Sangster & Tailor - [2021] FedCFamC1F 170

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Sangster & Tailor [2021] FedCFamC1F 170

File number(s): BRC 10708 of 2014

Judgment of: CAREW J

Date of judgment: 2 November 2021

Catchwords:
FAMILY LAW – CHILDREN – Unacceptable risk of sexual, physical and emotional harm – Where the mother alleges that the father has sexually interfered with the children – Where the mother alleges the father has assaulted the children – Where the mother alleges that the father has committed serious acts of family violence and presents an ongoing unacceptable risk of future harm – Where the father denies that he poses any risk of harm to the children in the future – Where the father specifically denies ever behaving in a sexually inappropriate way with any of the children and/or physically harming the children – Where the mother does not address historic evidentiary matters yet contends that the evidence is relevant to her current belief – Where the mother appears to view events and statements through a prism of sexual abuse – Where the mother dismisses the inconsistencies between the children’s statements to her and independent observations of the children’s interaction with the father – Where it is found that the father does not pose an unacceptable risk of future harm to the children – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the children.

FAMILY LAW – CHILDREN – What parenting order is proper – Where it is found a change of residence is necessary to protect the children from the unacceptable risk of future harm from the mother – Where the change of residence removes the children from their half-brother – Where there is to be an initial moratorium on the mother spending time with or communicating with the children and then a gradual increase to unsupervised time – Where the presumption in favour of equal shared parental responsibility does not apply.

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
Banks & Banks (2015) FLC 93-637

Bant & Clayton (2019) FLC 93-924

Briginshaw v Briginshaw (1938) 60 CLR 336

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

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

Re David (1997) FLC 92-776

Division: Division 1 First Instance

Number of paragraphs: 215

Counsel for the Applicant: Mr McGregor

Solicitor for the Applicant: Life Law Solutions

Counsel for the Respondent: Mr Amerena

Solicitor for the Respondent: Shanahan Family Law

Counsel for the Independent Children’s Lawyer:
Dr Sayers

Solicitor for the Independent Children’s Lawyer: Pippa Colman & Associates Law

Date of hearing: 30 August – 1 September, 9 September, 16 September 2021

Place: Brisbane

ORDER

BRC 10708 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SANGSTER

Applicant

AND:
MS TAILOR

Respondent

INDEPENDENT CHILDREN'S LAWYER

Other

ORDER MADE BY:

CAREW J

DATE OF ORDER:

2 NOVEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

Parental Responsibility
2.The father have sole parental responsibility for the children X born … 2011 and Y born … 2013 (“the children”) for all major long-term issues (as that expression is defined in s 4(1) of the Family Law Act 1975 (Cth)), save that the father shall, prior to making a decision about any such issue:
(a)Use his best endeavours to advise the mother in writing of the decision intended to be made;
(b)Seek the mother’s written response in relation thereto;
(c)Consider by reference to the best interests of the children, any such response from the mother prior to making any such decision; and
(d)Advise the mother in writing as soon as reasonably practicable of his decision.

Spending time arrangements
3.The children spend time with and communicate with the mother at all times as agreed between the parties and failing agreement:
(a)Following a moratorium of three (3) months after the transition of the children into the father’s care pursuant to this Order, during which time the mother shall spend no time nor communicate with the children, then:
(b)For a period of 12 months from the expiry of (a) above:
(i)Supervised at the C Contact Centre (“CCC”) for the maximum time that may be facilitated each alternate weekend on either Saturday or Sunday at times as nominated by CCC: and
(ii)By electronic means, namely telephone, or one of Skype, FaceTime, Zoom or Teams, for up to 30 minutes each Wednesday.

(c)Following the expiry of the period set out in (b) above:
(i) From the conclusion of school Friday to the commencement of school Monday, or 9.00 am Monday if it is not a school day, each alternate weekend; and
(ii) By electronic means, namely telephone, or one of Skype, FaceTime, Zoom or Teams, for up to 30 minutes each Wednesday.

(d)By sending to the children (to an address to be notified by the father) appropriate cards, letters and gifts but limited to not more often than once each fortnight and it is noted that this provision is not subject to the three month moratorium.

Therapeutic Support
4.The father shall arrange and facilitate, at his expense, therapeutic counselling and assistance for himself and the children to help them cope with the challenges which will present after the children’s transition into his care at all such times and for such period as the counsellor recommends.

Communication between Parents
5.The father shall keep the mother advised by email or specialist internet based application as to any significant developments in the children as and when such developments occur.
6.The father shall be at liberty to provide the counsellor for the children and/or himself referred to in paragraph 4 hereof with copies of the Family Reports of Ms D and Ms E, and the Reasons for Judgment dated 2 November 2021.
7.Should the mother commence therapeutic counselling or psycho-therapy then the mother shall be at liberty to provide the psychotherapist or counsellor she attends upon with copies of the Family Reports of Ms D and Ms E and the Reasons for Judgment dated 2 November 2021.
8.Save as provided by this Order or unless the mother has the prior written consent of the father, she is restrained by herself or her agents from attempting to make contact with either of the children.

Exchange of Information & Authorities
9.The father and the mother shall:
(a)Keep the other parent informed at all times of their residential address, landline and mobile telephone numbers, and email addresses and notify the other of any change thereto within 48 hours of such change;
(b)Keep the other parent informed of the names and addresses of any treating medical or other health practitioner who treats the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children; and
(c)Inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children.

10.The parents shall communicate by way of email or specialist internet based application or, in the event of an emergency, by telephone. For the purposes of this Order “emergency” is a serious situation involving the children that requires medical or police intervention.
11.This Order authorises the mother to obtain from the children’s school, copies of school reports, school photographs and any other document regarding the academic progress or achievements of the children at her own expense and notification of events such as parent/teacher events, sports day and concerts.
12.During the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Speak of the other parent respectfully; and
(c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

13.The father be at liberty to provide a sealed copy of this Order to all relevant organisations and institutions providing care or services to the children.
14.Any outstanding applications be otherwise dismissed.
15.The Principal Registrar of this Honourable Court is requested to forthwith provide a sealed copy of these Reasons for Judgment dated 2 November 2021 to the Department of Children, Youth Justice and Multicultural Affairs (Qld) for their consideration in relation to the child W born on … 2007.
16.Pursuant to ss 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

Sangster & Tailor
REASONS FOR JUDGMENT
CAREW J:

Mr Sangster (“the father”) and Ms Tailor (“the mother”) have two children together, currently aged nine years and eight years. The children live with the mother and have not spent any unsupervised time with the father since 26 July 2019. The mother accuses the father of being an incestuous paedophile and opposes him having any contact with the children. The father denies the mother’s allegations and contends that the only way he can have a relationship with the children is if they live with him.
For the reasons which follow, I have determined that the father does not pose an unacceptable risk of harm to the children but that the mother does. Accordingly, it is in the best interests of the children, in the circumstances of this case, to live with the father. I propose to order that after a moratorium of three months, they spend supervised time with the mother for 12 months before commencing unsupervised time. The father will have sole parental responsibility. The mother has another child aged 14 years who lives with her. The father accepts that this child is old enough to make his own decision about spending time with the father and accordingly does not press for any order in relation to him. I do not propose to make any order in relation to this child but, due to my concerns for his welfare, I propose to refer these Reasons to the appropriate authority.
PROPOSALS OF THE PARTIES
The father proposes that the two younger children live with him and that he have sole parental responsibility. Further he proposes there be a three month moratorium on the mother spending time with the children and that thereafter for a period of three months, she spend supervised time with the children for two hours each alternate weekend and have telephone communication with the children once per week. After the expiry of that further three months, the father proposes that the mother subsequently spend unsupervised time with the children from Friday after school to Monday before school, each alternate weekend, and have telephone communication with the children once per week[1]. The father contends that if the children remain with the mother they will not be able to have a relationship with him.
[1] The precise terms of the order proposed by the father are set out in Exhibit 12.
The mother proposes that the children continue to live with her and that she have sole parental responsibility. Further, the mother opposes the father spending any time with or having any communication with the children. In the event the Court finds that the father does not pose an unacceptable risk of harm to the children, the mother proposes that she nevertheless have sole parental responsibility, that the children live with her and initially for a period of 12 weeks, spend time with the father each alternate Saturday, and thereafter each alternate weekend.[2]
[2] The precise terms of the order proposed by the mother are set out in her Response to Initiating Application filed 13 January 2020 and in the alternative, the order proposed by the mother if the father does not pose an unacceptable risk of harm, is set out in Exhibit 16.
The Independent Children’s Lawyer (“ICL”) recommends that the father have sole parental responsibility for the two younger children and that they live with him. The ICL further recommends that the children spend supervised time with the mother for the maximum time that may be facilitated by the C Contact Centre on a fortnightly basis and that the mother have supervised video calls with the children once per week. The ICL also recommends that the mother be at liberty to send gifts to the children for special occasions.
I note that the father does not seek any order relating to the mother’s other child but contends he would welcome contact from him. The mother and the ICL seek an order that the mother have sole parental responsibility for the mother’s other child and that he live with the mother. The mother proposes that if the father does not pose an unacceptable risk of harm, this child should spend time and communicate with the father in accordance with his wishes. The ICL proposes that the mother’s other child spend time and communicate with the father or the two younger children as agreed between the parties or as requested by the child.
BACKGROUND
The father and mother first met when they were at school but reconnected many years later and commenced a relationship in or about late 2010 and separated in August 2014. The parties agree that their relationship was turbulent and discontinuous. For instance, they did not consistently live together throughout their relationship and, subsequent to what they both describe as their separation in August 2014, they had an ‘on again off again’ relationship for a number of years thereafter with both agreeing there was a period of reconciliation. The mother contends that she was coerced into resuming a relationship with the father at times. The father contends the mother encouraged his attentions.
As already noted, the father and mother have two children together. X (“X”) was born in 2011 and Y (“Y”) was born in 2013. The mother also has another child, W (“W”) who was born in 2007. Although W is not the biological child of the father, W was treated as a child of the father during the relationship and W referred to the father as “dad”. W has no relationship with his biological father whom he has never met.
The father was born in 1985 and is employed full time in hospitality. The father commenced a relationship with Ms B (now Sangster) (“Ms B”) in mid-2018 and they were married in 2021. Ms B is currently on maternity leave but will return to full time employment in the healthcare industry. The father and Ms B have one child together, Z (“Z”), who was born in 2021 and the father, Ms B and Z live together in a four bedroom rental house at Suburb F, Region G in Queensland. The father contends that the mother commenced to withhold the children from him when his relationship with Ms B became serious and they moved in together.
The mother was born in 1985. The mother previously undertook some consultancy work, but apparently due to the COVID-19 pandemic, her work ceased. The mother is now entirely reliant on Centrelink benefits and child support from the father. The mother and the children live in H Town in Region G in Queensland, in a rented property. The mother has not re-partnered.
X and Y attend J School. X is in grade three and is performing satisfactorily. Y is in grade two and is performing well. W is in grade eight at L School and the school has raised repeated concerns about his behaviour. However, his 2021 school report suggests he is performing satisfactorily academically. All children appear to have had significant absences from school since at least 2018 (there is no evidence before me prior to 2018) including in semester one this year when W had 32.5 days absent, X had 11 days and Y 16 days absent.
After the parties separated in August 2014, the mother made a number of allegations against the father including that he had sexually abused the child, X, and she stopped the father seeing the children. The father first commenced proceedings on 26 November 2014. The father’s time with the children, when it recommenced, was supervised, until a ‘final’ parenting order was made by consent on 7 December 2015 (“the 2015 order”). Pursuant to the 2015 order, the parents had equal shared parental responsibility and the children were to spend gradually increasing time with the father so that by 1 July 2016 they were to spend at least each alternate weekend and two afternoons with him and an overnight in the other week as well as half school holidays. The 2015 order applied to all three children despite the mother initially opposing any order in relation to the child, W.
While there were ongoing allegations made by the mother against the father after the 2015 order, including allegations of sexual abuse of both X and Y, the father’s time with the children appears to have continued until 2019, although not in accordance with the 2015 order. Each party blames the other for that situation. From sometime in 2019, the mother repeatedly cancelled the father’s time with the children for reasons such as: the children were sick; or the children were tired; or the children were with friends. The father commenced the current proceedings on 19 September 2019 initially seeking (in effect) to enforce the 2015 order.
Ms B first met the children in June 2018. Ms B contends that the mother did not take the commencement of her relationship with the father well and that the mother was abusive and confrontational to her both in writing and at changeovers. Ms B further contends that while the children were initially polite and well behaved in her presence, things deteriorated in December 2018 to the point where the children were verbally abusive to her and X was physically abusive to her. On the other hand, the mother contends that the children informed her that Ms B was verbally and physically abusive to them. The mother further contends that Ms B was rude to her at changeovers.
The father spent very little time with the children in 2019 and did not see the children at all from about 26 July 2019 (the last unsupervised overnight visit) until 28 June 2020 (apart from his attendance at the mother’s home in 2019 to celebrate Y’s birthday and two hours in a park on Father’s Day 2019 i.e. 1 September 2019). Thereafter he had no contact at all with the children until supervised time commenced in June 2020. The mother had suggested that the father spend ongoing time with the children at a contact centre but the father rejected the mother’s proposal arguing that there was no need for supervision.

An interim order was made by consent in April 2020 for the father to spend supervised time with all three children at a contact centre and to be at liberty to communicate with the children via electronic means twice per week. Initially the contact centre was closed because of the COVID-19 pandemic restrictions and the father was unable to spend face to face time with the children until 28 June 2020. The limited availability of the contact centre has resulted in the father’s time being generally restricted to one hour per fortnight. Earlier this year when the contact centre offered the father two hours per fortnight, the mother opposed the modest increase. The father generally communicates with X and Y each Tuesday and Thursday via Zoom video calls with varying degrees of success. Recently it has been entirely unsuccessful.
Ms B has spent little time with the children since December 2018. There were several occasions in 2021 when she attended the contact centre for the father’s supervised visits with the children. The children have met their half-brother, Z, on several occasions at the contact centre.
There are mutual final protection orders in place until 2024 with each parent alleging they have been the victim of family violence perpetrated by the other. Ms B is also a protected person on the order obtained by the father against the mother. Each party alleges the other was prone to misusing alcohol, particularly in the lead up to their 2014 separation and on occasions thereafter. The father also alleges the mother was very jealous and repeatedly searched his phone and Facebook accounts. The mother contends the father was frequently unfaithful. The father denies infidelity.
The father twice spent time in prison in 2016 for offences of driving while disqualified. The first time was for two weeks and the second time was for nearly six weeks. The father subsequently obtained and retained a driver’s licence. The father has been dealt with on a number of occasions for breaching protection orders made in favour of the mother. In 2017 the father was sentenced to three months imprisonment in relation to five breaches of the protection order and a breach of bail. The sentence was suspended for nine months. The father contends the mother would frequently invite him to her home to spend time with the children and then call the police alleging he had breached the protection order. The mother denies this contention.
On 1 December 2017, X was referred to Dr K because of behavioural issues. The mother contends that X was diagnosed with Autism Spectrum Disorder (“ASD”) in 2018. While he did receive, and may still be receiving funding on the basis of this diagnosis, it remains unclear whether he in fact has ASD. There are no recent medical reports and Dr K raised some uncertainty about the diagnosis in his report dated 11 March 2018. X was to be reviewed by Dr K on 14 December 2019 but there is no evidence this occurred. X’s school report cards do not indicate any behavioural or other problems.
There have been three family reports prepared in this matter. The first was undertaken by Ms D in the lead up to the earlier proceedings and is dated 26 March 2015. The children were seven years, three years and 14 months at the time of interview. All three children were observed to be delighted to see the father on this occasion and were affectionate and happy to be in his company. Among other things, Ms D recommended the following:
(a)Equal shared parental responsibility;
(b)The children live with the mother;
(c)The children spend unsupervised time with the father, initially during the day only but quickly advancing to one overnight each fortnight and continuing to gradually increase to a shared care arrangement; and
(d)The mother attend for therapeutic assessment and counselling with a psychologist.
Ms E prepared two reports. The first report is dated 6 April 2020 and Ms E expressed a number of opinions including the following:
(a)While it did not appear that the mother had coached the children about what to say in relation to the father, the mother was very concerned when she was told the children wanted to see the father occasionally;
(b)It was unhelpful for the father to maintain the stance that he has made no contribution to the estrangement of his children;
(c)The father lacked insight into his own behaviour and its corrosive effects on members of his family;
(d)The father “earnestly believes he has done nothing coercive or abusive”’;
(e)The father could benefit from therapy with a psychologist to assist him with his style of communication and problem solving skills, “given the father’s tendency to omit, minimise and obfuscate”; and
(f)The mistake the mother made was to continue to respond to the “romantic” messages from the father in 2016, even if it was only to try to repel them. Her texts “kept the father in his cycle of persistence which he still does not seem to understand as having been harmful and disrespectful”.
Ms E recommended that the children continue to live with the mother but spend gradually increasing supervised time with the father i.e. up to several hours at a time.
In her second report, dated 2 May 2021, Ms E noted during her observation of the children with the father that Y settled to play but often addressed the father in an insolent tone of voice whereas X was more able to enjoy his company playing collaboratively with the father. The children did not remain with the father for long (about 20 minutes) and left without showing him much affection.
In a joint interview with all three children, Ms E noted that the children became animated about what they remembered of their father. They were in agreement that there had been many adult rows and many times they felt afraid, though not of their mother. Y said that the father was nice at M Contact Centre but only because other people were watching. X said he did not think he could trust the father to be nice if there were not people watching. He said the father might start to yell at them again. When asked about the visits with the father moving to the movies or the beach the children said they would be scared.
In relation to the Zoom video calls with the father, the children told Ms E that the mother always monitors the calls and X added that he thinks the calls are being recorded. The children were unable to say anything positive about the father without prompting. The children said they did not intend to meet their baby brother when he was born. (By way of contrast, X and Y appear delighted in the photographs taken of them with their baby brother at the contact centre). Y said that Ms B was “meaner than Dad” and W and X agreed. They recalled Ms B calling W a “baby” because he was crying and repeated an account of an incident referred to in Ms E’s 2020 report where they claim Ms B chased them and called them names. Y repeated that Ms B was “worse than Dad”. The children denied that they had called Ms B names and contended that she had called them “bitches” and Y said Ms B had even used the “C word”, while W said she had threatened to punch and slap him and called him a “fucking cry baby”. I note that Ms E listened to a recording made by Ms B and concluded that the children were using the word “bitch”.
In an individual interview with W, Ms E reports that W said he recalled a camping trip with the father when the father grabbed him by the arm and ripped him out of the car. The father denies pulling W out of the car and contends that the incident involved W climbing onto the roof of the car and putting himself at risk. He pulled W off the roof of the car to prevent him coming into harm. W said the parents yelled at each other at changeovers making it very stressful for the children. He also recalled an argument between the father and mother over the father having a cold sore and licking it.
In an individual interview with Y, she recalled being in a car and the father leaning back and putting his hand on her chest and pushing her back hard. She said she only cried a little but she was very upset. She said that the mother yelled at them sometimes but only if they were naughty. She said that the mother is “the one who keeps us safe”. Y spoke about the father yelling and swearing at W and X but mostly W “because W’s got another Dad and stuff and Dad doesn’t really like W”. I note at the time of this interview, W had not seen the father in an unsupervised setting for nearly two years and had not seen him at all or communicated with him for about nine months. Y said she would like to go to the movies with the father but only “if someone comes who we trust”. Contrary to the contact centre notes, Y claimed that she did not even talk to the father during supervised visits.
It is common ground that in the period between the commencement of the trial and its conclusion, when X and Y were delivered to the contact centre to spend time with the father, neither of them would enter the centre after stating they did not want to see him.
ISSUES
The parties identified the following significant issues requiring determination:
(1)Does the father pose an unacceptable risk of sexual, physical or emotional harm to the children or by exposure to family violence?
(2)Does the mother have the capacity to facilitate a relationship between the father and children?
(3)Does the mother pose an unacceptable risk of harm to the children by reinforcing and/or validating unfounded allegations of sexual harm from the father and/or failing to protect Y from possible sexual harm from her half-brother W?
(4)Has the mother obtained appropriate supports for the children in light of the evidence relating to the behavioural issues experienced by the child W?
I note that all parties adopted as accurate, the extensive chronology annexed to the ICL’s Amended Case Information filed 30 August 2021 save for one item numbered 113 where it is reported that during the s 93A interview with Y, she said “daddy did nothing to me”. It was submitted on behalf of the mother that while the chronology was accepted as accurate, the mother did not necessarily accept the truth of all that is contained therein. The mother’s counsel was invited to identify any particular entries to which issue was taken.
APPLICABLE LEGAL PRINCIPLES
Every parenting decision requires the application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[3]
[3] 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 ss 60B (1) and (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, namely, 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).
In considering the primary considerations the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and means:
(a)An assault, including a sexual assault of the child; or
(b)A person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)Causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)Serious neglect of the child.
‘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. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
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.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the Court is satisfied on the balance of probabilities[4] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[5] and proof to the reasonable satisfaction of the Court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[6] Where it is not possible to positively reject an allegation as groundless the Court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[7] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The Court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard”[8] although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[9]
[4] Evidence Act 1995 (Cth), s 140.
[5] M v M (1988) 166 CLR 69 (“M v M”) at 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J).
[6] Ibid.
[7] M v M (n 5) at 77; N and S and the Separate Representative (1996) FLC 92-655.
[8] Johnson & Page (2007) FLC 93-344 at 81,890–81,891, [68].
[9] Ibid at 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the Court in assessing risk in Bant & Clayton[10] and said from [38]:
[10] (2019) FLC 93-924 (“Bant & Clayton”).
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court in Bant & Clayton[11] went on to stress the importance of the whole of the evidence in assessing risk and said at [51]:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
[11] (n 10).
The Court is not required to make findings of fact on every factual dispute raised by the parties.[12] 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”^[13] on each and every factual dispute.[14]
[12] Baghti & Baghtiand Ors [2015] FamCAFC 71.
[13] M v M (n 5) at 76.
[14] Ibid.
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 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, 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.[15]
[15] Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF SEXUAL, PHYSICAL OR EMOTIONAL HARM TO THE CHILDREN OR BY EXPOSURE TO FAMILY VIOLENCE?
The Court is here concerned with the risk of future harm. While the assessment of risk of future harm will necessarily be informed by past behaviour, such behaviour does not necessarily equate to a finding of unacceptable risk of future harm. In some cases, the very nature of the behaviour will necessarily result in a finding of unacceptable risk unless the person is able to demonstrate rehabilitation such as to mitigate the unacceptable risk. For example, if a person has been convicted of serious sexual offences against children, it is difficult to imagine a circumstance where the risk posed by that person could be other than unacceptable. On the other hand, if a person has historically behaved in a way that falls within the definition of family violence e.g. by harassing a former partner such as to cause them to feel coerced and controlled, the risk of future behaviour of that nature may be minimised where the parties are no longer in a relationship.
In every such case it is necessary to examine all of the evidence said to inform an assessment of future risk and evaluate the magnitude of the risk. The mother in this case contends that the risk to the children from the father takes four forms. The first is a risk of sexual harm. The second is a risk of physical harm. The third is a risk of emotional harm and the fourth is a risk of exposure to family violence.
The father denies that he poses any risk of harm to the children in the future. He specifically denies ever behaving in a sexually inappropriate way with any of the children and/or physically harming them and contends that contrary to the mother’s contentions, he was the one that was subjected to family violence. The father agrees that the children were at times exposed to yelling and arguments between himself and the mother.
While the evidence relating to each alleged harm and my assessment of risk may overlap, I propose to separately consider the nature of each alleged harm and the evidence relating thereto before evaluating the magnitude or any risk.
Before doing so I consider it relevant, but not at all determinative, that the mother has a

self-reported history of having been a victim of childhood sexual abuse and adult rape. The mother’s alleged history is part of the context in which this matter is considered. In the agreed chronology, the mother attended for counselling at N Centre (a counselling service) and the following entries are taken from their records:
13.10.08 Intake session Mother at N Centre. Mother reported being raped once at age 14 and again at age 20 by different perpetrators. Reported moving to Region G to escape domestic violence. Reported recovering from alcoholism and being supported by AA. Reported that 4 weeks ago she recalled being sexually abused as a child. She went to the family home and spoke to her neighbour who is the alleged perpetrator from ages 0-10 years. Mother reported that high levels of anxiety since, flashbacks and dissociation.
14.05.09 Mother spoke with Ms O of N Centre. Mother expressed concern that everyone sees her as a ‘slut’ and when she looks at someone, they think she is ‘checking them out’. Mother challenged on this belief and unlikelihood of it.
25.05.09 Telephone call between Mother and Ms O of N Centre. Mother informed Ms O that she had telephoned Suburb P Police and informed them of location of photographs taken of her as a child.
22.12.09 Adult closure Form completed for Mother’s attendance with N Centre (Q Counselling) Mother attended 11 sessions, 9 individual sessions and 2 via phone.
Mother attended counselling to address impact of multiple sexual assaults both in childhood and as an adult. Mother reported trauma symptoms being high levels of constant anxiety, dissociation and flashbacks.
Mother failed to continue to attend due to too many competing professionals. Mother was referred to a group Waitlist.
It is not apparent what, if any, therapeutic assistance the mother has obtained in relation to her self-reported past trauma.
The Department of Children, Youth Justice and Multicultural Affairs (“the Department”) records include the following information about the mother’s previous contact with them:
[The mother] as a subject child
There is a child protection history for [the mother] as a subject child from 1998 to October 2002 during this time three Notifications were recorded. The worries were in relation to parent substance misuse; father physically and verbally abusive and threatening towards the children; and [the mother] (14 years) threatening to kill herself because of her father hitting her.
(Emphasis in original)
Ms D (who prepared the first family report for this family dated 26 March 2015) considered the mother’s “highly prejudicial childhood and young adulthood” and “a history of anxiety” when opining that the mother “is prone to panic attacks reflective of her admitted anxiety” and that it was “quite possible that the mother exhibits some personality vulnerabilities which are exacerbated at times of stress or when she is triggered by her admitted past trauma”. Ms D also considered it likely that the mother’s “characterological” behaviours would “likely be exacerbated by the consumption of alcohol which reduces inhibitions”.
The mother did not provide any details of her history in her affidavit but said only the following:
8. I was previously prescribed anti-depressants, however I no longer suffer with depression. I have attended at a group Women’s Space facilitated by N Centre and have completed multiple workshops including Domestic Violence Awareness and Trauma Response.
In my view, the mother’s history has some relevance when considering the mother’s perception of events and her response to information suggesting the children may be at risk.
Risk of sexual harm
Despite consenting to the 2015 order, the first incident relied upon by the mother to inform her current belief that the father sexually interfered with the children and presents an ongoing unacceptable risk of future sexual harm, occurred on or about 11 August 2014. The mother contends that at the time she consented to the 2015 order, she felt she did not have a choice but to agree and now regrets that decision. I note that the mother was legally represented at the time and that the 2015 order was also consented to by an Independent Children’s Lawyer. Curiously, the mother does not address in her trial affidavit, any of the evidentiary matters prior to the 2015 order, other than, an incident that I will refer to as, the ‘kissing incident’ on 11 August 2014.
‘Kissing incident’ on 11 August 2014
The mother describes the incident in her trial affidavit as follows:
12. In or about August 2014, I witnessed [the father] kissing X. I could see that [the father] was using his tongue, which deeply disturbed me. I immediately reported this incident to the Queensland Police Service. The Child Protection Investigation Unit (“CPIU”) interviewed X about this incident but due to his age, he was unable to verbalise what had occurred and therefore could not corroborate my account. I was told by the officer that kissing in this manner was not considered sexual abuse.
While the mother says in the paragraph immediately following the above that:
13. The children and I fled to a women’s refuge for a period of 3 months following separation and [the father] then commenced proceedings. …
it does not seem that the behaviour witnessed by the mother, involving the father kissing X, was the catalyst for her fleeing. During cross-examination the mother said that separation from the father occurred “roughly” about the time she made the observation described.
At or about this time, the mother contends that she suffered a “life threatening” heart issue and was conveyed to hospital. The mother contends that she thought she was going to die and pleaded with hospital staff not to allow the children to go into the father’s care if she died. The father agrees that, during their relationship, the mother had twice previously suffered some issue requiring medication to slow down her heart rate. It is not clear what the medical condition was or how long the mother was in hospital or who looked after the children during her admission. It is not clear if the father even knew the mother was hospitalised on this occasion.
The mother informed Ms D on 31 October 2014 that following the kissing incident (although it is unclear precisely when) she was too fearful to remain at home because the father might “force” his way in and “kill me to get to the children”. The mother contends she took the children to a women’s refuge (it is not clear whether this was before or after her episode in hospital).
During the trial, the mother agreed that the kissing incident occurred at a time when X was about two years and nine months of age. The mother further agreed that as at August 2014 X was in the habit of coming into her bed in the mornings and sometimes the father would be in bed with her too. She agreed that the child would be excited and would hug and kiss one or other of them. While the mother said she did not object to the child kissing the father, in this instance there was definitely something wrong about the kiss which the mother says she found deeply disturbing.
The evidence relating to the kissing incident is as follows:
(a)The night before the kissing incident i.e. 11 August 2014, the mother and the father had been drinking after celebrating a family birthday. They had an altercation during which the father alleges he was struck in the mouth by the mother and suffered an injury;
(b)The mother called the police but it is unclear if the father left voluntarily or was removed by police;
(c)The father returned to the home in the early hours of the morning on … 2014 and asked to “sleep it off” on the mother’s couch and the mother agreed;
(d)At some point the father entered the mother’s bed and made amorous advances towards her which she rejected;
(e)The mother turned away from the father and while facing away from the father and dozing off, the mother became aware of odd “mouthing sounds”;
(f)The mother turned her head and saw X’s and the father’s tongues “momentarily interacting”, before the father shifted quickly, and when challenged by the mother about what he was doing, the father responded that he was not doing anything;
(g)X continued to poke his tongue in and out, giggling;
(h)The father told the mother that he may have been licking his lip because it was sore;
(i)The mother asked the father if he was still intoxicated or half asleep and kissed X while meaning to kiss her. The father denied the suggestion and told the mother she had a problem;
(j)The mother contends that she was shocked and her stomach cramped painfully;
(k)The father took all three children from the bedroom and prepared W’s school lunch (it is unclear at what point all three children came into the bedroom but I note W recalled an incident to Mr Ms E when the mother and father had an argument about the father having a cold sore and licking it. It is not clear whether this was the same incident);
(l)The mother immediately rang her mother because she did not know what to do (there is no evidence of what the mother said to her mother or what, if any, advice she was given. The mother’s mother was not a witness in the case);
(m)The father and the mother had a prior agreement that he would be taking X and Y to see his parents that day while the mother attended TAFE (it is common ground that at times during the relationship the father would care for the children while the mother was at TAFE);
(n)When the father and children were in the car the mother started screaming and the children in turn became upset and a neighbour intervened;
(o)The father left without the children;
(p)Soon after he left without the children, the father received a telephone call from the mother who told him that she had reported him for sexual abuse and pornography to the police and child safety authorities and that he would go to gaol;
(q)About two hours after the father had left the mother’s home, a series of text messages passed between the mother and the father including the following:
FATHER:i wasnt even paying much attention.. my lip is really bothering me
i still cdant stop licking it now
I’ll take a photo of it just incase u do take me to court
MOTHER:
August 11, 2014 at 10:36 AM U were licking prettt perfusely while he was kissing u, and why did u look so horrified when u opened your eyes? I thought u mustv thought it was me, obviously not and that means u were well aware of wat u were doing
Wat did u do to ur lip? Sure take a pic…send it to me
FATHER:i cant remember the whole event and how or what happened.. all i know is that i would never do that
MOTHER:I remember it well it happened two hours ago…wats wrong with u?
FATHER:I know I gave him a kiss but I don’t tremendous excatally why I was doing with my tongue…I’m sure I must have just been licking my cut lip
MOTHER:While u were kissing him?
FATHER:Maybe I don’t know but if I did it was completely accidental
I didnt pash him at worset case senario he may have kissed my tongue
(As per the original)
(r)When asked during cross-examination about the father’s explanation that he may have licked his lip because it was sore, and thereby accidently touched tongues with X, the mother dismissed it as the father’s “reasoning”;
(s)The mother agreed that she received a photo from the father and that it showed he did have an injury to his lip;
(t)On or about the same day i.e. 11 August 2014 the mother made a complaint to police that she had caught the father “tongue kissing” X and the mother was told that her accusations did not amount to child abuse;
(u)On or about 12 August 2014 the mother made a complaint to the Department that she had discovered the father in a “passionate embrace” with X;
(v)At some point around this time the mother also contacted various members of the father’s extended family who either dismissed the suggestion the father would act inappropriately with the children or were uninterested. However, one of the father’s sisters who is estranged from the family (it seems the father’s extended family and this sister had fallen out over an alleged assault by the sister of the paternal grandmother), alleged that she had been molested by her father i.e. the father’s father and an older brother;
(w)On 13 August 2014 the mother attended the police station and alleged that the father had been inappropriately kissing X. An appointment was made for the child to be interviewed by police. The mother later cancelled the appointment because she had moved to a refuge. A note in the police records states “[redacted] (but presumably the mother) wished for him to receive counselling despite no evidence that he had been offended against”;
(x)While it is not apparent if the mother disclosed to the Department or police and while not referred to in her trial affidavit, the mother agreed, during cross-examination, that about two months prior to the ‘kissing incident’ she had observed W kissing X with an open mouth with his tongue and on another occasion (again prior to the ‘kissing incident’) had observed, what she described as, W touching Y’s “vagina” over her clothes (W would have been about seven years of age and Y less than 12 months old at the time and in nappies).
Other behaviours and ‘disclosures’ prior to the 2015 order
On 14 August 2014 the mother contends she observed X placing a doll on the ground, climbing on top and tongue kissing the doll whilst wriggling around on top in a “sexual manner”.
The mother contends that on 11 September 2014, she had a conversation with X during which she said to X “no one is allowed to touch your penis or bum”. In response, X allegedly said to the mother “Daddy did. Daddy hurt my doodle. X cry waa waa but everyone see X cry so X happy again”.
On 4 October 2014, the mother alleges that X said to her “Daddy put his finger in my butt. X pooed Daddy’s finger with his pooey butt. X cry waa waa but everyone see X cry so X happy again”. As a result of this disclosure, the mother telephoned the police to ask when they would conduct a formal interview with X. Shortly after this disclosure, the mother alleges that X made a further disclosure on 17 October 2014 where he said “Daddy hurt my doodle he squeezed it very hard”.
The father spent time with the children on two occasions in October 2014 (it is not clear which two days) at the suggestion of the refuge staff where the mother was staying and both visits were supervised at M Contact Centre, City R.
While staying at the refuge, X and W attended counselling at S Centre (a sexual abuse counselling service) in City T.
The parties were interviewed by Ms D on 31 October 2014 and the mother told Ms D that she had been dating a long-time friend, Mr U in recent weeks and that he and the children were getting on “absolutely amazingly”. The mother gives no evidence about any relationship with Mr U in her trial affidavit and perhaps more importantly what contact he had with the children at this time.
On the day of the interview with Ms D (which took place at V Town in Region G), the mother told Ms D that she had attended a counselling session at N Centre at Suburb AA in Region G on the previous Friday to learn protective behaviours so that she could help protect the children. The mother told Mr D that W had had the opportunity to disclose abuse but he had not done so. Nevertheless, the mother said he would be commencing counselling at N Centre. X was assessed as too young to attend the service. The mother told Ms D that she could never tolerate the father spending unsupervised time with the children and insisted that W did not have a meaningful relationship with the father.
Ms D observed the father with all three children. Her description of the children both in anticipation of seeing the father and then spending time with him indicate a close and loving relationship. For example, she notes the following:
(a)W lit up when describing a past fishing trip with the father and X;
(b)W said he was missing the father “a little bit”, denied that any harm had come to him within the home environment and wished the family could reunite;
(c)X was very excited to hear that the father would soon arrive saying “my dad, is my dad coming”;
(d)X and Y immediately rushed to greet the father who scooped them up for a cuddle;
(e)W quickly warmed to the father who immediately engaged in play with all three children;
(f)All three children repeatedly sought to be picked up; and
(g)W looked for excuses to delay his departure and wrestled the father into a final hug.

Ms D opined as follows:
(a)The children were spending insufficient time with the father “to reflect the enduring relationship they have with him”;
(b)The father’s admitted and reported actions likely did nothing to placate the mother’s anxiety or insecurities;
(c)There is more information within the assessment to suggest that the father was as he appeared during the interview i.e. more commonly passive and casual rather than aggressive;
(d)Overall there appeared to be little to warrant any concern about the father or his present environment;
(e)The mother would benefit from therapeutic support to tolerate the idea of the children spending unsupervised time with the father given her present beliefs;
(f)W appears well aware of the mother’s viewpoint though his natural inclination indicated he was missing the father and was grateful for the opportunity to see him;
(g)It would be in the children’s best interests to spend regular time with the father;
(h)The mother had a tendency to downplay or minimise the father’s role in the children’s lives to that point – something that was inconsistent with the observations of the father and children together; and
(i)The mother could be assisted by seeking individual therapeutic support to help her explore both the current and past issues of trauma and stress, which in turn would greatly assist the children.
Ms D recommended that the children spend unsupervised time with the father but this did not occur until after the 2015 order.
On 2 December 2014, the mother took X to the police for a formal interview in relation to her allegations that the father “open mouth kisses [X] and… [X] had disclosed to her that the father has touched his penis and put his finger in his anus”. The recorded interview took just over 19 minutes and it is significant that police concluded that “[X] did not have the cognitive ability to form logical sentences or articulate any form of abuse during the [interview]. [X] was difficult to understand and did not respond to direct questioning”. At the conclusion of the interview, the police advised the mother that there was insufficient evidence to support the allegations and that the matter was currently “unfounded”.
The N Centre records note that the mother reported on 3 December 2014 that she had “walked in on her partner passionately kissing their 2 year old son” and reported previously witnessing him on several occasions with an erection while playing with the children. She said she had been staying at a women’s refuge up until three weeks ago. The mother also reported that the children had spoken to a counsellor at S Centre on three or four occasions. The records also note the mother’s statement that at no time has W disclosed any inappropriate interactions with the father.
An interim order was made on 4 February 2015 permitting the father to spend supervised time with the children but this did not commence until 12 July 2015.
On 20 March 2015 the mother reported to N Centre that she had since discovered child pornography and other pornography on the father’s email and had passed the information on to the police. The mother makes no such allegation in her trial affidavit. The father denies that he possessed child pornography. There is no evidence that the mother ever informed police that the father possessed child pornography. If the mother had in fact discovered the father in possession of child pornography it is inconceivable that the mother would not have informed police and that they would not have investigated the allegation.
On 26 May 2015 the mother again contacted police requesting that the investigation about her allegations regarding X be reviewed to ensure the matter had been appropriately dealt with by police. Police records indicate that the review confirmed the matter had been appropriately investigated.
As already noted the parties subsequently reached agreement on a ‘final’ parenting order on 7 December 2015 which provided for equal shared parental responsibility for all three children and for them to spend gradually increasing time with the father and holiday time.
The 2016 allegations
On 6 February 2016 the mother contends she complained to the father about returning Y wearing skirts but no underwear and reported her concerns to the Department. The mother contends that it was “really inappropriate for her to be not wearing underwear whilst being handled by [the father] in a child restraint seat”. The child was two and a half years old at the time.
The mother contends that on 12 March 2016 Y and X were sitting together on the couch and Y asked X to show her his penis because she wanted to suck on it. The mother asked Y why she said this and Y appeared to be embarrassed and said, “I do that to daddy and daddy said that it’s ok”. Y was two years and seven months old at the time and X was four years and three months. Curiously, despite the mother reporting the earlier concern she had on 6 February 2016 (about Y not wearing underwear), the mother does not state in her trial affidavit that this allegation was reported to authorities and when asked during cross-examination whether she had, the mother said she did not recall but thinks she did report it. There is no evidence she did so. When asked whether this allegation was ever included in any affidavit other than her trial affidavit the mother stated that she did not believe so and no evidence was produced to contradict her belief. The father contends it is a new allegation. I note that Departmental records report a similar allegation as having been reported on 15 March 2017 and having occurred on 9 March 2017. There is no explanation for the inconsistency in the dates.
It appears that there may have been some unsupervised visits between the children and the father in 2016 although that is far from clear. The mother says in her trial affidavit that there were unsupervised visits in 2016 but also contends that she “agreed to attend [the visits] … so I could at least supervise and protect the children from further harm” and also that she was “extremely concerned for the children’s safety being alone with him”. The mother further deposes in her trial affidavit that if she could please the father “he might stop his abuse of the children”. It is not entirely clear what abuse the mother is referring to but she goes on to depose that she was not successful in stopping the abuse which she contends continued and that the father “continued to display sexualised behaviour towards the children”. The mother does not particularise the alleged behaviour.
While not evidence directly relating to the mother’s allegations against the father, I note that in March, April, May and July 2016 school records indicate that W was acting out at school and that his behaviour involved both physical and verbal abuse of other students. W was about nine years of age at this time. Throughout the two year period 2015–2016 W was absent from school for 60 days.
In November 2016, the mother alleges that Y told her that “Daddy touched me on the vagina”. The mother contends she reported this to the Department. Y was just over three years of age. I note that when Ms E interviewed Y on 1 April 2020 (i.e. nearly four years after the alleged statement to the mother) she described her as “hard to follow because her voice is high and she speaks quickly. Her mother interpreted for her most of the time”. I find it difficult to accept that the child said what is alleged of her by the mother in November 2016.
On 4 December 2016, the mother agreed to attend a camping trip with the father at BB Town in Queensland. The mother alleges that during this camping trip, she saw the father with an erection whilst lying on a camping lounge and interacting with Y. The mother alleges that the father attempted to conceal the erection when she pointed towards it and that she and the children left straight away.
The 2017 allegations
Again, while not directly relevant to the allegations against the father, I note that W was absent from school from 3 February 2017 to 28 March 2017. The mother does not mention W’s concerning school behaviours (referred to at [87]) or his significant absences from school in her trial affidavit.
On 7 March 2017 the police were called to the mother’s home by the father who alleged that he had been attacked by the mother after she became intoxicated and called him a paedophile and threatened him with a knife. Police records corroborate that the mother was intoxicated and that the father had bruising and swelling to his right cheek and scratch marks to the left side of his neck. The mother denied the father’s version of events to police but agreed she had been physical with the father because he had attended her home uninvited. The police applied for a Protection Order on the father’s behalf.
Two days after this incident, the mother agrees she made a complaint to the Department alleging that Y had made comments about “motorboating” in the crotch area and that the father touched her on the vagina when she had underwear on. The mother further alleged that Y spoke about the father’s penis being “up and high”. During cross-examination the mother conceded that the term “motorboating” was her term for what she said was a movement of the head in a back and forth motion in the crotch area. The mother dismissed the suggestion that it might have been blowing on the child’s tummy and making a noise (presumably what was being suggested was something known colloquially as “blowing a raspberry”). There is no mention of these allegations in the mother’s trial affidavit.
On 19 March 2017, the mother alleges that Y and X were sitting together on the couch when X said to the mother – “Daddy kisses me on my bottom and on my penis” and that Y said – “And mum, daddy kisses me on the vagina”. The mother says that the children did not appear distressed and said it in a “very ‘matter of fact’ way”. The mother contends she raised this with the father who denied doing any such thing.
On 9 April 2017, the mother accompanied the father and the two youngest children on a camping trip to Location CC. The mother contends that she did so because she did not want to leave the father alone with the children. The mother does not provide any particulars of any alleged incident in her trial affidavit other than to refer to a camping trip on an unspecified date when she says the father became aroused after he placed X on his lap and she noticed he had an erection.
Police records dated 10 April 2017 note that the mother reported the father for a breach of the Protection Order for contacting her to arrange the camping trip. Further she told police that she and the father got into an argument when she accused him of inappropriate behaviour around the children and the father denied her allegations. The mother informed police that she told the father she had video footage of him driving in contravention of his disqualification and said she was going to give it to police when they arrived in DD Town. The police records note that the contact about the camping trip was in breach of the no contact order in the Protection Order but discounted it as it related to an agreement for the father to spend time with the children. It was also noted that upon reviewing the text messages, the contact about the camping trip appeared to be largely driven by the mother and it was conceded by the mother during cross-examination that – “I did organise the camping trip. I did encourage that”.
In a sworn statement to police dated 10 April 2017, the mother says that she and the two children slept together in a tent on the night of 9 April 2017 and the father slept in the car “due to the fact that [she] did not feel comfortable with [the father] sleeping with [her] and the children” because “during the night X sat on [the father’s] lap and this caused [the father] to get an erection”. The mother says that she confronted the father and he denied that he had an erection. The mother says she then placed her hand on the father’s erect penis “to substantiate” that he had an erection and an argument followed resulting in her sleeping in the tent with the children alone. She says that the father tried to come into the tent on several occasions but she would not let him.
The mother’s sworn statement to police goes on to allege that an argument occurred in the car on the way home from the camping trip, about her allegation that he had an erection because X was on his lap. The children were in the car. The mother says that the father again denied the allegation and “the mood became heated”. When they arrived at the township of DD Town the mother says she asked the father to have someone pick him up. When he got out of the car, the father took the mother’s mobile phone and when she tried to grab it, he “pushed” her in the face and lip area with a closed fist to the right side of her face causing pain. The father then crushed the mother’s mobile. The mother says she was terrified. I note that police records report that there were no facial injuries and no medical attention sought.
When the father was cross-examined about this incident, he agreed that the mother had accused him of having an erection when X was sitting on his lap and that he had denied the allegation. The father said he did not recall the mother placing her hand on his penis and did not think that happened. He denied assaulting the mother on 10 April 2017 but conceded he had destroyed her mobile phone after she told him she had footage of him driving while disqualified. The father agreed that he had confessed to destroying the mother’s mobile phone when he attended at the police station on that day and was charged with contravening the Protection Order.
During cross-examination (and contrary to the information contained in the police records), the mother denied that she told the father she had video footage of him driving while disqualified and gave a different account as follows:
I kind of just said that I had a recording and I would take it to the police in regards to his admission to that [i.e. having an erection] because he was then denying…
…
…I had said that I voice recorded our conversations and that I would take it to police. … I pulled over. He grabbed my phone and then left and exited the vehicle and I tried to get my phone back off him and he forcefully pushed me in the lip and busted it. And then crushed my phone. I was yelling and screaming for someone to help.
…
… He said that it was because I was there, that it was nothing to do with the child, like, X.
…
…he said that it wasn’t because of X, it was because of me being there and being present that he had an erection.
When it was brought to the mother’s attention that in her sworn statement to police she did not say that the father said he had an erection because she was there the mother responded as follows:
It was following in the drive and the argument on the way to – heading back.
… I had my phone in between myself and ... the centre console and said that
… Well, I didn’t actually have the recording of what he said.
The mother conceded that she should have told police that the father gave a reason for having an erection as alleged by her i.e. that he was aroused by her and not the child. The mother further conceded that her statement to police and her position throughout the trial implied that the father gets erections because he is aroused by his children. The mother then added that she was aware – “that people can have involuntary erections”. When challenged about her suggestion that she may have forgotten to include the father’s reason for having an erection, she said – “I had just been punched in the lip” (emphasis added). I note that this is inconsistent with her police statement and again observe that police records report that there were no injuries.
On 30 August 2017, the mother alleges that Y made a further ‘disclosure’. The mother alleges that the father was visiting the children at her home. They were all sitting in the lounge room and the father left the room and Y followed him. They were gone for a few minutes and when Y returned she was acting differently and buried her head into the couch. The mother asked her if she was alright and the child responded saying – “Daddy touched me on the vagina”. The mother said she confronted the father and told him to leave. The mother contends that the father heard what Y said and denied having done what she said. The mother also contends the father begged her not to go to the police.
The mother, the father and the children all went to the police at 8.10pm on 30 August 2017. According to police records they were informed that Y told W that the father had touched her inappropriately and the children then told the mother who confronted the father and he denied it. The police records note that – “Police observations detected no obvious signs of distress or emotional issues”. The mother was asked to take the child to another police station the following day.
On 31 August 2017 Y was interviewed by police. She had just turned four years of age. Y presented as a delightful and cheery little girl. In the recording, her speech was not always clear but she was aware that she was there to talk about “Daddy” and she said – “Daddy did nothing to me”. As there was some dispute about whether or not the child did say this, the recording was played during the trial and I note the relevant exchange to be as follows:
Police:            So tell me what you’ve come here to talk to me about today
Y:             Daddy
Police:            Daddy? Tell me everything about daddy and start at the beginning.
Y: Um Daddy um Daddy he did [inaudible]
Police:           Pardon
Y:                  Daddy [inaudible]
Police:           I didn’t hear you darling, Daddy? Can you use your big voice?
Y:                  Daddy um did nothing to me
Police:            Nothing to you? [Y shakes head] Okay
Y denied having seen the father the day before (even though she had) and said when she had seen him last she had hugged him because she loved him. She chatted about jumping on the father when she was in her mother’s bedroom. Y said that X was there too. She said that the mother does not let her or X or W have a sleepover at the father’s “because we … only have to do it when we are grown up”. Y said among other things that she heard her parents “talk fight” and that sometimes “daddy’s a bit mean to mummy” and that “they try to be friends but they can’t because daddy always fights with mummy” and “sometimes, mummy and daddy kiss each other … and hug”. The child said that if she was scared about something she would tell the mother or the father. At the conclusion of this interview, the mother was informed that no disclosures of abuse were made by Y and the following day she was informed that no further action would be taken.
According to the mother all three children were also interviewed by child safety officers from the Department and made no disclosures of abuse. The Department’s records include the following assessment:[16]
As the Departmental history indicates [the mother’s] fixed view that [the father] places the children at a risk of sexual abuse, it is probable [the mother] has frequent conversations with Y and her siblings about safe touching and protective behaviours. Y’s perception of her interactions and relationship with her father may be informed and influenced by [the mother’s] hypervigilance…. Of concern is that the children are exposed to possible ongoing conflict between the parents and also Y is subject to ongoing interviews and questioning relating to sexual abuse.
[16] During cross-examination it became apparent that the person being referred to in the Department’s records was the mother as the informant.
On 6 October 2017 the mother obtained a mental health plan referral for X and Y due to alleged (by the mother) ongoing struggles with the father.
The 2018 allegations

I reject the mother’s contention that W was touching Y’s “vagina” over her clothes in 2014. Y was a baby in nappies at the time, only about one year old and W was a little boy of maybe seven. It seems rather extraordinary that from this day on, the mother says she never left W alone with the other children (other than for short periods) for fear of what he may do. What a burden to place on W who could not help but be aware of his mother’s suspicions.
It is impossible to know for sure what W was doing with Y on or about 23 October 2019 which the mother described to a psychologist at EE Counselling as “interfering with Y” but such a description does not even reflect what the mother says she saw. Y was six at the time and W was 11 or 12. The mother does have a propensity, in my view, to jump to conclusions. It seems rather worrying that the mother is so quick to attribute a sexual connotation to something that may have involved innocent childhood exploration and which could have been nipped in the bud by an appropriate admonition to W and Y.
It is interesting to note that when Y was specifically asked about the incident with W during a therapy session (on the instructions of the mother), she said they were playing the “dark room game” and she had fallen on W. The psychologist described the incident to Y as the time her mother “had turned the light on, … had seen X sitting on his bed and Y and W doing something together that had made her angry and upset with them”. When X was asked about the same incident he said he did not remember anything like that happening. When the psychologist reported Y’s version to the mother, the mother expressed concern that “Y was covering up for W and/or W had intimidated Y to cover up what happened between them”. I find the mother’s response to what she was told by the psychologist to be far more concerning than the alleged incident she witnessed.
The alleged statements made by X and Y to the mother subsequent to the ‘kissing incident’ must be seen in the context of the mother’s propensity to view everything through a sinister prism and to the children’s long history of exposure to questioning by the mother and therapists with an almost unrelenting focus on them being victims of sexual abuse by their father.
I am doubtful about the reliability of statements attributed to the children by the mother. At times they were unlikely to have had the cognitive capacity to make the statements attributed to them and at other times they were unlikely to have had the capability to make the statements attributed to them without questioning by the mother. To complicate matters further, the mother then interpreted what she thought she heard.
The children have certainly witnessed arguments between the parents including arguments in which the mother has accused the father of sexual abuse. The children have come to understand that making certain statements about the father will garner attention from the mother.
I do not suggest that the mother is necessarily doing anything intentionally. As already observed, it is perhaps understandable that the mother would be hypervigilant given her own self-reported history. Indeed the father is willing to accept that the mother genuinely believes many of the things she alleges against him. However, even if not intentional, it seems the mother cannot help herself from acting in this way and I am in no doubt that the children are aware of the mother’s views about the father and that she considers the children are at risk from him.
After reviewing all of the evidence I conclude that the father does not pose an unacceptable risk of sexual harm to the children.
In relation to the allegations of physical abuse of the children by the father and/or Ms B, I observe that a number of the alleged complaints by the children seem somewhat trivial e.g. Y’s allegation that she was upset by the father pushing her back into her car seat. The more serious allegations e.g. being thrown to the ground and hitting metal, are unlikely to have occurred in the way alleged or at all. I find it significant that despite the mother’s numerous allegations of physical abuse there is no evidence that the children ever had an injury consistent with the alleged abuse. I conclude that the father does not pose an unacceptable risk of physical harm to the children.
I consider it likely that the children have been exposed to heated verbal fighting between the parents over many years both during their on again off again relationship and at changeovers and that this has caused them to be fearful. This is likely to have caused emotional harm to the children. The parents had a very dysfunctional relationship involving times when they were together in every sense of the word and times when they were involved in unrestrained fighting, at times under the influence of alcohol. There is independent corroboration for the father having suffered physical injury consistent with his allegation of being attacked by the mother. The children have been exposed to family violence but in my view the family violence was situational and unlikely to occur in the future given that the parents are no longer involved in a relationship. The father is now married to Ms B and has a child. Ms B describes the father as a calm and supportive person and denies any family violence in their relationship. I accept her evidence.
I consider it likely that the father and Ms B found the children defiant at times in the period after the mother became aware of the father’s serious relationship with Ms B in 2018. The tone of the mother’s text messages to the father at the time indicates her displeasure at the father including calling him a paedophile. I consider it likely that during this time the father and Ms B raised their voices and possibly even swore at the children. However, I consider it most unlikely that Ms B called the children “fucking bitches”. It is more likely that the children called her a “bitch”. Whatever emotional harm the children suffered at this time from the father and Ms B I find it situational and exacerbated by the mother’s negative views of the father and Ms B to which the children were likely exposed. I accept that the father and Ms B are committed to obtaining whatever professional advice and assistance they require to respond appropriately to the children in future and note the father has already retained a therapist and undertaken an intake session.
I have the advantage of being able to consider all of the evidence from all sources and I conclude that the father does not pose an unacceptable risk of future harm to the children.
DOES THE MOTHER HAVE THE CAPACITY TO FACILITATE A RELATIONSHIP BETWEEN THE FATHER AND CHILDREN?
This matter has a very long history. There have been numerous interruptions in the children’s relationship with the father. It is argued on behalf of the mother that despite her views of the father she did facilitate the father’s time with the children from the 2015 order and has continued to do so up to the current time. I discount the mother’s preparedness to facilitate the father’s relationship with the children up to 2018 because the parents were often in a relationship during this time, so it suited the mother to accommodate the father at times. However, throughout the entire time there have been accusations by the mother which interrupted the children’s relationship with the father and the children were caught in the middle of the dispute.
While the mother did at times facilitate the relationship between the father and the children, I find that her commitment to that relationship was more often only in a practical sense e.g. driving X and Y to a changeover. The mother has never supported the father’s relationship with W (despite consenting to the 2015 order) and tragically for W he has lost the only father he has ever known. W was acutely aware of the mother’s opposition to him having a relationship with the father as early as October 2014 and, in my view, it eventually became too much for him to maintain the relationship with the father in the face of the mother’s opposition.
As already observed, the mother simply refuses to accept any evidence that does not fit with her views of the father. She is only prepared to accept what the children say if it fits with her views and rejects any evidence that is contrary to it. She has made it impossible for the children to maintain a meaningful relationship with the father, as demonstrated by the recent refusal by X and Y to spend time with the father. This is despite the independent evidence indicating they enjoyed their time with the father in the main.
While it is true that the mother has taken the children to the contact centre and turned on the video for them to communicate with the father during the week, her commitment to the relationship is superficial. In reality, how could the mother’s commitment be anything but superficial when she regards the father as an incestuous paedophile?
The more important question is whether the mother, in light of my findings that the father does not present an unacceptable risk of harm, is likely to facilitate the relationship between X and Y and the father in the future.
There is no coming back from the mother’s belief that the father is an incestuous paedophile. The mother’s demeanour throughout the trial was one of great concern. She looked and sounded so overwhelmed by the enormity of her conviction that the children have been serially abused by the father that she cannot contemplate that she may be wrong. That is perhaps understandable given her own experience as a self-reported victim of childhood sexual abuse but it does not give any cause for optimism that the mother would cope with the children spending time with the father. At the thought of it, she cried. The proceedings had to be stood down to enable her to compose herself. She had a look of pleading throughout the trial and a look of disbelief when discussions occurred during submissions about the prospect of the children living with the father or spending unsupervised time with them. I nevertheless take into account that my observations of the mother occurred in a courtroom setting which was no doubt stressful for her.
However, in view of the mother’s response that she would feel “terrified” at the prospect of the children spending unsupervised time with the father, I cannot accept that the mother would facilitate the relationship in the future.
Although the mother’s counsel did a valiant job on her behalf, there is simply no real prospect of the children being able to have a relationship with their father if they remain with the mother.
DOES THE MOTHER POSE AN UNACCEPTABLE RISK OF HARM TO THE CHILDREN BY REINFORCING AND/OR VALIDATING UNFOUNDED ALLEGATIONS OF SEXUAL HARM FROM THE FATHER AND/OR FAILING TO PROTECT Y FROM POSSIBLE SEXUAL HARM FROM HER
HALF-BROTHER W?
During submissions there was some discussion about the children’s awareness of the mother’s views, it being suggested on behalf of the mother, that there was little or no evidence of the mother directly denigrating the father in front of the children and no expert evidence that the mother’s body language alone would be sufficient for the children to be aware of her views.
I reject the submission that the children would not be aware of the mother’s views that they are at risk from the father. As early as 2015 Ms D opined that W was aware of the mother’s opposition to him having a relationship with the father and I accept her evidence. The child was clearly conflicted even at that time. X and Y were also present during the heated argument in the car after the camping trip in which the mother alleged the father was sexually aroused by X. Y reported to Ms E this year, that her mother was the only one that could keep her safe. I agree with Ms E’s opinion that it would be “almost unavoidable” for the mother’s reaction to the father and the prospect of him spending time with the children coming to the attention of the children, even via subtle messages given by her body language.
The children have also been exposed to years of therapy on the assumption they are victims of abuse from the father. The mother views everything through a prism of abuse and interprets what the children say as meaning only one thing. It cannot seriously be suggested that the children would be oblivious to the mother’s extreme views of the father.
If X and Y remain with the mother they will grow up believing their father abused them in the most heinous of ways and they will not have a relationship with their father. I accept Ms E’s opinion that the children’s relationship with an attachment figure (such as the father) impacts on their own future relationships and the quality of that relationship affects their later mental and physical health. It is for those reasons that Ms E agreed that it was important for the significant attachment relationship with the father to be re-established. While I accept that in a perfect world, the re-establishment of that relationship should preferably be re-established in a therapeutic and gradual setting (as suggested by Ms E), that is simply not a realistic option in this case.
It is my assessment that the mother poses an unacceptable risk of emotional and psychological harm to all three children. But for W’s age and stated views, and the father’s understandable acceptance of those views, I would order a change in living arrangements for W too. That may be a matter for the Department to consider, as I propose to order that a copy of these Reasons be provided to them.
It is difficult to assess whether or not W poses any realistic threat of sexual harm to Y. Certainly, the mother believes he does and has taken steps to have him separated from her and has engaged him in counselling. The mother’s belief however is likely to be skewed given her propensity to jump to conclusions and attribute a sinister connotation to something that may have been entirely innocent or at least within the bounds of normal childhood behaviour. In my view, it would be helpful for some independent assessment of W to take place with the assistance of these Reasons being available to provide a broader perspective on issues affecting his life. Again this is a matter I respectfully ask the Department consider following up.
HAS THE MOTHER OBTAINED APPROPRIATE SUPPORTS FOR THE CHILDREN IN LIGHT OF THE EVIDENCE RELATING TO THE BEHAVIOURAL ISSUES EXPERIENCED BY THE CHILD W?
It is difficult to know if the mother has obtained appropriate supports for the children in light of the behavioural issues experienced by W. The mother’s focus has almost entirely been on blaming the father for any problems experienced by any of the children. I am not confident that the reasons for W’s problems have been appropriately identified or addressed.
I have grave concern for the welfare of W. The mother was not at all forthcoming in her trial affidavit about the serious problems W has had with his behaviour and absenteeism from school. I fear the mother may have jumped to conclusions about W from an early age and that he may well be bearing the burden of the mother’s beliefs. It is of course possible that W is so troubled that he has acted inappropriately towards his younger siblings but I make no finding to that effect. The school records depict a boy spiralling out of control and his concerning behaviours which now include a physical assault on the mother.
W had a father figure who loved him and whom he loved. He has lost that important relationship. In my view, the mother underestimates the significance of that loss at her peril.
While I understand the father’s reticence to press for an order that includes W given his age, W should be informed that the father would be only too delighted to rekindle that relationship and even have him live with him if W so chooses.
WHAT PARENTING ORDER IS PROPER?
I accept that changing X and Y’s living arrangements would be an extreme outcome and one that the children would find traumatic.
The father certainly could have done more to prepare himself for such a drastic change for the children. It was suggested to him as early as 6 April 2020 that he undertake therapy with a psychologist to work on “increasing his communication and problem solving skills”. To be fair to the father, he contends he did not do so because the recommendation was not included in the subsequent Court order and he felt it would be premature to do so before he knew the outcome of his application. Certainly, by the time the matter returned to Court after the short adjournment during the trial, the father had retained a psychologist with the intention of seeking advice on how best to assist the children with a transition to his home if that were to occur. I accept that the father is motivated to seek out advice and assistance and that he has the full support of his wife, Ms B.
The father accepts that a change in X and Y’s living arrangements will break their hearts but nevertheless feels it has to be done so that they do not grow up believing that their father has molested them and so that they can have a normal relationship with both parents. The father frankly acknowledges that the family would likely experience a couple of very stressful months but he says he will seek professional guidance and contends that as he has a good relationship with the maternal grandmother he is confident she would also assist. There is of course no evidence from the maternal grandmother so I can place little weight on the father’s expectations in this regard.
In her interview with Ms E in March 2021, Ms B expressed her willingness to stop at one child of her own and to take on a ready-made family with X and Y. She spoke of a very close relationship between the father, herself and her mother. I accept that both the father and Ms B will do whatever is needed and engage whatever professional services are recommended to assist the children.
Changing X and Y’s primary living arrangements will not only remove them from their primary attachment figure but also their half-brother W. Sibling relationships are extremely important and it will be crucial that the children do not lose that relationship. It is of course troubling that there is some evidence the younger children have been targeted by W. The father will need to take all necessary steps to reach out to W and ensure that the children maintain their sibling relationship. I want to stress that while W clearly has some concerning behavioural issues, X and Y are not being removed from the mother’s care because of him. The removal is necessary to protect X and Y from the unacceptable risk of future harm from the mother.
The change in living arrangements will also involve a change of schools for the children but it seems the mother may have been proposing a change of school in any event. The children have experienced significant absences from school including this year but despite this they appear to be performing satisfactorily academically, particularly Y. It may be preferable for the children to see out the school year at their current school, but that will be a matter for the father to determine in consultation with the children, the schools and the children’s therapist.
Despite the risk posed by the mother, the children need both parents in their lives. I can only urge the mother to obtain therapy from a suitably qualified psychologist to help her come to terms with my determination and the reasons for it.
As already noted, Ms E opined that it was desirable for the children to have a relationship with the father and suggested this may be achieved by means of therapeutic intervention rather that extreme measure such as a reversal of residence. In her view, the mother’s proposal to cease all communication between the children and the father is “unreasonable” and the father’s proposal to remove the children from the mother is “draconian and bound to cause the children great harm”. With due respect to Ms E, her recommendation that the family commence “restorative intervention” with a practitioner “who can be the judge of when [Y] and X can usefully have joint sessions with their father” is not something that the Court can contemplate as it abdicates the responsibility of decision making to a third party, which is not an option.[17] Ms E also suggested the use of a “parenting co-ordinator”, whom she said were generally social scientists or sometimes lawyers who “assist family members to overcome obstacles to healthy relationships”. I am afraid, even if Ms E’s suggestions were suitable for this family, these measures are too little, too late, and in my view have no prospect of success. I note that the ICL does not adopt Ms E’s suggestions and recommends a change in living arrangements for X and Y.
[17] Re David (1997) FLC 92-776 at 84,576.

The father proposes that there be a moratorium of three months on the mother spending time with or communicating with the children to give the children time to settle with the father and enable the mother to come to terms with the change. I further note Ms E’s opinion that in such a situation i.e. a change in living arrangements, the mother would need “a lot of support … to engage with the children under those circumstances in a way that was supportive of the children”. I agree. Ms E was understandably reticent about a moratorium of three months which she described as a “very long time”. I accept that nominating a particular period is somewhat arbitrary but I consider that three months is appropriate in the circumstances of this particular case. The mother will need to find an appropriate therapist and engage with that person. Changing her thought processes and reactions is unlikely to be achieved overnight.
I intend to largely adopt the father’s proposed order but I intend to extend the period of supervision of the mother’s time after the moratorium to 12 months. I do not consider the father’s proposal of three months of supervision sufficient. The mother will need a lot of support before she is likely to be able to engage in a supportive way with the children. If the parents agree to decrease that period, that is a matter for them and I am confident that agreement would not be reached unless the father is satisfied that the children were not at an unacceptable risk of harm from the mother. I also consider that any therapy engaged in by the mother will have to address many issues, not just those about the father, so sufficient time needs to be factored in to give the mother the best chance of addressing those issues. In the meantime, the children will be able to spend time with the mother with the safety of supervision.
After 12 months of supervision, I am satisfied that the children’s relationship with the father will be sufficiently strong to withstand any challenges that unsupervised time with the mother may still present.
This is a case where there are reasonable grounds to believe that the children have been exposed to family violence. In those circumstances, the presumption in favour of equal shared parental responsibility does not apply. In view of the mother’s current views about the father, it is understandable that she will be upset about the change in living arrangements for X and Y, I do not consider it likely that the parents could make joint decisions about major

long-term issues that affect the children. Accordingly the father will have sole parental responsibility.
Given my concerns about W, I consider the mother would benefit from some intervention from the Department in the way of family support and accordingly I propose to refer these Reasons to the Department for their consideration.

I certify that the preceding two hundred and fifteen (215) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 2 November 2021

File number(s):	BRC 10708 of 2014
Judgment of:	CAREW J
Date of judgment:	2 November 2021
Catchwords:	FAMILY LAW – CHILDREN – Unacceptable risk of sexual, physical and emotional harm – Where the mother alleges that the father has sexually interfered with the children – Where the mother alleges the father has assaulted the children – Where the mother alleges that the father has committed serious acts of family violence and presents an ongoing unacceptable risk of future harm – Where the father denies that he poses any risk of harm to the children in the future – Where the father specifically denies ever behaving in a sexually inappropriate way with any of the children and/or physically harming the children – Where the mother does not address historic evidentiary matters yet contends that the evidence is relevant to her current belief – Where the mother appears to view events and statements through a prism of sexual abuse – Where the mother dismisses the inconsistencies between the children’s statements to her and independent observations of the children’s interaction with the father – Where it is found that the father does not pose an unacceptable risk of future harm to the children – Where it is found that the mother poses an unacceptable risk of emotional and psychological harm to the children. FAMILY LAW – CHILDREN – What parenting order is proper – Where it is found a change of residence is necessary to protect the children from the unacceptable risk of future harm from the mother – Where the change of residence removes the children from their half-brother – Where there is to be an initial moratorium on the mother spending time with or communicating with the children and then a gradual increase to unsupervised time – Where the presumption in favour of equal shared parental responsibility does not apply.
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	Banks & Banks (2015) FLC 93-637 Bant & Clayton (2019) FLC 93-924 Briginshaw v Briginshaw (1938) 60 CLR 336 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92-655 Re David (1997) FLC 92-776
Division:	Division 1 First Instance
Number of paragraphs:	215
Counsel for the Applicant:	Mr McGregor
Solicitor for the Applicant:	Life Law Solutions
Counsel for the Respondent:	Mr Amerena
Solicitor for the Respondent:	Shanahan Family Law
Counsel for the Independent Children’s Lawyer:	Dr Sayers
Solicitor for the Independent Children’s Lawyer:	Pippa Colman & Associates Law
Date of hearing:	30 August – 1 September, 9 September, 16 September 2021
Place:	Brisbane

BRC 10708 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SANGSTER Applicant
AND:	MS TAILOR Respondent
INDEPENDENT CHILDREN'S LAWYER Other

ORDER MADE BY:	CAREW J
DATE OF ORDER:	2 NOVEMBER 2021