engage in to give the mother a different perspective. The mother did not do so.
The mother consented to orders that X spend supervised time with the father in 2022 and again in 2023. The mother did not comply with those orders.
I cannot be satisfied that the risk posed by the mother can be ameliorated if the children remain in her primary care.
A change in the children’s primary care is a decision of last resort and I must admit to finding that prospect very difficult. The children have a close and loving relationship with their mother and have lived all their lives with her. The mother no doubt has many qualities that are advantageous to the children, and I have no doubt that the children will be devasted to leave her primary care. A change in their primary care will also involve a change of schools, although given the school’s historical involvement in the allegations it may be best for the children to have a fresh start at a new school.
If X remains in the primary care of her mother, she will likely continue to refuse to see the father and will receive no sincere encouragement from the mother to do so. The mother is unlikely to accept the findings of this Court. If X remains with the mother, there is no real prospect of her having a relationship with her father and she will, in all likelihood, grow up wrongly believing her father is a person to be feared and who sexually abused her as a baby.

In my view, X has been a victim of her mother’s determination to prove that her initial allegations against the father were true and, in the process, the mother orchestrated disclosures to be made by X which I have found were without foundation.
As Y gets older and becomes more aware of the mother’s suspicions about the father it is likely that he too will develop a resistance to spending time with the father, as the mother has already claimed e.g., at the changeovers on 3, 6, and 8 July 2022 the mother contends Y did not want to go with the father; the mother contends that since December 2022 Y returns from spending time with the father “withdrawn and in low spirits”.
Interestingly, Mr B opined that X will likely face challenges wherever she is living having regard to the disruptions in her childhood to date and the fact that her parents do not communicate. Mr B noted X’s connection with her school, her friends, her activities, that she had a sense of humour, and her strong relationship with her mother. If she were able to develop a strong relationship with her father as well then that could assist her through her adolescence. I accept Mr B’s opinions and observations.
In Mr B’s opinion, a change in X’s primary care may well cause her to experience a sense of shock and loss but the risks to her are more likely to be short-term and having a relationship with both parents would be a long-term benefit to her. Mr B stressed the importance of managing any difficult behaviour the father may encounter with X in a supportive rather that a confrontational way. I accept Mr B’s opinions and observations.
Mr B expressed some doubt about the father’s capacity to understand how difficult a change in primary care would be for the children but was impressed with his motivation to do whatever was necessary. I am satisfied that the father and Ms F will take all necessary steps to assist the children to adjust to their new circumstances. It will be difficult, but I am satisfied they are both committed and up to the task. The father has conferred on at least several occasions with a psychologist to gain assistance in how best to manage the transition should it occur. He willingly agrees to continue that process with Dr C.
Although a change in primary residence will be distressing for both children initially, I am satisfied that in the long term it will be in their best interests as the children will both be able to have a meaningful relationship with both parents.
If there is a change in the primary care, Mr B opined that a moratorium on the children seeing their mother “would only be so as they could adjust to a new environment … in the absence of … their mother’s reaction”. Mr B noted the particular difficulty for Y because “there’s no reason for [Y] to have a moratorium from his mother”. I infer that Mr B meant this in the context of “no reason” other than to be protected from the mother’s reaction, unlike X who has been the focus of the mother’s misplaced views about sexual abuse. In Mr B’s view, if it were determined that the children’s adjustment required it, a moratorium should be for no more than three months but did not then see a need for the mother’s time to be supervised.
In my view a moratorium is unfortunately necessary. The children will face significant change. The mother will understandably find this decision very difficult and will need time to obtain the necessary professional support to help her come to terms with the change and the reasons for it. Three months is no doubt a long time for children, but the mother will need that time. It would be very damaging for the children to be exposed to the mother’s understandable distress. The children also need time to adapt to their new living arrangements and a new school. The mother, through her counsel, opposed a moratorium but conceded that if one were to be ordered, it should include a moratorium on communication so that there was a “clean break”.
I am minded to include a provision in the order that would give the father liberty to facilitate the mother seeing or communicating with the children during the moratorium if recommended by Dr C and I note that such a provision is included in the order proposed by the ICL and adopted by the father. Any costs associated with supervision of the mother’s time during the moratorium should be shared equally.
At the conclusion of the moratorium, I am of the view that the first several visits should be supervised and again I note that such a provision is included in the proposed order by the ICL and adopted by the father.
Thereafter the mother will spend alternate weekends and half school holidays with the children with changeovers at the children’s school where possible.
Given the history of this matter I do not consider the parents are likely to be able to make major long-term decisions jointly and, accordingly, as the children will be living primarily with the father, he will have sole parental responsibility.
There appears to be some inconsistency in the order proposed by the ICL and adopted by the father in relation to the therapist to be engaged by the mother to assist her in coming to terms with the order and importantly in the need to protect the children from her suspicions about the father. Initially, it seems the ICL proposes that the mother engage with the same therapist helping the father and the children in the transition to the father’s primary care. With some reticence, I will adopt that provision as it may be beneficial for everyone to be ‘on the same page’ so to speak.
There is then an additional provision which purports to make the mother’s ability to continue spending time with the children conditional upon her engaging with what seems to be envisaged would be a different therapist. No submissions were made by any party about this provision. As the mother did not oppose such a provision, I propose to include it.
However, it seems to me that the mother should continue to engage with Dr C unless Dr C forms the view that the mother’s continuing therapy should involve someone else. Any costs associated with the mother’s continuing therapy should be her sole responsibility.
No submissions were made about how the mother would establish compliance with the ongoing therapy order or when it should cease. In my view, the mother should be required to provide to the father written confirmation from her treating therapist at least each month that she is continuing her therapy until the therapist recommends it cease.
Each party had the opportunity to make submissions about the order proposed by the other and ultimately, I propose to make the order that I consider to be in the children’s best interests.
MISCELLANEOUS
During the mother’s cross-examination by counsel for the father, the mother was asked several questions about an issue that arose during her interviews with Mr B on 15 December 2023. No request was made, by any counsel, for the mother to receive a warning against self‑incrimination. The mother made certain admissions. The mother was asked a further question on the same topic sometime later when the Court intervened, noting the possibility of the mother being entitled to receive a warning given the possibility that the evidence may tend to prove that the mother had committed an offence for which she could be liable to a civil penalty.
The further questions on the topic were not pressed by counsel for the father and later, counsel for the father indicated that her client did not intend to rely on the admissions or to take the matter any further either in the case or at all.
Counsel for the mother initially requested the issue of a certificate under s 128 of the Evidence Act 1995 (Cth) (“the Evidence Act”). Section 128 relevantly provides:
Privilege in respect of self-incrimination in other proceedings
(1) This section applies if a witness objects to giving particular evidence, or evidence on a particular matter, on the ground that the evidence may tend to prove that the witness
(a)has committed an offence against or arising under an Australian law or a law of a foreign country; or
(b)       is liable to a civil penalty.
(2)The court must determine whether or not there are reasonable grounds for the objection.
(3)Subject to subsection (4), if the court determines that there are reasonable grounds for the objection, the court is not to require the witness to give the evidence, and is to inform the witness:
(a)that the witness need not give the evidence unless required by the court to do so under subsection (4); and
(b)      that the court will give a certificate under this section if:
(i) the witness willingly gives the evidence without being required to do so under subsection (4); or
(ii)the witness gives the evidence after being required to do so under subsection (4); and
(c)      of the effect of such a certificate.
(4)The court may require the witness to give the evidence if the court is satisfied that:
(a)the evidence does not tend to prove that the witness has committed an offence against or arising under, or is liable to a civil penalty under, a law of a foreign country; and
(b)      the interests of justice require that the witness give the evidence.
(5)If the witness either willingly gives the evidence without being required to do so under subsection (4), or gives it after being required to do so under that subsection, the court must cause the witness to be given a certificate under this section in respect of the evidence.
(6)The court is also to cause a witness to be given a certificate under this section if:
(a)       the objection has been overruled; and
(b)after the evidence has been given, the court finds that there were reasonable grounds for the objection.
(7) In any proceeding in an Australian court:
(a)evidence given by a person in respect of which a certificate under this section has been given; and
(b)evidence of any information, document or thing obtained as a direct or indirect consequence of the person having given evidence;
cannot be used against the person. However, this does not apply to a criminal proceeding in respect of the falsity of the evidence.
…
Counsel for the mother did not ultimately press the application for the retrospective issue of a certificate in circumstances where s 128(6) did not appear to have any application. Observations by the Full Court in LGM & CAM[14] suggesting otherwise were clearly obiter.
[14](2011) FLC 93-481; cf Stephen Odgers, Uniform Evidence Law (Thomson Reuters, 18^th edition, 2023) at [EA.128.450]; Shanahan v Jatese Pty Ltd [2018] NSWSC 1097 at [11]-[26].
In the alternative, counsel for the mother sought an order for the “exclusion” of the mother’s admissions pursuant to s 138 of the Evidence Act. Section 138 of the Evidence Act provides:
Discretion to exclude improperly or illegally obtained evidence
(1)      Evidence that was obtained:
(a)        improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
(2)Without limiting subsection (1), evidence of an admission that was made during or in consequence of questioning, and evidence obtained in consequence of the admission, is taken to have been obtained improperly if the person conducting the questioning:
(a)did, or omitted to do, an act in the course of the questioning even though he or she knew or ought reasonably to have known that the act or omission was likely to impair substantially the ability of the person being questioned to respond rationally to the questioning; or
(b)made a false statement in the course of the questioning even though he or she knew or ought reasonably to have known that the statement was false and that making the false statement was likely to cause the person who was being questioned to make an admission.
(3)Without limiting the matters that the court may take into account under subsection (1), it is to take into account:
(a)      the probative value of the evidence; and
(b)      the importance of the evidence in the proceeding; and
(c)the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding; and
(d)      the gravity of the impropriety or contravention; and
(e)whether the impropriety or contravention was deliberate or reckless; and
(f)whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights; and
(g)whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention; and
(h)the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.
Counsel for the mother submitted that the admissions made by the mother were “improperly” obtained because she was not provided with a warning. It was submitted that the transcript containing those admissions (if a transcript were subsequently obtained by a party) could be the subject of an order prohibiting a person from relying upon that part of the transcript “in any other proceedings”. Reliance was placed upon LGM & CAM, where the Full Court found that the failure to “alert the wife to her right against self incrimination and the subsequent limiting of the ambit of the s 128 certificate falls within the definitions of “impropriety” to which the Chief Justice referred at [29] in Parker”. Parker is a reference to the High Court’s decision in Parker v Comptroller-General of Customs (2009) 83 ALJR 494 where the then Chief Justice, French CJ said from [27]:
27. … this clause provides a discretionary exclusion for evidence obtained improperly unlawfully or in consequence of an improperly, unlawfully or in consequence of an impropriety or breach of the law. It applies in both civil and criminal trials. It reflects, with some modification, the present exclusionary discretion known as the rule in Bunning v Cross. The main difference is the placing of the onus of proof on the party seeking to have the illegally or improperly obtained evidence admitted.
28. The party seeking to exclude the evidence has the burden of showing that the conditions for its exclusion are satisfied, namely that it was obtained improperly or in contravention of an Australian law. The burden then falls upon the party seeking the admission of the evidence to persuade the court that it should be admitted. There is thus a two stage process. The party seeking admission of the evidence has the burden of proof of facts relevant to matters weighing in favour of admission. It also has the burden of persuading the court that the desirability of admitting he evidence outweighs the undesirability of admitting evidence obtained in the way in which it was obtained.
29. The meanings to be accorded to the terms ‘improperly’, ‘impropriety’ and ‘contravention’ in s 138 were not illuminated by the Law Reform commission report. The relevant ordinary meanings of ‘improper’ include ‘not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong’. …
(Citations and footnotes omitted)
The circumstances in LGM & CAM were very different to the current circumstances. The wife in that case had been representing herself and made certain admissions which were not protected by the s 128 certificate which subsequently issued. The husband then relied upon the admissions in a contravention application against the wife in a subsequent case. The Full Court found that had the primary judge “been assisted to further investigate his expressed concerns as to the wife’s rights, [his Honour] should have come to the conclusion that the evidence could not be relied on by the husband in pursuit of the applications,” and for that reason the conviction and sentence arising from the contravention were set aside.
I am not persuaded that s 138 has any application in the current circumstances. The admission made by the mother was on a peripheral topic ultimately not relied upon by the father or the ICL. There are no current proceedings which would require the exclusion of the evidence.

I certify that the preceding three-hundred and twelve (312) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 13 March 2024

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, 18^th 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

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