Simmons & Simmons - [2022] FedCFamC1F 811

Federal Circuit and Family Court of Australia
(DIVISION 1)
Simmons & Simmons [2022] FedCFamC1F 811

File number(s): PAC 5215 of 2019

Judgment of: HANNAM J

Date of judgment: 21 October 2022

Catchwords: FAMILY LAW - Final parenting - Where mother concerned about the possibility that father sexually abused one of the children based on child’s disclosures and sexualised conduct - Where mother also alleges father perpetrated family violence - Where Court does not consider it necessary to resolve the parties’ dispute concerning family violence or to make a finding in relation to this matter as sought by the mother - Where several issues identified with the development of eldest child’s disclosures, their nature and the context in which they were made over time - Where expert expressed concern about the mother’s ability to set appropriate boundaries for the children in her home - Where proximal influences such as the children’s exposure to inappropriate media in mother’s home most likely contributes to the children’s ongoing sexualised behaviour - Where Court is not satisfied that father abused the children or any of them sexually or in any other manner in the past - Where Court attaches weight to expert opinion that there are more psychological risks to the children remaining in the mother’s care than with the father - Where questions are raised about mother’s attitude towards the responsibilities of parenthood due to her opposition to the children having a relationship with the father - Where parents demonstrate a clear incapacity to make decisions for the children jointly - Orders made in accordance with the father’s proposal that the father hold sole parental responsibility for the children and that the children live with the him and spend time with the mother initially supervised and gradually increasing to unsupervised alternate weekends.

Legislation: Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC

Cases cited:
Godfrey & Sanders [2007] FamCA 102

Goode & Goode (2006) FLC 93-286

Isles & Nelissen [2022] FedCFamC1A 97

M & M (1988) 166 CLR 69

Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Division: Division 1 First Instance

Number of paragraphs: 511

Date of hearing: 7, 9-10, 28-30 March and 14 April 2022

Place: Parramatta

Counsel for the Applicant: Mr Grew

Solicitor for the Applicant: Coleman Greig Lawyers

Counsel for the First Respondent: Ms Ingenito

Solicitor for the First Respondent: Gilbert & Partners

Solicitor for the Second Respondent: Litigant in person

Counsel for the Independent Children's Lawyer: Mr Maddox

Solicitor for the Independent Children's Lawyer: John Spence & Associates
ORDERS

PAC 5215 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SIMMONS

Applicant

AND:
MS SIMMONS

First Respondent

MS MEOLI

Second Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

21 OCTOBER 2022

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

Parental responsibility
2.The father has sole parental responsibility for the children:
(a)X born in 2012 (“X”);
(b)Y born in 2014 (“Y”); and
(c)W born in 2014 (“W”)

(collectively “the children”).

Live-with arrangements
3.The children are to live with the father and for this purpose:
(a)For a period of two (2) months following the date of these Orders, the children are to live with the father and Ms Meoli (“the paternal grandmother”) in the E region;
(b)From the expiration of the time in the immediately preceding Order, the children are to live with the father without condition.

Spend time with arrangements
4.For a period of three (3) months from the date of these orders, the children are to spend time with the mother each alternate Saturday for a period of three (3) hours commencing on the first Saturday available, or continuing the same pattern of Saturday time as established by Orders made on 30 March 2022.
5.The children’s time with the mother pursuant to Order (4) above is to be supervised by B Services or another private supervision agency or contact centre available and agreed between the parents in writing and for this purpose each parent is to:
(a)Contact the supervision agency, if not already done, and arrange an appointment for an intake assessment if applicable;
(b)Attend the assessment;
(c)Comply with all reasonable rules of the supervision agency; and
(d)Comply with all reasonable requests or directions of the staff of the supervision agency.

6.The mother is solely responsible for the payment of the costs of supervision.
7.In the event the children are unable to spend time with the mother supervised by an agency or contact centre as contemplated by Order (5) above because an agency or centre is not available or the mother is unable to meet the cost of such time and provides evidence of the same, then the children are to spend time with the mother supervised by a person as agreed between the mother, father and paternal grandmother in writing.
8.While the children are spending supervised time with the mother pursuant to these Orders, the mother is at liberty to:
(a)Bring the children’s maternal half-sibling F to any scheduled supervised time; and
(b)Send videos and photos of F only to the children not more than once per week by way of sending them to the paternal grandmother or father. If the paternal grandmother and/or father receive such videos or photos from the mother they are to show them to the children as soon as practicable after receipt.

9.While the children are spending supervised time with the mother pursuant to these Orders, the mother is restrained from:
(a)Contacting or approaching the children by any means, including via social media or in person, and allowing or facilitating any third party, including the maternal grandparents or either of them, contacting or approaching the children other than in compliance with these Orders;
(b)Approaching the children’s residence or school and allowing or facilitating any third party, including the maternal grandparents or either of them, approaching the children’s residence or school other than in compliance with these Orders; and
(c)Allowing the children to approach or contact her by any means other than in compliance with these Orders and in the event the children attempt to approach or contact her, the mother must immediately either walk away from the children or otherwise end the contact immediately.

10.Following the conclusion of the period stipulated in Order (4) above, the children are to spend time with the mother as agreed between the parents in writing but failing agreement as follows:
(a)For a period of two (2) months, from 10.00am to 4.00pm each alternate Saturday;
(b)Following the conclusion of the period in the immediately preceding Order, for a further two months from 10.00am Saturday to 4.00pm Sunday each alternate weekend;
(c)Following the conclusion of the period in the immediately preceding Order, as follows:
(i)During school terms from the conclusion of school (or 3.30pm if a non-school day) until the following Monday at the commencement of school (or 9.00am if a non-school day) each alternate weekend commencing the first Friday of each term.
(ii)During school holidays, for the first half of each school holiday period which commences in an odd-numbered year and the second half of each school holiday period which commences in an even-numbered year. For the purposes of this Order the following applies:
A.School holiday periods are defined to commence at the conclusion of school on the last day of the relevant school term gazetted for New South Wales and to conclude at the commencement of school on the first day of the next school term gazetted for New South Wales.
B.Changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period.
C.In the event there are two consecutive “mid-point days”, changeover is to occur at 12.00 noon on the first of those two “mid-point days”.

(iii)Each year on Mother’s Day if the children would not otherwise be spending time with the mother pursuant to these orders on such day from 10.00am to 5.00pm.
(iv)On each child’s birthday each year:
A.If such day falls on a school day when the children would not otherwise be spending time with the mother pursuant to these Orders, then from the conclusion of school on such day until 6.30pm on such day.
B.If such day falls on a non-school day when the children would not otherwise be spending time with the mother pursuant to these Orders, then from 12.00noon until 6.30pm on such day.

(v)In 2022 and each alternate year thereafter, from 2.00pm Christmas Day until 2.00pm on Boxing Day.
(vi)In 2023 and each alternate year thereafter from 12.00noon Christmas Eve until 2.00pm on Christmas Day.
(vii)Each alternate year from 12.00noon on Easter Saturday until 12.00noon on Easter Monday commencing 2023.
(viii)At any other time as agreed between the parents in writing.

11.If not already living or spending time with the father pursuant to these Orders, the children’s time with the mother is suspended and the children are to spend time with the father:
(a)Each year during all school holidays for the first half each school holiday period which commences in an even-numbered year and the second half of each school holiday period which commences in an odd-numbered year. For the purposes of this Order the following applies:
(i)School holiday periods are defined to commence at the conclusion of school on the last day of the relevant school term gazetted for New South Wales and to conclude at the commencement of school on the first day of the next school term gazetted for New South Wales.
(ii)Changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period.
(iii)In the event there are two consecutive “mid-point days”, changeover is to occur at 12.00 noon on the first of those two “mid-point days”.

(b)Each year on Father’s Day from 10.00am to 5.00pm.
(c)On each child’s birthday each year:
(i)If such day falls on a school day when the children would not otherwise be spending time with the father pursuant to these Orders, then from the conclusion of school on such day until 6.30pm on such day.
(ii)If such days falls on a non-school day when the children would not otherwise be spending time with the father pursuant to these Orders, then from 12.00 noon until 6.30pm on such day.

(d)In 2023 and each alternate year thereafter, from 2.00pm Christmas Day until 2.00pm on Boxing Day.
(e)In 2024 and each alternate year thereafter, from 12.00noon Christmas Eve until 2.00pm on Christmas Day.
(f)Each alternate year from 12.00noon on Easter Saturday until 12.00noon on Easter Monday commencing 2024.
(g)At any other time as agreed between the parents in writing.

Changeover
12.All changeovers which take place during ordinary school hours shall occur at the children’s schools.
13.All other changeovers are to occur at the McDonalds Suburb G at Q Street, Suburb H unless otherwise agreed between the parents in writing.

Communication
14.Each parent shall inform the other in writing of any change to his or her residential address not less than fourteen (14) days prior to such change occurring, and of any change to his or her contact telephone number not less than fourteen (14) days of such change occurring.
15.From the time the children commence spending unsupervised time with the mother pursuant to these Orders, the children shall have phone or video communication with each parent when not spending time with that parent, two nights a week as agreed between the parents in writing and in default of agreement from 6.00pm to 6.30pm each Tuesday and Friday.
(a)For the purposes of this Order, the parent who does not have the care of the children is to call the other parent’s nominated phone for the purposes of initiating contact and the other parent is to ensure that their phone is turned on and charged and the children are available to take the call.

Health and medical care
16.Should a medical emergency arise in relation to any of the children whilst in the care of one parent, then that parent shall notify the other parent as soon as practicable of the time and nature of such medical emergency, the name and address of any treating practitioners and/or hospital, and the location of the children.
17.Each parent is to inform the other of any major medical issues involving any of the children within twenty-four (24) hours of becoming aware, in particular, of any medical attention or treatment.
18.The father is to inform the mother of any specialist medical appointments made for any of the children upon the making of such appointment and each parent is at liberty to attend such specialist medical appointment.
19.The children continue to attend upon Dr J, or any other therapist as recommended by Dr J, for therapy and for this purpose:
(a)At times as may be required, each parent is to attend their general practitioner and obtain a referral under a mental health care plan for each child to facilitate therapy continuing;
(b)The children are to attend any appointment as scheduled by Dr J;
(c)Each parent is to make and attend individual appointments with Dr J as may be requested by Dr J and each parent is to be solely responsible for the costs of any appointment made;
(d)The father is to be responsible for any excess costs associated with the children attending therapy;
(e)The father is permitted to provide Dr J with all expert reports of Ms K released during the proceedings, a copy of any Judgments delivered in the proceedings and final orders made and any other court document or supervision report or other document as may be requested by Dr J in writing provided always that the mother is copied to that correspondence.

Education and schooling
20.As far as is necessary, each parent shall give authority to any school that the children may attend from time to time for the other parent to obtain a copy of the school reports, notes and newsletters ordinarily provided to parents from the children’s school at the parent’s cost,
21.In the event that the school the children attend will not issue a duplicate set of school reports, such that each parent receives a copy, the parent who receives the report shall, within five (5) days, provide a copy to the other parent at the cost of the recipient parent.
22.Each parent shall ensure that the school is provided with a sealed copy of these Orders.

Injunctions and other orders
23.Each of the parents, and anyone on their behalf is restrained from denigrating the other parent, or any member of the other parent’s family or household, to or within the hearing of the children, and each parent shall use their best endeavours to remove the children from any other person that is denigrating the other parent or a member of their family or household.
24.The parties are restrained from discussing these proceedings with the children, or in the presence of or hearing of the children.
25.The mother is restrained from:
(a)Questioning, interrogating or otherwise speaking to the children about sexualised behaviour, incidents of alleged sexual abuse or any allegations of sexual abuse or any other related matters or allowing or facilitating any third party, including the maternal grandparents or either of them, to question, interrogate or otherwise speak to the children about these topics with the exception of a police officer, caseworker or other employee of the Department of Communities and Justice or Dr J;
(b)Attending on the Police or Department of Communities and Justice or any medical practitioner or other person with or without the children for the purposes of making a report about sexual abuse or sexual behaviour of the children without leave of the Court or at the written request of the Police, caseworker or other employee of the Department of Communities and Justice or Dr J.

26.The Independent Children’s Lawyer is to meet with the children in person, as a group and individually as soon as practicable following the making of these Orders, to explain these Orders to them.

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 Simmons & Simmons has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
introduction

The parents engaged in this dispute ("the mother" and "the father" or collectively “the parents”) cannot agree about the future arrangements for their three daughters (“the children”) following the breakdown of their nine year relationship.
After separation in late 2015 the children lived with the mother and initially spent time with the father as agreed between the parents. From early 2016 the mother was concerned about the possibility that the father had sexually abused one of the children and this concern has framed the way in which she has approached the children’s time with him ever since.
In October 2019 the father commenced these proceedings seeking orders that the children continue to live with the mother and spend regular time with him. At that stage, despite all allegations against the father being unsubstantiated, the mother was unilaterally withholding the children from him and sought orders that they live with her and spend no time with him.
In the course of the final hearing in March 2022, some evidence that had recently come to light caused the expert to recommend an immediate change to the children’s living arrangements. The expert recommended that the father’s mother (“the paternal grandmother”) assume primary care for the children. The paternal grandmother was then joined as a party to the proceedings and interim orders were made that the children live with her and spend defined supervised time with each of the parents.
The father and paternal grandmother each contend that the mother poses such a risk of harm to the children that it is in the children’s best interests for orders to be made that they live with the father and that he hold sole parental responsibility for them. Pursuant to his proposal, the father will return to live in his home with the children (which he had vacated so that the paternal grandmother could care for the children under the interim orders) and the paternal grandmother will remain living in the home for a further two months. The father proposes that the children’s time with the mother continue to be supervised initially and then become unsupervised and gradually increase to reach an endpoint of each alternate weekend during the school term, half of the school holidays and special occasions.

The mother’s proposal depends upon whether the Court makes a finding as she seeks that the father has sexually abused the eldest child. In the event that such a finding is made, the mother proposes that the children live with her and that she have sole parental responsibility for them. Although her proposal in the event that such a finding is made is for the younger two children to spend supervised time with the father, the exact terms of the orders sought by her are unclear as she does not particularise the regularity or duration of that time.
In the event that the Court does not make a finding that the father has sexually abused the eldest child or that he poses an unacceptable risk of harm to the children, the mother proposes that the parents equally share parental responsibility for the children and that the children live with each parent for alternating weekly block periods of seven days and on special occasions.
The proposal of the Independent Children’s Lawyer (“ICL”) is broadly consistent with the father’s proposal.
The question for me to determine is which of the alternate proposed arrangements is proper having regard to the best interests of the children as the paramount consideration.
background
The mother and father both aged in their thirties commenced a relationship in 2006 and married in 2010.
The first of the parents’ three daughters (“the eldest child”), was born in 2012 and is now 10 years old. Both parents agree that from a young age this child exhibited some concerning behaviours, though the father asserts this child’s behavioural difficulties are not as extreme or extensive as the mother contends.
The parents’ daughters, now aged seven (“the younger child Y” and “the younger child W”, collectively “the younger children”), were born in 2014.
The mother was the primary carer for the children since their births until the current interim orders were made in March 2022.
The mother alleges that throughout the parents’ relationship the father perpetrated family violence towards her to which the children were sometimes exposed and seeks a finding to this effect. The father denies these allegations and it is a matter to which I will return.
By 2015, the parents’ relationship had significantly deteriorated and they separated in November of that year.
Following separation, the father moved to live with his parents (“the paternal grandparents”) while the children remained living with the mother in the family home. The children initially spent time with the father as agreed between the parents including for about six hours each weekend from around late 2015 when he moved into a new home near the mother.
The children’s time with the father then ceased in early 2016 when it is alleged by the mother that the eldest child first disclosed that she had been sexually abused by him.
The mother’s case about the risk of harm posed by the father rests on disclosures said to have been made by the eldest child and sexualised conduct observed by the mother which are discussed later in these Reasons. It suffices to say at this stage that following this child’s initial disclosure the mother presented the child at hospital for various medical examinations and made a number of reports to the Department of Family and Community Services (as it was then known) (“the Department”). The children spent no time with their father for a period of about six weeks while these reports were investigated.
When interviewed by JCPRP officers[1] in early 2016 in the course of the initial investigation (“the first investigation”), the eldest child (then aged almost four) made no disclosures of abuse by the father. The JCPRP team did not substantiate the risk of sexual harm in relation to the child, but a risk of psychological harm was substantiated against the mother arising from her ongoing reporting of sexual abuse which had resulted in this child undergoing repeated medical examinations.
[1] JCPRP-The Joint Child Protection Response Program. The JCPRP team is made up of officers from police and the Departments of Communities and Justice and Health and investigates allegations of serious child abuse.
Following completion of the first investigation into the abuse allegations agreement was reached in early 2016 between the parents that the children would commence spending overnight time with the father in his household each fortnight.
In mid-2016, the Department received further reports concerning harm to the eldest child allegedly arising from sexual and indecent acts. These notifications were not referred to any agency for further investigation as they were considered by the Department to duplicate previous complaints.
In mid-July 2016 the mother presented the eldest child to hospital again after reporting to police that the child had repeated her earlier disclosure of sexual abuse.
Sometime between mid to late 2016 the father began a new relationship.
The mother also re-partnered at some stage following separation but this relationship had come to an end well prior to the final hearing and no evidence was adduced in the proceedings in relation to it.
In late 2016 the parents agreed to a parenting plan (“the 2016 parenting plan”) providing that the children spend time with the father each alternate weekend from Friday to Sunday, for dinner on a weeknight, on special occasions and for one week during the Christmas school holidays.
It appears that for the next two years the 2016 parenting plan was followed without significant incident, although it is the mother’s case that there were many occasions on which she observed the children display sexualised behaviour that she denies arose from anything untoward occurring in her own household. Despite her concerns about the children in this regard, the mother continued to make the children available to spend time with the father in accordance with the parenting plan.
Between late 2016 and 2018 eight further reports were made to the Department concerning sexual abuse and risk of sexual harm to the children, but only two proceeded to secondary assessment. Safety assessments were completed in relation to these two reports but no risk or harm issues were ultimately found.
Throughout 2018 it became apparent that the eldest child had become increasingly aggressive and defiant in both home and school settings. In mid-2018 this child began weekly appointments with a psychologist. In the same month the father, his partner at the time (“the father’s former partner”) and his former partner’s two teenage children began living together in their own premises.
In the course of her therapy sessions with the psychologist, the eldest child made disclosures of sexual and physical abuse by the father. These disclosures became the subject of further investigation by JCPRP in late 2018 (“the second investigation”).
In the course of the second investigation in late 2018 the eldest was again interviewed by JCPRP officers (“the second JCPRP interview”). During this interview this child once again made no disclosure of sexual abuse by the father though she did disclose some physical punishment by him. The matter was subsequently closed with no risk or harm issues substantiated and the children continued to spend time with their father in accordance with the 2016 parenting plan.
In around late 2018 the eldest was enrolled into a new school. From around this time, the mother became engaged with a family support worker to assist her in meeting the children’s needs.
Shortly after commencing at her new school the school counsellor reported that the child displayed “significant externalising behaviours” and had general intellectual abilities at a low average level. He made a recommendation that his report be provided to any psychiatrist engaged with this child for further investigation.
In early 2019 the parents, with their new partners, met to discuss the children’s needs. Particular focus was on the eldest child’s behavioural difficulties and other concerning comments apparently made by the younger child Y. At the conclusion of this meeting, the parents agreed that they would each keep a notebook in which each parent was to document any concerning or inappropriate behaviours and comments made by any of the children.
Later the same month, the mother, through a letter sent from her solicitor, informed the father that she wished to formalise the 2016 parenting plan into final consent orders.
As a result of the growing concerns about the eldest child’s psychological and behavioural difficulties, on various occasions throughout 2019 the mother presented this child to a range of medical professionals and sought therapeutic intervention for her through different support services.
In early 2019 the eldest child attended upon her first appointment with a child and adolescent psychiatrist who diagnosed her with an attachment disorder.
The following month this child was seen by a consultant paediatrician who hypothesised that while the child did not present as having a serious psychiatric, medical or developmental disorder, her behaviour may be explained by of a history of trauma.
In the same month, the eldest child attended upon a second paediatrician (“the second paediatrician”) who subsequently diagnosed her as having features suggestive of Attention Deficit Hyperactivity Disorder (“ADHD”). This doctor reported that the child required “intensive appropriate psychotherapy to address her behaviour and her history of abuse” and also prescribed medication to address her sleep disturbances.
In early 2019 the father’s former partner took her own life when the father and children were at the paternal grandparents’ home. The father deposes to feeling “incredibly emotional”. He arranged for the paternal grandparents to care for the children for a short time and then he and the mother broke the news to the children.
Following the death of his former partner, the father stayed with the former partner’s parents for about one month. The father then moved to live with his brother (“the paternal uncle”) and the uncle’s partner in about mid-2019. The children’s time with the father for the following few months occurred at the home of the paternal uncle and his partner.
The mother deposes that in mid-2019 she was referred by the C Services as she had reported experiencing domestic violence at the hands of the father.
In around mid-2019, the eldest child also began receiving therapeutic services from C Services although the father was not aware of this engagement at the time. The mother also facilitated this child’s weekly attendance upon a D Services. The child’s attendance upon these services is a significant matter relating to the allegations of risk made by both parents and is a matter to which I will return.
After several therapy sessions between the eldest child and C Services and D Services, counsellors from both services recommended that the child’s time with the father cease. It was the opinion of the child’s counsellor from C Services that the child’s problematic sexual behaviour was likely to be linked to sexual abuse.
Mid-2019 was the last time the children spent time with the father in accordance with 2016 parenting plan though from his perspective nothing of any significance occurred to cause that time to cease.
On about mid-2019, the father received a letter from the mother’s then solicitors advising that the mother was no longer prepared to facilitate the children’s time with him based on recommendations made by the eldest child’s treating practitioners and the mother’s other concerns about his limited capacity to meet the children’s complex needs. At the conclusion of the letter the father was advised that the mother did not intend to cease the children’s time with him permanently.
Despite the father later communicating through his solicitors that he did not consent to the children’s time with him ceasing, the mother stopped making the children available to spend time with him.
Following the cessation of the children’s time with the father, the eldest child began taking medication for ADHD and continued to engage with her paediatricians as well as her counsellors from C Services and D Services. On some occasions the mother and the children collectively participated in “family sessions” organised by C Services and the family support service with which the mother was engaged and some of the sessions focused on protective behaviours relating to abuse.
In mid-2019 the Department received yet another report in relation to two of the children concerning alleged sexual abuse arising from a disclosure made by the eldest child to the maternal grandmother about being inappropriately touched by the father.
The mother also deposes that around this time there had been an occasion where the younger child Y (who was then nearly five) complained of feeling pain when being touched near her genital region, and that this child had also made disclosures during a family session with C Services about sexual behaviour and of the children sleeping naked at the father’s home.
JCPRP officers investigated the allegations relating to both children (“the 2019 investigation”), and separate interviews with each of them were conducted in late 2019 (“the third JCPRP interviews”).
On interview, the eldest child (then aged seven) disclosed abuse at the hands of the father. According to Department records, while the younger child Y did not disclose being harmed by the father, she acknowledged that the father did not live with her as he had “touched [the eldest child]”.
In late 2019 the father met with a detective associated with the investigation and was informed of the disclosures made by the eldest child. Police records indicate that the father became “visibly distressed” and “shocked” by this information.
In October 2019 when the father commenced these proceedings, the 2019 investigation had not yet been completed. The father sought to have these proceedings dealt with urgently contending that despite the history of unsubstantiated allegations made against him (and his own understanding that the 2019 JCPRP investigation would not substantiate the more recent allegations) the mother continued unilaterally to deny him time with the children. He sought orders on a final and interim basis that the parents equally share parental responsibility for the children and that the children live with the mother and spend time with him on a fortnightly cycle similar to the 2016 parenting plan and for half of the school holidays.
The mother filed her Response in November 2019, at which time the 2019 investigation was still ongoing. She sought final and interim orders that she hold sole parental responsibility for the children and that they live with her and spend no time with the father.
At the first return date before a Registrar on 12 November 2019 the proceedings were placed into the Magellan Program and a Magellan Report was ordered.[2]
[2] The Magellan program is a Case Management program in the Family Court that deals with serious allegations of physical and sexual child abuse. A Magellan report sets out the involvement of the Department with the family.
In January 2020 the Magellan Report was released to the parties which included the following outcome of the 2019 investigation:
Sexual abuse has been substantiated as a result of [the eldest child]’s interview and [the father] has been recorded as a person having caused harm to [the eldest child]…given [the eldest child]’s disclosure of abuse, risk of sexual harm has been substantiated for [the younger children].
The Magellan Report also indicated that since the 2019 investigation, a further seven reports were made to the Department alleging child sexual abuse which did not proceed to secondary assessment and were subsequently closed. Despite substantiation by the JCPRP, the father has not been charged with any offence.
In early 2020 the father and his current partner (“the father’s partner”) commenced a relationship.
In March 2020 orders were made with the consent of the parents appointing a single expert clinical psychologist (“the expert”) in the proceedings.
Across two occasions in May and June 2020, the family was assessed by the expert for the purposes of preparing a report to assist the Court. The interviews of each parent were conducted electronically due to the restrictions associated with the COVID-19 global pandemic in place at the time.
In mid-2020 the mother gave birth to a child (“the children’s half-brother”). This child’s father is no longer in a relationship with the mother.
In July 2020 the expert’s report was released to the parties. A more detailed summary of the expert’s findings and observations is provided later in these Reasons. It suffices to record at this stage that the most salient issues arising from the assessment pertained to the question of whether the father sexually abused the eldest child or engaged in family violence towards the children and the mother, and whether or not the mother coached the children and/or maintained poor boundaries with them. There were also concerns expressed by the expert about the eldest child’s ongoing relationship with the C Services counsellor, and various recommendations were made including that the children be offered the opportunity to spend time with the father with the aid of therapy.
In late 2020 the father’s solicitor wrote to the mother’s solicitor canvassing the parents’ engagement in family therapy in order to facilitate the children’s time with him in light of recommendations made by the expert. The mother was not prepared to participate in family therapy with the children as proposed.
In late 2020 the younger child W attended upon a paediatrician who diagnosed her as being on the Autism spectrum.
In November 2020, there was a hearing before me of competing applications with respect to the children’s interim time with the father. At that time the mother sought orders on an interim and final basis that the children spend no time with the father. It was contended on her behalf at that hearing that the father posed an unacceptable risk of harm to the children arising from sexual and possible physical abuse and his lack of parental capacity and for this reason it was in the children’s best interests that they spend no time with him.
The father sought interim orders that the children spend time with him each alternate Saturday for three hours supervised by a private supervision agency and that the mother be restrained from facilitating the attendance of any of the children upon D Services and C Services. He did not press an additional interim order that formed part of his original proposal for the parents and children to engage in family therapy. The ICL supported the father’s proposed interim orders.
On the day of the interim hearing, I made orders that the mother, or her agents, be restrained from facilitating the attendance of any of the children upon D Services and C Services or any other therapist or counsellor or psychologist without an order the Court or agreement of the father, except for attendance at a therapist nominated by the ICL for the purposes of assisting them in managing the family law dispute between the parents.
As can be seen from my Reasons for Judgment delivered on 19 March 2021[3] (“the interim Judgment”) I was of the view that it was unlikely a court would find at final hearing that the eldest child had been abused by the father or that he poses an unacceptable risk of harm to the children on this basis. I also explained my reasons for considering at that interim stage that there was no evidence to suggest that the father lacked capacity to provide for the children’s needs having regard to the orders that he sought at that time.
[3] Simmons & Simmons [2021] FamCA 136.
In the interim Judgment I expressed my concern that although both parents appeared to accept that the children had an established relationship with the father and spent regular time with him under the 2016 parenting plan until that time was ceased in 2019, there was a risk if orders were made as the mother sought that there would be no opportunity for the children to maintain a relationship with the father. Moreover, the expert had expressed the view (albeit that this was then untested) that it may be considered appropriate for the children to maintain a relationship with the father even if the Court were to find that he had sexually abused the eldest child. I also considered that the mother’s proposal for the children to have no time with the father carried with it the risk that the children may become enmeshed in an inaccurate narrative about the father. Orders were made that the children continue to live with the mother and spend time with the father each alternate Saturday for a period of three hours with this time to be supervised by a contact service.
Events following the making of interim orders

Records of the Department indicate that in early 2021, three days after the interim orders for the children’s time with the father were made, a report was received by the Department that the eldest child “inserted her toothbrush in [the younger child W]’s vagina forcefully over the weekend” and that eldest child’s sexualised behaviours are “triggered” by the topic of “the father”.
In early 2021 the children were to begin spending time with the father under the supervision of a contact service. However, the eldest child refused to pass into the care of the father when she was informed at the changeover location that she was to spend time with him on that day. The younger child Y spent time with the father for 10 minutes before asking to leave, and only the younger child W spent time with the father for the full three hours. Both younger children spent time with the father on the second scheduled occasion but the eldest child again refused to attend.
On the third occasion that the children’s time with the father was scheduled all three children attended and remained for the entire time.
From mid-2021 until just prior to the final hearing only the younger child W spent time with the father in accordance with the interim orders as the eldest child (and usually the younger child Y) refused to do so and the mother was unable to facilitate this occurring.
There were also occasions when the time with the father was cut short due to the weather conditions and the younger child Y had said that the weather may be influencing her refusal to spend time with the father. Accordingly, the father requested that the children’s time with him occur at an indoor location including his home but the mother did not agree to any change in the arrangements.
At around this time the father began again re-agitating his proposal that the children receive therapy. It was apparent that the parents reached agreement in early 2021 that they and the children would attend upon a nominated clinical psychology service (“the clinical psychology service”) for family therapy. It was proposed at that time that the ICL would outline the terms of the therapy to the clinical psychology service including informing the service of the suspension of the D Services and C Services therapy, that both parents were to be involved in the family therapy and that no finding had been made as to sexual abuse.
Although the father contacted the clinical psychology service to facilitate payment of the children’s therapy fees, he was informed that he did not need to undertake an intake assessment and that a request had not been made for him to be involved in the children’s therapy. The father received no further contact to arrange for an appointment or to provide him with information about the therapy.
In mid-2021, the ICL informed the parents that she had been contacted by the clinical psychology service and advised that this service had been provided with the C Services report by the mother and needed to reassess whether therapy could be provided in accordance with the ICL’s proposal. A few days later, the ICL became aware that the clinical psychology service was not prepared to provide therapy to the children. The ICL subsequently proposed that family therapy be provided by another experienced family therapist (“the proposed family therapist”) with which the father agreed.
As the mother did not respond to the ICL’s proposal for family therapy with the proposed family therapist, the father filed an application on 20 September 2021 seeking orders for this therapy to commence and for the interim orders to be varied so that the children’s time with him could occur at his home rather than in a public place.
On 14 October 2021 orders were made by a Senior Judicial Registrar with the consent of the parties including that the children commence therapy with the proposed family therapist and that their supervised time with the father occur in his home rather than in a public place.
On 31 October and 14 November 2021 only the younger child W spent supervised time with the father at his home.
In late 2021 the mother was contacted by a parent from the children’s school expressing concern about a video of the eldest child and younger child Y engaging in sexualised behaviour ( “the children’s video”) which these two children had sent to a fellow student via a social media application. The child to whom the video was sent had apparently asked the parent the meaning of some of the expressions used by these children on the video and about their conduct, which the child reported made him feel uncomfortable. The parent then viewed the video herself and after watching for a short time contacted the mother. This parent then played the video to the mother who found the content distressing and shocking. A report was also made to the Department about the video and these children’s behaviour.
In late 2021 the supervision service contacted the father and advised him that the mother had cancelled the children’s upcoming scheduled time with him. On the following day, the mother’s solicitor advised the father’s solicitor about the children’s video and a report being made to the Department and a copy of the video was also provided to him. The mother’s solicitor also advised that in the course of questioning the two children concerned about the video, the eldest child made further disclosures about the father’s sexual abuse. For this reason, the mother opposed the children spending any further time with the father.
Although the father’s solicitor sought information about the further allegations and the questioning of the children, this information was not forthcoming. Further, no commitment was given to the mother making the children available to spend time with the father as he had requested. The contents of the children’s video, reaction of various adults in the maternal home and information given by the children about it are matters to which I will return.
A further notification was made to the Department in late 2021, apparently by a staff member at the eldest child’s school. On the same day, the mother’s solicitor advised the father’s solicitor of this further notification and that the mother now agreed to the children’s supervised time with him re-commencing.
In late 2021, although this was not known by the father at the time, the mother cancelled the children’s scheduled appointment with the proposed family therapist and rescheduled it for early 2022.
On 10 December 2021, the father filed an application seeking various orders including expedition of the final hearing and a change in the interim arrangements for the children that, if made, would see the children live with the paternal grandparents and spend time with both the father and the mother supervised by a professional agency pending final hearing (“the father’s interim proposal”).
On 22 December 2021, at a case management court event before me, the final hearing was fixed for 7-10 March 2022 and father withdrew his application for a variation of interim orders.
Just prior to the final hearing, on 3 March 2022, the mother filed an Amended Response seeking orders including that the parents have equal shared parental responsibility for the children and that the children live with her. She also proposed that the eldest child spend time with the father in accordance with that child’s wishes and that the younger children spend defined time with him increasing so that it reached an endpoint after 12 months of alternate weekends and one overnight during the “off” week. The orders sought by the mother at this time were not expressed to be related in any way to any finding of the Court as to abuse.
On two occasions just prior to the final hearing, both of the younger children spent time with the father and on one of these occasions met his partner.
The final hearing
7 - 10 March 2022
At commencement of the first day of final hearing on 7 March 2022, an oral application was made on the mother’s behalf to vacate the hearing in its entirety, or in the alternative, to adjourn the proceedings until 9 March 2022. Both the father and ICL opposed the mother’s application to vacate the proceedings entirely and this application was dismissed.
The final hearing otherwise commenced with a number of administrative matters and was then adjourned to 9 March 2022 as sought by the mother, for reasons given at the time.
Mother’s Case (“Version One”)
At the commencement of the final hearing the mother continued to rely upon her Amended Response dated 3 March 2022. As previously noted the mother proposed in this Response (and in the Outline of Case filed on her behalf at that time) orders that would see the parents have equal shared parental responsibility for the children and the children live with her.
At that time the mother sought an order that the eldest child spend no time with the father unless that child expresses to the mother “a desire to attend with her siblings” and an order which cast on the mother an obligation to encourage this child to spend time with the father. The mother proposed that the younger children’s time with the father commence with three hours each alternate weekend supervised by a nominated professional supervision service for a period of four months and for a graduated increase in that time. She proposed that after eight months the children’s time with the father become unsupervised and after 12 months reach an endpoint of each alternate weekend from after school Friday to before school Monday and one overnight in the alternate week and for half of school holidays and on special days.
The mother’s counsel agreed in an oral interchange with the Court that in it was unclear in her Outline of Case whether the mother contended that the father posed an unacceptable risk of harm to the children or the nature of the harm which she contended gave rise to a need for supervision of the younger children’s time with him. It can be gleaned from the first version of the mother’s Outline that she was concerned about the risk of psychological harm of the eldest child should this child be required through orders to spend time with the father. There is no reference in the first version of the mother’s outline to the issue of family violence in the proceedings.
Mother’s Case (“Version Two”)
As explained, in the Case Outline filed on the mother’s behalf on the first day of the hearing, it was indicated that the mother “relied upon” her Amended Response dated 3 March 2022. However, in the Minute of Order setting out the mother’s proposal (and in later oral submissions) it became clear that she was seeking alternate suites of orders in relation to the children’s time with the father depending upon the Court finding that “sexual abuse has occurred”, that the children are at an unacceptable risk of harm of sexual abuse in the future and that the children are at an unacceptable risk of psychological harm in the future.
Although it was unclear at the commencement of the final hearing whether the mother was seeking all of the last-mentioned findings, and what was meant by the words “sexual abuse has occurred”, she then proposed that if all such findings were made the eldest child spend no time with the father unless that child expressed a desire to do so but still curiously sought an order that she be required to encourage the eldest child to spend such time. The mother’s proposal for the younger children in the event that such findings were made was for those children to spend time with the father supervised by a professional agency indefinitely once a week for six hours and on special days in block periods of six or eight hours.
It may also be observed that the mother made no proposals at the commencement of the trial in the event that the Court does not make any findings that the father poses an unacceptable risk of harm to the children on any basis.
Although the Outline of Case filed on behalf of the mother was somewhat unclear, it is apparent from submissions made by her counsel on the first day of the trial (7 March 2022) that she contended all of the children were at an unacceptable risk of being sexually abused by the father if orders were made as he proposed.
On 9 March 2022 cross-examination of the father commenced. The following day, 10 March 2022, cross-examination of the father was completed and other witnesses in his case such as his partner and the paternal grandfather were also cross-examined. Before adjourning, a request was also made that the father’s partner be assessed by the expert during the period of the adjournment.
28 - 30 March 2022
When the proceedings were resumed on 28 March 2022, the paternal grandmother was cross-examined. The paternal grandmother’s evidence was in summary to the effect that she had considerable involvement with the parents and assisted them in the care of the children when their relationship was intact. She deposed to maintaining an amicable relationship with the mother until separation, and that she was regularly present when the children spent time with the father after separation including when they stayed overnight in his home. The paternal grandmother deposed to a strong, loving and affectionate relationship with each of the children and to her sadness as the children became distant from her from around mid-2019.
The paternal grandmother also deposed to having been prepared from around late 2021 to move to the vicinity of both parent’s homes and to care for the children until final orders were made. She also deposed to her support for the father’s application for final orders that the children live with him. The paternal grandmother confirmed under cross-examination that she was ready and willing to move if an order were made for the children to live with her immediately and that she could remain supporting the father and children in that manner for as long as it was needed.
I digress to indicate that in my view the paternal grandmother gave insightful and impressive evidence about her commitment to taking on a primary caregiver role for the children including taking unpaid leave from her employment and when identifying the significant difficulties for the children that would be entailed in such a change.
Following the paternal grandmother’s evidence, the mother was then cross-examined. Much of the cross-examination of the mother focused on her case that the father perpetrated sexual abuse towards the eldest child and younger child Y. She gave oral evidence that she continues to believe that both children are at risk of harm in the father’s care on this basis. She sought that the Court make findings that sexual abuse had occurred at the hands of the father and that he also poses an unacceptable risk of sexual harm to the children in the future.
During an interchange between the Court and counsel for the father at this stage, I raised the possibility of revisiting the father’s interim proposal pending final judgment given each party’s respective case concerning risks posed by the other parent. In the foregoing circumstances, the expert was requested to assess the paternal grandmother for the purposes of assisting the Court in this regard. Further cross-examination of the mother then made up the balance of the hearing on 28 March 2022.
On 29 March 2022 cross-examination of the mother was completed. Her mother (“the maternal grandmother”) was also cross-examined. In oral evidence the maternal grandmother remained firmly of the belief that the eldest child was “hurt” by the father and also confirmed the accuracy of accounts in her affidavit of the children exhibiting sexualised behaviour.
On the final day of hearing, 30 March 2022, following completion of the mother’s case, the expert was cross-examined via video link.
A more detailed summary of the expert’s oral evidence will follow shortly. It suffices to say for the purposes of this background that the expert no longer stood by the recommendations that she had made in her report. In doing so the expert attached particular weight to new information that came to light since her report was written in mid-2020 which she considered critically important. The expert identified the children’s video (which had come to light in late 2021) in particular as “concerning” and explained that it not only suggested the two children concerned were continuing to exhibit ongoing sexual behaviours but also that those behaviours had escalated. The expert also made reference to reports of the children’s time with the father in expressing the view that there do not seem to be “appropriate boundaries” being set in the mother’s home. The expert ultimately recommended that in light of the more recent evidence made available to her, orders be made in line with the father’s proposal.
The expert was also asked about the father’s interim proposal first raised in late 2021 and confirmed by the paternal grandmother in oral evidence that the children live in the paternal grandmother’s care in the period pending final judgment. The expert opined that this was an “appropriate proposal” elaborating that “[such an arrangement] offers stability for the children and offers them some form of certainty in what is an incredibly uncertain process as well, but it lets them reconnect with their paternal family, which I think is quite important”.
At the close of evidence, each of the parties and the ICL were directed to furnish their final Minute of Orders within two days and to also provide their respective written submissions prior to 14 April 2022 when the proceedings were listed for short oral submissions.
Orders pending final judgment
Prior to adjourning on 30 March 2022, an application was made on behalf of the father seeking a change in the interim arrangements for the children along the lines of his interim proposal.
The ICL indicated her support for the father’s interim proposal, while the mother opposed the application in its entirety.
After hearing brief submissions for each of the parties and ICL, I made interim orders pending final judgment in the terms sought with some slight adjustments as follows:
·The paternal grandmother be joined to the proceedings as the second respondent;
·The children live with the paternal grandmother;
·The paternal grandmother be restrained from allowing the children to have contact or communication with either parent other than in compliance with orders;
·The children continue to spend supervised time with the father for three hours each alternate Saturday pursuant to Orders made on 19 March 2021;
·The children initially spend no time with the mother for a period of four weeks, and thereafter spend three hours each alternate Saturday supervised by a nominated supervision agency; and
·The paternal grandmother be authorised to make day to day decisions for the children while they are living with her, including medical treatment or therapeutic services (including but not limited to the children’s engagement with the family therapist).
The mother was also restrained in various ways by injunction including from contacting or approaching the children by any means, and allowing or facilitating any third party, including the maternal grandparents or either of them, to contact or approach the children, other than in compliance with these orders.
When these interim orders were made pending final judgment on 30 March 2022 I indicated to the parties that I would be delivering short reasons for the making of those orders. The reasons for those interim orders are incorporated in these Reasons for Judgment.
By 13 April 2022 both parties and the ICL had provided their final written submissions. At that time the children had also met with the nominated family therapist in accordance with orders for the first time.
In the course of final oral submissions on 14 April 2022, the father did not shift significantly from his case. The mother, however, proposed for the first time in the proceedings that if the Court did not find that the father had sexually abused any of the children and did not pose any unacceptable risk of harm to them that the children live between both parties in an equal shared care arrangement. The mother’s counsel also clarified some matters that were unclear in her written submissions. The Court was also informed that the paternal grandmother does not herself propose final orders but supports the position of the father and contends that his proposed orders are in the children’s best interests. After hearing the closing addresses of each party and the ICL, judgment was reserved.
EXPERT EVIDENCE

The expert appointed in the proceedings provides an opinion in relation to matters concerning the children’s best interests and makes recommendations depending upon the Court’s factual findings. The expert also provides an opinion as to the manner in which the children’s complaints of sexual abuse at the hands of the father may be assessed. For this reason the expert’s opinion evidence is set out at this stage.
Expert’s report
The expert appointed to the proceedings prepared a report dated 22 July 2020 on the basis of interviews conducted with the family, correspondence, consultation with a number of agencies and relevant third parties,[4] and a review of various documents filed by the parents and produced on subpoena.
[4] Such as the children’s treating paediatrician, staff at the D Services and at the children’s school.
The expert’s interviews which took place across two separate occasions in May 2020, consisted of audio-visual interviews with each parent (due to restrictions associated with the COVID-19 pandemic), and in-person observations of the children.
At the time of the assessment the children lived with the mother and had spent no time with the father since August 2019 when the mother had unilaterally ceased that time after allegations were first made that the father sexually abused the eldest child which were subsequently substantiated by the JCPRP team.
The father reported to the expert that prior to having no contact with the children, they were spending time with him each alternate weekend and one weeknight with some telephone contact throughout the week. He also reported that his communication with mother during this time was “mostly ok” but added that there was some conflict at times. The mother agreed that the parents struggled with their communication, but reported that on some occasions they could communicate adequately to ensure the children’s needs were met.
On interview, the father sought a shared care arrangement for the children, acknowledging that he wants the children to have a good relationship with each parent but to also be safe. He told the expert that such arrangement however is “unlikely given the girls’ young ages” and said that he would accept having the children in his care from Thursday after school to Monday morning as well as overnight on alternate Thursdays. He also reported having flexibility with work that would enable him to drop-off and collect the children from school on school days in his care.
The mother, when discussing her proposal at that time, emphasised prioritising the children’s safety. She told the expert that she did not want to stop the children from having a relationship with the father “so long as they are safe”. She went on to say that she could not imagine there being a way that the children will be safe with the father, and expressed difficulty with the possibility of orders being made that the children spend time with him. She expressed opposition to “forcing” the children to see their father if they did not want to.
In her concluding evaluation, the expert identified that the most “pressing issues” arising from the assessment related to whether the father sexually abused the eldest child and whether he engaged in family violence towards the children and mother. A “secondary” issue identified by the expert in her assessment was whether or not the mother has coached the children and/or maintained poor boundaries with them.
These specific issues as explored by the expert will be outlined in turn, followed by a summary of the expert’s views and opinions about other relevant matters such as each parent’s presentation on interview, their respective parental capacity and observations made about the children when assessed. An overview of the expert’s recommendations made in her report is also given.
Alleged sexual abuse by the father
In her interview with the expert, the mother denied holding concerns about the father’s conduct towards the children when their relationship was still intact. She told the expert, however, that on reflection, there were occasions when she had noticed the father acting in an untoward way towards the eldest child’s bathing routine. She described for example that the father would be angry if he came home to find the eldest child already bathed and would otherwise “take off with [the eldest child] and have a shower with her every day”. The mother added that she was restricted from being in the bathroom with the father and the child on these occasions.
Later in her interview, the mother maintained that the eldest child made her first disclosure of sexual abuse by the father in early 2016 when the child was almost four years old. The mother reported that this disclosure occurred after she had presented the child to a doctor due to redness in her vaginal area, and that this visit led to a hospital referral being made.
In considering the mother’s allegations in this regard, the expert dedicates significant discussion to collateral information made available to her and evidence contained in affidavits filed by the mother at that stage. The expert makes various observations from this material including the following:
·It was the mother’s affidavit evidence at the time that the eldest child first disclosed to her that the father “eats [her] [vagina][5]” during an incident when the mother found this child’s head near the younger child W’s vulva in the shower in early 2016. The mother had deposed that this, along with redness around the eldest child’s vagina and apparent vaginal infection, led her to present this child to her GP, where the child had repeated the disclosure and was subsequently referred to hospital.
·The mother’s account of the eldest child’s alleged disclosure is confirmed by a letter from the treating GP dated early 2016 and hospital records from the same date also record the eldest child disclosing to the GP that the father “touches her down there sometimes” and that he would “sometimes eat her bum and …(sic)”;
·When presented for physical examination at the hospital in early 2016 no obvious signs of injury were observed on the eldest child[6]; and
·When interviewed by police from JCPRP a short time after 2016 (two days after the alleged disclosure) the eldest child did not disclose any physical or sexual abuse by the father.
[5] The spelling and origin of this word in the proceedings was somewhat unclear. The mother deposes to it being a Country L word while the father believed it to be Country M. Both parents agree that it was the word used by the family for “vagina” and had been introduced by the paternal grandmother who was born in Country N.
[6] It is to be noted that there is no record of an attendance at a hospital on this date in the documents tendered in the proceedings
The expert goes on to summarise events that took place following the eldest child’s alleged first disclosure including that this child was presented to hospital a second time following the first JCPRP interview. In relation to this hospital visit, the expert notes there are Departmental records that raise concern about the mother causing psychological harm to the eldest child through repeated questioning about sexual abuse and physical examinations. The expert also refers to police records that indicate that further reports were made to either police or the Department in mid-2016 regarding further statements made by the eldest child of the father touching her inappropriately, but that these reports were not referred to secondary assessment due to the reported information not being new.
The expert further reports that according to GP records the mother sought a referral to a psychologist for the eldest child in mid-2016 based on this child’s alleged disclosure of sexual abuse. About two months later on … 2016 police records indicate that the eldest child told the mother that the father “plays with [her] [vagina]” and that the mother made a recording of the child making such statements which was shown to police in mid-2016. The expert documents that police at the time raised concern about the mother continuing to make allegations of sexual abuse, and the risk of psychological harm to the eldest child. Although the eldest child was again presented to the hospital on the same day (mid-2016) the expert notes that it is unclear from police records whether the child was again physically examined on this occasion.
The expert makes reference to the GP records which record in late 2016 that the eldest child requested to see the GP on her own. The expert records that during this visit the eldest child communicated a desire to spend time with the mother individually (while her younger siblings spent time with the father) and that the mother had reassured the eldest child that they would have time together when the younger children would soon commence day care. In the expert’s opinion, such information raised a concern about “potential learning by [the eldest child] that she was able to gain attention from [the mother] by making allegations against [the father]”.
The expert further summarised other events between 2018 and 2020 that were raised in various other documents produced on subpoena. They included the eldest child’s second and third interviews with JCPRP in 2018 and 2019. The expert reported that according to Departmental records the second investigation by JCPRP in 2018 was instigated in response to the eldest child describing “ Game 1”.[7] When interviewed by JCPRP, the eldest child who was then six years old did not disclose sexual abuse but reported the mother calling the father “a fucking bitch” and that the father “hits her on her bottom with his hand”. Of note, the child did not know what the Game 1 was and also stated that the kissing game (in which she and the younger child Y would lie on top of each other and kiss) was made up by her. The child otherwise reported that she was looking forward to going away with the father on the upcoming weekend.
[7] The ‘Game 1 game’ is an apparent reference to a game allegedly described by the eldest child to the mother. According to the mother’s trial affidavit [52], the eldest child had described playing a Game 2 game with the father which the mother deposes the child had told her involves “eat[ing] the vagina”. The mother deposes that when advising the child against partaking in such actions, the child is said to have responded with words to the effect of “that’s how me and daddy play. He eats my [vagina].”
The expert states that her review of the second JCPRP interview in 2018 was consistent with the description contained in Departmental records. She assessed that the eldest child was “more settled” in this interview than in her first interview and appeared confused when asked directly if somebody “eats [her] vagina”. In the expert’s view, the child did not appear distressed or uncomfortable at any point in the interview.
The expert devoted significant attention to the eldest child’s third JCPRP interview in late 2019, which investigated a report that this child disclosed to her maternal grandmother that the father had been touching her vagina. The expert summarised that Departmental records indicate that during the interview the child disclosed that the father “touched her with his finger on and in her vagina and bottom”. According to those records the eldest child gave further details of the alleged incident including that the father told her not to tell anybody or he would do it again. The expert opines that her review of this JCPRP interview did not suggest with any certainty that the father sexually abused the eldest child. The expert explained in her report:
…..[The eldest child] indicated initially that she was there to discuss “daddy touching [her]”. Her account of this was given in an unemotional way, at one point after saying that he touched her vagina and bottom, she looked directly at the camera and smiled. She had difficulty particularising the context surrounding her allegation of him putting his finger inside her vagina. While this is not unusual given her age, I also note that the history of the allegations suggest that [the father] has abused her on numerous occasions and even if she could not detail a particular incident, it would be expected that she would provide a general account of the nature of his abuse. However, [the eldest child] told the interviewing officer that he had never sexually abused her prior to this incident. Her account of her father saying “ready to dip” was dramatic – her face was animated and her body movements were exaggerated. She said that after he abused her by putting his finger inside her vagina, her father stated: “Oh my gosh, woof, that was nice!” My impression was that she was relaying a story and creating details as she went. My impression in this regard was reinforced by [the eldest child] telling a story about the last time she was interviewed. She said that the police officer who interviewed her “yelled” at her and was “mad” at her, and that the police officer played the ‘Game 1’ game with [the eldest child] including chasing her out of the room. [The eldest child]’s demeanour when telling this clearly fictional account was consistent with her demeanour when describing her father’s alleged abuse of her…..
The expert also documents that in late 2019 a C Services worker reportedly informed the Department that the eldest child’s problematic sexual behaviours were likely to be linked to sexual abuse. The expert at this point expresses the opinion that while this may be the case, there are many reasons why a child may demonstrate sexualised behaviours and that “sexualised behaviours should not be used as an independent indicator of sexual harm”.
During the assessment, the mother also told the expert that she believed the father sexually abused the eldest child by “inserting his fingers into her vagina”, based on the Departmental substantiation. She told the expert that the substantiation by the Department was a “changing point” for her and that it was also the “severity” of the eldest child’s latest disclosure that convinced her that the child was telling the truth.
The mother also reported concerns about the younger child Y though could not articulate the factual basis for these concerns. She told the expert that this child “could be following [the eldest child]’s behaviours”. The expert noted that in her affidavit the mother alleged that the younger child Y disclosed sleeping naked at the father’s house which the father denied on interview. The expert also cited Departmental records of the JCPRP interview with the younger child Y in late 2019, which was an investigation into a notification made that this child was kissing the younger child W with an open mouth and touching her vaginal area at preschool.
Reviewing the younger child Y’s interview with JPCPRP in late 2019, the expert noted that this child did not make any clear disclosures and that information she provided was inconsistent, which the expert opined is “age-appropriate”. The expert also observed from this interview that when asked by the interviewing officer what the mother says about the father, the younger child Y suggested that her mother says “don’t look at him, don’t talk to him, don’t love him…you hate him”.
The father in his interview with the expert denied ever sexually abusing the eldest child or either of the younger children. He acknowledged playing a game with the children where he became “the Game 2” but said that this involved him chasing the children around the house and catching them and blowing raspberries on them. He told the expert that he ceased playing this game following the eldest child’s initial allegation in 2016. The father otherwise complained about the assessment made by the Department that resulted in allegations being substantiated and also raised concern about the inconsistencies in the mother’s response to the allegations raised over the years.
Given the nature of the allegations, the expert conducted a psychosexual history of the father as part of her assessment. She concluded that the father’s account did not raise concern regarding sexual deviancy (including sexual interest in children), or a history of concerning sexual behaviours. The expert also concluded that the father did not endorse cognitive distortions that justify sexual abuse and that he spoke insightfully, albeit somewhat superficially, about the impact of sexual abuse on children and young people.
The expert also conducted a risk assessment of the father which she considered prudent given the substantiation of sexual abuse allegations by JCPRP. Using the ‘Risk for Sexual Violence Protocol’[8] the expert assessed the father as posing a low risk of sexual recidivism. She identifies a number of risk and protective factors that elevate and moderate the father’s risk of engaging in sexually abusive behaviour and ultimately concludes that on balance (noting that her assessment is made on the assumption that the abuse occurred) the father’s overall level of risk of sexual recidivism is “currently low”. The expert adds however, that this assessment does not take into account the “potential psychological harm that may be caused to [the eldest child] in her relationship with the father”, a risk the expert considers “is likely greater than the risk of [the father] perpetrating sexual harm”.
[8] According to the Expert’s Report, the Risk for Sexual Violence Protocol is a twenty-two-item clinician-rated structured clinical assessment tool that explores static and dynamic risk factors, in addition to individual future needs that could reduce the risk of recidivism.
The expert reiterates in her report that the one caveat to the above risk assessment is that it is predicated on the assumption that the father did sexually abuse the eldest child, based on the substantiation by the Department in 2019. She cautions that this matter has not been tested in a court and this assumption is based on a low presumptive level. She concludes that if the father did not in fact perpetrate this abuse, this risk assessment becomes invalid.
In her concluding evaluation the expert states that to assist with clarity in relation to the allegations of sexual abuse against the father “the time and nature of allegations is important to consider”. Summarising the evidence available to her, the expert gives an overview of her observations on how the eldest child’s allegations evolved as well as this child’s presentation over the years. She ultimately concluded:
… while [the eldest child]’s behaviour may have improved in relation to feeling a sense of safety if she no longer had to spend time with her father who was harming her, similar improvements may be seen in response to [the eldest child] experiencing reduced emotional pressure in relation to the discord between her parents. Alternatively, it is possible that her changed behaviour is solely due to the commencement of medication.
Unfortunately, the involvement with numerous services means that [the eldest child]’s account of her experiences has been irrevocably influenced through their various approaches, but specifically through her involvement with [C Services] and [D Services] given their view that [the eldest child] had experienced trauma. If all of the allegations of sexual abuse were correct, however, it would be expected that the involvement of numerous services would increase the likelihood of [the eldest child] making a clear, unambiguous disclosure to at least one of these, if not to the police. My review of the documentation and discussions with clinicians involved suggests that [the eldest child]’s disclosures have not been clear and unambiguous. If [the eldest child] had in fact been sexually abused by her father since 2016, it would be expected that she would be able to provide contextual details surrounding these experiences, even if these contextual details lacked the specificity required for formal police action. [The eldest child’s treating psychologist] identified that [the eldest child]’s disclosures were unusual and lacked detail. [A named treating clinician] at [D Services] noted similar issues, although she attributed [the eldest child]’s failure to provide further detail to be a function of [the eldest child]’s trauma. My observations of [the eldest child]’s account during the third JCPRP interview (on which substantiation was based) are that her disclosure had a number of features that raised concern to me regarding the veracity of her statements.

Although there are some general and non-specific complaints about the father’s conduct made to the mother and maternal grandmother and to the Department on a number of occasions, the most detailed and extensive complaints made by the eldest child and the younger child Y were said to have been made to the mother, maternal grandmother and maternal grandfather in late 2021 after the mother was made aware of the video made by these two children. In my view real questions arise about the nature of the evidence in relation to these allegations. The most detailed account of the complaints said to have been made by these two children is contained in the letter sent by the mother’s solicitor to the father’s solicitor in late 2021. This letter is however not evidence of the facts alleged and appears rather to be a summary of information elicited from the two children by “the maternal grandparents”. Neither the mother nor maternal grandmother deposes to the terms of any complaints made to either of them by these children or to information given by these children, and the maternal grandfather to whom the most extensive complaints were said to have been made did not file any affidavit in the proceedings. The subsequent notification made to the Department in relation to the children’s disclosures in this regard in late 2021 appears to be a further version containing a summary of what was said by the children and as explained appears to have been made by the mother herself.
The second category of evidence in relation to the risk of harm arising from future sexual abuse is contained in the children’s video.
Having regard to all of the matters I considered in relation to the finding sought that abuse had occurred and the alternate more likely explanation for the children’s disclosures and behaviour engaged in by the children in the video, I consider that the likelihood of the father acting in a sexually abusive manner in the future is so low as to be negligible. Accordingly, I do not consider that the father poses an unacceptable risk of harm to the children on this basis.
It had also been contended by the mother in the course of the hearing that there was an unacceptable risk of psychological harm to the eldest child even if the father were not found to have sexually abused this child on the basis that this child believes herself to have been sexually abused by him. This contention was said to be based on the opinion of the expert. In her report, the expert expressed the view that if the father has not sexually abused the eldest child then neither parent poses a risk of psychological harm to the children, except that there is a risk that the mother may cause psychological harm to the children through interrupting their relationship with the father and perpetuating the view that the eldest child had been abused.
The expert expanded upon the risk of psychological harm to the children should they remain living primarily with the mother (as the mother proposed at the time of final hearing). The expert also was firm in her opinion that there was a risk of psychological harm to the eldest child if she were to live primarily with the father in the event that there was no finding as to sexual abuse and explained that this risk arises from the child’s self-doubt and confusion. The expert was equally firm that this is a “short-term” risk which in her opinion would be able to be managed. In any event, this is not a risk of harm arising from abuse and is thus not of the nature contemplated in this consideration, though it will be considered elsewhere.
It also appeared at times to be the mother’s contention that the prospect of the eldest child and younger child Y living with the father brought with it a risk of harm to these children due to their unwillingness or resistance to spend time with the father in the past. However, as set out in [205] of these Reasons, the expert did not consider that children expressing a desire not to do something amounts to a significant psychological risk for them. The tenor of the expert’s evidence generally is that there were more psychological risks to the children remaining in the care of the mother than with the father, particularly such risks of a longer term and more extensive nature which are more difficult to manage. Once again this is not a matter that arises properly under this consideration and will be considered elsewhere.
The mother did not contend at final hearing that there were other risks of the nature contemplated in this subsection posed to the children if they were to live with the father.
It is the mother’s proposal, made for the first time in final submissions, that in the event the Court makes no finding of unacceptable risk of harm to the children posed by the father it is in the best interests of the children to live in an equal shared care arrangement between the parents. She must be taken in advancing such a proposal to accept that the children receive a benefit from having a meaningful relationship with both parents, a matter with which I agree.
The father proposes orders that will see the children’s time with the mother remain supervised for a period of three months for the purposes of protecting the children from harm. As the father proposes that this time become unsupervised and reach an endpoint of substantial and significant time with the mother, he also must accept that there is a benefit to the children in having a meaningful relationship with both parents.
Additional considerations: s 60CC(3)
Section 60CC(3) then sets out additional considerations the Court must consider when determining a child’s best interests and I will refer to those which are relevant in this case.
Views of the children and factors underlying those views
Nature of the children’s relationship with each parent and other significant persons
Submissions made on behalf of the mother indicate that significant weight should be attached to the views of the children and in particular, the eldest child in determining the dispute. Further, the mother relies upon statements made by the eldest child and the younger child Y in which they express great disdain for the father and resistance to spending time with him. In my view, and having regard to the opinion of the expert, statements made by the children in this dispute do not necessarily reflect their authentic views for a range of reasons. The views of the children and factors underlying those views for the purposes of this consideration are those views as expressed to the expert when assessed.
The expert was not challenged on her assessment that the children all clearly have a close and loving relationship with their mother. The expert was unable to comment on the relationships between the eldest child and younger child Y and the father, but it was apparent to her that the younger child W had a similar loving relationship with the father. The expert records that the similarities in terms of the younger child W’s relationships with each of the parents suggest to her that the father has the capacity to offer a similar loving relationship to the other two children.
The eldest child and younger child Y both stated to the expert that they did not want to see their father, although the expert noted that this does not necessarily mean they do not want a relationship with him. The younger child W was clear when assessed that she missed her father and wanted to spend time with him. I accept the opinion of the expert that the views of the children should not be given much weight as the eldest child’s position has been influenced by her mother’s behaviour and the younger two children were only five years of age when those views were expressed. Little weight should also be given to the views of the children in a case such as this where the issue of risk in the mother’s care in particular, outweigh the children’s expressed views.
By the time this final judgment is delivered the children will have been living in the care of the paternal grandmother for almost six months. I consider it highly likely that the paternal grandmother has the capacity to have ensured that the children were actually able to spend time with both of their parents which the mother to date has not been able to achieve so far as the eldest child and younger child Y are concerned. In this way, it is likely that each of the children’s relationships with the paternal grandmother and father will have further developed during this time.
The expert favourably assessed the father’s partner and in particular was impressed with the partner’s understanding of her role in the children’s lives.
I attach weight to the unchallenged evidence from the paternal grandmother about her extensive involvement in the children’s lives when the parents’ relationship was intact and for some time following separation, and to her evidence about her attitudes towards the children which I consider to be sensitive and child-focused. For these reasons, I consider it highly likely that the paternal grandmother had been a significant person in the children’s lives notwithstanding some of the statements attributed to them about her from time to time, to which I attach no weight.
The expert acknowledged in cross-examination that the children’s relationship with their maternal half-brother is important, but in accordance with her evidence more weight should be attached to protecting the children from various risks in the mother’s household than to maintaining the sibling bond. It also seems reasonable to assume that given their involvement in the children’s lives, the children also have significant relationships with their maternal grandparents.
All of the children’s important relationships with members of their maternal and paternal family will be fostered under each of the alternate suites of orders proposed.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
Extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the children
It appears that as a result of the agreement of both parents, the mother was responsible for the primary care of the children since separation. It appears to have been equally agreed that the children were to spend regular time with the father and although the mother unilaterally ceased making the children available for at least one six-week period prior to the commencement of proceedings, the father was able to spend time with the children and communicate with them for some years and also participate in decision-making with respect to the children.
The father’s involvement in the children’s lives in the manner just described came to an end in 2019. Earlier in that year, the mother made unilateral decisions about seeking therapeutic intervention for the eldest child in particular. Although she is to be commended for being diligent in seeking out resources and services to assist the children, it is regrettable that when engaging with each of these services the mother continued to provide a narrative about the allegations of sexual abuse of the children by the father and of her having being the victim of domestic violence. This information appears to have informed the approach taken by most service providers and therapists as if these contentions about the risk posed by the father and his abuse were established undisputed facts. The mother also continued to make decisions in relation to the care of the children without notice or input of the father, such as changing the children’s school in 2022, a short time prior to the final hearing without advising the father or the ICL.
The father has been diligent and persistent at all times since the proceedings commenced to spend time with the children and to communicate with them.
It is to the mother’s credit that during the long period in which the children lived with her she has provided financial support to meet their needs. The father has borne the responsibility for the cost of supervision of the children’s time with him.
Likely effect of change in the children’s circumstances
Capacity of each parent and any other person to provide for the children’s needs
Attitude to the children and responsibilities of parenthood demonstrated by each parent
The above named considerations are all interrelated and to some extent have been touched upon earlier when considering the need to protect the children from harm.
When the expert assessed each of the parents she opined that both parents “present with the capacity to meet the children’s needs, broadly speaking”.
At the final hearing as a result of events that had occurred since the expert’s report and matters which came to light in the course of the final hearing, the expert identified the risk of psychological harm to the children in the mother’s care arising in a number of ways which relate to the mother’s capacity to provide for the children’s needs.
The expert had opined in her report that it was likely that if the children were to be separated from their mother and half-sibling this would be distressing to them. The expert also opined at that time that should the Court determine that the children are to spend time with their father that both the eldest child and younger child Y are likely to find this distressing and will require a therapeutic process to support them with this development. At final hearing in summary, the expert opined that this likely effect of separation of the children from the mother and spending time with the father was either a short term risk that could be managed or this risk was outweighed by more serious harm posed by the mother if the children were to remain predominately living in her care.
When the expert was cross-examined there was no proposal under consideration along the lines now proposed by the mother of equal shared care in the event that the Court makes no finding of unacceptable risk posed by the father. Nonetheless, the risks identified by the expert arising from the mother’s shortcomings or parental incapacity caused the expert to recommend an arrangement that would see the children live initially with the paternal grandmother, then in the father’s home with the paternal grandmother present, then in the sole care of the father and spend time with the mother (after a period of no time) which would be initially supervised and progress to unsupervised substantial and significant time.
When assessed in mid-2020, the expert did not consider that the mother’s actions in wishing to have the allegations of sexual abuse investigated of themselves raised a risk of psychological harm to the children. However, the expert identified that if the Court agrees with her opinion that the father did not sexually abuse the eldest child and the mother failed to support the children’s relationship with him, there is a risk that the mother may cause psychological harm to the children through interrupting their relationships with the father and perpetuating the view that the eldest child has been abused.
Although in the interim judgment delivered in March 2021 I did not make any finding in relation to the allegation that the father had sexually abused the eldest child or posed an unacceptable risk of harm to the children on this basis, I did express the view that it was unlikely that a Court would find at final hearing that this abuse would occur or that the father posed an unacceptable risk of harm. I also explained my reasons for considering that there was no evidence to suggest that the father lacked capacity to provide for the children’s needs having regard to the orders he sought at that time as then contended by the mother. Moreover, I expressed my concern that although both parents appeared to accept that the children had an established relationship with the father prior to the mother withholding them from him that there was a risk that the children may become enmeshed in an inaccurate narrative about him. It is to be remembered that at this stage the expert’s report had already been released and the expert had identified that if the Court were to find that the father did not sexually abuse the eldest child, a failure by the mother to support the relationships between the children and the father may give rise to the very risk now under consideration.
The expert further identified that a matter of particular concern is that the contact reports indicate the children were concerned about “missing out on time with the mother if they’re spending time with the father” and that they have difficulty in separating the mother’s needs from their needs. This raised concerns for the expert that the eldest child and younger child Y are quite “enmeshed psychologically with their mother” and that these children worried about the impact on her if they spent time with the father. The expert further expanded upon the harms potentially arising from enmeshed relationship in particular the long-term consequences to the children of being deprived of any relationship with the father. The long-term consequences of this nature are dealt with at [188] and [206].
Although the last-mentioned opinion was expressed by the expert at a time when the mother was seeking orders that the children primarily live with her, I am of the view that some risk of this nature remains unless orders are made that the children live primarily with their father.
The mother’s incapacity to have ensured that the children’s relationships with the father were supported by them spending time with him in accordance with the interim orders is in my view a weighty matter. I agree with the father’s concern identified in his submissions that the mother appears to regard the two children who did not spend time with the father as not making an effort. She effectively characterises this as their failing (for which they were punished) rather than as identifying this her failing as a parent. It is to be remembered that the eldest child and younger child Y were aged only nine and seven at the time the mother was unable to facilitate this time occurring. The expert identified the mother’s inability to facilitate the children spending time with the father as a significant matter of concern for her. This matter together with other identified risks of harm to the children in the care of the mother were considered by the expert to be so high that she recommended both an immediate change to the interim arrangements so that the children would move to live with the paternal grandmother and a final arrangement that would see the children live with the father.
In my view it is likely that if orders are made as now proposed by the mother (that the children live in an equal shared care arrangement) difficulties will be encountered by the mother in actually transitioning the children to the father’s care each week. I share the lack of faith expressed by the expert in the mother’s capacity in this regard (referred to in [204] of these Reasons)
A further matter related to the mother’s parenting capacity which I consider weighty and which caused the expert to change her view, is the mother’s demonstrated inability to manage the children’s problematic behaviours in circumstances where the two children of greatest concern had spent virtually no time with the father. The expert considered this escalation in their problematic behaviour as arising from the mother’s inability to set appropriate boundaries, the eldest child having received the message that her behaviours are a function of trauma, and the influence of the eldest child’s behaviour on the younger child Y with the result that she had begun to engage in similar behaviours which in turn have adverse psychological and social impacts. The expert also identified great concerns for the younger child W’s vulnerability having regard to her diagnosis of ASD and the impact for the relationship between the children arising from the younger child W only spending time with the father which could have negative impacts on both her psychological and social functioning and feeling of being connected to the family.

The particular risks arising for the children in relation to the mother’s struggle to set appropriate boundaries for the children and the implications in terms of the children’s behaviours and of keeping the children safe psychologically and especially their exposure to inappropriate media is deal with at length in [182] – [187].
Although as discussed the expert assessed that the father presented with the capacity to meet the children’s needs “broadly speaking” the expert also opined in oral evidence that in light of the new evidence she is of the view that the eldest child requires “quite a specialist service’ to address her needs and recommended that the family engage with the same psychologist with expertise in family law who had been previously proposed to provide therapy.
Although the expert did not consider there to be a heightened risk to the children if orders were made in accordance with the father’s interim proposal she noted some practical difficulties with this arrangement. In particular, the expert was concerned that the children had no current therapeutic relationship with someone who could work them through the transition. Even though this therapeutic support had not at that stage been engaged the expert remained of the view that if interim orders were to be made as sought by the father that this should occur sooner rather than later. At the time of final oral submissions, the current orders including for the children’s therapy were in place and arrangements were being made for the children to immediately engage with the recommended therapist.
Other potential risks to the children in the care of the father are discussed at some lengths at [203], [206] and [210]. In summary the expert was of the view that such risks could be managed, in particular if the children were to receive appropriate therapeutic support.
As discussed earlier, the expert was of the view that the paternal grandmother had a good capacity to provide for the children’s needs and as such agreed that the proposal that the children live with her pending judgment was appropriate and in the children’s best interests.
As previously discussed, although the expert had some small concerns about the level of naivety of the father’s partner, she did not identify any matters of significant concern in relation to the partner’s capacity to meet the children’s needs.
There can be no dispute that each of the parents love the children and want the best for them. The father maintained a position for a long time in the proceedings that it was in the children’s best interests to remain living with the mother. His forbearance in the face of very serious allegations about his conduct and his persistence in ensuring that the children’s time with him was as enjoyable as possible shows a commendable attitude to the responsibilities of parenthood. This is especially so, as the children’s time with him was supervised and limited and on most occasions did not involve two of the children.
I agree with the assessment of the expert that for a long period of time after the allegations first arose the mother continued to be responsible in ensuring that the children enjoyed a relationship with both parents. After the interim orders were made, the mother’s inability or unwillingness to ensure that two of the children received the benefits of spending time with the father and the attitude displayed by her to the effect that young children could dictate the terms of their relationship with the father could be characterised as demonstrative of a poor attitude to the responsibilities of parenthood.
I also agree that the mother’s continued opposition for some time to supervised time occurring in the father’s home (until he sought orders for this to occur), her ceasing the children’s time with him in late 2021, and her continuing to either question the children directly or through her parents about their ongoing allegations despite the clear opinion of the expert in this regard, also raise questions about her attitudes towards the responsibilities of parenthood.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Both parents live a short distance from one another and each of the final suite of orders proposed by the parties would be able to be implemented without any practical difficulty. There is some expense involved in the father’s proposed orders (supported by the ICL) as he proposes that the children’s time with the mother is to be supervised for three months. Although it is clear from the mother’s case that she questioned the need for supervision she did not contend that the cost would be prohibitive or otherwise substantially affect the children’s rights to have direct contact with her on a regular basis.
On both the father and ICL’s proposal the paternal grandmother would continue to remain living in the father’s home with the children for a few months prior to the children transitioning to the father’s sole care. Both the paternal grandmother and the father indicated that they were ready, willing and able for such an arrangement to be implemented.
As touched upon earlier, I consider that there may be real practical difficulty in the mother facilitating the children to transition to the father’s care each week if orders are made for an equal shared care arrangement given she was unable to have two of the children at the ages of seven and nine spend time with the father as ordered.
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Despite the challenges in relation to the children’s behaviour, it is notable that they all appear to be doing reasonably well at school within their abilities and have engaged in a range of extracurricular activities. Although the eldest child has been diagnosed with ADHD and the younger child W with ASD these conditions appear to have been appropriately managed by the mother and there seems no reason to consider that they will not continue to be appropriately managed by the father.
The children’s paternal grandmother has the heritage of one of the countries of Country N. Although questions were asked of the father about whether there are particular traditions associated with that culture practiced within his household he was unable to identify the same. Nothing further is known about the culture and traditions of the children and either parent.
Family violence relating to the children or a member of the children’s family
This matter has been dealt with when considering the findings sought by the mother and the second of the primary considerations.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
In my view, it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children given the length of the dispute between the parties and the significant instability to which the children have been exposed. The proposal of the mother (in the event that I do not make a finding of unacceptable risk posed by the father as is the case) is in my view the most likely to lead to further proceedings. As explained earlier, I consider that the mother will encounter real difficulties in having the children transition to the father’s care each week under the equal shared care arrangement she proposes which raises the likelihood that contravention proceedings will be initiated in the future to ensure compliance with the court orders.
Other matters of relevance
Reasons for the Interim Orders
At the time that the interim orders were made when the evidence was complete, most of the matters just outlined when considering each of the best interests considerations were known from all of the evidence that had been adduced in the proceedings. The only outstanding matters to be considered at that stage were the factual findings sought by the parties. It was understood at that stage that the mother was seeking a finding in relation to the unacceptable risk of harm that she contended was posed by the father in relation to sexual abuse.
Having regard to the expert’s expertise and experience (and particularly in relation to child sexual abuse) I was minded at the completion of her evidence to attach significant weight to her opinion both in respect to final orders and the proposed interim arrangement. Neither party had challenged the factual basis upon which the expert expressed her opinion and the expert was quite firm in relation to her views about the risks to the children under the parenting arrangement then in place especially having regard to recent matters that had come to light and as final judgment was not likely to be delivered for a number of months.
So far as the primary considerations are concerned, the expert had real concerns about two of the children having not spent time with the father for over 12 months and the risk this posed to the sustainability of their meaningful relationships with him. She was also clear about the harms to the children should these relationships continue to be disrupted.
So far as the need to protect the children from harm was concerned, as noted, I had not made any findings at that stage about the alleged domains of harm of the type contemplated in the second of the primary considerations. Of particular significance in relation to the father’s interim proposal is that he did not seek to have the children live with him at that stage and proposed that the children’s time with both him and the mother be supervised on an interim basis. In this way, his proposal had adequate safeguards to protect the children from harm regardless of the findings and assessments of risk that I ultimately may be made.
For the same reasons given when considering final orders, the views of the children were not a matter to which I attached weight when considering the interim proposal.
The most salient matters in relation to the children’s best interests when considering the father’s interim proposal (and the mother’s proposal for the status quo to remain) was the likely effect of a change in the children’s circumstances and the capacity of each parent and any other person to provide for the children’s needs. All of the matters previously referred to in this regard were known at that stage and were equally applicable to the father’s interim proposal.
Additional matters I was required to consider in relation to the father’s interim proposal were the period in which he proposed that the children spend no time with the mother, and that when the children’s time with her did commence that it be supervised. Having heard the evidence of the expert, I was satisfied that it was in the children’s best interests for both these orders to be made as sought.
The particular needs of the children to receive therapeutic support for the significant change in their circumstances and transition to the care of their paternal grandmother was also a matter to which the expert attached great weight. The proposal of the father supported by the ICL as initially formulated would not have seen the children receive this support immediately. After it was made clear in an interchange between counsel and myself that in accordance with the evidence of the expert this therapeutic intervention was immediately required, an order in these terms was made.
The expert had also been quite clear she considered that as the children’s concern about their mother was likely to be heightened if the interim orders were made as sought, arrangements should be made for the children to meet with the mother and their half-brother and for there to be some communication during the period in which they spent no time with her to reassure them that she was all right. An order which provided for this arrangement was also made as part of the suite of interim orders.
Conclusion
Parental Responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[24] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[24] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The last four years in which the parents have been in dispute clearly demonstrate their incapacity to make decisions for the children jointly. Other than very few occasions they have not demonstrated their capacity to engage in effective communication and the levels of trust between them is extremely low. These circumstances have meant, most unfortunately, that significant decisions made following separation have not necessarily been beneficial for the children and in some cases have caused significant harm.
The parents have also shown that they are unable to reach agreement over seemingly minor matters such as that the children’s time with the father could occur at his home. Many other disputes such as the nomination of an appropriate therapist required significant involvement of lawyers and the ICL. Further, the way in which the parties, and in particular the mother, ran her case (seeking a finding of actual abuse and contending that the children’s conduct in the late 2021 video arose from circumstances for which the father was responsible) has resulted in any vestiges of communication, trust and cooperative decision-making between the parents being swept away.
The foregoing matters do not auger well for future timely and effective joint decision making between the parents. Accordingly, I am satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them. In my view it is in the children’s best interests for the parent with whom they are to live to hold sole parental responsibility.
Living arrangements
Having regard to all of the foregoing best interests considerations, with particular weight being attached to the two primary considerations and to the capacity of each of the parents to meet the children’s needs, I was satisfied that it was in the best interests of the children to make the interim orders on 30 March 2022
Having determined the factual disputes been the parties and once again applying the best interests considerations I am satisfied that the final orders proposed by the father and supported by the paternal grandmother at final hearing (with some minor exceptions and amendments), are proper and in the best interests of the children.

I certify that the preceding five hundred and eleven (511) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 21 October 2022

‘Child abuse’ as defined in ss 4(1)(a)-(b) of the FLA include a “sexual assault” of a child or
a person (the first person) involving a child in 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 in the relationship between the child and the first person.

File number(s):	PAC 5215 of 2019
Judgment of:	HANNAM J
Date of judgment:	21 October 2022
Catchwords:	FAMILY LAW - Final parenting - Where mother concerned about the possibility that father sexually abused one of the children based on child’s disclosures and sexualised conduct - Where mother also alleges father perpetrated family violence - Where Court does not consider it necessary to resolve the parties’ dispute concerning family violence or to make a finding in relation to this matter as sought by the mother - Where several issues identified with the development of eldest child’s disclosures, their nature and the context in which they were made over time - Where expert expressed concern about the mother’s ability to set appropriate boundaries for the children in her home - Where proximal influences such as the children’s exposure to inappropriate media in mother’s home most likely contributes to the children’s ongoing sexualised behaviour - Where Court is not satisfied that father abused the children or any of them sexually or in any other manner in the past - Where Court attaches weight to expert opinion that there are more psychological risks to the children remaining in the mother’s care than with the father - Where questions are raised about mother’s attitude towards the responsibilities of parenthood due to her opposition to the children having a relationship with the father - Where parents demonstrate a clear incapacity to make decisions for the children jointly - Orders made in accordance with the father’s proposal that the father hold sole parental responsibility for the children and that the children live with the him and spend time with the mother initially supervised and gradually increasing to unsupervised alternate weekends.
Legislation:	Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 61DA, 65D, 65DAC
Cases cited:	Godfrey & Sanders [2007] FamCA 102 Goode & Goode (2006) FLC 93-286 Isles & Nelissen [2022] FedCFamC1A 97 M & M (1988) 166 CLR 69 Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405
Division:	Division 1 First Instance
Number of paragraphs:	511
Date of hearing:	7, 9-10, 28-30 March and 14 April 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Grew
Solicitor for the Applicant:	Coleman Greig Lawyers
Counsel for the First Respondent:	Ms Ingenito
Solicitor for the First Respondent:	Gilbert & Partners
Solicitor for the Second Respondent:	Litigant in person
Counsel for the Independent Children's Lawyer:	Mr Maddox
Solicitor for the Independent Children's Lawyer:	John Spence & Associates

PAC 5215 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SIMMONS Applicant
AND:	MS SIMMONS First Respondent MS MEOLI Second Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	21 OCTOBER 2022